text:
    Robyn Sodaro SCHMIDT v. David Michael SCHMIDT.
    No. 11-CA-833.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.
    John J. Lee, Jr., Attorney at Law, Me-tairie, LA, for Plaintiff/Appellee.
    O’Brien and deBlanc, L.L.C., Jennifer C. deBlanc, Attorney at Law, Marrero, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

12This is an appeal by David Schmidt from the trial court’s judgment concerning the custody of his daughter. For the reasons which follow, we affirm the trial court’s judgment.

STATEMENT OF THE CASE

Robyn and David Schmidt obtained a judgment of divorce on April 27, 2004. The parties had one daughter during their marriage. Prior to the judgment of divorce, the parties signed a joint custody implementation plan setting forth their custody arrangements. They agreed to joint and shared legal custody with Ms. Schmidt as the primary domiciliary parent and Mr. Schmidt having visitation with the child every other weekend.

After Hurricane Katrina, Mr. Schmidt’s job schedule, as a truck driver with R & L carriers, changed. In response, Mr. Schmidt filed a motion to correct calculation error and for modification of visitation. Mr. Schmidt requested modification of visitation because he was no longer traveling out of state for work. Mr. Schmidt contended he had been picking his daughter up from school every day and keeping her until Ms. Schmidt arrived home from work. Mr. Schmidt |arequested that he be allowed to pick up his daughter from school Mondays, Wednesdays, and Fridays and have visitation until 6:00 p.m., when he would go to work. At that time, Ms. Schmidt was working late and Mr. Schmidt was working nights only from 7:80 p.m. until 5:00 a.m.

On February 26, 2008, Ms. Schmidt and Mr. Schmidt entered into a consent judgment which provided that Mr. Schmidt would have visitation with the child on alternating weekends, every Monday after school until 8:00 p.m., and every day after school in the months of October, November, December, March and April until 5:30-6 p.m. Ms. Schmidt worked longer hours in these months, so this schedule accommodated her work schedule.

In 2009, Mr. Schmidt married Kellie Schmidt. He was then able to pick up his daughter from school and she could spend the night at his home after he left for work at 7:30 p.m. On September 27, 2010, Mr. Schmidt filed a Motion to Modify Custody and Visitation alleging Ms. Schmidt’s work schedule had changed and the parties had voluntarily changed the custody schedule. Mr. Schmidt contended that since January 2010, he had picked up his daughter almost every day from school and returned her to Ms. Schmidt’s before he went to work. Mr. Schmidt contended this was disruptive and he requested that he be allowed to have the child spend the night when he picked her up from school, so he would have equal time with the child.

On October 20, 2010, Ms. Schmidt filed an answer to Mr. Schmidt’s motion and a Rule to Modify Child Support, Modify Visitation, and Authorize a Change of Schools. Ms. Schmidt had begun working at Sacred Heart Academy and was no longer working long hours. Therefore, she had a set schedule and was able to pick her daughter up from school. A hearing was held on February 2, 2011. The trial court granted the motion to modify custody and visitation filed by both parties. 14The trial court granted shared joint legal custody to both parents with Ms. Schmidt as the domiciliary parent. Mr. Schmidt was granted physical custody every other weekend and beginning February 7, 2011, he was granted custody during the week after his weekends, on Monday, Tuesday, and Wednesday from after school until 7:30 p.m. Beginning February 14, 2011, he would have physical custody on Monday, Tuesday and Wednesdays from after school until 7:30 p.m. Mr. Schmidt now appeals this judgment.

DISCUSSION

On appeal, Mr. Schmidt argues the trial court erred in not applying LSA-R.S. 9:335 and the trial court abused its discretion in denying equally shared physical custody solely on the basis that he works at night. Therefore, the issue before us on appeal is whether Mr. Schmidt should be allowed equally shared physical custody, including overnights during the week.

The court shall award custody of a child in accordance with the best interest of the child. LSA-C.C. art. 131. LSA-C.C. art. 134 provides the relevant factors for the court to consider in determining the best interest of the child. LSA-R.S. 9:335(A)(2)(b) provides, that to the extent feasible and in the best interest of the child, physical custody of the child should be shared equally. Yet, when the trial court finds that a decree of joint custody is in the best interest of the child, the statute does not necessarily require an equal sharing of physical custody. Chandler v. Chandler, 45,308 (La.App. 2 Cir. 5/19/10), 37 So.3d 569, Semmes v. Semmes, 45,006 (La.App. 2 Cir. 12/16/09), 27 So.3d 1024. Substantial time, rather than strict equality of time, is mandated by the legislative scheme providing for joint custody of children. Id.

The trial court has vast discretion in deciding matters of child custody and visitation. Gaydon v. Gaydon, 45,446 (La.App. 2 Cir. 5/12/10), 36 So.3d 449, |5Slaughter v. Slaughter, 44,056 (La.App. 2 Cir. 12/30/08), 1 So.3d 788. Generally, the determination by the trial court regarding child custody is entitled to great weight and should not be disturbed on appeal absent a clear abuse of discretion. Id., Pender v. Pender, 38,649 (La.App.2d Cir.5/12/04), 890 So.2d. 1.

In its oral reasons for judgment, the trial court stated that the only reason Mr. Schmidt was not getting shared custody was because he is not home at night and there is a preference for a biological parent to have custody. The trial court pointed out that this was not a reflection that the trial court felt Mr. Schmidt was not doing a good job with his daughter, but it was only a matter of his job placing limitations on his ability to have physical custody.

Mr. Schmidt works nights, leaving home around 7:30 p.m. and returning around 6:00 a.m. He argued that his wife is available and at the home while his daughter is sleeping. He claims he is able to spend time with his daughter from 3:00 p.m. when he picks her up at school, until 7:30 p.m. when he leaves for work, and again in the morning over breakfast and when taking her to school. Ms. Schmidt is now working a set schedule and is also available to pick up her daughter after school. The trial court set forth an extensive custody schedule in which Mr. Schmidt is given physical custody of his daughter several afternoons a week until 7:30 p.m. when he must go to work.

Mr. Schmidt argues on appeal that the trial court erred in not applying La. R.S. 9:335. We disagree and find the trial court correctly applied LSA-R.S. 9:335 and allocated the time periods during which each parent shall have custody of the child so that the child is assured of frequent and continuing contact with both parents. The trial court’s judgment sets forth the specific days Mr. Schmidt is to have physical custody of his daughter. Some weeks he shall have custody three | (¡afternoons a week and others two days a week, until 7:30 p.m., which is the time he reports to work.

Mr. Schmidt argues that he should have equal physical custody that includes overnight stays during the week. The statute states that to the extent feasible, and in the best interest of the child, physical custody of the child should be shared equally. After reviewing the testimonies presented in this case, we find the trial court’s custody schedule is in the best interest of the child. Therefore, we find the trial court was not manifestly erroneous in its judgment awarding joint custody, with Ms. Schmidt as domiciliary parent and visitation for Mr. Schmidt, even though it does not provide for equally shared physical custody. Thus, we affirm the trial court’s judgment.

AFFIRMED


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    Anne E. ANDERSON v. Warren Jeffery ANDERSON.
    No. 11-CA-864.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.

      Wolff & Wolff, Bennett Wolff, Attorney at Law, Metairie, LA, for Plaintiff/Appel-lee.
    Cynthia A. De Luca, Martha J. Maher, Rebecca deMahy, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

| gWarren Anderson appeals the trial court’s judgment denying his request to decrease child support and granting his request to decrease interim spousal support by $674.00. For the reasons which follow, we affirm the judgment of the trial court.

STATEMENT OF THE CASE

Warren and Anne Anderson were married and had three children. Ms. Anderson filed a petition for divorce on March 30, 2009. In her petition, Ms. Anderson sought spousal support and child support. Mr. Anderson filed an answer and reconventional demand on April 21, 2009. On May 7, 2009, the parties went before a hearing officer to determine child support. The hearing officer recommended Mr. Anderson pay $2,404.00 per month in child support, health insurance for the children, uncovered medical expenses, private school tuition, registration fees and mandatory school fees. Mr. Anderson did not file an objection to this recommendation, however, Ms. Anderson did file an objection.

On May 18, 2009, the hearing officer issued additional recommendations including a recommendation that Mr. Anderson also pay for dance and music lessons for the children. The hearing officer also calculated child support based on a gross monthly income for Mr. Anderson of $12,429.00 per month and a gross |Rmonthly income of $0.00 for Ms. Anderson. At the time, Ms. Anderson was unemployed and the domiciliary parent with a child under the age of 5. Mr. Anderson was employed as a nurse anesthetist. The hearing officer recommended that Mr. Anderson pay Ms. Anderson interim spousal support of $3,025.00 per month. Mr. Anderson objected to these recommendations and argued that after he paid child support and child expenses, he had no remaining money to also pay the interim spousal support.

On September 4, 2009, Mr. Anderson filed a rule to reduce interim spousal support and child support alleging a change in his circumstances since he had lost his employment due to a relapse in drug abuse. Mr. Anderson was employed as a nurse anesthetist in Alabama and as a result of his drug use, his license was suspended.

On January 21, 2010, the hearing officer recommended a decrease in interim spousal support from $3,025.00 to the amount of the monthly mortgage on the community home. The hearing officer recommended denying the request to decrease child support because Mr. Anderson was voluntarily unemployed. On February 25, 2010, the parties executed a consent judgment, which was signed by the Court on April 19, 2010, in which Mr. Anderson agreed to pay the reduced amount of interim spousal support of $2,650.00 per month.

In April 2010, Mr. Anderson became employed as a nurse earning $24.00 per hour and the youngest child turned 5 years old. On August 12, 2010, Mr. Anderson filed a rule to reduce child support and interim spousal support based on his reduction in income and arguing that some income should be imputed to Ms. Anderson since they no longer had children under 5 years of age. These matters were heard before the hearing officer on November 12, 2010. The hearing officer recommended that the motion to terminate or reduce interim spousal support be |4 gran ted and spousal support should be reduced to $1,976.00 per month to reflect $674.00 per month Ms. Anderson was receiving in social security benefits. The hearing officer further recommended that the motion to reduce child support be denied because Mr. Anderson had failed to show a change in circumstances and the issue of his job loss due to substance abuse had been previously raised and denied. Further, the hearing officer recommended that no income be attributed to Ms. Anderson because she was disabled and her disability benefits are not income for the calculation of child support. The hearing officer also recommended that Ms. Anderson submit to a vocational rehabilitation expert, that the change in terms of drug testing for Mr. Anderson be granted, and the motion to modify visitation be granted to allow supervised visitation for Mr. Anderson every other weekend.

On November 17, 2010, Mr. Anderson filed an objection to the hearing officer’s recommendations. A hearing was held before the trial court on January 6, 2011 and the trial court issued a judgment January 12, 2011. The trial court denied Mr. Anderson’s request to decrease child support. The trial court did grant his request to decrease interim spousal support and decreased the monthly amount by $674.00, which represented the amount of social security disability Ms. Anderson was receiving monthly. The trial court also denied Mr. Anderson’s request for unsupervised travel with the children and ordered that Mr. Anderson be drug tested until the drug test was resumed by the Alabama Board of Nursing.

Mr. Anderson now appeals this judgment arguing the trial court erred in denying his motion to decrease child support and by only decreasing his interim spousal support by $674.00. For the reasons which follow, we affirm the trial court’s judgment.

\ .DISCUSSION

On appeal, Mr. Anderson argues that the trial court erred in denying his motion to decrease child support and in only decreasing his interim spousal support by $674.00. He argues he is not voluntarily underemployed, therefore, the actual income he is earning as a nurse, $24.00 per hour, should have been used to determine that his monthly income is $4,160.00 per month and not $12,429.00. He also argues that the trial court should have imputed more income to Ms. Anderson because she is able to work and is voluntarily unemployed. And finally, Mr. Anderson argues on appeal that the trial court should have included all sources of income that Ms. Anderson received, even money received from her parents, in calculating her income.

In order to determine the correct amount of interim spousal support and child support, we must first determine whether or not the trial court applied the correct amount of income to both Ms. Anderson and Mr. Anderson. First, the trial court determined child support and spousal support using Mr. Anderson’s income as a nurse anesthetist of $12,429.00 per month, and not his income as a nurse of $4,160.00 per month. Thus, the court determined Mr. Anderson is voluntarily underemployed.

LSA-R.S. 9:315(C)(6)(b) provides that for child support calculations, income includes the potential income of a party that is voluntarily unemployed or underemployed. LSA-R.S. 9:315.11(A) provides that if a party is voluntarily underemployed, child support shall be calculated based on a determination of income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. Whether a party is voluntarily underemployed with respect to calculating child support is a question of good faith of the party to be cast with paying the child support obligation. |6Saacks v. Saacks, 05-365 (La.App. 5 Cir. 9/26/06), 942 So.2d 1130, Stephenson v. Stephenson, 37,323 (La.App. 2 Cir. 5/14/03), 847 So.2d 175. Voluntary underemployment is a fact-driven consideration. The trial court has wide discretion in determining the credibility of witnesses and its factual determination will not be disturbed on appeal absent a showing of manifest error. Saacks, supra, Schuler v. Schuler, 04-91 (LaApp. 5 Cir. 5/26/04), 876 So.2d 196.

Mr. Anderson was employed as a nurse anesthetist and, in 2007, he was terminated and had his nursing license and anesthetist privileges suspended because of a drug abuse problem. Eventually, his nursing license and nurse anesthetist privileges were reinstated and he was employed with Tulane Medical Center earning a monthly income of $12,429.00. Mr. Anderson again lost his job and license as a nurse anesthetist when he took narcotics from the hospital and failed a drug test. The reason for Mr. Anderson’s job loss and inability to gain employment earning the same salary as he previously earned was his own actions of taking the narcotics from the hospital and failing the drug test. Thus, we find no reason to disturb the trial court’s finding that Mr. Anderson was voluntarily underemployed.

Further, Mr. Anderson entered into a consent judgment in February 2010 after he lost his employment as a nurse anesthetist. In this consent judgment, Mr. Anderson agreed to pay $2,650.00 per month in child support, which was based on his income as a nurse anesthetist. On appeal, Ms. Anderson correctly points out that when Mr. Anderson attempted to introduce evidence to the trial court regarding his current income as a nurse, she objected stating the issue of Mr. Anderson’s income had been previously ruled on. The trial court sustained the objection and stated it had ruled on these issues previously and was not going through his income again. Mr. Anderson did not object to the trial court’s ruling.

17Based on the above, we find the trial court did not err in applying Mr. Anderson’s $12,429.00 monthly income earned as a nurse anesthetist and finding him to be voluntarily underemployed.

Next, Mr. Anderson contends the trial court should have imputed income for the calculation of interim spousal support and child support to Ms. Anderson because she is voluntarily underemployed/unemployed. Ms. Anderson testified that she was found to be disabled by the Social Security Administration and she receives $674.00 per month in social security benefits. Thus, Ms. Anderson contends she is unable to work because of this disability. Mr. Anderson contends Ms. Anderson did not present proof at trial of her disability or of the amount received in SSI benefits every month. Mr. Anderson further argues that Ms. Anderson is able to gain employment because the youngest child is over the age of five years.

Ms. Anderson did testify at trial that she is receiving $674.00 per month in social security benefits because she is disabled. LSA-R.S. 9:315(C)(3)(d)(i) provides that gross income for the purposes of calculating child support does not include benefits received from public assistance programs including supplemental security income. Thus, Ms. Anderson’s social sécurity benefits are not to be included as gross income for the calculation of child support. Further, since she has been found to be disabled by the Social Security Administration and is receiving benefits, she is unable to work and thus, is not voluntarily unemployed, regardless of whether or not she has a child under the age of five years. Therefore, we find the trial court correctly attributed no income to Ms. Anderson for the calculation of child support and correctly attributed $674.00 in income for the calculation of interim spousal support.

|8Mr. Anderson further argues the trial court should have included funds deposited into Ms. Anderson’s bank account when calculating her income. Ms. Anderson testified at trial that these deposits were loans from her parents fox-expenses when Mr. Anderson failed to pay his monthly support. At the time she was receiving these payments, Mr. Anderson was in arrears for child support and interim spousal support. Ms. Anderson testified that she was receiving little money from Mr. Anderson for child support and no money for spousal support, therefore, she received these loans from her parents. She also testified that she was waiting on spousal support payments to make arrangements to pay back her parents.

LSA-R.S. 9:315(e)(3)(d)(iv) provides that a party’s gross income for the purposes of calculating child support does not include monetary gifts to the party when the objective of the gift is to supplement irregular child support payments. Thus, we find the trial court did not err in failing to include these loan amounts as income for Ms. Anderson.

Based on our findings that the trial court correctly attributed $12,429.00 monthly income to Mr. Anderson and $674.00 monthly income to Ms. Anderson for the calculation of interim spousal support, we also find the trial court correctly granted Mr. Anderson’s request to decrease interim spousal support. We find the trial court correctly reduced the previously consented to amount of $2,650.00 by the $674.00 per month Ms. Anderson receives in social security benefits, for an interim spousal support award of $1,976.00.

Finally, we also find the trial court correctly denied Mr. Anderson’s request to decrease child support. The previous child support amount was awarded based on Mr. Anderson’s monthly income of $12,429.00 per month. As discussed above, we find the trial court correctly found Mr. Anderson to be voluntarily ^^underemployed and correctly used Mr. Anderson’s $12,429.00 monthly income to calculate child support, and the trial court correctly attributed no income to Ms. Anderson for the calculation of child support. Thus, we find the trial court correctly denied Mr. Anderson’s request to decrease child support.

Accordingly, we affirm the trial court’s judgment denying Mr. Anderson’s request to decrease child support and granting Mr. Anderson’s request to decrease interim spousal support to $1,976.00.

AFFIRMED


author: FREDERICKS HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Robert C. CARTER.
    No. 11-KA-758.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, J. Brandon Kinnett, Vincent Paciera, Jr., Assistant District Attorneys, Gretna, LA, for PlaintiffiAppellee.
    C. Gary Wainwright, Attorney at Law, New Orleans, LA, Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKS HOMBERG WICKER, Judge.

| gDefendant appeals his conviction and sentence for aggravated criminal damage to property. Defendant claims that his sentence was constitutionally excessive and that the evidence presented against him at trial was not sufficient to support his conviction. Defendant also assigns as error the fact that the trial court permitted a bench trial in this matter. Specifically, defendant claims the record does not demonstrate that he knowingly and intelligently waived his right to a jury trial. Further, defendant claims that the trial judge erred in permitting his counsel to waive the right to a jury trial within forty-five days of trial in violation of Louisiana Constitution Article 1, § 17. For the reasons discussed herein, we conditionally affirm defendant’s conviction and sentence and remand this matter to the trial court for an evidentiary hearing to determine whether defendant knowingly and intelligently waived his right to a jury trial. | %F actual Background

On June 8, 2010, Jefferson Parish Detectives Mary Layrisson, Sean Cursain, and Lonnie Senior participated in a narcotics investigation resulting from a confidential informant’s tip that a drug transaction would occur in the Rouse’s parking lot at the intersection of Airline Drive and La-barre Road. The informant disclosed that on June 8, 2010, a black male “with dreads” would arrive at the parking lot between 6:15 p.m. and 6:45 p.m. in a grey colored vehicle with unique colored designs on its side. On that date, the detectives set up surveillance in the parking lot and waited for the subject to arrive. The testimony reflects that during the time frame provided by the informant, a black male with dreads arrived driving a grey vehicle with unique colored designs on its side. The vehicle circled the parking lot and eventually pulled into a parking space. Detectives Cursain and Senior coordinated their approach to conduct an investigatory stop, whereby Detective Cursain would park in a designated parking spot behind the vehicle and Detective Senior would park in front of the subject vehicle to prevent escape. Both detectives testified that they activated the lights on their unmarked patrol units and approached the subject vehicle with their guns drawn. Detective Senior ordered the defendant to exit the subject vehicle. Detective Senior testified that he made eye contact with defendant after exiting his patrol unit and felt compelled to retreat to his unit. Immediately thereafter, the subject vehicle attempted to escape by hitting Detective Senior’s unit and subsequently accelerating until Detective Senior’s unit was pushed back enough to allow defendant to escape. Detective Cursain testified that he prepared to fire into the subject vehicle but refrained from shooting when he noticed a small child in the car. At that point, Detective Cursain and the other officers began a pursuit of the subject vehicle, which traveled down Labarre Road. The subject vehicle came to a stop near Metair-ie Road and [4defendant exited the vehicle and fled on foot. Nikkia Nickles, defendant’s girlfriend, and their two year old son remained in the subject vehicle. After a perimeter of the area was established by officers, defendant was located hiding in a garbage can in a nearby backyard and apprehended.

Procedural History

On July 21, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, Robert C. Carter, with two counts of aggravated criminal damage to property in violation of La. R.S. 14:55. Defendant pled not guilty to both charges at his arraignment on July 22, 2010. On February 23, 2011, the bill of information as to count one was amended to reflect that the property at issue sustained $1,881.36 in damages.

The matter proceeded to a bench trial on February 23, 2011 and defendant was found guilty as charged. On March 30, 2011, defendant was sentenced to ten years at hard labor and was ordered to pay restitution in the amount of $1,881.36; the state also filed a multiple offender bill of information against him on the same day. On July 7, 2011, the trial court found defendant to be a second felony offender, vacated his original ten year sentence and resentenced him to twenty years at hard labor giving credit for time served. Defendant filed a Motion to Reconsider Sentence on July 13, 2011, which was denied by the trial court. This timely appeal follows.

Discussion

We will first consider defendant’s claim that the evidence at trial was not sufficient to support his conviction for aggravated criminal damage to property. When the issues on appeal pertain to both sufficiency of the evidence and one or |smore trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. King, 06-554 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied, 2007-0371 (La.5/4/07), 956 So.2d 600.

Defendant asserts that the evidence presented at trial was insufficient to support his conviction. Defendant does not deny the allegations against him. Rather, defendant claims that his detainment was unlawful and amounted to an arrest; therefore, defendant asserts that his actions in damaging the unmarked police unit were justified under the circumstances. The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. La. R.S. 14:18. Justification is an affirmative defense which the accused must establish by a preponderance of the evidence. State v. Cheatwood, 458 So.2d 907 (La.1984). However, the evidence does not demonstrate that the defendant’s detention in this case amounted to an arrest or was otherwise unlawful. As such, defendant’s actions cannot be justified under the facts of this case.

The testimony reflects that Detective Layrisson received information from a confidential informant, who he had worked with in the past, that a black male with dreads driving a grey colored vehicle with designs on its side would be distributing narcotics in the Rouse’s parking lot at the intersection of Airline Drive and Labarre | fiRoad between 6:15 p.m. and 6:45 p.m. Detective Layrisson testified that during the expected time frame, a grey Pontiac with blue and purple or pink decals on the side entered the parking lot just as the confidential informant described. Detective Cursain, who also assisted in the investigation, corroborated Detective Layris-son’s testimony and testified that a vehicle matching the informant’s description entered the parking lot but did not appear to be traveling to any particular store, specifically noting that the vehicle drove past businesses including Papa John’s pizza.

Cursain noticed that Detective Senior was “a step or two away” from his unit door when the subject vehicle “lunged forward” in an attempt to escape. At one point, Cursain lost sight of Detective Senior and did not know if he had been hit by the subject vehicle or had become trapped in between the two vehicles. He further stated the subject vehicle then reversed and again accelerated, hitting Detective Senior’s unit to escape. Cursain then approached the subject vehicle by foot and was “about to shoot into the vehicle” when he noticed a small child in the backseat and refrained. Cursain stated that he could not recall if he immediately identified himself as a police officer after exiting his unit, although he was wearing a department issued vest and approached with his gun drawn. Nevertheless, the subject vehicle pushed Detective Senior’s unit to effect the escape, exited the parking lot and proceeded onto Labarre Road.

Detective Senior testified that he wore a police badge on a chain around his neck when he approached defendant’s vehicle with his lights activated and gun drawn. Senior testified he recalled Detective Cur-sain shouting some type of verbal order to defendant, like “Police, get out,” but he could not recall the exact language 17used. When Senior exited his vehicle, he left his car door open; he made eye contact with defendant and got a feeling that defendant was not going to “give up.” Senior immediately retreated back into his unit when suddenly defendant’s vehicle slammed into his unit’s door. Thereafter, defendant’s vehicle reversed and hit Senior’s unit a second time, accelerating until it could escape. Detective Senior testified that he feared for his life as defendant’s vehicle lunged forward into his unit, stating that he “would have been crushed between the two cars” if he had not retreated to his unit. After defendant was apprehended, Detective Senior identified him as the individual driving the vehicle in the parking lot. Detective Senior admitted that drugs were never found in defendant’s vehicle or on his person but noted that his flight afforded him ample opportunity to discard them.

The Fourth Amendment to the United States Constitution and the Louisiana Constitution Article I, § 5 protects individuals from unreasonable searches and seizures. State v. Massey, 03-1166 (La.App. 5 Cir. 1/27/04), 866 So.2d 965, 968. Law enforcement officers are authorized by La. C. Cr. P. art. 215.1, as well as state and federal jurisprudence, to conduct investigatory stops to interrogate persons reasonably suspected of criminal activity. State v. Sam, 05-88 (La.App. 5 Cir. 5/31/05), 905 So.2d 379, 383, writ denied, 05-2100 (La.3/10/06), 925 So.2d 510. An investigatory stop necessarily involves an element of force or duress and the temporary restraint of a person’s freedom. State v. Broussard, 00-3230 (La.5/24/02), 816 So.2d 1284, 1286. There is the complete restriction of movement in an investigatory stop, but for a shorter period of time than an arrest. Id. at 1287. An investigatory stop is reasonable even when the police block a vehicle to prevent its occupant from leaving and approach with weapons ready or even drawn. Id. at 1288-89.

1 ^Reasonable suspicion is required for an investigatory stop. State v. Nelson, 02-65 (La.App. 5 Cir. 6/26/02), 822 So.2d 796, 800, writ denied, 02-2090 (La.2/21/03), 837 So.2d 627. Reasonable suspicion is something less than probable cause to arrest and requires that police officers have sufficient knowledge of facts and circumstances to justify an infringement of the individual’s right to be free from government interference. Massey, supra. An informant’s tip may create reasonable suspicion necessary to justify an investigatory stop under the totality of the circumstances. Id. An informant’s past record for accuracy and reliability is only one factor taken into account when determining the reliability of the tip in question. State v. Austin, 04-993 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, 879, writ denied, 05-0830 (La.11/28/05), 916 So.2d 143. An independent police investigation that corroborates details of the informant’s tip is valuable in applying the totality of the circumstances analysis. State v. Clay, 06-37 (La.App. 5 Cir. 4/25/06), 930 So.2d 1028, 1032. The record in this case supports a finding that the confidential informant’s tip contained predictive information indicating that the informant had “inside information” or a “special familiarity” with defendant’s affairs. Nelson, 02-65 (La.App. 5 Cir. 6/26/02), 822 So.2d at 803.

In the instant case, the detectives corroborated information from the confidential informant, who they had used in the past, to support a reasonable belief that the informant had reliable information regarding defendant’s activity. The informant gave the police the suspect’s physical description, including his race, gender, and hairstyle. The informant was also able to describe the vehicle the suspect would be driving — a grey vehicle with colored designs on the side. Further, the informant was able to predict the suspect’s future behavior by correctly predicting the specific place and time, within 30 minutes, that the suspect would arrive with contraband. As the detectives surveyed the situation, they ^corroborated the informant’s information when they observed a man, fitting the description of the suspect, driving a vehicle matching the informant’s description to the expected location within the specified time frame. Therefore, considering the totality of the circumstances in this case, we find the officers had reasonable suspicion to conduct an investigatory stop.

Defendant contends that the actions of the officers blocking his vehicle to attempt to prevent his escape amounted to an arrest. Defendant asserts he was arrested when the police approached by blocking his vehicle without announcement with their guns drawn.

The vast majority of courts have held that police actions in blocking a suspect’s vehicle and approaching with weapons ready, and even drawn, does not constitute an arrest per se. United States v. Edwards, 53 F.3d 616, 619 (3rd Cir.1995). An investigatory stop necessarily involves an element of force or duress and the temporary restraint of a person’s freedom. There is the complete restriction of movement in an investigatory stop, but for a shorter period of time than an arrest. State v. Anthony, 07-204 (La.App. 5 Cir. 11/27/07), 971 So.2d 1219,1225, writ denied sub nom., State ex rel. Anthony v. State, 2008-0338 (La.1/16/09), 998 So.2d 98 and State v. Broussard, 00-3230 (La.5/24/02), 816 So.2d 1284, 1286. Investigatory stops may be accompanied by features normally associated with an arrest, i.e., use of drawn weapons. An investigatory stop is reasonable even when the police block a vehicle to prevent its occupant from leaving and approach with weapons ready or even drawn. State v. Anthony, 07-204 (La.App. 5 Cir. 11/27/07), 971 So.2d 1219, 1225, writ denied sub nom. State ex rel. Anthony v. State, 2008-0338 (La.1/16/09), 998 So.2d 98. Because an officer’s view of a suspect seated in a car is always partially obscured, the officer is at a disadvantage when he approaches the occupant. United States v. Edwards, 53 F.3d |10616, 619 (3rd Cir. 1995). Furthermore, guns and drugs frequently go hand-in-hand. State v. Warren, 05-2248, p. 18 (La.2/22/07), 949 So.2d 1215, 1229.

Under the facts of this case, we find that the officers had reasonable suspicion to conduct an investigatory stop and that the stop conducted in this case did not amount to an arrest. As discussed above, defendant does not deny causing damage to the officer’s unmarked patrol unit and does not assert that the state failed to prove the elements of the crime of aggravated criminal damage to property. At trial, defendant testified that he did in fact cause the damage demonstrated by photographs of Detective Senior’s unit introduced at trial. As such, we find the evidence presented at trial was sufficient to support defendant’s conviction for aggravated criminal damage to property.

Defendant also asserts that his sentence is unconstitutionally excessive. He argues that his twenty year multiple offender sentence is excessive and further claims that the trial judge failed to consider mitigating factors under La. C. Cr. P. art. 894.1. In particular, defendant claims that the trial court failed to consider (1) that the officer was not injured, (2) there was only minimal damage to the officer’s vehicle, and (3) although defendant had several prior felony convictions, he since those convictions had a child and returned to school to learn a trade.

It is first noted that defendant’s argument concerning the trial court’s failure to articulate-the factors considered for sentencing as required by La. C. Cr. P. art. 894.1 lacks merit. Compliance with sentencing guidelines pursuant to La. C. Cr. P. art. 894.1 is not required when the sentence imposed is statutorily prescribed under the Habitual Offender Law. State v. Howard, 10-541 (La.App. 5 Cir. 4/26/11), 64 So.3d 377, 385, writ denied, 2011-1073 (La.12/2/11), 76 So.3d 1173. In considering defendant’s argument that his sentence is constitutionally excessive, we note that an excessive punishment or sentence is prohibited under the Eighth |n Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Crawford, 05-494, p. 6 (La.App. 5 Cir. 1/31/06), 922 So.2d 666, 669; State v. Jones, 05-735, p. 6 (La.App. 5 Cir. 2/27/06), 924 So.2d 1113, 1116, writ denied, 07-0151 (La.10/26/07), 966 So.2d 567; State v. Riche, 608 So.2d 639, 640 (La.App. 5 Cir. 1992), writ denied, 613 So.2d 972 (La.1993). In reviewing a sentence for exces-siveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Taylor, 06-839, p. 3 (La.App. 5 Cir. 3/13/07), 956 So.2d 25, 27, writ denied, 06-0859 (La.6/15/07), 958 So.2d 1179. A trial court is afforded great discretion in determining sentences and sentences within the statutory limit will not be set aside as excessive absent clear abuse of that broad discretion. State v. Crawford, 05-494 at p. 6, 922 So.2d at 669. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Allen, 03-1205 (La.App. 5 Cir. 2/23/04), 868 So.2d 877, 880.

The appellate court can look to the record for support of the defendant’s sentence and, if the record supports defendant’s sentence, the appellate court shall not set aside the sentence for excessiveness. State v. Jones, 05-735 at p. 8, 924 So.2d at 1117; LSA-C.Cr.P. art. 881.4(D); State v. Robinson, 07-832 (La.App. 5 Cir. 4/15/08), 984 So.2d 856, 868, writ denied, 2008-1086 (La.12/19/08), 996 So.2d 1132. The issue on appeal is whether the trial court abused its discretion, not | ¾ ¿whether another sentence might have been more appropriate. Id.; State v. Crawford, 05-494 at p. 8, 922 So.2d at 670-71.

In the present case, defendant was adjudicated a second felony offender based on an underlying conviction of aggravated criminal damage to property. As a matter of law, it is presumed that the mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Howard, 10-541 (La.App. 5 Cir. 4/26/11), 64 So.3d 377, 384, writ denied, 2011-1073 (La.12/2/11), 76 So.3d 1173. As a second felony offender, defendant faced a habitual offender sentencing range between 7 ½ and 30 years. See LSA-R.S. 15:529.1(1); LSA-R.S. 14:55.10. Therefore, defendant’s sentence of 20 years is well within the sentence range and is supported by comparison of similar sentences for similar crimes. See State v. Lacayo, 10-1119 (La.App. 1 Cir. 2/11/11), 57 So.3d 609, writ denied, 11-0517 (La.9/30/11), 71 So.3d 281.

In the present case, the record reflects that defendant has an extensive criminal history and was on home incarceration for possession of marijuana and a firearm at the time of the incident at issue on appeal. At defendant’s sentencing hearing, the trial judge noted the seriousness of the crime at issue specifically finding that is was clearly foreseeable that defendant could have caused bodily injury to Detective Senior when he hit the officer’s vehicle. At trial, defendant testified that he was frightened by the approach of the unmarked vehicles and his immediate reaction was to seek escape to save his life. Defendant further testified that he previously witnessed the murder of an individual in his car with his family and the approach of the unmarked vehicles raised anticipation of such an event. At |lsthe sentencing hearing, the trial judge discussed the credibility of defendant’s testimony as well as the testimony of Nikkia Nickles and stated:

[I]t simply doesn’t wash with this Court to suggest that Mr. Carter, who has an admitted criminal history, who admits to being apparently on house arrest, who admits to voluntarily absenting himself from the very arrested place he’s supposed to remain, a fellow who would share with us his history of experience which made him nervous, which might explain his panic. I find none of that to be persuasive in terras of mitigation. Quite the contrary, the evidence coupled with the almost complete unworthiness of belief attributed to the mother of Mr. Carter’s son makes me think that they knew exactly or he knew exactly where he was, what was happening and intended not to be stopped by any means.

For the reasons discussed above, we find the sentence imposed is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive. Considering the trial court’s careful review of the testimony presented, the serious nature of the offense, and defendant’s extensive criminal history, we find the trial judge did not abuse his wide discretion in sentencing defendant to twenty years as a second felony offender.

Defendant’s next assignment of error asserts that the trial judge erroneously permitted his counsel to waive the right to a jury in this case within forty-five(45) days of trial in violation of Louisiana Constitution Article I, § 17.

La. Const. Art. I, § 17 provides in pertinent part, “[e]xcept in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury but no later than forty-five days prior to the trial date and the waiver shall be irrevocable.” We need not opine whether the trial court erred in setting a judge trial in violation of La. Const. Art. I, § 17 in this case because the record reflects that both parties waived this argument as neither the state nor the defense objected to the setting of a bench trial in this matter and in fact acquiesced in the bench trial date. See State |14v. Chinn, 11-2043 (La.2/10/12), 92 So.3d 324. Accordingly, we decline to consider this issue.

Defendant also asserts that the record in this case does not reflect that he knowingly and intelligently waived his right to a jury trial. Upon review of the record, we agree and find that the record does not demonstrate a valid jury waiver in this case. Where no valid jury waiver is found in the record, Louisiana courts have traditionally set aside the defendant’s conviction and remanded for a new trial. State v. Williams, 404 So.2d 954 (La.1981); State v. Lokey, supra. However, in State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963, the Louisiana Supreme Court set out a procedure by which the case is initially remanded to the trial court for an eviden-tiary hearing on the question of whether the defendant validly waived the right to a jury trial. If the evidence shows that the defendant did not make a valid waiver, the trial court must set aside the conviction and sentence and grant the defendant a new trial. The Supreme Court reserved the defendant’s right to appeal any adverse ruling of the waiver issue. This Court has followed the procedure set forth in Nanlal. See State v. Lokey, supra; State v. Herrera, 98-677 (La.App. 5 Cir. 2/10/99), 729 So.2d 75, 80. Thus, we remand this matter to the trial court for an evidentiary hearing to determine if defendant validly waived his right to a jury trial.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to La. C. Cr. P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

The original commitment reflects that defendant received credit for time served and was notified of the time limit within which to take an appeal; however, the transcript is silent. Generally, the transcript prevails. State v. Lynch, 441 So.2d |15732, 734 (La.1983). However, pursuant to La. C. Cr. P. art. 880, credit for time served is self-operating. State v. Johnson, 05-180, pp. 10-11 (La.App. 5 Cir. 11/29/05), 917 So.2d 576, 582, writ denied, 06-1254 (La.12/15/06), 944 So.2d 1282. Further, defendant did in fact file an appeal within thirty days of original sentencing and was later notified during his multiple offender sentencing of the prescriptive period for filing an appeal. Therefore, any error in this regard is harmless.

The record also reflects that defendant was not properly advised of his multiple offender rights, including his right to a hearing and right to remain silent. La. R.S. 15:529.1(D)(l)(a) provides that the trial court shall inform a defendant of allegations contained in the bill of information and of his right to be tried as to the truth thereof according to law. Implicit in this directive is the additional requirement that the defendant be advised of his constitutional right to remain silent. State v. Hart, 10-905, p. 5 (La.App. 5 Cir. 5/10/11), 66 So.3d 44, 47, writ denied, 11-1178 (La.11/18/11), 75 So.3d 448. A trial court’s failure to advise a defendant of his right to a habitual offender hearing or his right to remain silent is considered harmless error when the defendant’s habitual offender status is established by competent evidence offered by the state at a hearing. In the instant ease, defendant’s multiple offender status was established by competent evidence offered by the state at a hearing rather than by an admission of the defendant. Consequently, the failure of the trial court to advise the defendant of his rights is harmless error and does not require corrective action. La. C. Cr. P. art. 921; State v. Allen, 638 So.2d 394, 403, writ granted, 94-1754 (La.11/29/94), 646 So.2d 390 and writ recalled, 94-1754 (La.3/16/95), 651 So.2d 1343.

It appears that defendant was not arraigned on the multiple bill of information. However, defendant proceeded to the multiple offender hearing |1(iwithout objection. In State v. Harris, 01-1380, p. 3 (La.App. 5 Cir. 4/30/02), 817 So.2d 387, 389, this Court found that a defendant waives his right to admit or deny the allegations against him in a multiple offender bill if he proceeds to the multiple offender hearing without objection. Therefore, no corrective action is required.

The record further reflects that the trial court failed to restrict the benefits of suspension and probation as required under La. R.S. 15:529.1. However, such conditions are deemed to exist by operation of law under La. R.S. 15:301. Thus, corrective action is not required. State v. Williams, 00-1725, pp. 14-15 (La.11/28/01), 800 So.2d 790, 801.

CONCLUSION

Accordingly, for the reasons set forth above, defendant’s conviction and sentence are conditionally affirmed and this matter is remanded for an evidentiary hearing to determine whether defendant knowingly and intelligently waived his right to a jury trial. See State v. Howard, 09-928 (La.App. 5 Cir. 5/25/10), 37 So.3d 1099, 1108 and State v. Terrase, 02-1009 (La.App. 5 Cir. 2/25/03), 841 So.2d 947.

CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED; REMANDED FOR EVIDENTIARY HEARING

      . On the same day, the state entered a nolle prosequi on count two.

      . Defendant was also convicted of resisting arrest and sentenced to serve concurrently six months in the Jefferson Parish Correctional Center.

      .Defendant was convicted of aggravated criminal damage to property. La. R.S. 14:55 defines Aggravated criminal damage to property as "the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion.”

      . Defendant and Nikkia Nickles testified that they planned to order pizza from Papa John’s pizza. Defendant further admitted in his testimony that he was out past his curfew for house arrest but planned to quickly order pizza and return home.

      . LSA-R.S. 14:55 provides in pertinent part: "Whoever commits the crime of aggravated criminal damage to property shall be fined not more than ten thousand dollars, imprisoned with or without hard labor for not less than one nor more than fifteen years, or both.” LSA-R.S. 15:529.1(1) states, "If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.” In the present case, "not less than one-half the longest term” is 7 ⅛ years and "not more than twice the longest term” is 30 years.


author: SUSAN M. CHEHARDY, Judge.

text:
    Horatio Sprague EUSTIS, Jr. v. Sheldon L. EUSTIS.
    No. ll-CA-800.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.
    Lila Molaison Samuel, George Read Coleman, Toni G. Hurley, Attorneys at Law, Gretna, LA, for Plaintiff/Appellant, Horatio Sprague Eustis.
    D. Douglas Howard, Jr., Lacy M. Smith, Attorneys at Law, New Orleans, LA, for Defendant/Appellee, Sheldon Lykes Eus-tis.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|2This appeal arises in a community property partition proceeding. At issue is whether the plaintiff-husband must continue to hold shares in a closed corporation that were apportioned to him in the partition, or whether he is entitled to have all the shares allocated to the defendant-wife in return for an equalizing payment. Finding no error in the trial court’s determination, we affirm.

.FACTS

The parties, Dr. Horatio Sprague Eustis and Ms. Sheldon Lykes, were married in 1979 and divorced in 2008. The marital community was terminated effective May 8, 2007, the date the petition for divorce was filed. At the time of the partition, the parties had community assets valued at approximately five million dollars, consisting of property, stocks, bonds, pensions, and cash. Ms. Lykes also had a significant sum of money that she sought to have designated as her separate property.

In March 2010 the district court appointed a Special Master to assist the court in determining whether certain accounts were community or separate property, and to help allocate the community portion. Among the assets was a fifty percent interest in L & E Properties, L.L.C. (hereafter “L & E”), a family corporation that owns property in North Carolina.

|3The Special Master issued his report in December 2010. Because the trial judge later adopted the Special Master’s report in full, we quote extensively from it, since the statements therein now constitute the trial court’s findings.

With respect to the community asset at issue on this appeal — the parties’ interests in L & E — the Special Master stated as follows, in pertinent part:

14. Community Interest in L & E Properties, L.L.C. (50% Interest)
This item involves a membership interest or interests in a North Carolina limited liability company which was formed during the marriage for the purpose of developing rural real estate located in that state. The Articles of Organization for L & E Properties, L.L.C. ... designated Ms. Lykes’ brother, Thompson Lykes, as the Managing Member and designated the entity as a “Manager-Managed L.L.C.” in which the members are not managers. The Special Master was also provided with an unsigned copy of an Operating Agreement for the L.L.C. which indicated on Schedule I that Ms. Lykes was the record owner of a fifty (50%) percent membership interest. Another single page version of Schedule I was included with the documents provided which indicated that Dr. Eustis and Ms. Lykes each owned a twenty-five (25%) percent membership interest.... The tax returns for the L.L.C. for 2005 and 2006 which were provided to the Special Master reflect a change in the membership interest between the two (2) years whereby Ms. Lykes’ interest decreased to twenty-five (25%) percent and Dr. Eustis acquired a twenty-five (25%) percent membership interest.
The parties originally both concurred that the total fifty (50%) percent membership interest in L & E Properties, L.L.C. constituted community property and stipulated during the initial meeting with the Special Master that the fifty (50%) percent membership interest should be valued at $1,187,500.00....
In any event, the Special Master recommends based upon the documentation provided that the full fifty (50%) percent membership interest be treated as community property....
The original issue presented to the Special Master regarding this asset was what to do with it in terms of allocation, sale, etc. Ms. Lykes contends that the |4membership interest(s) should be divided in kind (each retain a 25% membership interest) based upon the fact that Dr. Eustis was the original driving force along with her brother, Thompson Lykes, to form the L.L.C. and purchase the investment real estate. Ms. Lykes also argues that it would be inequitable to saddle her with this entire investment which has apparently significantly dropped in value and which has failed to realize a sale of a single lot in the last six (6) years. Finally, she contends that all the restrictive language of the Articles of Organization and Operating Agreement apply equally to her and could be equally damaging to her. Dr. Eustis acknowledged in his testimony that it was his idea originally for the investment, but that Ms. Lykes quickly jumped on board, which is perhaps reflective of why the original membership was placed in her name only.
Dr. Eustis, for his part, contends that it would be grossly inequitable for him to be forced to remain a minority interest holder in a limited liability company where Ms. Lykes and her brother have a combined majority membership interest and Ms. Lykes’ brother is the “Manager” with authority to unilaterally made [sic] decisions concerning the company operations. He acknowledged, however, in his testimony that to date he had no problems dealing with Ms. Lykes’ brother, or for that matter Ms. Lykes, regarding this property. Both parties also acknowledged that it was always intended that Thompson Lykes would be the primary manager of the property which is again reflected in the Operating Agreement where he is designated Manager.
Dr. Eustis likewise also expressed a concern that he might in the future be squeezed out of his interest in the L.L.C. due to the superior financial positions of Ms. Lykes and her brother. Specifically, he testified that if the majority membership interest voted to invest substantial additional funds to further develop property and sought additional capital contributions, he might be unable to contribute his share of the development costs. Nothing in the unsigned Operating Agreement for the L.L.C. provides for any loss of membership interest in that situation. In fact, the Operating Agreement allows the other members to effectively loan Dr. Eustis his portion of the funds at an interest rate of three (3%) percent over the prime rate to be recovered out of future distributions.
Dr. Eustis also correctly points out that Section 9.2 of the Operating Agreement designates the manager as the sole decision maker in deciding whether any cash ^distributions should be made to members. Furthermore, under Section 10.1 of the Operating Agreement, Dr. Eustis could not transfer his membership interest to anyone else without the manager’s approval and Section 11.1 precludes the withdrawal of a member except under limited circumstances.
Dr. Eustis cites three (8) cases which he contends support allocating all of membership interest in L & E Properties, L.L.C. to Ms. Lykes. The Special Master finds one of the cases applicable under the facts presented here....
This is a difficult issue for the Special Master to decide. First, the asset still has substantial value ($1,187,000.00) such that allocation of the entire membership interest to one party or division of the interest in kind will have a significant effect on the overall partition. Second, by all accounts, the asset has significantly declined in value and the prospects for any near-term revenue generation appear unlikely. Third, while Dr. Eustis has apparently not as yet had any significant disagreements with the management of the business, Ms. Lykes and her brother’s majority ownership interests and her brother’s position as sole manager may potentially seriously negatively impact Dr. Eus-tis’ ability to exercise any control over the business, realize any revenues from the investment, transfer his interest to a third party or withdraw from the company. Contrastingly, it does not seem equitable or fair to saddle Ms. Lykes with this non-performing asset just because her brother is its manager and restrictive conditions on members are included in the L.L.C. documents, circumstances which existed both when the company was formed and when Dr. Eustis acquired his own twenty-five (25%) percent interest.
According to information provided to the Special Master by the parties, efforts had previously been made to carve out a portion of the property for Dr. Eustis which would have a value commensurate with a 25% interest. This would probably be the most equitable result. As the Zeigler, supra Court noted, “[I]f simple pieces of real estate were involved, the solution might be to assign them by lots”. Here, unfortunately, those lots are owned by an L.L.C. and not individually and the Special Master does not believe the Court has authority to order a division in kind.
Under the circumstances, the Special Master believes this issue should be deferred to the trial judge | fifor decision and declines to make a recommendation regarding allocation. For purposes of the remaining recommendations in this report, including the recommended allocations, the 50% membership interest in the company will be treated as unparti-tioned.

Dr. Eustis objected to the Special Master’s failure to allocate the L & E interests. He filed a motion to set the community property partition for trial on the merits. The only issue before the court was allocation of the L & E interests.

The matter was submitted to the trial court based on documents already in the record. On April 7, 2011 the trial court issued a written judgment in which it decreed that Dr. Eustis and Ms. Lykes shall each retain their twenty-five percent interest in L & E. The judgment denied Ms. Lykes’ alternative request to find that these interests are the separate property of the parties. Dr. Eustis filed a devolu-tive appeal of that ruling.

Subsequently, on June 1, 2011, the court rendered judgment on the entire partition proceeding. In it the court stated it accepted the report of the Special Master and rendered judgment accordingly. The judgment apportioned the community property as set out in the Special Master’s report. With respect to the L & E interests — which the Special Master had refrained from allocating, preferring to leave it to the district court — the court awarded to each party the twenty-five percent interest in L & E Properties, LLC, standing in that party’s name. The judgment made clear that the property conveyed in it was in full satisfaction of their shares in the community, as follows:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the following assets be and are hereby partitioned to SHELDON LYKES, as her full share of the community of acquets and gains previously existing between she and HORATIO SPRAGUE EUS-TIS, JR., and in full satisfaction of her reimbursement claims:
[712. The twenty-five (25%) percent interest in L & E Properties, LLC standing in the name of SHELDON LYKES.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that all right, title, and interest of HORATIO SPRAGUE EUSTIS, JR. in and to the above-described property is hereby conveyed, transferred, assigned, delivered, and allocated to SHELDON LYKES in full ownership, TO HAVE AND TO HOLD UNTO SHELDON LYKES, HER HEIRS AND ASSIGNS FOREVER.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the following assets be and are hereby partitioned to HORATIO SPRAGUE EUS-TIS, JR., as his full share of the community of acquets and gains previously existing between he and SHELDON LYKES and in full satisfaction of his reimbursement claims:
11. The twenty-five (25%) percent interest in L & E Properties, LLC standing in the name of HORATIO SPRAGUE EUSTIS, JR.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that all right, title, and interest of SHELDON LYKES in and to the above-described property is hereby conveyed, transferred, assigned, delivered, and allocated to HORATIO SPRAGUE EUSTIS, JR. in full ownership, TO HAVE AND TO HOLD UNTO HORATIO SPRAGUE EUSTIS, JR., HIS HEIRS AND ASSIGNS FOREVER.
From that ruling Dr. Eustis appeals.

ARGUMENTS

The only issue on appeal is whether the trial court erred in assigning the parties each a twenty-five percent interest in L & E, rather than fifty percent interest to one of the parties with an equalizing payment to the other party.

Dr. Eustis assigns the following as errors:

1. The trial court abused its discretion by failing to make a final and complete partition of a community asset in accordance with La. R.S. 9:2801. | RSpecifically, the court erred by allowing Dr. Eustis and Ms. Lykes to remain undivided co-owners of L & E Properties.

2. The trial court abused its discretion by failing to allocate the community asset, L & E Properties, LLC, to Ms. Lykes.

In his first assignment Dr. Eustis complains the trial court erred by forcing him to remain a co-owner with Ms. Lykes of the interests in L & E. He asserts that pursuant to La. R.S. 9:2801, the trial court should have ordered a final and complete partition of L & E. He contends that L & E should be allocated to Ms. Lykes and that she should be ordered to pay him an equalizing payment.

Dr. Eustis argues that if he and Ms. Lykes each keep a twenty-five percent interest in L & E Properties, LLC, he would be forced to remain a minority shareholder in a business enterprise with his ex-wife and former brother-in-law. Moreover, his former brother-in-law, Thompson Lykes, is the sole manager of the family partnership with unilateral decision-making authority. Dr. Eustis freely admits he agreed to this arrangement when he and Ms. Lykes were married; however, now that he is no longer a member of the family, he suggests that it is an untenable business situation.

Ms. Lykes claims that because there has been no acrimony since the divorce with regard to the management of L & E, Dr. Eustis’s claim that it is an untenable business situation is nebulous.

Dr. Eustis points out that the real estate market collapsed at approximately the same time as the petition for divorce was filed. Thus, L & E Properties, LLC has existed as a dormant corporation for the past several years. No property has been sold in six years and no further development of the land has taken place. There has been no acrimony or “ill will” simply because no decisions have been |flmade. Contrary to Ms. Lykes’ claim, he contends, there is no evidence of L & E being actively managed with the three parties getting along well post-divorce.

Dr. Eustis states he articulated specific concerns to the Special Master regarding why he sought to have the entire fifty percent community share of L & E allocated to Ms. Lykes: First, Ms. Lykes and her brother have a significant amount of inherited wealth. Therefore, if the majority membership interest voted to invest substantial funds to further develop the property, Dr. Eustis asserts he would be unable to contribute his share of developmental costs.

The Special Master pointed to a provision in the Operating Agreement allowing Ms. Lykes or her brother to lend Dr. Eustis his portion of the funds, to be recovered out of future distributions. Dr. Eustis suggests that on a physician’s salary, coming up with money for further investment might be prohibitive. Theoretically, he argues, Thompson Lykes could continually request additional development funds without ever paying out future distributions. Dr. Eustis states he “simply cannot afford to be in the development business with multimillionaires.”

Dr. Eustis’s second concern is Section 9.2 of the Operating Agreement, which designates Thompson Lykes as the sole decision-maker in deciding whether cash distributions should be made to members. That means that Dr. Eustis has no control over if and when he would receive a stream of revenue from L & E Properties, LLC. His concern is that because the Lykes financial position is superior to his, Thompson Lykes could determine as manager that payment of revenues is not as important as additional investment for development. Dr. Eustis claims the result could be that he would be forced to take additional loans from the other stockholders without any stream of revenue from the corporation in the 1 ^foreseeable future. He states that because his ex-wife is in no need of income, she would not have an issue with this management/investment strategy.

Dr. Eustis’ final concern, as expressed to the Special Master, is sections 10.1 and 11.1 of the Operating Agreement. Section 10.1 states that he cannot transfer his membership interest to anyone else without Thompson Lykes’ approval. Section 11.1 precludes withdrawal from the corporation except in limited circumstances. If the business arrangement is unworkable, Dr. Eustis asserts, he will be stuck with little recourse to remedy the situation.

In response to the first assignment, Ms. Lykes contends the trial court was not wrong when it allocated to each party a twenty-five percent interest in L & E. Ms. Lykes asserts the allocations did not violate La. R.S. 9:2801, but rather were in accordance with paragraph (A)(4)(c) of the statute, which states, “In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses.”

In his second assignment, Dr. Eustis contends the trial court abused its discretion by failing to allocate the community asset, L & E Properties, LLC, to Ms. Lykes. He contends that for all the reasons set forth in support of his first assignment, “it makes more sense for Ms. Lykes to remain in business with her brother, Thompson Lykes.” Further, given the parties’ respective financial circumstances, “it is more equitable for the party with access to millions of dollars in cash to be awarded the asset which might require additional funding and might not produce a revenue stream for many years.”

In opposition, Ms. Lykes argues that the trial court fully partitioned the community property when it allocated each party a twenty-five percent interest in L & E Properties, LLC. She asserts that during the marriage the parties acquired the fifty percent ownership interest in L & E at the urging of Dr. Eustis, that it was a 11! community asset. Thus, at termination of the community, pursuant to the L & E operating agreement Dr. Eustis and Ms. Lykes each enjoyed a twenty-five percent interest in L & E, resulting in a fifty percent community interest of which the parties were undivided co-owners. Hence, Ms. Lykes contends, the June 1, 2011 judgment partitioning the community property properly divides the fifty percent community interest equally, allocating twenty-five percent interest in L & E to each party in his or her own name, so that they are no longer undivided co-owners, but instead each owns a twenty-five percent interest as a passive investor.

Ms. Lykes asserts that, unlike the situations in the Stewart and Goins cases cited by Dr. Eustis, in which the courts were required to partition corporeal property, here the trial court allocated incorporeal property — an ownership interest in a limited liability company. Pursuant to La. R.S. 9:2801(A)(4)(c), Ms. Lykes argues, the trial court had the authority to allocate the asset equally or unequally. Here the trial court divided the asset equally, she contends, and there is no showing that the court was clearly wrong in its determination.

LAW AND ANALYSIS La. R.S. 9:2801 sets out the procedure for partition of community property as follows, in pertinent part:

A. When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse ... may institute a proceeding, which shall be conducted in accordance with the following rules:
(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the | ^spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant....
(d) In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. ...

Dr. Eustis contends the assignment of twenty-five percent interests to each of the parties was a failure by the trial court to apportion the L & E interests and, hence, a violation of La. R.S. 9:2801. He cites Stewart v. Stewart, 585 So.2d 1250 (La.App. 4 Cir.1991), writs denied, 590 So.2d 594 and 590 So.2d 597 (La.1992), and Goines v. Goines, 09-994 (La.App. 5 Cir. 3/9/11), 62 So.3d 193, writ denied, 2011-0721 (La.5/20/11), 63 So.3d 984.

In Stewart, the parties disputed allocation of 200 pieces of art by Mrs. Stewart, who was a well-known artist. Specifically, the parties disagreed on how they should be valued and to whom they should be allocated. The trial judge in Stewart ordered that the pieces should remain listed for sale at their respective galleries, with the net proceeds of sale to be divided equally between the parties. The fourth circuit found that the trial court had erred, however, because the court’s ruling required the parties to remain undivided co-owners of the artworks until all the pieces were sold. The court of appeal cited La. C.C. art. 807, which states, “No one may be compelled to hold a thing in indivisión with another unless the contrary has been provided by law or judicial act. Any co-owner has the right to demand partition of a thing held in indivisión....” The court concluded that La. R.S. 9:2801, by providing for allocation of community property, was not meant to be an exception to Art. 807.

| iSInstead, the court ruled, the problems inherent in the parties’ remaining undivided co-owners of the artwork required that the artwork be appraised and its value credited to Mrs. Stewart as part of her share of the community:

There are good practical reasons why the community should be divided with finality, vividly illustrated by the facts of this case. If the former spouses remain co-owners, who decides what price to charge for the art? Or what gallery will display it? Or when to accept an offer? These questions only illustrate that when the trial court requires co-ownership over the objection of one of the spouses, future disputes are not only likely, they are a certainty, and this means future litigation. For these reasons we hold the trial court erred.

Stewart, 585 So.2d at 1254.

In Goines, the trial court placed a valuation on the community home, but failed to allocate the home to either party. On appeal, this Court determined the trial court erred in rendering a judgment that partitioned the community without specifically allocating the community home to one of the parties or, alternatively, disposing of the home as provided in La. R.S. 9:2801(A)(4)(e) or (f). Because the court failed to follow the procedures set out in that statute, we remanded the case for completion of the partition proceedings because there was insufficient evidence for this Court to complete the partition.

Unlike the situations in Stewart and Goines, in which the courts were required to partition corporeal property, the trial court in this case allocated incorporeal property — ownership interests in a limited liability company. Pursuant to La. R.S. 9:2801(A)(4)(e), the tidal court had the authority to allocate the asset equally or unequally. Here the trial court divided the asset equally. Further, it is clear that the parties own their respective twenty-five percent interests separately, not as undivided co-owners. There is no showing that the court was clearly wrong in its determination.

i14decree

For the foregoing reasons, the judgment is affirmed. Costs of appeal are assessed against the appellant, Horatio Sprague Eustis.

AFFIRMED

      . His appeal was filed as a suspensive appeal, but was converted to a devolutive appeal by this Court in response to Sheldon Lykes’ Motion to Dismiss the Appeal.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Lenias J. MARIE, Jr. v. AMERICAN ALTERNATIVE INSURANCE COMPANY, Canon Health Care, LLC/T.L.H.C. and Canon Hospice, LLC.
    No. ll-CA-832.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.

      Danyelle M. Taylor, Attorney at Law, Westwego, LA, for Plaintiff/Appellee.
    Timothy G. Schafer, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

12Pefendants, Canon Hospice, L.L.C. (“Canon”) and American Alternative Insurance Company (“AAIC”), appeal the trial court’s May 16, 2011 judgment finding them liable for one-third of plaintiffs damages in this case. For the following reasons, we reverse.

FACT AND PROCEDURAL HISTORY

This case arises from an incident that occurred on January 5, 2005 when plaintiff, Lenias Marie, Jr., was at Canon Hospice visiting his father-in-law. Mr. Marie’s father-in-law shared a room with the father of Nicole LaBranche. On that date, Ms. LaBranche brought her Scottish Terrier, Cole, to visit her father. As Mr. Marie was headed to the doorway to get some ice cream for his niece and nephew, Cole was seated on Ms. LaBranche’s lap in a chair near the door. Mr. Marie extended his right hand to pet the dog on his snout when Cole snapped at Mr. Marie and bit his finger, causing damage including some loss of feeling and some restricted movement.

|sOn January 5, 2006, Mr. Marie filed suit against Canon and its liability insurer, AAIC, asserting that Canon, as the owner and operator of the premises where the dog bite occurred, was liable for his injuries. He also asserted that Canon was at fault due to its negligence in failing to maintain the premises in a safe condition, allowing an unreasonably dangerous situation to exist, and failing to warn him of the potentially hazardous condition.

Trial of this matter was held on April 11, 2011. At trial, Mr. Marie testified that he first saw Cole on January 4, 2005 when he visited his father-in-law. According to Mr. Marie, he is a dog lover who had worked with the Jefferson Parish Canine Division training dogs. He stated that he asked Ms. LaBranche if he could pet the dog and she agreed. He also allowed his young niece and nephew to pet Cole that day. He testified that Ms. LaBranche stated that Cole was not aggressive and he did not see anything to indicate that the dog was mean. Cole seemed friendly, behaved, and nice. He did not growl, snarl, run around, or seem agitated. Mr. Marie stated that he did not have any concern about going close to him and “never figured he was going to bite” him.

The next day, January 5, 2005, Cole seemed to have the same temperament as the day before. Mr. Marie was about to exit the room to get some ice cream for the children while the dog was seated on Ms. LaBranche’s lap in a chair near the door. According to Mr. Marie, he asked Cole if he wanted some ice cream and reached near the dog’s face to touch him when Cole jumped forward and bit his finger. Mr. Marie testified that he has a permanent scar on his finger, some “deadness,” and the top knuckle does not bend all the way down.

The defense called Susan Sexton to the stand. She testified that she is the Human Resources Director at Canon Hospice. She stated that Canon’s policy is to |4allow pets in the facility, but a dog cannot be aggressive and must be muzzled if it barks. She also stated that Canon asks for vaccination records before a dog is allowed in, though she admitted that people who bring animals do not always go to the front desk to be cleared before bringing in a pet.

Dr. Shiva Akula testified that he specializes in internal medicine and has worked with terminally ill patients for at least 20 years. He stated that Canon’s policy is to allow guests to bring pets to the facility, because they have a therapeutic effect, help with depression, and reduce blood pressure and incidents of stroke and heart attacks. He testified that Canon screens for aggressive pets, but they rely on information from the owner or the person bringing the pet and that person is responsible for the pet while at the facility.

Nicole LaBranche testified that she is the owner of an 18 to 20-pound Scottish Terrier named Cole, and she brought the dog to visit her father while he was at Canon Hospice. She stated that she brought him in a carrier and he also had a leash. She testified that on the date of the incident, Cole was on her lap with his leash on and he did not bark, run around, growl, or snarl at anyone. She stated that Mr. Marie did not ask to pet the dog before the dog bit him. She stated that Cole is friendly and she was not concerned about him biting anyone. She admitted that he sometimes plays rough, but does not snap at people hard enough to break the skin. Ms. LaBranche testified that a Canon representative told her that pets were allowed at the facility before her father was admitted. She stated that she was not asked by Canon for Cole’s vaccination records until after he bit Mr. Marie, though the dog did regularly get his shots.

At the conclusion of trial, the trial judge took the matter under advisement. Thereafter, on May 16, 2011, the trial judge rendered a judgment finding Mr. Marie’s damages to be $12,000.00 and finding Canon, Ms. LaBranche, and Mr. |fiMarie equally at fault. The judgment ordered Canon and AAIC to pay plaintiff $4,000.00, plus costs and interests. Canon and AAIC appeal this judgment.

LAW AND DISCUSSION

On appeal, Canon and AAIC note that the trial judge did not provide any reasons for judgment and thus, it is unclear if the trial judge found them liable under the theory of strict liability, premises liability, or general negligence. In their first two assignments of error, Canon and AAIC argue that they cannot be held strictly liable for the actions of a dog owned by another person simply because the dog was on Canon’s premises at the time of the incident. They cite LSA-C.C. art. 2321, which provides that the owner of a dog is strictly liable for damages or injuries caused by the dog which the owner could have prevented and which did not result from the injured person’s provocation of the dog. Mr. Marie responds that the trial court did not find Canon strictly liable, because the pre-trial proceedings indicate that plaintiff was alleging premises liability under LSA-2817.1 and negligence under LSA-C.C. art. 2317.

Although it is unlikely that the trial judge found Canon and AAIC liable under the theory of strict liability, we note that Canon and AAIC are correct that they cannot be found strictly liable under LSA-C.C. art. 2321 for Mr. Marie’s injuries. This Court has previously held that the strict liability of an animal owner under LSA-C.C. art. 2321 cannot be imputed to a non-owner. Murillo v. Hernandez, 00-1065 (La.App. 5 Cir. 10/31/00), 772 So.2d 868, 871; Verdun v. Hebert, 03-225 (La.App. 5 Cir. 5/28/03), 848 So.2d 138, 140; Parr v. Head, 442 So.2d 1234, 1235 (La.App. 5 Cir.1983). Accordingly, we find that Canon and AAIC are not strictly liable for plaintiffs injuries.

In their remaining assignments of error, Canon and AAIC assert that the trial court erred in finding Canon at fault for plaintiffs damages under LSA-C.C. arts. | ,;2317 or 2317.1, because the evidence did not show that Canon had custody of the dog, that the dog created an unreasonable risk of harm, or that Canon breached any duty to Mr. Marie. They claim that Ms. LaBranche is the dog’s owner and she had custody and control of the dog while at the Canon facility. They also assert that Cole was calm and well-behaved until Mr. Marie reached toward the dog’s face while he was seated on his owner’s lap. Mr. Marie responds that Canon had custody of the dog because it could control whether or not the dog was on the premises. He also asserts that the presence of the dog in a medical facility servicing dying patients clearly presents an unreasonable risk of injury or harm.

LSA-C.C. art. 2317 provides:
We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications. LSA-C.C. art. 2317.1 provides:
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Custody, distinct from ownership, refers to a person’s supervision and control (garde) over a thing. Hebert v. St. Paul Fire and Marine Ins. Co., 99-333, p. 4 (La.App. 4 Cir. 2/23/00), 757 So.2d 814, 816; Alford v. Home Ins. Co., 96-2430 (La.App. 1 Cir. 11/7/97), 701 So.2d 1375, 1377, writ denied, 97-3029 (La.2/13/98), 709 So.2d 749. Our Louisiana Supreme Court has used a two part test in determining whether the defendant has custody. First, the defendant should have a right of direction and control over the thing. Second, a court should examine what, 17if any, kind of benefit the defendant derives from the thing. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991); King v. Louviere, 543 So.2d 1327, 1329 (La.1989).

The owner or operator of a facility has the duty to exercise reasonable care for the safety of persons on his premises and the duty to not expose such persons to unreasonable risks of injury or harm. Mundy v. Department of Health and Human Resources, 620 So.2d 811, 813 (La.1993). In determining whether a thing creates an unreasonable risk of harm, the court must balance the likelihood and magnitude of the harm against the utility of the thing. Fisher v. River Oaks, Ltd., 635 So.2d 1209, 1215 (La.App. 5 Cir. 3/16/94), writ denied, 637 So.2d 503 (La.1994).

In the present case, the testimony shows that Ms. LaBranche, not Canon, had custody and control over the dog that bit Mr. Marie. Although Canon had the authority to have the dog removed from the facility if it became disruptive, it was Ms. La-Branche who had the right of direction and control over the dog. Ms. LaBranche owned the dog and was even holding the dog on her lap when he bit Mr. Marie after he reached toward the dog’s face. Ms. LaBranche and her father also derived the benefit of having the dog at the facility, as Ms. LaBranche testified that her father and Cole were very close and he would have enjoyed seeing or spending time with the dog before he passed away.

In addition to Canon not being the custodian of the dog, we also find that the dog’s presence at the facility did not create an unreasonable risk of harm. Although Ms. LaBranche testified that Canon did not ask her questions about the dog or “screen” the dog prior to visiting the facility, the testimony shows that the likelihood of harm caused by the dog was small and that Canon would have allowed the dog on the premises if the questions had been asked. Ms. Sexton and |8Pr. Akula testified that a dog is allowed to be on the premises if it is not aggressive and if it is not barking or being disruptive. They also stated that they rely on information from the owners when determining if a dog may visit the facility. Ms. LaBranche testified that although her dog “plays rough,” he is friendly, not aggressive, and has allowed strangers to pet him without incident. Even Mr. Marie testified that he is experienced with handling dogs and the dog did not exhibit any signs of danger, was well-behaved, and seemed nice. He did not see any indication that the dog would be aggressive and allowed his young niece and nephew to pet the dog. Dr. Akula testified that pets are allowed at the facility because they have a therapeutic effect, help with depression, and reduce blood pressure and the incidents of stroke and heart attacks.

Considering all of the testimony, we find that allowing the dog at the Canon facility did not present an unreasonable risk of harm when considering the likelihood and magnitude of harm versus the utility of having the dog on the premises. Accordingly, because Canon did not own or have custody of the dog at issue and the dog’s presence at the facility did not create an unreasonable risk of harm, Canon cannot be held liable for Mr. Marie’s injuries under LSA-C.C. arts. 2317 or 2317.1. We further find that plaintiff has not shown that Canon breached any duty owed to him, failed to exercise reasonable care, or was negligent under Louisiana’s general negligence laws. Thus, we find that the trial court erred in finding Canon one-third at fault for Mr. Marie’s injuries, and in rendering judgment against Canon and AAIC for $4,000.00 plus costs and interest.

| JDECREE

For the foregoing reasons, we reverse and vacate the trial court’s May 16, 2011 judgment, finding Canon liable for Mr. Marie’s injuries and ordering Canon and AAIC to pay $4,000.00 plus costs and interest to Mr. Marie.

REVERSED AND VACATED

      . Plaintiff also filed suit against "Jane Doe” as the owner of the dog that bit him. Nicole LaBranche was the owner of the dog at issue.