author: PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Dwan A. SUMMERS.
    No. 2010-KA-0341.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee.

      Kevin V. Boshea, Kevin V. Boshea, Attorney at Law, Metairie, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR.).
   PATRICIA RIVET MURRAY, Judge.

|,In this criminal case, the defendant, Dwan A. Summers, appeals his conviction and sentence for indecent behavior with a juvenile, a violation of La. R.S. 14:81. For the reasons that follow, we affirm.

STATEMENT OF THE CASE

On December 8, 2004, Mr. Summers was charged by bill of information with indecent behavior with a juvenile. On February 24, 2005, he was arraigned and pled not guilty. A preliminary hearing was held, and the trial court found probable cause. On August 7, 2007, Mr. Summers waived his right to a jury trial, and a bench trial was held. At trial, the State introduced testimony from three witnesses — the investigating officer, Detective Stephen Brunelle; the minor victim, L.W.; and the victim’s mother, Mrs. W. Mr. Summers did not call any witnesses. Following closing arguments, the trial court found Mr. Summers guilty as charged. On January 10, 2008, the trial court sentenced Mr. Summers to six years at hard labor. On September 29, 2009, Mr. Summers filed a motion for an out of time appeal, which was granted. This appeal followed.

i statement of the facts

On June 28, 2004, Detective Brunelle, who was assigned to the New Orleans Police Department’s Sex Crimes Unit, investigated the charges underlying this matter. He interviewed L.W., Mrs. W., and several witnesses. L.W. was able to articulate that something inappropriate happened the night before at the sleepover she attended and that the perpetrator’s first name was “Dwayne” or “Dwan.” Detective Brunelle arranged for L.W. to undergo a sexual assault exam, which turned up no evidence. Although L.W. indicated to Detective Brunelle that she suffered some spotting of blood in her underwear on the morning following the incident, the medical reports indicated that no evidence of blood was found.

Mrs. W. indicated to Detective Brunelle that she knew the perpetrator and that she had spoken with him on the telephone on several occasions. Mrs. W. provided Detective Brunelle with the perpetrator’s cell phone number. After receiving the perpetrator’s cell phone number, Detective Bru-nelle obtained a subpoena duces tecum directed to Sprint. Sprint provided him with the perpetrator’s name (Dwan Summers) and date of birth (December 16, 1973). Armed with this information, Detective Brunelle prepared a six-person photographic lineup, which included Mr. Summers’ photograph. He then presented the line-up to L.W. at her home. L.W. immediately identified Mr. Summers’ photograph as belonging to the perpetrator, signed the back of his photograph, and wrote on the back of his photograph the following statement: “He touched me without permission. He likes to play young girls.” L.W. indicated to | ¡¡Detective Brunelle that she knew Mr. Summers from the neighborhood but that she knew only his first name. Following the victim’s positive identification of Mr. Summers, Detective Brunelle prepared an arrest warrant.

Mrs. W. (L.W.’s mother) identified her daughter’s birth certificate, which established that L.W. was born on October 30, 1990. Mrs. W. testified that on June 27, 2004, her daughter and two other girls wanted to have a sleep-over at her twenty-one year old niece’s apartment. Her niece’s husband was scheduled to depart soon to Iraq, and her niece planned for the girls to rent some movies and to order some pizzas. According to Mrs. W., it was her daughter’s first sleep-over. Mrs. W. explained that L.W.’s father had died three and one-half months earlier, and she was trying to get L.W. out of her shell.

Mrs. W. testified that her niece picked up her daughter that afternoon, and she next saw her daughter around noon the next day. At that time, Mrs. W. had some guests over. L.W. kept going in and out of the apartment. Mrs. W. asked L.W. what was wrong. L.W. eventually asked her mother to come outside to talk. L.W. then began crying and told her mother that Mr. Summers had come over to the sleep-over and inappropriately touched her. This conversation occurred approximately forty minutes after L.W. returned from the sleep-over. Mrs. W. then called 911.

Thereafter, the police arrived at Mrs. W.’s home and spoke with her and her daughter. Mrs. W. accompanied L.W. to the hospital for the sexual assault exam. Mrs. W. acknowledged that she knew the perpetrator from the neighborhood. Mrs. |4W. testified that the perpetrator called her home before the police arrived. Mrs. W. characterized the substance of the phone call as follows:

“He was just telling me that he was sorry for what had happened and everything and he said that he had been drinking and smoking all night and he said that he really thought [L.W.] was his girlfriend and that he was sorry. Whatever he could do to show me how sorry he was, and he was telling me that he needed help.”

On cross-examination, Mrs. W. stated that she had never heard any complaints concerning the perpetrator’s behavior with young people before this incident. Mrs. W. also testified that she had no way of knowing whether her daughter had come into contact with any other boys during the sleep-over.

L.W. testified that she recalled the underlying incident, which occurred on June 27, 2004, when she was thirteen. She recalled that her cousin had called that day and asked if she and several friends would like to come to her house for a sleep-over. According to L.W., she had spent the night at her cousin’s house several times in the past. On the night of the sleep-over, L.W. and her friends ate and watched television. Sometime between 10:00 p.m. and 11:30 p.m. the girls decided to go to sleep. L.W. and one friend decided to sleep in the living room, while the other girls decided to sleep in a back room. L.W. testified that some time after she went to sleep she heard a doorbell ring. Her cousin answered the door. L.W. could hear her cousin speaking with two men. L.W. recognized the voices as belonging to two men that she knew — Terrance and Dwan. L.W. explained that she recognized Dwan’s voice because she knew him from the neighborhood. Upon hearing Dwan’s voice, L.W. “kept sleeping.” L.W. next felt someone rubbing her [¿back. L.W. tried to scoot over but she then felt a hand going inside her pants, but she did not know whose hand it was. L.W. then felt two fingers entering her vagina. L.W. testified that she did not let the person know that she was awake because she was afraid that she might get hurt. This lasted approximately fifteen minutes and stopped when a cell phone started to ring. The person answered the phone. Recognizing the person’s voice, she realized that it was Dwan who was lying next to her. Although he continued to lie next to her for several minutes after the phone call ended, Dwan did not resume the touching. After Dwan left the apartment, L.W. moved from the front room to spend the night in her cousin’s bedroom.

L.W. testified that she did not tell anyone about the incident until the next morning when she told one of her friends who had been at the sleep-over. At her friend’s insistence, L.W. spoke with her mother about the incident. L.W. recalled the police coming to her home, talking to her, being taken to the hospital, and picking Mr. Summers’ photograph out of a photographic line-up. Further, L.W. identified the photograph, her signature on the back of the photo, and the statement she wrote on the back of the photograph. L.W. also identified Mr. Summers in court.

On cross-examination, L.W. admitted that her mother knew Mr. Summers; that he had been over to her home on many occasions in the past; that other family members knew him; that nothing had ever happened between her and Mr. |fiSummers in the past; and that no one else witnessed the incident between her and Mr. Summers.

DISCUSSION

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NUMBER ONE

Mr. Summers’s first assignment of error is that the verdict is contrary to the law and the evidence. In particular, he contends that the evidence at trial was insufficient to establish his identity as the perpetrator.

In State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18, the Louisiana Supreme Court set forth the following standard for determining a claim of insufficiency of evidence:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674, (La.6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).
When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Neal, 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)).

\7Id. The testimony of the victim alone is sufficient to establish the elements of the offense. State v. Robinson, 08-0287, p. 8 (La.App. 4 Cir. 9/24/08), 996 So.2d 56, 60, writ denied, 08-2565 (La.5/22/09), 9 So.3d 137 (citing State v. Ingram, 29,172, p. 10 (La.App. 2 Cir. 1/24/97), 688 So.2d 657, 664). The determination of credibility is a question of fact within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984).

In this case, Mr. Summers was convicted of indecent behavior with a juvenile in violation of LSA-R.S. 14:81. To support a conviction for that offense, the State must prove the following three elements: (i) an age difference of more than two years between the defendant and the victim, who was not yet seventeen; (ii) the defendant committed a lewd or lascivious act upon the person or in the presence of a child; and (iii) the defendant intended to arouse or gratify either his own or the victim’s sexual desires. State v. Anderson, 09-934, pp. 6-7 (La.App. 5 Cir. 3/23/10), 38 So.3d 953, 957-958 (citing State v. Lyles, 03-141 (La.App. 5 Cir. 9/16/03), 858 So.2d 35, 50). “Indecent behavior with a juvenile is a specific intent crime for which the State must prove the offender’s intent to arouse or gratify his sexual desires by his actions involving a child.” Anderson, GO-934 at p. 7, 38 So.3d at 958. Although the existence of such a specific intent is a question of fact, it may be inferred from the circumstances and from the defendant’s actions. Id. (citing State v. Borden, 07-396, p. 12 (La.App. 5 Cir. 5/27/08), 986 So.2d 158, 166).

|sMr. Summers, who was thirty years old at the time of the incident, does not dispute the required age difference between himself and L.W. Insofar as the requirement of a lewd or lascivious act, L.W.’s testimony supports the trial court’s conclusion that Mr. Summers’ actions constituted a lewd and lascivious act. Insofar as the required specific intent, the record supports the trial court’s inference from the facts testified to by L.W. that Mr. Summers possessed the specific intent necessary for indecent behavior with a juvenile. Thus, the record supports Mr. Summers’ conviction.

The thrust of Mr. Summers’ contention on appeal is not that the three elements were not satisfied, but rather that the state failed to negate the reasonable probability of misidentification. In support, he cites the five-factor test enunciated in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), for assessing the reliability of an identification, or the substantial likelihood of misidentification; those factors are as follows: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of his or her prior description of the perpetrator; (4) the level of certainty demonstrated at the confrontation; and (5) the length of time between the crime and the confrontation. Id. The focus of the Brathwaite test is on the victim’s visual identification of the perpetrator. In this case, L.W.’s identification of Mr. Summers was not a visual identification; rather, it was an auditory identification. L.W. testified that she |9recognized Mr. Summers’ voice when he answered his cell phone. Mr. Summers’ reliance on the Brathwaite test is thus misplaced.

Mr. Summers also cites to several alleged discrepancies in the testimony of the state’s three witnesses, including the following three:

• while multiple people were in the residence at the time, no one aside from L.W. testified to Mr. Summers being in the residence at the time of the incident;
• L.W. never saw the face of her assailant, preferring instead to feign sleep; and
• L.W.’s mother testified that Mr. Summers confessed and apologized for his actions in a phone call while Detective Brunelle testified that Mrs. W. told him that Mr. Summers denied the allegations.

Taken together, Mr. Summers’ assertions do not cast any legally significant doubt on his conviction. First, it is of no moment that the state opted not to call as a witness any of the other people besides the victim who were in the residence at the time of the incident. The testimony of the victim alone is sufficient to establish the elements of the offense. Robinson, supra. L.W.’s testimony indicates that she heard the doorbell ring, that she heard Mr. Summers’ voice at the door, and that she heard his voice again later when he answered his cell phone.

Second, the fact that L.W. never saw her attacker’s face does not lessen the efficacy of her auditory identification. L.W. testified that although she was lying on her stomach at the time of the incident and thus could not see the perpetrator, she knew that it was Mr. Summers because she recognized his voice when he answered the phone. L.W. further testified that she knew Mr. Summers from the neighborhood and from his visiting her home. L.W. still further testified that she felt someone lie down next to her and begin rubbing her back; that person inserted two fingers into her vagina; that person removed his fingers from her vagina only 11 (lafter his cell phone rang; and that she recognized Mr. Summers’ voice after he answered the ringing cell phone. Thus, L.W. heard and recognized her attacker’s voice while he was still lying next to her on the floor.

Third, although there was an apparent discrepancy between Mrs. W.’s description of her phone conversation with Mr. Summers — an apology and a confession — and Detective Brunelle’s description — a denial — this apparent discrepancy does not bear upon L.W.’s identification of Mr. Summers as the perpetrator.

Summarizing, the discrepancies cited by Mr. Summers are not sufficient to undermine the validity of his conviction. L.W.’s testimony supports Mr. Summers’ conviction. This assignment of error thus lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, Mr. Summers asserts that his six-year sentence is excessive. Under La. R.S. 14:81, Mr. Summers faced a maximum sentence of seven years. In support of his argument that his sentence is excessive, Mr. Summers points out that the record does not indicate whether the trial court considered the sentencing guidelines set out in La.C.Cr.P. art. 894.1 or any other factors. Rather, the trial court sentenced Mr. Summers to six years at hard labor without stating its reasons. Mr. Summers therefore requests a remand and resentencing.

|nAn initial issue that must be addressed is whether Mr. Summers preserved this issue for appeal. It is well-settled that the failure either to file a motion to reconsider sentence or to object to the sentence at the time it is imposed precludes a defendant from raising a claim regarding his sentence on appeal. The record reflects that Mr. Summers failed to object contemporaneously, either orally or in writing, at the time of sentencing to the trial court’s actions or the sentence. He likewise failed to lodge an oral or written motion to reconsider sentence as provided for by La.C.Cr.P. art. 881.1. Because Mr. Summers failed either to object or to file a motion to reconsider, he failed to preserve the issue of the excessiveness of his sentence for appeal. Accordingly, he is precluded from raising this issue on appeal.

112DECREE

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

AFFIRMED.

      . For privacy purposes, the initials of the victim and her mother are used in this opinion.

      . La. R.S. 14:81 provides:
      A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
      (1) Any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons. Lack of knowledge of the child’s age shall not be a defense. ...

      . See State v. Murphy, 515 So.2d 558, 562 (La.App. 1 Cir.1987), rev’d on other grounds, 542 So.2d 1373 (La.l989)(holding, among other things, that the testimony of a child, who was four years old at the time of the incident, that a defendant put his index finger in her vagina, apparently through her clothing, on numerous occasions, was sufficient to establish that the defendant committed a lewd or lascivious act upon the person of the child).

      . La. R.S. 14:81 provides in pertinent part:
      H. (1) Whoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.

      . State v. Duncan, 08-1579, p. 12 (La.App. 4 Cir. 6/17/09), 15 So.3d 1171, 1178; State v. Alexander, 06-1274, p. 10 (La.App. 4 Cir. 5/16/07), 958 So.2d 1203, 1208; State v. Batiste, 06-0875, p. 9 (La.App. 4 Cir. 12/20/06), 947 So.2d 810, 815; State v. Clay, 05-1467, p. 9 (La.App. 4 Cir. 10/4/06), 942 So.2d 563, 568-69; State v. Hulbert, 03-1149 (La.App. 4 Cir. 8/20/03), 852 So.2d 1245, 1246-47; State v. Rodriguez, 00-0519, p. 9 (La.App. 4 Cir. 2/14/01), 781 So.2d 640, 649; State v. Tyler, 98-1667 (La.App. 4 Cir. 11/24/99), 749 So.2d 767, 775; State v. Robinson, 98-1606, p. 9 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 125; State v. Martin, 97-0319, p. 1 (La.App. 4 Cir. 10/1/97), 700 So.2d 1322, 1323; State v. Green, 93-1432, pp. 5-6 (La.App. 4 Cir. 4/17/96), 673 So.2d 262, 265; State v. Salone, 93-1635, p. 4 (La.App. 4 Cir. 12/28/94), 648 So.2d 494, 495-96.

      . La.C.Cr.P. art. 881.1 provides:
      A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.

      B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.

      E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.
      Furthermore, La.C.Cr.P. art. 881.2 provides:
      A. (1) The defendant may appeal or seek review of a sentence based on any ground asserted in a motion to reconsider sentence. The defendant also may seek review of a sentence which exceeds the maximum sentence authorized by the statute under which the defendant was convicted and any applicable statutory enhancement provisions....

      .Regardless, we note that Mr. Summers' claim that his sentence is excessive would not have merit. Although the trial court failed to articulate that it considered the sentencing guidelines set forth in La.C.Cr.P. art 894.1, "[t]he articulation of the factual basis for a sentence is the goal of art. 894.1, not rigid or mechanical compliance with its provisions.” State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, 819. When the record reflects an adequate factual basis for the sentence imposed, a remand for resentencing is unnecessary despite the lack of full compliance with La.C.Cr.P. art. 894.1. Id. (citing State v. Lanclos, 419 So.2d 475 (La.1982)). Such is the case here. Mr. Summers did not receive the maximum sentence of seven years. As the State points out in its brief, Mr. Summers was initially arrested for sexual battery, which carries a ten-year maximum sentence when the victim is thirteen years old or older, La. R.S. 14:43.1; and the evidence presented at trial would have supported a conviction for that offense. If L.W. had been a year younger at the time of the offense, Mr. Summers would have faced a maximum sentence of twenty-five years for indecent behavior with a juvenile under La. R.S. 14:81 (and ninety-nine years for sexual batteiy under La. R.S. 14:43.1). Finally, Mr. Summers’ trial counsel in closing argument stated that his client did not testify because he did not want the trial court "to find out that he had a charge for this back in '83, '90, and '91.”


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    Ellis W. CHAMBLESS v. Constance W. BROWN.
    No. 2010-CA-0716.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 2010.
    Rehearing Denied Dec. 21, 2010.

      Randall J. Meyer, Law Offices of Randall J. Meyer, New Orleans, LA, for Plaintiff/Appellant.
    Dan A. Smetherman, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

[, This appeal arises from a dispute over property boundaries by adjacent property owners. After a trial on the merits, the trial court ruled in favor of Constance Brown, determining that the placement of Ms. Brown’s proposed fence was consistent with where the property line had been established by numerous surveys over the years. For the following reasons we affirm.

The disputed property line separates two Orleans Parish properties, 1311 St. Claude Avenue and 1317 St. Claude Avenue. Ms. Brown owns the property at 1311 St. Claude Avenue. That property was originally acquired by her parents on August 1, 1958. A member of her family has continuously occupied the property since that date and she has owned and occupied the property since 1976.

Mr. Chambless is the current owner of the property situated at 1317 St. Claude Avenue, adjacent to Ms. Brown’s property. He acquired that property on March 7, 2008. He contends that at the time he purchased the property, Ms. Brown had a fence in place. Mr. Chambless further claims that on or about March 6, 2009, Ms. Brown began efforts to move that fence onto his property. It was at that I?time that Mr. Chambless filed a Petition for Possessory Action, Preliminary and Permanent Injunctions.

On March 19, 2009, the trial court held a hearing on Mr. Chambless’ request for preliminary injunction. The request was denied by judgment dated March 30, 2009. A trial on the merits was conducted on October 29, 2009. At the conclusion of the trial the matter was submitted to the court. The trial court rendered judgment on December 8, 2009 in favor of Ms. Brown. Mr. Chambless has appealed.

On appeal, Mr. Chambless argues that the trial court erred by not finding that Ms. Brown judicially confessed possession of the disputed strip of land to Mr. Cham-bless in accordance with La. C.C.P. art. 3657. He also contends that the trial court erred in its finding that Mr. Chambless had not acquired the property through acquisitive prescription.

Louisiana law prohibits the cumulation of a petitory action with that of a possessory action. La. C.C.P. art. 3657. Mr. Chambless filed a possessory action claiming that his possession of his property has been disturbed. If by answering Mr. Chambless’ allegations, Ms. Brown asserts title to the property the matter is converted to a petitory action in which Ms. Brown has recognized Mr. Chambless’ possession. Id. In order for the assertion of title to convert the possessory action into a petitory action there must be some formal claim of title in the answer, not just mere allegations of ownership. New Orleans 2000 Partnership v. City of New Orleans, 91-3160, unpubl., 1993 WL 515752 (E.D.La.1993); Crowell Land and Mineral Corp. v. Neal, 428 So.2d 496, 499 (La.App. 3 Cir.1983) (citing Haas Land Co. v. O’Quin, 187 So.2d 208 (La.App. 3 Cir.1966) and Voisin v. Luke, 234 So.2d 862 (La.App. 1 Cir.1970)). A review of Ms. Brown’s answer to Mr. Chambless’ possessory action reveals no more than a general denial of the allegations set forth and therefore is insufficient to convert the suit pursuant to La. C.C.P. art. 3657. Thus, we find no error on the part of the trial court in that respect.

The trial court also found that Mr. Chambless failed to prove ownership through acquisitive prescription. Mr. Chambless had alleged that an approximately two foot strip of land had been acquired through acquisitive prescription by his ancestors in title. Therefore, he owns the land.

Ownership of immovable property can be acquired through either a ten year or a thirty year prescriptive period. La. C.C. arts. 3473 et seq. A good-faith possessor with just title is subject to the ten year period. La. C.C. arts. 3475. The possessor without just title is considered a bad-faith possessor and is subject to the 30 year prescriptive period. La.C.C. art. 3486. To establish acquisitive prescription there must be continuous, uninterrupted, peaceable, public and unequivocal corporeal possession of the thing. La. C.C. art. 3476; also see La.C.C. art. 3488.

The determination of whether property has been acquired through acquisitive prescription is one of fact and subject to the manifest error/clearly wrong standard. Merritt v. Brennan, 08-973 (La.App. 3 Cir. 2/4/09), 3 So.3d 646. On review we are charged with ascertaining whether the factfinder’s conclusion was reasonably supported by the record. Stobart v. State through Dep’t. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

14At trial the court heard the testimony of Samuel Z. Scandaliato, Ms. Brown, Frank Williams, Jr., Andrea Hubert, and Mr. Chambless. Mr. Scandaliato was accepted as an expert in land surveying. On the stand, he stated that he established the old fence was properly on the property line as were the new fence poles. Mr. Scandal-iato also claimed that in his opinion the property line and fence location were consistent with the six surveys he reviewed dating back to 1917, and is situated two feet from Mr. Chambless’ structure.

Next, Ms. Brown gave testimony indicating that her parents had purchased the property at 1311 St. Claude in 1958. Ms. Brown has owned and occupied the property since 1976. She recalls an old fence that she referred to as lapboard fence, being in place when her family first purchased the property. Then, in the late 60’s or early 70’s her parents paid to have a chain linked fence constructed. That was the fence that was destroyed by Hurricane Katrina and eventually placed up against the damaged house in an attempt to keep intruders out. She claims that the damaged fence was pushed even closer to her home by heavy equipment used during Mr. Chambless’ renovations to his property. Once she began repairing the home she also paid to have a new fence installed. It was the construction of the new fence that prompted this legal action.

Ms. Brown’s brother, Mr. Williams also gave testimony concerning the positioning of the old fence. He lived in the property from 1958 until 1970. He remembered his parents paying for and erecting a fence on their property and to the best of his recollection the new fence post and property line are consistent with the placement of the old fence.

|fiMs. Hubert, the previous owner of Mr. Chambless’ property provided her testimony at trial. She sold the property to Mr. Chambless in March, 2008. She stated that the house had been in her family since 1947 and she lived there as an infant for approximately two and one-half years. In 1984 she inherited the property from her mother. Prior to selling the property in 2008, she maintained the house as rental property. She claimed that she has managed the property since approximately 1977 and paid people to cut the grass during that time period. Additionally, she recalled walking space between Ms. Brown’s fence and the house on her property.

Lastly, Mr. Chambless was called to the witness stand. He discussed purchasing the property in 2008 and beginning renovations that included an addition to the house. He explained that his contractor had called him when Ms. Brown’s fence poles were being installed. He had Ms. Brown’s workers stop the installation of the poles and he filed this possessory action based on the location of the old fence from the time of his purchase of the property.

Considering the testimony as a whole, the trial court found that the expert testimony of Mr. Scandaliato and testimony of Ms. Brown established the correct location of both the old fence and new fence poles as being on the property line. That finding was not inconsistent with Ms. Hubert’s testimony. Other than a brief period as an infant, she never resided at the property, but did remember that she could walk between Ms. Brown’s old fence and the house on her property. That is not contradictory to Mr. Scandaliato’s testimony that the property line and fence |fiare two feet from the structure on Mr. Chambless’ property. Further, Mr. Chambless was only able to testify as to the position of the damaged fence after Hurricane Katrina. He presented no other evidence that would support his assertion that he possessed and/or owned all the land from the place the damaged fence was situated to the location of his house.

Accordingly, based on the record we cannot find that the trial court’s determinations of fact were unreasonable and therefore we affirm.

AFFIRMED.

      . Ms. Brown’s occupancy of her home was interrupted due to damage caused by Hurricane Katrina.


author: PATRICIA RIVET MURRAY, Judge. TOBIAS, J.,

text:
    Anthony N. JOHNSON and Bernadette Johnson. v. 1425 DAUPHINE, L.L.C.
    No. 2010-CA-0793.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 2010.

      James A. Gray, II, Gray & Gray, A P.L.C. New Orleans, LA, and Jack E. Morris, Jack E. Morris, Attorney at Law, Metairie, LA, for Plaintiffs/Appellants.
    Sidney A. Cotlar, Herman, Herman, Katz & Cotlar, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR.).
   PATRICIA RIVET MURRAY, Judge.

IjThe plaintiffs, Anthony N. Johnson and Bernadette R. Johnson, appeal two district court judgments which collectively have the effect of confirming, in its entirety, an arbitration award rendered August 6, 2009. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

This action stems from a dispute between condominium owners. In 2004, a building with two units, numbered 1425 and 1427 Dauphine Street in New Orleans, was purchased by two limited liability companies, namely 1425 Dauphine, L.L.C., and 1427 Dauphine, L.L.C. On November 7, 2006, these parties converted the property into condominiums by filing a “Declaration Creating and Establishing Condominium Property Regime for the Isle of Orleans, A Condominium” [“the Declaration”]. This document identifies the “Declarant(s)” as 1425 Dauphine, L.L.C., appearing “through its sole member and duly authorized representative Michael D. Moffitt,” and 1427 Dauphine, L.L.C., appearing “through its sole members and duly authorized representatives Anthony N. | ¾Johnson and Bernadette R. Johnson.” The Declaration also states the declarants’ intention to form a Louisiana non-profit corporation to act as the governing body of the condominium owners and to be responsible for the maintenance, repair, replacement, administration and operation of the property. Accordingly, on the same day, The Isle of Orleans Condominium Association, Inc. [“the Association”] was incorporated. Finally, also on November 7, 2006, the parties entered into an “Act of Partition, Exchange and Transfer” whereby:

• 1425 Dauphine, L.L.C. became the record owner of Unit 1425;
• The Johnsons became the record owners of Unit 1427;
• 1427 Dauphine, L.L.C. became the sole Declarant (developer) under the Condominium Declaration and the record owner of two planned but not yet completed cottage units, namely Units 1423 and 1427½.

In September, 2008, the Johnsons made a motion at the meeting of the Association to force Moffitt to remove two dogs that he allegedly was keeping in Unit 1425 in violation of the Declaration. The motion failed. On October 13, 2008, pursuant to the arbitration provision in the Declaration, the Johnsons filed in civil district court a motion to compel arbitration against 1425 Dauphine, L.L.C. on the issue of the presence of the dogs. In response, 1425 Dauphine, L.L.C. filed a memorandum in opposition to the motion, arguing that the arbitration provision |3had not been triggered, and, alternatively, that if the trial court decided to order arbitration, there were multiple issues in dispute between the parties that should be arbitrated. Fourteen additional disputed issues were listed in the memorandum in opposition to the motion to arbitrate. In their reply memorandum, the Johnsons argued that the only issue subject to arbitration was the one concerning the dogs; specifically, the Johnsons argued that the other disputes listed in the opposition memorandum did not arise out of the Declaration but stemmed from certain proposed “agreements” that Moffitt had submitted for approval by the Association.

The motion was heard on November 14, 2008, and the trial court rendered written judgment on December 1, 2008, ordering “that the motion to compel arbitration be and hereby is GRANTED as to all disputes between the parties enumerated in the motion and in the memorandum in opposition to the motion.” The judgment also designated and appointed the Honorable Carolyn Gill-Jefferson as arbitrator. After the parties filed briefs and participated in a telephone conference with the arbitrator, the issue of which disputes were to be arbitrated was again presented to the trial court, which responded by means of an emailed “Order” dated February 18, 2009, to wit:

IT IS ORDERED that the arbitrator will hear all issues involving ANTHONY N. JOHNSON, BERNADETTE JOHNSON AND 1425 DAUPHINE, L.L.C. as outlined in [this court’s prior] judgment.

|4The arbitration hearing took place on May 26, 2009. Anthony Johnson, Bernadette Johnson and Michael Moffitt all testified. On August 6, 2009, the arbitrator rendered an arbitration award (entitled “Judgment”) and written Reasons for Judgment. The arbitration judgment consists of ten separate orders addressing multiple unresolved issues as were recited in the Motion to Compel Arbitration and the memorandum in opposition to the Motion.

On October 27, 2009, the Johnsons filed a Motion to Confirm Arbitration Award in Part and to Vacate in Part. The portion they sought to have confirmed includes one provision ordering the issuance of a mandatory injunction prohibiting the housing of dogs at 1425 Dauphine Street and ordering the removal of the dogs currently housed there, and another provision ordering the Johnsons to remove garment bags from the attic braces and bicycles from the common areas of the condominium complex. The Johnsons sought to have the remainder of the arbitration judgment vacated on the basis that the arbitrator exceeded her powers by purporting to bind the Association and 1427 Dauphine, L.L.C., which were not parties to the arbitration. On January 22, 2010, the trial court granted the Johnsons’ motion to confirm part of the award but denied their motion to vacate the remainder. Subsequently, 1425 Dauphine, L.L.C. filed a Motion to Confirm and Judicially Adopt Arbitration Judgment, which was granted by the trial court on March 16, 2010.

| sThe Johnsons now appeal the trial court’s judgments of January 22, 2009, and March 16, 2010.

ISSUES

The sole issue on appeal is whether the arbitrator exceeded her authority by rendering a judgment against the Association and 1427 Dauphine, L.L.C., over which the Johnsons contend the arbitrator lacked personal jurisdiction because they were never made parties to the arbitration proceedings. On this basis, the Johnsons urge us to reverse both of the trial court’s judgments insofar as they pertain to issues involving the Association and/or 1427 Dauphine, L.L.C.

DISCUSSION

We first note that the arbitrator was aware of the Johnsons’ objections to her rendering a decision that impacted non-parties to the arbitration, and she addressed this issue in her Reasons for Judgment, stating:

The Johnsons have asserted that 1427 Dauphine, LLC, and the Isle of Orleans Condominium Association are distinct parties and are not parties to the arbitration. They also maintain that the issues asserted by 1425 Dauphine, LLC and Michael Moffitt involve entities that are not properly before the arbitrator. The arbitrator disagrees. The judgment clearly provides that all parties who were enumerated in the Motion and in the Memorandum in Opposition to the Motion are subject to the arbitration. As previously noted, the testimony of both Anthony N. Johnson, and Bernadette Johnson establishes that they are the sole members of 1427 Dauphine, LLC. In addition, they are also members of the board and officers of the Isle of Orleans Condominium Association, Inc. Therefore, they are the proper parties to address those issues relating to the claims of 1425 Dauphine, LLC, and Michael Moffitt_ [T]he ... Isle of New Orleans Condominium Association, Inc. and 1427 Dauphine, LLC ... are either owned and/or controlled by Anthony N. | r,Johnson or Bernadette Johnson. Therefore, the arbitrator finds that all parties and issues are properly before her.

As stated previously, the arbitration award consists of ten orders. The first two, compelling the removal of the dogs from Unit 1425 and the removal of garment bags and bikes that were being kept by the John-sons in the common areas, are not being challenged on appeal. With regard to the remaining eight orders, the Johnsons contend that the district court erred by confirming the award because the arbitrator exceeded her authority in rendering these orders. The orders complained of are as follows:

IT IS FURTHER ORDERED that ANTHONY N. JOHNSON call the 2009 annual meeting of the Board of Directors of the Isle of Orleans Condominium Association on before August 15, 2009 and send notice to all members pursuant to the bylaws of the Isle of Orleans Condominium Association, Inc. to be held on or before September 1, 2009.
IT IS FURTHER ORDERED that at the annual meeting the Isle of Orleans Condominium Association consider and resolve the following issues:
1. Approve the altered landscaping plan.
2. Present and adopt the 2009 Association budget.
3. Present and adopt a video surveillance program for a four (4) camera system.
4. Pay the cost of the back porch partition from the completion reserve.
IT IS FURTHER ORDERED that the Greek Bust remain on the premises in the limited common area of the condominium.
IT IS FURTHER ORDERED that the insulation between the kitchens at 1425 and 1427 Dauphine Street, New Orleans, Louisiana be installed on or before September 1, 2009 and that the cost of the work be paid from the Contingency to Complete Fund as outline in the “Dissolution Agreement”.
IT IS FURTHER ORDERED that ANTHONY N. JOHNSON and BERNADETTE JOHNSON are no longer developers of the Isle of Orleans Condominium and that they pay all assessments and obtain all insurance policies in connection with their ownership of 1427½ and 1423 Dauphine Street, New Orleans, Louisiana.
IT IS FURTHER ORDERED that ANTHONY N. JOHNSON and BERNADETTE JOHNSON have the property at 1427½ and 1423 [ 7Pauphine Street, New Orleans, Louisiana resurveyed on or before September 1, 2009 and recorded at their cost.
IT IS FURTHER ORDERED that Article IX “Sales and other Transfer” be maintained until amended by the Isle of Orleans Condominium Association in accordance with the bylaws.
IT IS FURTHER ORDERED that ANTHONY N. JOHNSON AND BERNADETTE JOHNSON AND 1425 Dau-phine, LLC each bear their own costs of this arbitration proceeding.

Arbitration is a substitute for litigation. The purpose of arbitration is the settlement of differences in a fast, inexpensive manner before a tribunal of the parties’ choice; this purpose is defeated when participants seek judicial review of an arbitration award. Montelepre v. Waring Architects, 00-0671, 00-0672, p. 3 (La.App. 4 Cir. 5/16/01), 787 So.2d 1127,1130 (Citations omitted). Pursuant to La. C.C. arts. 3099, et seq. and the Louisiana Arbitration Law, La. R.S. 9:4201, et seq., arbitration is favored in Louisiana. Dicorte v. Landrieu, 08-0249, p. 3 (La.App. 4 Cir. 9/10/08), 993 So.2d 799, 801. Therefore, arbitration awards are presumed to be valid. Id. (citing American Lifecare, Inc. v. Wood, 02-1354, p. 5 (La.App. 4 Cir. 8/28/02), 826 So.2d 646, 649).

Errors of fact or law do not invalidate an arbitration award. Montelepre v. Waring Architects, supra, p. 4, 787 So.2d at 1130. Because the parties must agree to arbitration, they are presumed to accept the risk of procedural and substantive mistakes of either fact or law. Id. (Citation admitted). Therefore, an arbitration award must be confirmed by the trial court unless statutory grounds for vacating it exist. The burden of proof is on the party attacking the award. Id. (Citations omitted).

La. R.S. 9:4210 sets forth the sole grounds for vacating an arbitration award, which are:

IsA. Where the award was procured by corruption, fraud, or undue means.
B. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
C. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced.
D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

In the instant case, the Johnsons argue that the arbitrator exceeded her powers by rendering portions of the award against two entities, namely 1427 Dauphine, L.L.C., and the Association, that were never made parties to the arbitration proceeding. We disagree.

First, we note that the arbitrator did not directly order either of these two entities to do anything; rather, she ordered the Johnsons (or Anthony Johnson alone) to perform certain tasks, and she ordered that other tasks be accomplished without specifying the person or entity responsible for complying with her order. More importantly, she did not order anything that was beyond the capabilities of Anthony Johnson, Bernadette Johnson and/or Michael Moffitt to perform. At all pertinent times, Anthony and Bernadette Johnson were the sole members of 1427 Dauphine, L.L.C., and Michael Moffitt was the sole member of 1425 Dauphine, L.L.C. Moreover, Michael Moffitt (representing 1425 Dauphine, L.L.C.) and the Johnsons (as owners of Unit 1427 and sole members of 1427 Dauphine, L.L.C.) were the sole officers and/or directors of the Association, of which Anthony | ¡Johnson was the president. It is uncontroverted that the John-sons and Michael Moffitt all participated in the arbitration proceedings by testifying.

In Louisiana, a limited liability company (L.L.C.) is defined as “an unincorporated association having one or more members that is organized and existing under this Chapter.” La. R.S. 12:1301(10). The statutory scheme further provides that “the business of the limited liability company shall be managed by the members.... ” La. R.S. 12:1311. Moreover, “Each member, if management is reserved to the members ... is a mandatory of the limited liability company for all matters in the ordinary course of its business other than the alienation, lease or encumbrance of its immovables....” La. R.S. 12:1317. Similarly, a corporation must act through its board of directors and/or officers. We therefore find it significant that all the human members of both limited liability companies (1425 Dauphine, L.L.C. and 1427 Dauphine, L.L.C.), and all the officers and directors of the Association, participated in the arbitration proceedings.

By asserting that the arbitrator did not have jurisdiction over 1427 Dauphine, L.L.C. or the Association, appellants raise a procedural objection that would be cognizable in a court. However, an arbitration is different from a court proceeding. As this Court has stated:

Arbitration proceedings are not held to the same strict rules as are the courts. In the absence of statutory or agreed to procedures, the arbitrator has broad discretion in conducting the proceedings. Hennecke v. Canepa, 96-0772, p. 3 (La.App. 4 Cir. 5/21/97); 700 So.2d 521, 522, writ denied, 97-1686 (La.10/3/97), 701 So.2d 210. The appellate court’s function is to determine if the arbitration proceedings have been fundamentally fair. Id.

Haase Construction Co., Inc. v. Strohmeyer, 98-2967, p. 3 (La.App. 4 Cir. 6/23/99), 738 So.2d 152, 154. Stated another way, the Louisiana Arbitration Law authorizes the courts to vacate an arbitration award if it was obtained in violation of due process requirements. Id., p. 4, 738 So.2d at 154. Thus, in Haase Construction, involving a dispute between a contractor and his customer, this court vacated the portion of the arbitration award that addressed matters not specified in the contractor’s demand for arbitration because the customer did not attend the arbitration proceeding and had no notice or knowledge that any matter other than those already specified in the demand would be addressed. Id. Although we ruled in favor of the customer on due process grounds, this court expressly declined to adopt the customer’s argument that we should follow the civil law procedure relating to default judgments, stating: “We must bear in mind that a primary purpose of arbitration is a rejection of civil procedure.” Id., p. 5, 738 So.2d at 155.

As this court further noted, “[a]s long as the basic standards of fundamental fairness and due process are met, the courts should not burden the arbitration process with technical procedural requirements.” Id., p. 6, 738 So.2d at 156, n. 2. Accordingly, in Dicorte v. Landrieu, supra, this court held that the arbitrator’s error in rendering an award against the owner of a business, personally, as well as against the business itself (where only the business was a party to the contract providing for arbitration) did not constitute a statutory ground for vacating the arbitration award. 08-0249, p. 6, 993 So.2d at 803.

Inin the instant case, there clearly is no due process violation, as the only three individuals involved in the dispute were aware of the issues to be addressed and participated in the arbitration proceeding. Under these circumstances, the failure to join certain corporate and/or legal entities composed solely of one or more of these same three individuals is at best a procedural error rather than proof that the arbitrator exceeded her powers. Such an error is not a statutory basis for vacating the arbitration award under La. R.S. 9:4210.

Accordingly, we find that the trial court did not err by confirming the arbitration award in its entirety.

CONCLUSION

For the reasons stated, the judgments rendered by the trial court are affirmed.

AFFIRMED.

TOBIAS, J.,

Concurs in the Result and Assigns Reasons.

| As one who prefers to follow the objective law or ordinance as written rather than ignoring or circumventing them, especially in matters setting forth procedural rules, I would prefer to follow the strict letter of the law (or the law as set forth in a contract between the parties). Thus, in the case at bar, I would prefer that all persons (individuals and entities) actually and formally have been made parties to the arbitration and be made parties to this-suit. That is, I would prefer to have had 1427 Dauphine, L.L.C. and The Isle of Orleans Condominium Association, Inc. as parties. However, in the case at bar, the failure to have them formally in all proceedings (arbitration and suit) has denied no person due process of law. The failure to have the entities as parties is harmless error because the individuals who constituted the members of the limited liability company and officers/ directors/members/shareholders of the nonprofit corporation actually and fully participated in the arbitration and court proceedings.

Anthony N. Johnson, Bernadette Johnson, and Michael D. Moffítt, the humans owning and controlling the various entities, have been ordered to do certain things by the arbitrator and the court’s judgment. The majority correctly cites Louisiana intermediate appellate court jurisprudence to the effect that arbitration is favored by Louisiana law and intended to settle disputes between |2parties in a fast, inexpensive manner. See, for example, Montelepre v. Waring Architects, 00-0671, 00-0672 (La.App. 4 Cir. 5/16/01), 787 So.2d 1127; Dicorte v. Landrieu, 08-0249 (La.App. 4 Cir. 9/10/08), 993 So.2d 799; La-Fleur v. Law Offices of Anthony G. Buzbee, P.C., 06-0466 (La.App. 1 Cir. 3/23/07), 960 So.2d 105. The intermediate appellate courts’ authority for that statement is supposedly derived from Aguillard v. Auction Management Corp., 04-2804 (La.6/29/05), 908 So.2d 1. However, Aguillard was a case addressing a contract of adhesion (a consumer standard form contract). How far the Louisiana Supreme Court intended to expand the Federal Arbitration Act, 9 U.S.C. § 1, upon which Louisiana arbitration laws are based into Louisiana is not totally clear. The Court said:

At the outset, we note the positive law of Louisiana favors arbitration. See La. Rev.Stat. § 9:4201. La.Rev.Stat. § 9:4201 specifically provides:
A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

I do not understand Louisiana law as being so broad as to mean that arbitration is always favored. Nor do I understand that arbitration should be applied to non signatories to an arbitration agreement unless they participate directly in an arbitration. But once one participates in an arbitration without seeking judicial intervention to prohibit the arbitration from affecting that party’s interests, that person is going to be bound by the ai'bitrator’s decision.

I respectfully concur in the result reached by the majority based upon the precise facts of this case.

      . Article VII, entitled "Use and Occupancy Restrictions,” provides in part (e): "Common domestic pets are allowed, with the exception of dogs.”

      . The Declaration stipulates that the vote of a "Super Majority,” defined as the Unit Owners who in "the aggregate own 66 2/3 of the entire undivided ownership” of the condominium is required to make any Board decision. The condominium regime was structured so that Unit 1425 and Unit 1427 each comprised 35% of the voting interest, and the cottage units each comprised 15%. Therefore, because Moffitt controlled 35% at the time of the vote, and the Johnsons controlled 65%, unanimity between them was necessary for any resolution to pass.

      . Article V, Section 5 of the Declaration provides: "In the event there is any dispute among the Unit Owners that is not reconciled by a Board vote pursuant to the Declaration, Articles of Incorporation and/or By-Laws, such dispute shall be submitted to arbitration under the Louisiana Arbitration Act (La. R.S. 9:4201, et seq.).” (Emphasis added). The opposition argued that the dog issue had been resolved by the Board’s vote defeating the Johnson's motion.

      . An order confirming, modifying, correcting, or vacating an arbitration award is an appeal-able judgment pursuant to La. R.S. 9:4215.

      . Although the Johnsons raised their objection to the jurisdiction of the arbitrator over 1427 Dauphine, L.L.C. and the Association at the outset of the proceedings, they did not seek a writ application from the trial court’s December 1, 2008 interlocutory judgment ordering arbitration of all the issues, including those raised in the memorandum in opposition; nor did the Johnsons decline to participate in the arbitration on this basis. The arbitrator’s Reasons for Judgment reflect that the Johnsons filed a motion for summary judgment before the hearing commenced but withdrew the motion at the hearing, which then proceeded on the merits.

        . This court expressly stated: "It should be noted that Haase [the contractor] does not contend that Strohmeyer [the customer] had actual knowledge that the arbitration proceeding would encompass the additional items.” 98-2967, p. 5, 738 So.2d at 155.

        . See also Farmers Cotton Co., Inc. v. Savage, 30,289 (La.App. 2 Cir. 6/26/98), 714 So.2d 926, wherein the court found no grounds to vacate an arbitration award rendered against "Ben Savage d/b/a Indian Lake Farms Partnership,” a non-existent legal entity, even though Ben Savage was neither a partner nor mandatory of Indian Lake Farms Partnership, which itself had not submitted to arbitration.


author: DENNIS R. BAGNERIS, SR., Judge.

text:
    HAMP’S CONSTRUCTION, L.L.C. v. HOUSING AUTHORITY OF NEW ORLEANS.
    No. 2010-CA-0816.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 2010.

      John I. Hulse IV, Conroy Law Firm, PLC, Metairie, LA, Stuart G. Richeson, Baldwin Haspel Burke & Mayer, New Orleans, LA, for Plaintiff/Appellee Hamp’s Construction, L.L.C.
    Wayne E. Woods, General Counsel, Housing Authority of New Orleans, James C. Gulotta, Jr., Nicholas J. Wehlen, Jennifer B. Bechet, Stone Pigman Walther Witt-mann L.L.C., New Orleans, LA, for Defendant/Appellant Housing Authority of New Orleans.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., and Judge EDWIN A. LOMBARD).
   DENNIS R. BAGNERIS, SR., Judge.

| Defendant-Appellant, the Housing Authority of New Orleans (“HANO”) appeals from a trial court judgment in favor of Appellee, Hamp’s Construction, L.L.C. (“Hamp”), granting a writ of mandamus and preliminary injunction. For the following reasons, we hereby affirm.

FACTS

On December 16, 2009, HANO issued an invitation for bids, No. 09-130-12-37, HANO SCATTERED SITES REMEDIATION AND DEMOLITION. The bids for this project were opened on February 4, 2010. The results of the bid opening showed that Hamp was the lowest economic bidder, with Young General Contractors being the second lowest economic bidder. Thereafter, on March 9, 2010, HANO issued a letter to Hamp indicating its bid had been rejected because Hamp is considered “non-responsible due to its record of improper business practices and history of non-compliance with public policy.” The letter further stated that “HANO is not required and has elected not to hold an informal hearing” due to the fact that the project was funded by the American Recovery and Reinvestment Act “ARRA” Grant and was procured in accordance with HANO’s Capital Fund Stimulus Grant Procurement Policy.

l2On March 15, 2010, Hamp filed a petition for a writ of mandamus and preliminary injunction, alleging that HANO acted arbitrarily and capriciously, and in violation of the Louisiana Public Bid Law, La. R.S. 38:2211 et seq., by rejecting it as the lowest responsive bid, on the basis that Hamp was a “non-responsible” bidder. Additionally, Hamp argues that HANO violated the Louisiana Public Bid Law because it did not afford Hamp a hearing prior to determining it a non-responsible bidder.

Following an evidentiary hearing, the trial court granted the order of mandamus and the preliminary injunction. In the reasons for judgment, the trial court found that neither of the misdemeanor pleas “rise to the level of severity, breach of trust, integrity, false filing, etc., which would act to serve as grounds for disqualification of a bidder such as Hamp’s Construction as being non-responsible.” The trial court ordered HANO, as a public body, to award the contract for this project to Hamp as the lowest economic, responsive and responsible bidder. On appeal, HANO asserts the following assignments of error: (1) the trial court erred in holding that, under state law, Hamp was entitled to a hearing with regard to the award of a contract for Demolition Work funded by ARRA; (2) the trial court erred in applying state law to HANO’s conduct in awarding an ARRA-funded contract; (3) the trial court erred in holding that HANO lacked authority to take action inconsistent with the Louisiana Public Bid Law; (4) the trial court erred in applying the Louisiana Public Bid Law to an award of a Demolition Contract; (5) the trial court erred in failing to find that HANO complied with applicable federal law and requirements in determining Hamp to be non-responsible; (6) the trial court erred because it did not find that HANO was | .«¡arbitrary or capricious in determining that Hamp is not responsible; (7) the trial court erred in failing to defer to HANO’s judgment in determining Hamp to be non-responsible; and (8) the trial court erred in issuing a writ of mandamus to compel HANO to perform a discretionary act.

STANDARD OF REVIEW

To obtain a preliminary injunction, a petitioner must demonstrate that he will suffer irreparable injury, that the petitioner is entitled to the relief sought, and must make a prima facie showing that he will likely prevail on the merits of the case. Saunders v. Stafford, 2005-0205, p. 5 (La.App. 4 Cir. 1/11/06), 923 So.2d 751, 754. A “[rjeview of the granting or denial of a preliminary injunction is whether the trial court committed an error of law or made a factual finding which is manifestly erroneous or clearly wrong.” Id.

Where one or more legal errors interdict the trial court’s fact-finding process, however, the manifest error standard becomes inapplicable, and the appellate court must conduct its own de novo review of the record. South East Auto Dealers Rental Ass’n, Inc. v. EZ Rent To Own, Inc., 2007-0599, p. 5 (La.App. 4 Cir. 2/27/08), 980 So.2d 89, 93. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Id. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Id. Because we find the trial court applied the correct principles of law, we will review the record under the “manifestly erroneous or clearly wrong” standard of review.

Further, a mandamus is an extraordinary remedy, which must be used sparingly by the court and only to compel action that is clearly provided by law. Allen v. St. Tammany Parish Police Jury, 96-0938, p. 4, (La.App. 1 Cir. 2/14/97), 690 So.2d 150, 153. Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised. Id. The remedy is not available to command the performance of an act that contains any element of discretion, however slight. Fire Protection Dist. Six v. City of Baton Rouge Dept. of Public Works, 2003-1205, p. 3 (La.App. 1 Cir.12/31/03), 868 So.2d 770, 772. Although the granting of a writ of mandamus is considered improper when the act sought to be commanded contains any element of discretion, it has, nevertheless, been allowed in certain cases to correct an arbitrary and capricious abuse of discretion by public boards or officials. See Fire Protection Dist. Six, 2003-1205 at p. 3, 868 So.2d at 772, citing State ex rel. Torrance v. City of Shreveport, 231 La. 840, 93 So.2d 187, 189 (1957) (where the Louisiana Supreme Court held that mandamus will lie to correct the performance (or nonperformance) of an administrative or quasi-judicial act, such as the arbitrary refusal to grant a license).

DISCUSSION

The issue to address is whether the trial court erred in its finding that HANO acted arbitrarily in disqualifying Hamp, the lowest bidder, as not responsible. HANO argues that it is not required and has elected not to hold an informal hearing regarding HANO’s non-responsibility because the project is funded by ARRA. HANO argues that pursuant to ARRA, the Secretary of HUD issued the a notice stating: “Any requirements relating to the procurement of goods and services arising under state and local laws and regulations shall not apply to Capital Fund Stimulus Grants.” Therefore, HANO argues that ARRA exempts public housing agencies from state and local laws.

Hamp argues that it is irrelevant which law applies in this situation (i.e., the Louisiana Public Law, the provision of the Federal CFR, and/or the HUD | sHandbook), because a public entity cannot waive the Constitutional safeguards of due process and fair play that are required to be honored when a public entity places a contract at large for public bids and solicits open competition for the work. Thus, Hamp alleges that HANO’s action in disqualifying it without a hearing or an opportunity to refute the charges was arbitrary whether under state or federal law. We agree.

After reviewing the applicable local, state and federal laws, we find no legal bases for dispensing with Louisiana’s Public Bid Law’s requirement that a hearing be held to afford a bidder a chance to refute allegations of irresponsibility. As the Louisiana Supreme Court stated in Haughton Elevator Division v. State, Through Division of Administration, 367 So.2d 1161, 1165 (La.1979), “the requirements of procedural due process apply to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount.” The trial court correctly stated the following as to why HANO was arbitrary in denying Hamp a hearing:

Fundamental concepts of due process allow for a hearing and there’s nothing in the federal law that would preempt that state law policy of allowing bidders to have to be heard, as informal as that might be. I have an obligation to give deference to the agency, and had the agency had a hearing or given some due process or determine this or had some discussion or some discernment or something, I think I would be more inclined to given deference, but here to me this is an arbitrary move.

As further stated in the reasons for judgment: “... it is offensive to have a low, responsive bidder with a long track record of performing similar projects such as that possessed by Hamp’s Construction, L.L.C. to be simply disqualified upon the [fiSubjective and unilateral decision of a public entity, without affording that bidder the opportunity to discuss or refute the challenges against it.”

The Louisiana Public Bid Law set forth in La. R.S. 38:2211, et seq., is a “prohibitory law founded on public policy.” Broadmoor, L.L.C. v. Ernest N. Mortal New Orleans Exhibition Hall Authority, 2004-0211, p. 6 (La.3/18/04), 867 So.2d 651, 656.

La. R.S. 38:2212 provides, in pertinent part:

A. (l)(a) All public work exceeding the contract limit as defined in this Section, including labor and materials, to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised, and no such public work shall be done except as provided in this Part.
(b)(i) The provisions and requirement of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be waived by any entity.
J. If the public entity letting the contract proposes to disqualify any bidder, on grounds that such bidder is not a “responsible bidder” such public entity shall:
(1) Give written notice of the proposed disqualification to such bidder and include in the written notice all reasons for the proposed disqualification; and
(2) Give such bidder, who is proposed to be disqualified the opportunity to be heard at an informal hearing at which such bidder is afforded the opportunity to refute the reasons for the disqualification.

In Haughton Elevator Division, the Louisiana Supreme Court addressed the jurisprudence interpreting this statute as follows:

The Louisiana jurisprudence interpreting this statute or its predecessors has long established that a low bidder may on a contract so advertised sue to set aside |7the award of the contract to another bidder and may enjoin the agency from the execution of such contract, where the agency arbitrarily rejected the low bid. (citations omitted)
The statute, insofar as it requires advertising and the obtaining of competitive bids, is a prohibitory law founded on public policy. It was enacted in the interest of the taxpaying citizen and has for its purpose their protection against contracts of public officials entered into because of favoritism and possibly involving exorbitant and extortionate prices, (citations omitted)
The statute vests in the awarding authority the power and discretion to determine the responsibility of the bidder and to reject all bids if none is satisfactory, but the law does not permit the arbitrary selection of one which is higher and the rejection of others which are lower. The discretion must be exercised in a fair and legal manner and not arbitrarily. (citation omitted)
A comprehensive discussion of Louisiana law in this area is Housing Authority of Opelousas, La. v. Pittman Construction Co., 264 F.2d 695 (U.S.Ct.App. 5th Cir.1959). As correctly summarized by that opinion:
Louisiana follows the general rule of vesting an awarding body with discretion subject to judicial review. Courts will not substitute their judgment for the good-faith judgment of an administrative agency. Nevertheless, an awarding body’s administrative discretion must be exercised in a fair and legal manner and not arbitrarily. Consequently, the disqualification of the lowest bidder, without giving the low bidder a fair chance to disprove charges of irresponsibility, offends principles of fair play and is an arbitrary abuse of discretion inconsistent ivith the letter and the spirit of the Louisiana public contract law. (Emphasis added)

367 So.2d at 1164-65. Further, the Court in Haughton, provided the following procedural safeguards, none of which were followed by HANO, before a low bidder is disqualified as not responsible:

ls(l) An awarding authority which intends to disqualify a bidder must, prior to the award of the contract, give the bidder formal notice in writing that the authority is considering disqualifying the bidder from competing for the contract. This notice should specify the reasons for the proposed disqualification. The notification should contain specific language which puts the bidder on notice that the authority is considering disqualification, not mere questions about the bidder’s past performance on state contracts or its ability to perform in the future.
(2) The bidder must be given the opportunity to respond to the charges in writing and, in all cases in which feasible, the bidder should have the opportunity to meet with officials of the awarding authority to discuss the charges against the bidder and his response thereto. This informal “hearing” does not necessarily include the right to call witnesses or cross-examine the persons who initiated the charges of irresponsibility.
(3) After this informal hearing, but before the award of the contract, the awarding authority must give the bidder formal written notice he has been disqualified from competing for the contract. This notice should list the specific reasons upon which the disqualification is based, although it may do so by reference to or incorporation of charges contained in the original notice.
(4) The “records” of this disqualification proceeding must be preserved so as to form the basis for any subsequent judicial review which might be sought by the bidder. (This post-rejection judicial review, with the retroactive relief affordable, sufficiently protects the low bidder’s private interest against arbitrary rejection of its bid in the letting of the contract to a higher bidder.)

Haughton Elevator Division, 367 So.2d at 1166.

Because Hamp was not provided a fair opportunity to rebut HANO’s finding that it was non-responsible based on two unrelated misdemeanor offenses, we hereby affirm the trial court’s judgment, which granted the writ of mandamus and ordered the contract to be awarded to Hamp as the lowest responsive and ^responsible bidder.

AFFIRMED.