author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Kevin L. LOGAN, Appellant.
    No. 46,966-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.
    Douglas L. Harville, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Brian H. Barber, Jordan B. Bird, Kenya Ellis, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, WILLIAMS, and MOORE, JJ.
   BROWN, Chief Judge.

|,After taking a 2002 Acura from its owner without paying the agreed-upon purchase price, defendant, Kevin L. Logan, was arrested and charged with theft. Following a jury trial, defendant was found guilty of felony theft, a violation of La. R.S. 14:67, and was sentenced to 10 years’ imprisonment with credit for time served. The state then filed a habitual offender bill charging defendant as a second felony offender. As part of a plea agreement on the habitual offender bill, defendant pled guilty as charged and received an agreed-upon sentence of 15 years’ imprisonment at hard labor without benefit of probation or suspension of sentence. Defendant has appealed his conviction. We affirm.

Discussion: Sufficiency of the Evidence

According to defendant, the state failed to establish two essential elements of the charged offense. First, the state failed to present sufficient evidence to prove that defendant took the vehicle without Allyson Jennings’ consent or by means of fraudulent conduct, practices or representations. Defendant next argues that the state failed to prove that he acted with the intent to permanently deprive Mrs. Jennings of her vehicle.

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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (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. Carter, 42,894 (La. App£d2 Cir.01/09/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086.

La. R.S. 14:67 as it read at the time of the offense provided in part that:

(A) Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
(B)(1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.

Based upon the direct and circumstantial evidence present, we find that there was sufficient evidence presented from which the jury could have found defendant guilty of felony theft.

On March 30, 2009, defendant took possession of a 2002 Acura owned by Allyson and Drew Jennings, with their permission, based upon his claims that he would transfer $8,500 as payment for the vehicle into Mrs. Jennings’ credit union account. Once the funds were not transferred, Mrs. Jennings called defendant requesting return of the car until she received payment of the purchase price. At that point, defendant’s consent to drive/use the Jennings vehicle was rescinded. Despite telling Mrs. Jennings that he would return the car, defendant did not do so. Instead, he | ¡¡blocked Mrs. Jennings’ cell and home numbers from his cell phone and avoided further contact with her.

Several days later, defendant registered the 2002 Acura in his name in Texas, using the original title to.the vehicle that had “disappeared” from the office of the credit union loan officer. The loan officer testified that defendant was the only person in her office just before the title disappeared from an open file on her desk.

As stated, defendant presented the same title to register the vehicle in his name in Texas. The detective investigating the case obtained copies of the title presented in Texas for the vehicle’s registration. It was identified as the title removed from the loan officer’s desk. At the time that defendant registered the vehicle in Texas, he still had not tendered payment for the car. Defendant blocked Mrs. Jennings’ calls to his cell phone once she discovered that payment had not been made. Defendant evaded all further contact with Mrs. Jennings after she asked that he return the car until the purchase price had been paid. At that time, her consent for defendant to have the automobile was revoked and his possession was no longer lawful. Further, registering the title in his name in Texas was evidence to show that he took the title from the loan officer’s desk and manifested an intent to permanently deprive Mrs. Jennings of her vehicle. Clearly the state met its burden of proving beyond a reasonable doubt the elements of felony theft. This assignment of error is without merit.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.

      . La. R.S. 14:67 as amended in 2010 (effective August 15, 2010) increased the values for the various grades of theft.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    Dana E. RUSHING and Tammy Lemons Rushing, Plaintiffs-Appellants v. Donald Ray GLOVER, Laura Kathryn Cox Glover and Beusa Energy, Inc., Defendants-Appellees.
    No. 46,980-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      Claire P. Sharp, Wayne E. Webb, Shreveport, LA, for Appellants, Dana E. Rushing and Tammy Lemons Rushing.
    D.Scott Brown, Mansfield, LA, Nicholas E.Gasper, for Appellees, Donald R. Glover and Laura Kathryn Cox Glover.
    Before STEWART, GASKINS and DREW, JJ.
   STEWART, J.

_[iPlaintiffs-Appellants, Dana E. Rushing and Tammy Lemons Rushing (hereinafter collectively “Rushing”), are appealing a judgment rendered in favor of Defendants-Appellees, Donald Ray Glover, Laura Kathryn Cox Glover and Beusa Energy, Inc. (hereinafter collectively “Glover”). For the following reasons, we affirm.

FACTS AND BACKGROUND

Glover owned a 17.399-acre tract of land, a 25.38-acre tract of land, and a 7.30-acre tract of land, in DeSoto Parish. On August 13, 2001, Rushing entered into two leases with the option to purchase in order to acquire these tracts of land from Glover.

The first lease with the option to purchase (“option # 1”) covered the 17.399-acre tract of land and the 25.38-acre tract of land. Option # 1 expired on March 1, 2003, and if exercised, the purchase price would be $100,000.00. If the sale was completed by credit sale deed, Rushing would be required to pay a $10,000.00 deposit at closing and finance the balance over a period of ten years. The parties executed a credit sale deed on August 30, 2002, whereby Rushing purchased the 25.38-acre tract of land only, for $125,583.34. This credit sale deed included the following language regarding mineral rights:

VENDORS herein reserve all the oil, gas and other like minerals located in, on or under the above described property-

The second lease with the option to purchase (“option # 2”) covered the 7.30-acre tract of land. Option #2 expired on March 1, 2003. If it was exercised, the purchase price would be $39,000.00, with credit for money previously paid as lease payments. The parties executed a land purchase |2contract on August 30, 2002, whereby Rushing was required to pay $3,500.00 on or before August 31, 2003, and make 48 consecutive monthly payments on a loan owed by Glover to Progressive National Bank. After these payments were made, title to the property would pass to Rushing.

Before the parties signed the land purchase contract, Glover realized that the document did not include a mineral reservation. The clause, “Don Glover to maintain all mineral rights for 10 years,” was handwritten at the bottom of the second page. All parties were present when this clause was added.

On April 10, 2006, Rushing fulfilled all of her obligations pursuant to the land purchase contract. To effectuate the transfer of ownership, the parties executed a donation inter vivos. Again, Glover noticed, prior to signing, that the document did not include a mineral reservation. The clause, “Don and Laura Glover retains all mineral rights,” was handwritten at the bottom of each page of the donation inter vivos. Glover then signed it and gave it to Rushing so that it could be filed in the conveyance records. On April 12, 2006, Rushing filed the land purchase contract and donation inter vivos with the DeSoto Parish Clerk of Court.

Rushing filed suit, requesting that the court order the parties to be bound by the terms and conditions of option # 1 and option # 2. They also requested that the court find that Glover committed fraud, rendering the mineral reservations invalid.

IsAfter finding that Rushing mistook the option for a contract to sell, the trial court ruled in favor of Glover. Rushing now appeals, asserting two assignment of error.

LAW AND DISCUSSION

Standard of Review

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989), eiting Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Before reversing the fact finder’s determination, the appellate court must review the entire record and conclude from it (1) that a reasonable factual basis does not exist for the finding of the trial court, and (2) that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Id.

Option # 1 and Option # 2

In the first assignment of error, Rushing alleges that the trial court erred in determining that the terms of option # 1 and option #2 did not affect the subsequent agreements. More specifically, Rushing alleges that when the credit sale deed, land purchase contract, and donation inter vivos were |4executed, she was exercising her option to purchase. Rushing notes that option # 1 and option # 2 did not contain a mineral reservation, and disagrees with Glover’s testimony that he always intended on keeping the minerals and even discussed this with her on numerous occasions.

The Civil Code provisions concerning agreements preparatory to the sale are set forth in Articles 2620 et seq. An option to buy, or an option to sell, is a contract whereby a party gives to another the right to accept an offer to sell, or to buy, a thing within a stipulated time. An option must set forth the thing and the price, and meet the formal requirements of the sale it contemplates. La. C.C. art. 2620. The acceptance or rejection of an offer contained in an option is effective when received by the grantor. Upon such an acceptance the parties become bound by a contract to sell. La. C.C. art. 2621.

An option is nothing more than an elective right that, when exercised, ripens into a binding contract to buy and sell. Monroe Real Estate & Development Co., Inc. v. Sunshine, 35,555 (La.App. 2 Cir. 1/23/02), 805 So.2d 1200; Major Commodity Corp. v. Cunningham, 555 So.2d 525 (La.App. 4 Cir.1989). In order to invoke a salé under an option to buy, not only must the option to buy be evidenced by a written instrument but the unqualified acceptance thereof must be evidenced in writing, giving full recognition and in accordance with the terms and conditions of the proposal, and formally exercised and tendered to the proposer prior to the expiration date of the stipulated time. Id.

IfiAs stated in the facts section above, option # 1 involved the 17.399-aere tract of land and the 25.38-acre tract of land. According to its terms, if Rushing exercised this option by March 1, 2003, the purchase price would be $100,000.00, with a $10,000.00 payment required at closing and the balance financed over a period of ten years. Option # 1 did not contain a reservation of mineral rights. Rushing did not exercise this option, since she chose to enter into a credit sale deed with Glover for the 25.38-acre tract only, excluding the 17.399-acre tract. Pursuant to the credit sale deed, the purchase price for the 25.38-acre tract of land was $125,000.00, and required a $8,700.00 down payment and monthly installments of $1,485.00 to be completed in 30 months. Option # 1 and the credit sale deed are distinguishable, since the credit sale deed excluded the 17.399-acre tract of land, had a different purchase price, and had different terms and condition. More importantly, the credit sale deed included language regarding a mineral reservation, while option # 1 did not. Since the credit sale deed is not in accordance with option # 1, it does not qualify as an acceptance of it.

Option # 2 covered the1 7.30-acre tract of land. If Rushing exercised this option by March 1, 2003, the purchase price would be $39,000.00, with continued monthly payments over a period of ten years. Option # 2 did not contain a reservation of mineral rights. Rushing did not exercise option # 2, since the parties executed a land purchase contract, with different. terms and conditions, on August 30, 2002. In accordance with option # 2, Rushing was required to pay $3,500.00 on or before August 31, 2003, and make 48 consecutive monthly payments on a loan owed by Glover to Progressive |f,National Bank. After these payments were made, title to the property would pass to Rushing. The land purchase contract, as well as the donation inter vivos, included a handwritten clause expressing that Glover retained the mineral rights to the 7.30-acre tract of land. The land purchase contract is not in accordance with option #2. As a result, it is not an acceptance.

Rushing did not present evidence of written acceptance of either of the options. The credit sale deed, land purchase contract, and donation inter vivos transferring ownership cannot be viewed as an acceptance, since they are not in accordance with the terms and conditions of option # 1 and option # 2. Since these options to purchase were never exercised, Glover had the right to enter into a new contract on different terms, as the case here.

The trial court did not err in determining that Rushing did not have a claim to the mineral rights of the 25.38 and 7.30-acre tracts of land in dispute, since she was not exercising her option to purchase. Therefore, this assignment is without merit.

Fraud

In the second assignment, Rushing asserts that the trial court erroneously determined that Glover did not commit fraud. Rushing lists several instances supporting this assertion, including the following:

1. Glover wanted a “handshake” deal.
2. Rushing was inexperienced, since she had never purchased real estate.
3. Glover gave the Rushing the “run around” regarding financing the property.
4. The documents themselves reveal a clear pattern of fraud.
|75. The only document containing a “typed” provision reserving minerals is the credit sale deed, which relates to the 25.38-acre tract of land.

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction. La. C.C. art. 1953. Fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience or special skill. La. C.C. art. 1954. Fraud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence. La. C.C. art. 1957.

The testimony and evidence presented do not prove that Glover committed fraud. As stated above, jurisprudence has established that where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel its own evaluations and inferences are as reasonable. See Rosell v. ESCO, supra.

At trial, Glover testified that the handwritten clause was added to the land purchase contract, and the donation inter vi-vos several years later, in Rushing’s presence. Due to Glover’s conscious effort to review the land purchase contract and the donation inter vivos prior to signing them, he recognized that they lacked a mineral reservation, and he took the necessary steps to rectify the situation. After Glover signed, Rushing performed the duty of recording these documents.

IsRushing indicated that she hired an attorney to draft option # 1 and # 2, so it is unclear why she chose not to hire an attorney to review the documents related to the purchase of these tracts of land. Glover relayed his intentions regarding the mineral reservation orally, as well as in writing. Rushing was given the opportunity to object to the mineral reservation, and to read the relevant documents prior to signing them. Further, she had the opportunity to hire an attorney to review the documents. Had Rushing read these documents, she would have noticed that pursuant to the land purchase contract, she was agreeing to make the monthly payments on the loan currently owed by Glover, and that Glover inserted a mineral reservation.

After reviewing the record, we find that Rushing could have easily “ascertained the truth.” Rushing’s assertion that she is inexperienced in various areas of the law, along with her failure to seek legal counsel, is not a valid claim to reverse the trial court’s judgment denying her claim to the mineral rights to the 25.88 and 7.30-acre tracts of land. This assignment of error is without merit.

CONCLUSION

The judgment of the trial court is affirmed. Costs are assessed against Plaintiff-Appellant Rushing.

AFFIRMED.


text:
    Carolyn SCRANTON, Christine Odom and Rachelle Hester, Plaintiffs-Appellants v. ASHLEY ANN ENERGY, L.L.C., Chesapeake Operating, Inc., Calvin Beasley and Lydia Gunn, Defendants-Appellees.
    No. 46,984-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.
    Rehearing Denied May 10, 2012.

      Wall, Bullington & Cook, LLC, by Guy E. Wall, Sara M. Lewis, Hammond Law Firm by Peirce A. Hammond, II, New Orleans, LA, for Plaintiffs-Appellants.
    Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, New Orleans, LA, by Paul K. Colomb, Jr., Kenneth M. Klemm, for Defendants-Appellees.
    Cook, Yancey, King & Galloway, Shreveport, LA, by Herschel E. Richard, Jr., Megan E. LeBato, for Defendant In-Re-convention/Appellee, H.F. Sockrider, Jr.

      Fred H. Sutherland, for Intervenors-Appellees, Geneva Williams and H.F. Sockrider, Jr.
    Before BROWN, DREW, and LOLLEY, JJ.
   BROWN, Chief Judge.

| plaintiffs, Carolyn Scranton, Christine Odom and Rachelle Jones, appeal a trial court decision dismissing their reconven-tional demand alleging acts of legal malpractice as being perempted against their former attorney, defendant in reconvention, H.F. Sockrider Jr. For the reasons set forth herein, we reverse.

Facts and Procedural History

Plaintiffs, Carolyn Scranton, Christine Odom and Rachelle Jones, residents of California, each inherited, inter alia, an undivided one-fourth of an undivided one-third interest in 206.33 acres, more or less, of land in Bossier Parish, Louisiana from the estate of Henry Jefferson.

In 2008, Chesapeake Operating, Inc. (“Chesapeake”), hired Ashley Ann Energy L.L.C. (“Ashley Ann”), a lease broker, to obtain mineral leases for Chesapeake covering acreage believed to be productive from the Haynesville Shale. Lydia Gunn, a landman employed by Ashley Ann, negotiated mineral leases from defendant, H.F. Sockrider, covering his personal property as well as several of his neighbors. During this time, defendant attempted to bring together the largest number of lessors possible in order to obtain more favorable terms for the landowners. One of his neighbors involved, Dorothy Butler, had inherited from the estate of Henry Jefferson and assisted defendant in locating other heirs with mineral interests, including plaintiffs. Butler sent plaintiffs a letter dated August 18, 2008, advising that she had retained defendant to represent her in securing a lease for her interest in the property from the Jefferson estate and that | ¿plaintiffs should do the same. ' Sock-rider provided Butler with retainer contracts to include with her letter.

On August 25, 2008, defendant had Gunn prepare and sign a letter to plaintiffs outlining the agreement he had negotiated prior to being retained by plaintiffs. Ashley Ann, on behalf of Chesapeake, agreed to make a bonus payment of $20,000 per mineral acre as well as one-fourth royalty rate for a three-year lease with a two-year option. The letter also noted that Ashley Ann had agreed to pay each lessor “95% percent of your interest and Mr. Sockrider 5% of your interest” in the bonus payment. Defendant mailed the letters to plaintiffs, who then signed and returned his retainer contracts.

Defendant felt it necessary to obtain a judgment of possession from the succession in order to lease plaintiffs’ mineral interests. Plaintiffs obtained the judgment of possession on October 1, 2008, but the following day Gunn informed defendant that Chesapeake had instructed Ashley Ann to cease making further leases. On October 6, 2008, Sockrider met with Calvin Beasley, owner of Ashley Ann. Beasley agreed that he would honor the original agreement and would have Gunn complete the leases and payments to the heirs. Gunn later confirmed to defendant the terms of the agreement, with the modification that the bonus payments to plaintiffs would be deferred until January 15, 2009. On October 8, 2008, Beasley signed and sent each plaintiff a lease agreement. In an October 9, 2008, letter to plaintiffs, Gunn explained “this agreement commits you to lease your mineral interests with Ashley Ann Energy, and it commits Ashley Ann Energy to execute the lease and make your bonus payment.”

laBefore plaintiffs received the lease agreements to sign and return, Gunn telephoned each on October 13 and 14, 2008, instructing them to “tear up the agreement” when it arrived and “that Chesapeake would not be able honor the 01/15/09 commitment.” Defendant advised plaintiffs that their agreements with Ashley Ann were binding and any attempts to revoke the agreements orally were ineffective. He further instructed plaintiffs to sign the agreements and have their signatures notarized. Plaintiffs complied with these instructions, and on October 28, 2008, defendant recorded the agreements in the conveyance records of Bossier Parish. On October 30, 2008, defendant delivered the agreements to Ashley Ann.

Sockrider wrote to Beasley on October 30, 2008, and December 3, 2008, making amicable demand that Ashley Ann and Chesapeake honor their commitments to plaintiffs. Beasley made no response to these demands, and no payment was made to plaintiffs or defendant on January 15, 2009. Defendant then wrote to plaintiffs on January 30, 2009, asking whether they wished to pursue legal action to enforce the agreements “which were orally revoked, but not revoked in writing.” On February 4, 2009, plaintiffs wrote to Sock-rider agreeing to sue Chesapeake and Ashley Ann and requesting that he recommend two attorneys with oil and gas experience to handle the suit. While plaintiffs dispute whether defendant made a timely recommendation, in July 2009, they hired attorneys Peirce Hammond and Guy Wall to represent them in the lawsuit.

|40n October 1, 2009, plaintiffs filed suit against Ashley Ann, Chesapeake, Beasley and Gunn alleging a breach of the August 25, 2008, letter and the agreements to lease, as well as intentional and negligent misrepresentation. On November 13, 2009, Sockrider filed a petition of intervention in the suit seeking recovery of the 5% payment due to him under the agreement to lease. On February 4, 2010, plaintiffs filed their self-styled “Plaintiff’s Exception, Answer, Affirmative Defenses and Reconventional Demand to Petition of Intervention.” Therein, plaintiffs claimed that defendant had committed multiple acts of legal malpractice. Specifically, they alleged that:

Sockrider was negligent in his representation of plaintiffs by failing to negotiate and obtain for plaintiffs an enforceable agreement by defendants to pay plaintiffs a mineral lease bonus, by failing to notify plaintiffs promptly and timely of all offers, by failing to accept promptly and timely offers made by Ashley Ann and/or Chesapeake and by other acts of negligence to be shown at trial.

They also alleged that defendant was negligent in recording plaintiffs’ agreements to lease in the conveyance records of Bossier Parish, thereby clouding their title and hampering their ability to obtain a new mineral lease. On February 3, 2011, defendant filed a peremptory exception of peremption and/or prescription arguing that plaintiffs’ claims were untimely.

|sThe trial court held a hearing on defendant’s exception on May 2, 2011, and on May 10, 2011, the court sustained the exception and dismissed with prejudice all of plaintiffs’ claims against Sockrider. Holding that plaintiffs’ claims had perempted, the court reasoned that:

[I]n mid-October 2008 or January 15, 2009, at the latest, plaintiffs had constructive knowledge — that is, enough information to excite attention, place them on guard and call for reasonable inquiry, all as set forth by law — that either the companies had violated their duties or their counsel had violated his, or both.

The court also rejected plaintiffs’ argument that La. C.C.P. art. 1067 served to extend the prescriptive or peremptive period under La. R.S. 9:5605 for their claim. Thereafter, plaintiffs filed this timely appeal.

Discussion

Plaintiffs make several assignments of error on appeal. The primary issue we must address is not the merits of plaintiffs’ malpractice claims, but rather whether those claims have perempted under law. Therefore, we must first examine the trial court’s finding that the peremptive period for plaintiffs’ claims began in “mid-October 2008 or January 15, 2009, at the latest.”

Peremption of Legal Malpractice Claims

The party raising an exception of prescription or peremption ordinarily bears the burden of proof at the trial of a peremptory exception. McKinley v. Scott, 44,414 (La.App.Cir.2d 07/15/09), 17 So.3d 81, 83. However, when prescription is evident from the face of the pleadings, the plaintiff bears the burden of showing the action has not prescribed. Id. When evidence is introduced at the hearing on the peremptory exception, the factual conclusions of the district court are reviewed under the manifest error-clearly wrong standard of review. McGuire v. Mosley Rogers Title Co. L.L.C., 43,554 (La.App.2d Cir.09/17/08), 997 So.2d 23, 28, writ denied, 08-2728 (La.01/30/09), 999 So.2d 757. La. R.S. 9:5605 governs claims for legal malpractice in Louisiana. A straightforward reading of the |7statute provides that an action for legal malpractice must be brought within one year of the date of the act, omission, or neglect, or within one year of discovering the act, omission, or neglect and within three years of the date of the act, omission, or neglect. La. R.S. 9:5605; Jenkins v. Starns, 11-1170 (La.01/24/12), 85 So.Sd 612. The date of discovery from which prescription or per-emption begins to run is the date on which a reasonable person in the position of the plaintiff has, or should have, either actual or constructive knowledge of the damage, the delict, and the relationship between them sufficient to indicate to a reasonable person he or she is the victim of a tort and to state a cause of actions against the defendant. Teague v. St. Paul Fire and Marine Ins. Co., 07-1384 (La.02/01/08), 974 So.2d 1266; Campo v. Correa, 01-2707 (La.06/21/02), 828 So.2d 502.

The trial court held that plaintiffs had constructive knowledge of their claims against defendant either when Gunn telephoned to tell them to tear up the lease agreements or after no payment was made on January 15, 2009. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Teague, supra at 1276. However, a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Id. at 1275; Beach v. Continental Casualty Co., 09-108 (La.App. 3d Cir.06/03/09), 11 |8So.3d 715. Further, the supreme court in Teague, 974 So.2d at 1278 cautioned:

Knowledge of a bad result does not necessarily include knowledge of the cause or reason of the bad result. Although the bad result is part of the overall malpractice equation, most often the reason or cause of the bad result constitutes the actual act of malpractice. To hold that peremption commences from the date of the knowledge of a bad result would precipitate lawsuits unnecessarily to preserve rights. An investigation might prove the absence of any malpractice or that the result was not caused by the defendant’s negligence. Rather, we find it is the knowledge of the cause or reason for the undesirable result that commences the running of peremption when such knowledge is not self-evident from the bad result. (Emphasis added).

In the case sub judice, plaintiffs had neither actual nor constructive knowledge of the existence of any substandard legal practice and had no evidence to connect the adverse outcome, failure by Chesapeake to make bonus payments, with acts of alleged legal malpractice by their attorney. Defendant never suggested that his actions may have had some effect on plaintiffs’ ability to obtain a bonus payment. Instead, defendant advised plaintiffs that Chesapeake and Ashley Ann were in breach of the August 25, 2008, agreement as well as the agreements to lease. The record reveals that the only communication plaintiffs received from Ashley Ann and Chesapeake was on October 13 and 14, 2008, when they were telephoned by Gunn who told them that Chesapeake would not be able honor its agreement. This occurred, according to a February 13, 2009, letter from ^defendant to plaintiffs, not because of any mistake on his part but rather because Chesapeake was “financially broke” and “simply telling their attorneys to drag everything out as long as they can” in an attempt to eventually renegotiate their contracts.

Defendant further instructed plaintiffs to complete the agreements to lease following Gunn’s phone call, because, as he explained to plaintiffs, under Louisiana law such an offer must be revoked expressly rather than orally. Plaintiffs followed his counsel, and defendant made amicable demand upon Ashley Ann in October 2008 to honor the lease agreements, which denoted January 15, 2009, as the date bonus payments would be made. A thorough review of the record discloses that there was no evidence of malpractice made available to plaintiffs from either Ashley Ann and Chesapeake or defendant. Plaintiffs did not discover any acts of malpractice until they were revealed by virtue of an investigation into the matter by other counsel who had mineral law experience. Plaintiffs had no knowledge of Louisiana mineral law. The only issue of which plaintiffs had evidence was that a bad result occurred, that Chesapeake did not honor its agreement.

| ¶ (/Therefore, the record lacks sufficient evidence to hold that plaintiffs had knowledge of the cause or reason for the undesirable result of not receiving their bonus payment. Plaintiffs reasonably relied on the alleged erroneous advice of their attorney, Sockrider, and did not gain constructive knowledge of the damage, delict and the relationship between the two until July 2009 when they retained new counsel to pursue the breach of contract claim.

Plaintiffs also claim that they were damaged by defendant’s recordation of the agreements to lease on October 28, 2008, which placed a cloud on the title, stymieing their ability to obtain a new lease. The trial court held that recordation of the leases was “a matter of public record and constituted notice to the plaintiffs, their lawyers, all landmen, mineral companies, and the world.” This is clear error. Whether the world knew of the recordation is not relevant as to plaintiffs’ knowledge that this was an act of malpractice. There is no evidence in the record that plaintiffs were even aware that leases had been recorded in October 2008. More importantly, they did not discover the damage, the delay in being able to secure a new lease, until their new counsel attempted to secure a new lease and informed them of the impediment. Plaintiffs, therefore, had no reason to call for inquiry while being represented by Sockrider. The date of discovery for this separate cause of action occurred, at the earliest, when plaintiffs retained new counsel in July 2009.

Because the bad result was not self-evident of the malpractice involved, we find peremption did not begin to run until July 2009 when | ^plaintiffs hired new attorneys. Their claims for legal malpractice were therefore not perempted as of February 4, 2010, when the reconventional demand was filed and would not have per-empted until July 2010.

Finally, there is an issue of plaintiffs’ claims for so-called “pre-hiring acts of negligence” by defendant. Specifically, they argue that Sockrider dictated the terms of the August 25, 2008, letter from Gunn to plaintiffs and that he mailed it anonymously to plaintiffs. They claim this was a misrepresentation and fraudulent inducement to sign retainer contracts. Defendant did not reveal that he had asked Gunn to write, sign and hand over the letter for him to mail to plaintiffs on August, 25, 2008, until his December 2, 2010, deposition.

Defendant argues that all of his actions prior to plaintiffs signing their retainer contracts on September 9, 2008, were done on behalf of his clients and potential clients. He notes that his “actions in negotiating the agreement with Gunn arose out of an engagement, by Dorothy Butler, to provide legal services in the interest not only Dorothy Butler, but also the plaintiffs.” The record reveals that Butler sent plaintiffs letters on August 18, 2008, suggesting they retain Sock-rider. There is no evidence that Butler hired defendant to represent plaintiffs. Notwithstanding the validity of these claims, plaintiffs did not discover that it was defendant who had sent the letter until his December 2, 2010, deposition. Further, as there was no attorney-client relationship at the time the letter was prepared and sent, La. |iaR-S. 9:5605 does not govern the cause of action. Therefore, these claims were not perempted or prescribed as of the February 4, 2010, pleading.

Status of Plaintiffs’ Reconventional Demand

Addressing whether defendant’s intervention triggered a suspension of per-emption or whether the intervention served to extend or revive a perempted claim, the trial court ruled that plaintiffs’ claim against defendant was in the nature of a cross-claim rather than a reconven-tional demand. We note that every pleading shall be so construed as to do substantial justice. La. C.C.P. art. 865. The caption of the pleading does not control; the court is obligated to determine the substance of the pleading. Smith v. Cajun Insulation Inc., 392 So.2d 898 (La. 1980); Steed v. St. Paul’s United Methodist Church, 31,521 (La.App.2d Cir.02/24/99), 728 So.2d 931, writ denied, 99-0877 (La.05/07/99), 740 So.2d 1290. Having already found that peremption would not occur in this case until July 2010, we need not address the trial court’s ruling on this issue. A cross-claim, likewise a reconventional demand, was not perempted at the time plaintiffs filed their pleading.

Plaintiffs urge also that the trial court erred in ruling that under the circumstances of this case, an incidental demand does serve “to extend the | ;s90-day period envisioned by La. C.C.P. art. 1067; further, the exception of prescription and per-emption set forth in article 1067 [sic] does not revive a perempted claim.” For the same reasons as above, we need not address the effect of La. C.C.P. art. 1067 on plaintiffs’ demand as plaintiffs’ claims had not yet perempted.

Admissibility of Defendant’s Pretnal Deposition

Finally, plaintiffs argue that the trial court erred in not allowing the December 2, 2010, deposition of defendant into evidence at the trial on the peremptory exception. Plaintiffs’ counsel attempted to introduce the deposition into evidence following his examination of defendant at the hearing on the exception. He wished to introduce the deposition because it would give “a complete overview of the case.” The trial court denied the request to admit the deposition, reasoning that there was no impeachment purpose for admitting the deposition. The trial court opined that “Mr. Sockider was called to the stand, he was examined by Mr. Richard on direct examination and then was cross examined in some detail by Mr. Wall as to the issues that are relevant to the peremptory exception.”

The trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed on appeal absent a clear abuse of that discretion. Wimberly v. Giglio, 46,000 (La.App.2d Cir.01/26/11), 57 So.3d 389; Graves v. Rivenvood Intern. Corp., 41,810 (La.App.2d Cir.01/31/07), 949 So.2d 576, writ denied, 07-0630 (La.05/04/07), 956 So.2d 621. On appeal, the court must consider whether the complained of ruling was | Herroneous and whether the error affected a substantial right of the party. If not, reversal is not warranted. Id.

La. C.C.P. art. 1450 which governs the use of depositions under these circumstances provides, in pertinent part:

A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.
(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Article 1442 or 1448 to testify on behalf of a public or private corporation, partnership, or association, or governmental agency which is a party may be used by an adverse party for any purpose.

While some circuits have construed this statute to allow a party to admit the deposition of an adverse party for any purpose, this court has traditionally construed this provision more strictly. Orea v. Scallan, 32,622 (La.App.2d Cir.01/26/00), 750 So.2d 488. The provision creates discretion in the trial court to refuse to admit into evidence the discovery deposition of an adverse part when it is repetitious of matters contained in the record. Simms v. Progressive Ins. Co., 38,804 (La.App.2d Cir.09/29/04), 883 So.2d 473, writ denied, 04-2871 (La.01/28/05), 893 So.2d 78; Orea, supra.

Here, the trial court denied admitting the December 2, 2010, deposition into evidence because there was no impeachment purpose, rejecting plaintiffs’ general overview purpose. The record reveals that 1^plaintiffs’ counsel was given ample opportunity to examine defendant. Further, defendant testified generally to all the issues contained within the deposition. Therefore, we find no error in the trial court’s decision to exclude the deposition testimony.

Peremptory Exception — No Cause of Action

On appeal, defendant for the first time raises a peremptory exception of no cause of action, asking that plaintiffs’ claims of alleged pre-hiring acts of negligence against him be dismissed with prejudice. Defendant argues that plaintiffs failed to plead facts alleging acts of negligence prior to his being retained by them. Defendant also argues, in the alternative, that if plaintiffs were not clients when they allege he made a misrepresentation, namely the August 25, 2008, letter from Gunn, and fraudulently induced them to sign retainer agreements, then he owed no duty to plaintiffs. Therefore, he avers, plaintiffs fail to establish a cause of action against him under tort principles. Plaintiffs argue that sufficient facts were pled and that the pleadings have been expanded by other evidence. They request that should this court find in favor of defendant, they should be allowed to amend their pleading to state a cause of action for general negligence.

The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Ramey v. DeCaire, 03-1299 (La.03/19/04), 869 So.2d 114; Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993). A cause of action, in the context of a peremptory exception, is defined as the operative facts that give rise to the plaintiffs’ right to judicially assert an action against a defendant. Id. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Ramey, supra.

The record reveals that nowhere in the February 4, 2009, pleading reconvening against defendant did plaintiffs allege that he made a misrepresentation by anonymously sending the letter. They failed to allege facts of any acts of pre-hiring negligence but rather only alleged acts of legal malpractice. These negligent pre-hiring acts were not alleged until plaintiffs filed their memorandum in opposition to defendant’s original peremptory exception of prescription and/or peremption. Defendant correctly notes that they responded to these claims as being “far beyond the scope of the pleadings” in their reply to plaintiffs’ memorandum in opposition.

However, the Supreme Court has held “[i]f there are two or more items of damages or theories of recovery which arise out of the operative facts of a single transaction or occurrence, a partial judgment on an | ^exception of no cause of action should not be rendered to dismiss one item of damages or theory of recovery.” Everything on Wheels Subaru, Inc., 616 So.2d at 1239. Here, plaintiffs argue that they offer multiple theories of recovery, namely, one being in legal malpractice and the other in general negligence which both concern the August 25, 2008, letter.

When it is reasonably possible, the court should maintain the petition against the peremptory exception no cause of action so that the litigant is afforded the opportunity to have his or her day in court to present evidence. Arledge v. Hendricks, 30,588 (La.App.2d Cir.06/26/98), 715 So.2d 135, unit denied, 98-2015 (La.11/20/98), 728 So.2d' 1287. Further, La. C.C.P. art. 934 provides that when the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.

The trial court made no specific ruling regarding the substantial nature of any pre-hiring acts of negligence, but instead focused only on whether the claims had perempted and the procedural status of plaintiffs’ demand. Plaintiffs failed to allege sufficient facts in their reconventional demand to support a cause of action for general negligence against defendant in their February 4, 2010 pleading. The peremptory exception of no cause of action is sustained. However, as defendant only now for the first time raises a peremptory exception of no cause of action regarding | iSthese claims, we grant plaintiffs’ request to amend their pleading, pursuant to La. C.C.P. art. 934, to allege sufficient facts to state a cause of action for general negligence against defendant.

Conclusion

For the reasons set forth above, the judgment of the trial court is reversed. Defendant’s peremptory exception of no cause of action is sustained, but plaintiffs are granted leave to amend their original petition. This case is remanded for further proceedings not inconsistent with this opinion. Costs of appeal are assessed against appellee, H.F. Sockrider Jr.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

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

Rehearing denied.

      . Geneva Williams inherited the remaining one-fourth interest in the one-third interest in the 206.33 acres, but is not a party to the present legal malpractice claims.

      . Defendant wrote to plaintiffs on August 5, 2009, explaining that he and Geneva Williams had selected the late Dewey Burchett to represent them. He advised that plaintiffs could terminate their present counsel and retain Burchett. Defendant attached the necessary paperwork to do so with his letter.

      . Geneva Williams also intervened with Sock-rider.

      .After having the recordation cancelled on April 25, 2010, plaintiffs were able to agree to lease their mineral interests to Petrohawk Properties, LP, for a bonus payment of $7,500.00 per mineral acre with a one-fourth royalty rate.

      . The trial court opined that "Williams and Sockrider did not name plaintiffs as defendants in intervention and therefore the plaintiffs could not procedurally file a reconven-tional' demand against Sockrider." The trial court further noted that rather than being a reconventional demand "plaintiffs’ claim on this incidental demand leg of this lawsuit is in the nature of a cross-claim.”

      . We note that the trial court granted the peremptive exception before a resolution was reached on the merits of the breach of contract claim.

      . The Supreme Court has articulated a two-part test for the reversal of a fact finder’s determinations: 1.) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2.) the appellate court must further determine that the finding is clearly wrong (manifestly erroneous). Stobart v. State Through Dept. of Transp. and Development, 617 So.2d 880 (La. 1993). 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 evidence differently. Id.

      .La. R.S. 9:5605 provides, in pertinent part:
      A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
      B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

      . In Stains, supra, the supreme court held that a plaintiff in that case had constructive knowledge of malpractice when she received notice of a bad result, notice of a default judgment, and she contacted her attorney who then informed her he had made a mistake and would try to fix it. The supreme court in Teague, supra, held a plaintiff did not have constructive knowledge of malpractice from a bad result, which was a case settlement, where the plaintiff's attorneys concealed their negligence which caused the bad result.

      . Defendant maintained to plaintiffs that his course of action was legally correct and that it was Ashley Ann and Chesapeake who were in breach. Plaintiffs received no explanation from Ashley Ann or Chesapeake as to why the company would not be able to honor its commitments.

      .The ultimate issue is the reasonableness of the person’s action or inaction, in light or his education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct. Campo, supra, (While addressing an action for medical malpractice, this analysis was adopted by the supreme court in relation to legal malpractice claims in Teague, supra and Jenkins, supra.) Carolyn Scranton is a retired clerical worker. Christina Odom worked as police dispatcher. Rachelle Jones was a self-employed event planner.

      . A relationship of client and lawyer arises when a person manifests to lawyer the person’s intent that the lawyer provide legal services for the person. In re Austin, 06-0630 (La. 11/29/06), 943 So.2d 341. The existence of an attorney-client relationship turns largely on the client’s subjective belief that it exists. Id.; Louisiana State Bar Ass’n v. Bosworth, 481 So.2d 567 (La.1986). Plaintiffs did not sign retainer contracts with defendant until September 9, 2008.

      . A party by petition may assert as a cross-claim a demand against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action. La. C.C.P. art. 1071.

      . An appellate court may consider a peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for decision, and if proof of the ground of the exception appears of record. La. C.C.P. art. 2163. Consideration of such an exception is discretionary with the appellate court. Southern States Masonry, Inc. v. J.A. Jones Const. Co., 507 So.2d 198 (La. 1987); Turner v. State, Dept. of Highways, 137 So.2d 456 (La.App. 2d Cir. 1962).

      . Their demand stated:
      Sockrider was negligent in his representation of plaintiffs by failing to negotiate and obtain for plaintiffs' an enforceable agreement by defendants’ to pay plaintiffs’ a mineral lease bonus, by failing to notify plaintiffs promptly and timely of all offers, by failing to accept promptly and timely offers made by Ashley Ann and/or Chesapeake and by other acts of negligence to be shown at trial.

      . The mo.dern trend of liberality in upholding substantive rights instead of subtle technicalities is to allow amendment to petitions that fail to state a cause of action due to insufficient allegations. Giron v. Housing Authority of City of Opelousas, 393 So.2d 1267 (La.1981); Douglas v. Haro, 214 La. 1099, 39 So.2d.744 (La. 1949).


author: SEXTON, Judge Pro Tem.

text:
    Matthew L. POWELL, Plaintiff-Appellant v. J & R ENTERPRISES-SHREVEPORT, LLC, Defendant-Appellee.
    No. 47,013-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.
    Shuey Smith, LLC, Shreveport, LA, by Richard E. Hiller, for Appellant.
    Ayres, Warren, Shelton & Williams, L.L.C., Shreveport, LA, by Curtis R. Shelton, for Appellee.
    Before MOORE, LOLLEY <& SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

| plaintiff Matthew Powell appeals the trial judge’s ruling that he is not entitled to specific performance of a contract to purchase his cabin on Camp Joy Road in Haughton, Louisiana, by J & R Enterprises-Shreveport, L.L.C. (“J & R”). The trial judge found that Powell’s failure to deliver to J & R a Property Disclosure Document as required by La. R.S. 9:3198 precludes him from seeking specific performance of the contract. For the following reasons, we affirm.

FACTS

Powell and his wife, Kathy, each owned and was selling a cabin on Camp Joy Road in Haughton. Kathy hired a real estate agent, but Powell did not. Kathy’s agent “helped” Powell, but there was no listing agreement on Powell’s cabin. On April 3, 2008, the parties executed a Louisiana Residential Agreement to Buy or Sell (“contract”) in which Powell agreed to sell and J & R agreed to purchase Powell’s cabin for the consideration of $16,000. The contract specifically waived any action claiming redhibitory defects. The sale was “AS IS,” without warranties. J & R also had a contract to purchase Kathy’s cabin. Ultimately, J & R closed the sale on Kathy’s cabin, but refused to close on Powell’s cabin.

Powell filed the instant suit for specific performance of the contract and J & R answered, arguing that it was not allowed to inspect the cabin within the allotted time in the contract; and, when it did finally inspect the cabin, there were significant redhibitory defects.

However, the parties had contracted out of redhibition. The contract gave the buyer five days from the date of the contract to inspect the ^premises. If not, that right was said to be waived. J & R’s representative and president, Ms. Dhali-wal-Davis, did not inspect the premises within the period set out by the contract. The record indicates that she first saw the premises a few days before the sale was to take place. She found a number of things wrong with the property and said she did not want it.

The trial judge concluded that J & R waived any warranties by the agreement to purchase the cabin “AS IS” and could not vitiate the terms of the contract based on the condition of the cabin since it was in substantially the same condition at the time of the proposed closing as it was at the execution of the contract.

Significantly, however, the trial judge noted that Powell had failed to provide to J & R a property disclosure document as required by La. R.S. 9:3198, which provides in pertinent part:

B. (1) The seller shall complete the property disclosure document in good faith to the best of the seller’s belief and knowledge as of the date the disclosure is completed and signed by the seller. If the seller has no knowledge or information required by the disclosure document, the seller shall so indicate on the disclosure statement and shall be in compliance with this Chapter.
(2) The seller shall deliver or cause to be delivered the completed and signed property disclosure document to the purchaser no later than the time the purchaser makes an offer to purchase, exchange, or option the property or exercises the option to purchase the property pursuant to a lease with an option to purchase.
(3)(a) If the property disclosure document is delivered to the purchaser after the purchaser makes an offer, the purchaser may terminate any resulting real estate contract or withdraw the offer no later than seventy-two hours, excluding federal and state holidays and weekends, after receipt of the property disclosure document. Notwithstanding any other agreement between the purchaser and seller, if the purchaser terminates a |sreal estate contract or withdraws an offer in accordance with this Chapter, the termination or withdrawal of offer is without penalty to the purchaser and any deposit or earnest money shall be promptly returned to the purchaser.
(b) Any rights of the purchaser to terminate the real estate contract provided by this Chapter are waived if not exercised prior to transfer of title or occupancy, whichever is earlier, by the purchaser in the case of a sale or exchange, or prior to the transfer of title in the case of a purchase pursuant to a lease with option to purchase.
(c) A transfer subject to this Chapter is not invalidated solely due to the failure of any person to comply with this Chapter.
(d) The provisions of this Chapter shall not affect any other rights of a purchaser to terminate a real estate contract for reasons other than those set forth in this Chapter.

Relying on subsection B(2) of the statute, the trial judge noted that the requirement of providing a property disclosure document is mandatory and is not waived by any language in the contract. Had J & R gone through with the purchase and transfer in the absence of a property disclosure document, it would have waived the requirement as provided in section B(3)(c), but the closing never took place. The trial judge concluded, therefore, that Powell was not entitled to specific performance of the contract. This appeal by Powell ensued. We note this appears to be the first occasion this statute has been interpreted.

DISCUSSION

It is undisputed that Powell failed to provide J & R with a property disclosure document as required by The Louisiana Residential Property Disclosure Act, La. R.S. 9:3198(B), supra. The issue on appeal is what is the effect of such failure of a seller of real estate to comply with the mandatory requirement of the statute.

14Questions of law, such as the proper interpretation of a statute, are reviewed under the de novo standard of review. Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 06-0582 (La.11/29/06), 943 So.2d 1037.

The principles of statutory construction are well settled. Words and phrases must be read with their context and construed according to the common and approved usage of the language. La. R.S. 1:3. “The word ‘shall’ is mandatory and the word ‘may’ is permissive.” Id.; McGlothlin v. Christus St. Patrick Hosp., 10-2775 (La.7/1/11), 65 So.3d 1218. Every word, sentence or provision in a law is presumed to be intended to serve some useful purpose, that some effect is given to each such provision and that no unnecessary words or provisions were employed. McGlothlin, supra, citing Colvin v. Louisiana Patient’s Compensation Fund Oversight Bd., 06-1104 (La.1/17/07), 947 So.2d 15, and Moss v. State, 05-1963 (La.4/4/06), 925 So.2d 1185.

A statute must be “applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intention the Legislature had in enacting it.” Holly & Smith Architects, Inc., supra. Courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause or word as meaningless and surplusage if a construction giving force to and preserving all words can legitimately be found. McGlothlin, supra.

La. R.S. 9:3198(B)(2) is clear and unambiguous. The provision is mandatory and requires that the seller complete a property disclosure document and provide it to the buyer. Thus, we agree with the trial judge Lthat the failure of the seller to provide the disclosure form provided for in the Property Disclosure Act allows the purchaser to terminate the contract or withdraw the offer. In addition, as J & R notes, the statute allows the purchaser 72 hours from receipt of the property disclosure document to terminate the contract or withdraw the offer. Further, subsection B(3)(a) provides that, if a purchaser terminates the contract or withdraws an offer in accordance with the statute, the termination or withdrawal is without penalty to the purchaser. Finally, subsections (B)(3)(b) and (c) clearly set forth that the only way a purchaser waives the right to terminate the contract or withdraw an offer is when the transfer of title or occupancy occurs despite the seller’s failure to provide a property disclosure document. Therefore, J & R was legally entitled to terminate the contract and/or withdraw its offer to purchase Powell’s cabin at any time before Powell provided a property disclosure document and within 72 hours thereafter.

We conclude by considering Powell’s argument that the legislature’s failure to include a penalty provision in the statute for a seller’s failure to provide the purchaser with a property disclosure document indicates that the legislature purposefully intended that there be no consequence to a seller for failing to provide the document. Powell further urges that the purchaser should not be allowed to rely on the statute to support withdrawing an offer to purchase when the purchaser changes his or her mind.

Extending Powell’s lack of penalty argument to its logical conclusion yields an absurd result. The policy behind the statute is to protect purchasers and to encourage full disclosure by sellers of known conditions [fiof immovable property. If there were no consequence to the seller’s failure to provide the property disclosure document, then the purchaser would be bound by the offer, but not afforded the seller’s knowledge of the current condition of the property. If so, whether or not to comply with the mandatory requirement of the statute to disclose the known current condition of the property would be at the seller’s whim. This surely was not the intent of the legislature. Rather, we conclude that the intended consequence of the seller’s failure to provide the property disclosure 17document is the purchaser’s continued right to terminate the contract or withdraw the offer until such disclosure is made or in accordance with the terms of the contract.

Since Powell failed to comply with the statute, we find no error in the trial judge’s ruling that he is not entitled to specific performance of the contract.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of J & R Enterprises-Shreveport, L.L.C. and dismissing the claims of Matthew L. Powell is affirmed. Costs of appeal are assessed to Matthew L. Powell.

AFFIRMED.

      . It would appear that the redhibition statutes, La. C.C. art. 2520, et seq., and the Louisiana Property Disclosure Act, La. R.S. 9:3195-99, cover the same subject where sales of real estate not exempted by the Disclosure Act are concerned. Of course, the Property Disclosure Act deals with a seller’s duty prior to sale to inform the buyer of "known” defects of which the seller is aware. The redhibitory articles deal with a buyer's remedy where defects are discovered after the sale.
      C.C. art. 2520 warrants the buyer against redhibitory defects. This article defines a redhibitory defect as one that renders a thing useless or its use so inconvenient that it must be presumed the buyer would not have bought the thing had he known of the defect. The remedies are either rescission of the sale or reduction of the price. The seller has no obligation with respect to defects that were known to the buyer or defects that could have been discovered by a reasonably prudent buyer. These have been described as non-apparent defects rendering the thing useless or so inconvenient that a buyer would not have bought the thing if he had known of them. It is also described as a physical defect or deformity lacking a necessary component of quality. Pioneer Valley Hosp., Inc. v. Elmwood Partners, L.L.C., 01-453 (La.App.5th Cir. 10/17/01), 800 So.2d 932.
      Apparent defects have also been said to be those discoverable by a reasonably prudent buyer through simple inspection. Such inspection is more than casual observation and requires an examination of the thing. Spraggins v. Lambeth, 42,693 (La.App.2d Cir. 12/5/07), 973 So.2d 165.
      In any real estate transaction not exempted by the act, La. R.S. 9:3198, in clear and mandatory terms, requires the seller to give to the buyer, no later than the time of the offer, a real estate disclosure form listing all known defects. Clearly, the statute contemplates that the disclosure form would be provided to the buyer during the period of negotiations prior to an offer; but, if the buyer does not provide the form at least at the time of the offer, it should be provided prior to the act of sale, at which time the buyer has 72 hours, exclusive of holidays and weekends, to back out. La. R.S. 9:3198(B)(3)(a).
      We observe that the form put together by the Louisiana Real Estate Commission, as directed by the statute, asks for disclosure of certain apparent items, certain non-apparent items and some which the homeowner would likely not know. Also, there are some which are readily discoverable from the public records. Some of these might well be considered minor and not subject to redhibition unless they were numerous. Aucoin v. Southern Quality Homes, L.L.C., 07-1014 (La.2/26/08), 984 So.2d 685. These redhibition articles and the Louisiana Residential Property Disclosure Act should be read in para materia and be interpreted harmoniously where possible. La. C.C. art. 13. Where statutes do conflict, however, the more specific and later expression of the legislative will is to be paramount. McGlothlin, supra.

      Clearly, the Louisiana Residential Property Disclosure Act, to the extent that it might conflict with the redhibition articles, is the later and more specific expression. We do not find any conflicts and simply observe the possibility thereof.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Don BLANCHE, Appellant.
    No. 47,015-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      Thomas C. Damico, Baton Rouge, LA, for Appellant.
    Jerry L. Jones, District Attorney, J. Michael Ruddick, Assistant District Attorney, for Appellee.
    Before MOORE, LOLLEY and SEXTON (Pro Tempore), JJ.
   MOORE, J.

|TThe defendant, Don L. Blanche, was convicted of obstruction of justice and sentenced to five years’ imprisonment at hard labor to be served consecutive with the sentence imposed for defendant’s previous attempted .manslaughter conviction and any other sentences the defendant is obligated to serve. The defendant now appeals. For following reasons, we affirm.

FACTS

The defendant was charged by bill of information with one count of possession of phencyclidine (“PCP”), a Schedule I controlled dangerous substance and one count of obstruction of justice allegedly committed on May 30, 2009. The matter came on for trial before a six-person jury on June 29, 2010, where the following facts were established.

On May 30, 2009, the defendant was stopped by Officer Thomas Burlow of the Monroe Police Department in the 3800 block of Owl Street in Monroe, Louisiana. The vehicle, driven by Chesire Powell, failed to come to a complete stop at a stop sign. Officer Burlow testified that in addition to Powell, he recalled two other occupants, one sitting in the front passenger seat and one in the rear compartment. Assisting Officer Burlow during the stop as backup was Officer Michael Freeman who approached the vehicle from the rear passenger side.

As he approached, Freeman could see a “More” cigarette “partially wrapped with a zigzag” sitting in the lap of the rear passenger, whom Freeman subsequently identified as the defendant. Knowing that More cigarettes are commonly used for dipping in and smoking PCP, Freeman asked the defendant to exit the vehicle. As the defendant started to get out, | ^Freeman observed the defendant grab the More cigarette from his lap and throw it onto the front seat. Freeman found the cigarette on the floorboard of the front passenger seat and retrieved it. The zigzag wrapper appeared to be wet and the cigarette had an odor which Freeman associated with PCP. Freeman then placed the defendant under arrest.

The cigarette was given to Paul Knight, a detective with the Metro Narcotics Unit of the Ouachita Parish Sheriffs Office who had been called to the scene. Knight testified that the officers on the scene provided him two cigarettes, one a partially burned More cigarette and the other a hand-rolled cigarette, both of which he sealed in an evidence envelope and secured in an evidence locker until he transferred them to the Northeast Louisiana Crime Lab. At the crime lab, the evidence was tested by Susan Foley, a forensic chemist, who determined the evidence contained phencycli-dine or PCP.

The defendant testified that the vehicle had four occupants, including a second passenger in the rear compartment. He stated that the vehicle came to a stop “about a few whatever inches or miles or whatever” after the police activated their lights. When the officer came up to his window and shined a flashlight on his lap, he first noticed the More cigarette sitting there. He said the driver threw the cigarette into his lap while he was looking towards the rear at the police unit which was pulling them over. The defendant testified that he brushed the cigarette out of his lap causing it to land in the front passenger compartment. Explaining how the act of brushing the cigarette caused it to fly into the front passenger compartment, the ^defendant asserted that the driver was extremely overweight and had his seat reclined all the way back.

The defendant testified that, after exiting the vehicle, he asked the officer to smell his hands, but the officer refused. Asked why he made that request, defendant indicated that his hands would have smelled of PCP if he had been handling the cigarette. Asked how he knew the cigarette was - laced with PCP, defendant gave two differing explanations: first he asserted that the officer had stated as much but subsequently -stated that he had been able to smell the PCP after the officer retrieved the cigarette from the front passenger compartment.

Officer Freeman returned to the stand on rebuttal and was asked whether what he observed the defendant do with the cigarette was a “brushing off motion.” Freeman answered in the negative and when asked to again describe what he observed he stated:

Mr. Blanche was sitting straight up and I asked him to exit the vehicle. I didn’t say anything about the cigarette sitting on him because I didn’t want to alarm him. He leaned forward as he was stepping out, grabbed it, threw it in the front as he stepped out of the vehicle.

Freeman stated that the defendant was then put on the ground, placed in handcuffs and secured in Officer Burlaw’s patrol unit. It was only then that the vehicle was searched. Freeman denied that the cigarette was ever shown to or handled around the defendant.

The jury returned a verdict of not guilty on the charge of possession of a Schedule I CDS and a verdict of guilty on the charge of obstruction of justice. The court ordered a presentence investigation and sentencing was ^scheduled for May 9, 2011.

During the sentencing hearing, the trial court noted the defendant’s social and educational history reflected in the PSI, but focused its attention primarily on the defendant’s lengthy criminal background. The court detailed this history which, excluding the conduct that formed the basis of the instant conviction, included arrests in 1993 for second degree assault, in 1995 for misdemeanor carrying of a weapon without a permit and fleeing from an officer, in 1997 for attempted second degree murder, in 1998 for possession of cocaine, in 2003 for armed robbery, in 2006 for attempted second degree murder and possession of a firearm by a convicted felon, and in 2009 for possession of PCP, the last of which occurred while the instant charges were pending. These arrests resulted in convictions for misdemeanor carrying of a weapon without a permit, possession of cocaine, misdemeanor theft of goods, attempted manslaughter and possession of a firearm by a convicted felon. Defendant’s 1997 arrest for attempted second degree murder and his 2010 conviction for attempted manslaughter both involved victims who were shot by the defendant. The court also noted that many of the defendant’s arrests for new criminal conduct occurred while he was on probation from a prior conviction.

The court acknowledged that maximum sentences should be reserved for the worst offenders. Noting, however, that the defendant’s 17-year pattern of criminal behavior, the increasing severity of the crimes committed, the leniency previously afforded defendant by prosecutors dismissing serious charges and the defendant’s prior repeated failure to ^satisfactorily complete prior probationary periods, the court concluded the defendant qualified as the type of offender for whom maximum sentences are reserved. The court then sentenced the defendant to five years at hard labor to be served consecutive to the defendant’s sentences imposed for the defendant’s convictions for attempted manslaughter and possession of a firearm by a convicted felon. A motion to reconsider sentence arguing only bare excessiveness was filed on May 11, 2011, and denied at a hearing conducted on May 26, 2011. The instant appeal-followed.

DISCUSSION

By his first assignment of error, the defendant alleges that the evidence presented at trial was insufficient to sustain the conviction for obstruction of justice. Specifically, he argues that the state failed to offer proof of the defendant’s specific intent to distort the results of a criminal investigation. He contends that the jury “clearly believed” his testimony that he was unaware that the cigarette was thrown on his lap and, accordingly, his act of brushing the unidentified item out of his lap was insufficient to prove intent to interfere with a police investigation.

The state argues that the officer’s testimony as to the defendant’s actions was sufficient proof that the defendant knowingly possessed the cigarette and attempted to conceal it from the officers when he was asked to step out of the vehicle.

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 | Belements 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.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App. 2 Cir. 1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. 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.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La. App. 2 Cir. 2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App. 2 Cir. 5/9/07), 956 So.2d 758, twit denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases 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 viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299.

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. Speed, supra; State v. Allen, 36,180 (La.App. 2 Cir. 9/18/02), 828 So.2d 622, units denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). 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. Gullette, 43,032 (La.App. 2 Cir. 2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App. 2 Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Davies, 35,783 (La.App. 2 Cir. 4/05/02), 813 So.2d 1262, writ denied, 2002-1564 (La.5/9/03), 843 So.2d 389, citing La. R.S. 14:10(1); State v. Ellis, 28,282 (La.App. 2 Cir. 6/26/96), 677 So.2d 617, writ denied, 96-1991 (La.2/21/97), 688 So.2d 521.

| ^Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. R.S. 14:10(1); State v. Draughn, 2005-1825 (La.1/17/07), 950 So.2d 583, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377. See also State v. Allen, 41,-548 (La.App. 2 Cir. 11/15/06), 942 So.2d 1244, writ denied, 07-0530 (La.12/07/07), 969 So.2d 619. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Hill, supra. In reviewing the correctness of such a determination, the court should review the evidence in a light most favorable to the prosecution and must determine if the evidence is sufficient to convince a reasonable trier of fact of the guilt of the defendant beyond a reasonable doubt as to every element of the offense. Jackson v. Virginia, supra; State v. Hui-zar, supra.

Defendant was charged under La. R.S. 14:130.1(A)(1) which defines obstruction of justice as follows:

A. The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as hereinafter described:
(1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance either:
(a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers; or
j9(b) At the location of storage, transfer, or place of review of any such evidence.

Application of law to facts:

Presumably, the defendant’s argument that the jury clearly believed his testimony about how the cigarette ended up in his lap stems from the fact that he was found not guilty on the possession charge. While this conclusion is one plausible explanation for the jury’s verdict, it is not the one to be drawn when viewing the evidence in a light most favorable to the prosecution. The “not guilty” verdict could just as likely reflect the jury’s belief that the cigarette did not belong to the defendant but that he had placed it in his lap to help cover for the driver, the person most likely to interact with officers during a traffic stop.

Furthermore, this scenario is the only logical explanation for the defendant’s testimony that it was the driver who threw the cigarette in his lap. Defendant could not have been aware both that the driver threw the cigarette in his lap and unaware that it was in his lap until illuminated by the officer.

The jury’s verdict most likely reflects their belief that the cigarette was not his but that he was aiding others to conceal it from officers. Given the officer’s testimony regarding the defendant’s conduct and the defendant’s own testimony regarding the source of the POP laced cigarette, a rational trier of fact could reasonably have concluded beyond a reasonable doubt that the defendant was attempting to disrupt a criminal investigation.

| inThis assignment is therefore without merit.

By his second assignment of error, the defendant contends that the trial court imposed an excessive sentence considering the circumstances of the crime and the facts of the PSI. Specifically, he argues that the court erred in finding him to be a worst offender by failing to consider mitigating circumstances such as a childhood head injury which caused him to suffer cognitive difficulties, and the fact that his behavior did not cause or threaten any serious harm. Defendant also argues that the trial court’s consideration of prior arrests which did not result in prosecution or conviction was inappropriate under State v. Shields, 614 So.2d 1279 (La.App. 2 Cir. 1993) because there was no corroborating proof that he had committed the crimes.

- The state argues that the defendant’s criminal history, including his continued criminal activity while pending charges on other offenses, justifies the maximum sentence.

La. C. Cr. P. art. 881.1 applies to defendant’s sentence. This article precludes the defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. Since defendant’s motion for reconsideration merely alleged that the sentence is excessive, under State v. Mims, 619 So.2d 1059 (La.1993), he is “simply relegated to having the appellate court consider the bare claim of excessiveness.” This bare claim preserves only a claim of constitutional excessiveness, Mims, supra; State v. Lofton, 41,423 (La.App. 2 Cir. 9/27/06), 940 So.2d 702, unit denied, 2006-2952 (La.9/28/07), 964 So.2d 359.

_j_uA 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.1/14/03), 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.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379.

In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Pamilton, 43,112 (La.App. 2 Cir. 3/19/08), 979 So.2d 648, unit denied, 2008-1381 (La.2/13/09), 999 So.2d 1145; State v. Boyte, 42,763 (La.App. 2 Cir. 12/19/07), 973 So.2d 900, writ denied, 2008-0175 (La.6/20/08), 983 So.2d 1272. The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Doyle, 43,438 (La.App. 2 Cir. 8/13/08), 989 So.2d 864.

In State v. Shields, supra, this court held the trial court’s reliance on prior arrests which did not result in prosecution or conviction was | ^inappropriate in the absence of a showing, by a preponderance of the evidence, of actual guilt of the offenses. This holding reflected the court’s interpretation of sentencing guidelines in effect at that time.

The jurisprudence in Louisiana prior to the implementation of the sentencing guidelines and after their repeal has been that in sentencing a defendant a court may consider prior arrests, and suspicions of criminal activity (hearsay) without actual proof the defendant committed other offenses. State v. Hatter, 338 So.2d 100 (La.1976); State v. Doyle, supra; State v. Estes, 42,093 (La.App. 2 Cir. 5/9/07), 956 So.2d 779; State v. Anderson, 30,060 (La. App. 2 Cir. 10/29/97), 702 So.2d 40.

The sentencing range applicable to the defendant’s conduct is provided for in La. R.S. 14:130.1(B)(3) which reads:

When the obstruction of justice involves any other criminal proceeding, the offender shall be fined not more than ten thousand dollars, imprisoned for not more than five years, with or without hard labor, or both.

In the instant case, the defendant alleged only bare excessiveness. Accordingly, he is precluded from complaining of inadequate compliance with La. C. Cr. P. art. 894.1 and is limited to review of the bare claim that the sentence is constitutionally excessive. State v. Mims, supra; State v. Crow, 42,173 (La.App. 2 Cir. 6/20/07), 960 So.2d 1173; State v. George, 39,772 (La.App. 2 Cir. 7/1/05), 908 So.2d 79.

Given the defendant’s extensive criminal history involving both drug related and violent offenses committed over a 17-year span, the defendant’s five-year sentence for the instant offense is not excessive. It is not grossly out of proportion to the seriousness of the offense and does not shock the 113sense of justice.

Furthermore, despite defendant’s failure to preserve the issues for appeal, his arguments regarding the trial court’s failure to consider mitigating circumstances and improper consideration of his criminal history are without merit. While the trial court’s oral reasons for sentencing imply it gave no weight to the lack of serious harm caused by defendant’s conduct, this factor does not mitigate the seriousness of the offense. Obstruction of justice under La. R.S. 14:130.1(A)(1), the defendant’s crime of conviction, is highly unlikely to threaten serious harm under any circumstances and that factor is reflected in the sentencing range prescribed for the offense. Regarding the defendant’s alleged cognitive difficulties resulting from a childhood fall, the evidence of same was non-existent. The defendant merely self-reported that he had problems in school because the injury “messed up his head.”

As indicated above, the trial court did not err in considering the defendant’s arrest history even in the absence of corroborating evidence of guilt. At no point during the sentencing procedure did defense counsel object to the judge’s reference to the presentence investigative report, nor was defendant denied an opportunity to prove the report erroneous.

This assignment is without merit.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.