author: FREDERICKA HOMBERG WICKER, Judge.

text:
    David OCMAND, d/b/a River Parish Industrial Repair v. Chris R. LUBRANO and Danielle Lubrano.
    No. 11-CA-114.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 25, 2011.

      Fred R. Defrancesch, Tomy J. Acosta, Attorneys at Law, LaPlace, LA, James A. Harry, Attorney at Law, Springfield, LA, for Plaintiff/Appellant.
    Michael K. Heltz, Attorney at Law, Gramercy, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡/David Ocmand, doing business as River Parish Industrial Repair (the roofing company, collectively referred to herein as Mr. Ocmand) seeks judgment against the defendants, Christopher R. Lubrano and Danielle R. Lubrano (the homeowners) for the balance due for services rendered under an agreement with the homeowners to replace the roof. Mr. Ocmand appeals the judgment dismissing his suit with prejudice and denying attorney’s fees. He asserts he is entitled to the full contract price, including attorney’s fees, and specifies the following errors: (1) The Lubranos waived any defenses in a settlement agreement and the trial judge erroneously failed to enforce that agreement. (2) The trial court erred in offsetting and/or giving the Lubranos a credit for compromised damages. (3) The trial court erred in failing to find Mr. Ocmand tendered performance and that tender constituted proper performance. (4) The trial court erred in refusing to award attorney’s fees. For the reasons that follow, we affirm.

| ^Procedural History/Facts

On February 27, 2007, Mr. Ocmand provided the Lubranos with a written proposal of $11,800.00 for materials and labor as the cost to replace the Lubranos’ roof on their home and adjacent garage. A few days later, Mr. Lubrano paid $6,000, of which Mr. Ocmand spent $5083.77 for materials. Mr. Ocmand and his five workers worked on the house and garage roofs for seven days. According to Mr. Lubrano, things did not go well from the beginning. Mr. Lubrano testified that as early as the first day, he told the workers to stop because the nails were tearing or puncturing the shingles. He also complained about the amount of shingle overhanging the drip edge on the garage. He testified that Mr. Ocmand was not there and the workers refused to stop working. Mr. Ocmand stated that he was probably only there four to five hours because he had to obtain materials.

Mr. Lubrano and Mr. Ocmand testified that on the second day, the workers had to work at night in order to cover the house roof with black paper (the underlayment) to prevent exposure to the rain. Mr. Oc-mand stated that the workers had not followed his instructions. Instead, they tore off more shingles than planned.

According to Mr. Lubrano, as a result, the workers had to install the underlayment on approximately 25% of the roof area. Concerned that the men were working in the dark and could not see, Mr. Lubrano told the workers to stop working. They ignored him.

Mr. Ocmand admitted that Mr. Lubrano often complained about problems. He stated that Mr. Lubrano complained to him about a bent drip edge that was caused by a ladder placed there, the length of the overhang of the shingles on the garage roof that went over the drip edge, problems with the hips and the manner in |4which they were cut, concern about the proper number of nails per shingle, and concern that workers were cutting the un-derlayment.

According to Mr. Ocmand, one concern, the bent drip edge, could be easily remedied. Another problem, which Mr. Ocmand admitted occurred, was that the shingles on the two longer sides of the garage roof were extended longer than the amount called for in the manufacturer’s guidelines. Mr. Ocmand stated that he never addressed that issue because it required two to three and half hours of work and at the time, Mr. Ocmand was focused on completing the house roof.

As for Mr. Lubrano’s concern that the workers were not using the required number of nails per shingle, Mr. Ocmand testified that the workers assured him that they were using the proper number. Although he did not review their work at that point, he was satisfied with their assurance.

Mr. Lubrano testified that because of the unsatisfactory work, he asked Mr. Oc-mand to leave the job on two occasions. The first time occurred on the second day after Mr. Ocmand finally arrived. That night Mr. Ocmand assured him he would remove the shingles to fix the problem. With that assurance, Mr. Lubrano allowed Mr. Ocmand to return the following day. It is undisputed, however, that upon return Mr. Ocmand did not address Mr. Lubrano’s concerns.

According to Mr. Ocmand, he focused on completing the job and intended to perform remedial work after completion. Then, according to Mr. Ocmand, when, on the seventh day Mr. Lubrano finally ordered Mr. Ocmand off the job site, the project was 95% complete. The remainder consisted of finish work, capping, replacing missing shingles in an area of the roof that they were using as access, and fixing the bent drip edge. But, Mr. Ocmand was not given the opportunity to perform remedial work.

| sWilliam Pousson, an expert in building codes as it relates to roofing, inspected the house and garage roof on April 4, 2007 according to the mandatory 2007 state code. Mr. Pousson found the following code violations: (1) The shingles in several areas were only applied with four nails per shingle and not the required six. (2) The code, which required adhering to the manufacturer’s recommendations, was not followed with respect to the installation of the underlayment. (3) The exposure on the rows of shingles was inconsistent.

After Mr. Ocmand filed suit for the alleged balance due under the agreement, the Lubranos filed an answer denying that the roof was substantially completed. They also filed a reconventional demand seeking damages, including mental anguish and inconvenience, for alleged defective workmanship. The Lubranos dismissed their reconventional demand after they settled their demand.

After the settlement, Mr. Ocmand amended his petition, seeking among other things, attorney’s fees. He alleged that the Lubranos’ failure to pay the full contract amount amounted to intentional fraud because the settlement waived any defense to Mr. Ocmand’s demand. The trial judge found the settlement only waived the Lubranos’ right to offset their damages against the contract price; it did not waive their defense that the work was performed in an unworkmanlike manner. He found that Mr. Ocmand did not substantially complete the work, having performed only 13.5% of all the work that he was obligated to perform under the roofing contract. Therefore, the trial judge awarded Mr. Ocmand $906.70, subject to any credit the Lubranos were entitled to for any payments they had made to Mr. Ocmand. He also denied attorney’s fees. Thus, the Lubranos had a $916.23 credit (based on the $6,000 payment to Mr. Oc-mand) toward the labor cost, which | ^covered the trial court’s award. The trial judge then rendered judgment dismissing Mr. Ocmand’s suit with prejudice. This appeal followed.

Analysis

Tender

In his testimony, Mr. Ocmand basically stated that the Lubranos did not permit him to correct his work and that he tendered performance but the Lubranos refused the tender. In addition to verbally offering to remedy the work, Mr. Oc-mand testified that he sent a certified letter to the Lubranos stating that he was willing to correct any defects in the work. Although Mr. Lubrano believed he received such a letter, he did not recall its contents.

Mr. Ocmand asserts that through his actions, he, Mr. Ocmand, tendered his performance and that tender had the full effect of performance. Thus, he asserts that the Lubranos owe him the full contract price of $11,800 subject to a credit of $6,000, leaving a $5,800 balance.

To support his argument, Mr. Ocmand relies on Walker v. Investment Properties, Ltd., 507 So.2d 850, 852 (La.App. 5 Cir.1987), writ denied, 513 So.2d 293 (La.1987). That ease is distinguishable. Walker concerned a tender of a certified check rather than a tender of services as is the case here. 507 So.2d at 853. The court held that the tender was valid and sufficient to satisfy all obligations owing and therefore produced all of the effects of performance. Id.

Walker relied on La.C.C. Art. 1869, which provides:

When the object of the performance is the delivery of a thing or a sum of money and the obligee, without justification, fails to accept the performance tendered by the obligor, the tender, followed by deposit to the order of the court, produces all the effects of a performance from the time the tender was made if declared valid by the court.
A valid tender is an offer to perform according to the nature of the obligation.

|7Article 1869 requires the tender to be followed by a deposit to the order of court. The present case concerns a suit on a contract to replace a roof, a contract for services. However, services, although they can be tendered, cannot be deposited. La.C.C. art. 1869, 1984 revision comment b. In fact, the effects of the common law tender of services are accomplished under Louisiana law by putting in default. In French doctrine, the mechanism of tender and deposit for extinguishing obligations was meant to be confined to obligations to give. Id.

Even assuming the certified letter constituted a tender (and placement in default) despite no deposit to the order of court, Article 1869 requires another condition in order to produce the effects of performance: refusal to accept the tendered performance without justification. Here, we find the record supports the trial judge’s conclusion that the Lubranos were justified in failing to accept Mr. Ocmand’s performance. Mr. Lubrano gave Mr. Oc-mand numerous chances to correct his work before ordering him off the property. The absence of the requisite nails per shingle alone supported the conclusion that the work was not substantially complete and had to be redone. Therefore, the trial judge did not err in failing to find there was a tender which was the same as performance.

The settlement agreement and offset

The settlement agreement and receipt and release entered into between the Lubranos and Mr. Ocmand’s insurance company was admitted into evidence, despite the Lubranos’ objection.

Nevertheless, in a judge alone trial, inadmissible evidence may be admitted, where, by virtue of his training in the law, the judge is able to disregard irrelevant matters which are possibly prejudicial. State v. Johnson, 496 So.2d 616, 622 (La.App. 1 Cir.1986), writ denied, 501 So.2d 206 (La.1987) (citations omitted).

|sMr. Ocmand argues that the settlement agreement stops the Lubranos from raising an affirmative defense because they gave up all “rights” to raise affirmative defenses regarding the roof work and other repairs that Mr. Ocmand performed. Whether he did or did not perform shoddy work in an unworkmanlike manner, Mr. Ocmand argues that the Lubranos’ damages are still zero, being fully settled. Mr. Ocmand asks that this Court award him the entire contract price less the amount already paid by the Lubranos for a sum of $5,800.

A compromise instrument is the law between the parties and must be interpreted according to the intent of the parties to the agreement. The compromise instrument is governed by the same general rules of construction applicable to contracts. Ortego v. State, Dept. of Transp. and Dev., 96-1322, p. 7 (La.2/25/97), 689 So.2d 1358, 1363. The general rule of construction is provided by La.C.C. art. 2046, which states that “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” Trahan v. Coca Cola Bottling Co. United, Inc., 04-0100, pp. 14-15 (La.3/2/05), 894 So.2d 1096, 1106-07 (quoting La.C.C. art. 2046). A compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express. La.C.C. art. 3076.

In applying the rule of construction set forth in La.C.C. art. 3076 (formerly La. C.C. art. 3073), courts are guided by the general principle that the contract must be construed as a whole and in light of attending events and circumstances. Hudson v. Progressive Sec. Ins. Co., 43,857 (La.App. 2 Cir. 12/10/08), 1 So.3d 627, writ denied, 09-0235 (La.3/27/09), 5 So.3d 148 citing Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741, 748.

[sMr. Ocmand relies on two portions of the settlement agreement.

First, the settlement agreement specifically provides that the Lubranos release and forever discharge Mr. Ocmand “from any and all ... rights, damages ... to which they may be entitled, in any way resulting from and/or to result from roofing and/or other work or repairs performed by DAVID OCMANDf.]”

That provision does not specify that the Lubranos are stipulating that insofar as the main demand, they agree not to assert any defenses nor do they amend their answer to the main demand wherein they denied that Mr. Ocmand completed the work. Construed as a whole and in light of attending events and circumstances that settlement clearly reflects the parties’ intent was to settle the reconventional demand rather than the main demand. It is clear that the parties’ intent was that the provision referred to the reconventional demand and their rights to the damages they claimed in reconvention. In light of the attending circumstance of dismissal of the reconventional demand rather than a dismissal or amendment of their answer denying substantial completion, the settlement is a settlement of the reconventional demand.

Second, Mr. Ocmand asserts that the settlement prohibits the Lubranos from receiving any credit due to damages caused by Mr. Ocmand. Ocmand thus argues that the trial judge allowed Mr. Oc-mand’s recovery to be reduced by giving the Lubranos a credit for alleged unwork-manlike performance. The trial judge was clear, however, at trial that he would not allow such an offset. Nevertheless, he would allow testimony and evidence about the workmanship. The trial judge reasoned that in order for Mr. Ocmand to recover he must show that he properly performed the work under the contract.

The settlement specifically states that the fact and details of the settlement shall not be presented or introduced as an admission of fault, defective | ,0workmanship or liability in the main demand nor shall the amount paid to the Lubranos (that is, the $16,000 settlement) be claimed as a credit or offset against any damages east in the main demand.

In essence, the settlement only pertains to the Lubranos’ reconventional demand. It is not a settlement as to the main demand. Moreover, the trial judge never allowed an offset of the settlement award against the amount he awarded Mr. Oc-mand. Rather, he applied a credit of the amount the Lubranos paid to Mr. Ocmand in the $6,000 check for the roofing labor and materials.

Thus, we find no merit to these specifications of error.

Substantial Completion

Mr. Ocmand argues he is entitled to the full contract price, despite the fact that the trial Court found the roofing job performed by the plaintiff to be defective. We disagree. Mr. Ocmand also argues that in the event there were no damages, then Mr. Ocmand should have received the full contract price. The trial judge, however, found that Mr. Ocmand did not substantially complete the job:

[I]t is important to note the court is aware that Mr. Lubrano is not an expert in roofing and as such, he is not qualified to render an expert opinion as to the deficiencies in Ocmand’s installation of the new roof. However, the pictures alone of the roof in question reflect problems with the quality of Mr. Oc-mand’s work that are so obvious, even to a lay person, such that an expert opinion, although there was one in this case, was not even necessary. This court finds as a matter of fact that Ocmand did not perform his work in a good and workmanlike manner so that the work was free from defects in material and workmanship. The court does find that Ocmand’s removal of the preexisting roof and installation of the felt paper/un-derlayment for the new roof was done in a workmanlike manner , such that it was free from defects in workmanship. It is the court’s opinion the aforementioned only reflects about thirteen and a half percent (13.5%) of all the work that Oc- . mand d/b/a River Parish was obligated to do under the roofing contract. As such, the court will award Ocmand thirteen and a half percent (13.5%) of the amount due under the labor portion of the contract’, or $906.70, subject to any credit for which the Lubranos are entitled to for any payments that have already been made to Ocmand.

_|_yThe trial judge also found that Mr. Ocmand did not perform his work in a good and workmanlike manner so that the work was free from defects in material and workmanship. However, the court found that Mr. Ocmand’s removal of the preexisting roof and installation of the felt paper/underlayment for the new roof was done in a workmanlike manner such that it was free from defects in workmanship. That portion only reflected about thirteen and a half percent (13.5%) of all the work that Mr. Ocmand was obligated to perform under the roofing contract.

The trial judge evidently found that it was necessary that the roof be rebuilt as a result of the unworkmanlike manner in which the job was performed. The record, including the photographs of the roofing work, supports the trial judge’s finding that Mr. Ocmand did not substantially perform the roofing contract so that it was necessary to have a significant portion redone.

The contractor has the burden of proving substantial compliance with the contract. Jackson v. Spurlock, 424 So.2d 1088, 1089 (La.App. 1 Cir.1982). When a contractor fails to prove that he has substantially performed, he may, in the alternative, prove the value of the services he has rendered and thereby recover based on quantum meruit. Id.

Because there was no substantial performance of the contract, Mr. Ocmand breached the contract and was not entitled to the full contract price under the contract. Town & County Contractors v. Henderson, 231 La. 131, 90 So.2d 863, 865 (La.1956).

However, the trial judge awarded Mr. Ocmand an amount for the work that was partially completed. He found:

Despite the obvious problems with Oc-mand’s work, Mr. Lubrano was satisfied with the manner in which the preexisting shingles were removed and the installation of the new underlayment/felt paper. Mr. [12Lubrano further testified he needs a new roof to date, which will cost him approximately $15,000 according to the estimates that he received.

The trial judge’s award was based on the principle of quantum meruit. We find no manifest error in the trial judge’s failure to award the full contract price.

Attorney’s Fees

Mr. Ocmand sought attorney’s fees based on La.C.C. art. 1997, which the trial judge denied. La.C.C. art. 1997 provides:

An obligor in bad faith is liable for all the damages, foreseeable or not, that are a direct consequence of his failure to perform.

Mr. Ocmand asserts that the Lubranos were in bad faith because they raised a defense to his claim when the Lubranos had already settled that claim for poor work. According to Mr. Ocmand, the Lu-branos refused to pay his bill even though they had no defense.

Louisiana courts have long held that attorney’s fees are not allowed except where authorized by statute or contract. Sher v. Lafayette Ins. Co., 07-2441, p. 18 (La.4/8/08), 988 So.2d 186, 201. Article 1997 does not mention attorney’s fees. In cases of breach of contract, Article 1997 does not provide for an award of attorney’s fees. Id. As discussed above, we find that the trial judge was not manifestly erroneous in finding that the Lubranos were not in bad faith to pursue a defense. But even so, the trial court did not err in refusing to award attorney’s fees under Article 1997.

11SConclusion

For the reasons stated, the judgment is affirmed.

AFFIRMED

      . It is undisputed that the Lubranos paid Mr. Ocmand $6,000 for materials. Mr. Ocmand introduced into evidence receipts for materials totaling as $5,083.77.

      . Mr. Ocmand testified that the code required six nails per shingle for a high wind roof such as this.

      . The Lubranos assert that Mr. Ocmand did not list the denial of his claim for attorney's fees as an assignment of error. "An assignment of errors is not necessary in any appeal.” La.C.C.P. art. 2129. However, Uniform Rules — Courts of Appeal, Rule 1-3 states: "The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.” We need not resolve any potential conflict between the Uniform Rules and the Code of Civil Procedure because the interest of justice clearly requires consideration of the issue. Mr. Ocmand has nevertheless otherwise raised and briefed the issue. Assignments of error neither briefed nor argued are considered abandoned. State v. Lewis, 416 So.2d 921, 923, n. 1 (La.1982); Uniform Rules — Courts of Appeal, Rule 2-12.4. Thus, we do not consider the assigned error abandoned because the issue is clearly before this Court.


source: Caselaw Access Project

author: CARAWAY, J. DREW, J.,

license: Public Domain

text:
    Jewel DOWDY and Jesse Dowdy, Plaintiffs-Appellants v. CITY OF MONROE and Monroe Civic Center, Defendants-Appellees.
    No. 46,693-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      Richard L. Fewell, Jr., for Appellants.
    Davenport, Files & Kelly, L.L.P., Monroe, LA, by Mike C. Sanders, Amanda A. James, for Appellees.
    Before GASKINS, CARAWAY and DREW, JJ.
   CARAWAY, J.

Ijn this trip and fall case, the trial court granted summary judgment in favor of the municipality after finding that the surface irregularity in a public parking lot upon which plaintiff tripped did not create an unreasonable risk of harm. The plaintiff appeals the judgment. Finding no issues of material fact, we affirm the trial court’s finding that no unreasonable risk of harm was established.

Facts

The ArkLaMiss fair is conducted annually by the City of Monroe (“City”) at the Monroe Civic Center and surrounding premises. On September 27, 2008, just before noon, while en route to the fair with her two sons and two preschool aged grandchildren, Mrs. Jewel Dowdy tripped over a patched hole in an asphalt roadway on the Civic Center premises and sustained numerous injuries to her hands, arms and right shoulder. At the time of her fall, Mrs. Dowdy’s sons and grandchildren were ahead of her close to a sidewalk which led into the main building. Mrs. Dowdy was headed in the same direction as her family.

As the result of the accident, Mrs. Dowdy (hereinafter “plaintiff’) and her husband instituted suit for damages against the City on September 24, 2009. On December 16, 2010, the City sought summary judgment. The primary evidence in support of the City’s motion were photographs of the asphalt-repaired hole taken by plaintiffs son six months after the accident. The City stipulated that the photographs depicted the area as it was on the | gday of the accident. An affidavit of the Assistant Director of the Civic Center was also submitted, stating that the subject area had not been significantly modified since the opening of the Civic Center in 1967 and no reports of any other accidents had been made. Finally, the City submitted the deposition of plaintiff in support of its motion.

In her deposition, plaintiff testified that she had been to the fair many times and had seen potholes in the parking lots around the Civic Center. She had never fallen or stumbled over a pothole before and she did not recall how the pothole “caught her foot,” although she knew her foot tripped on something there. She did not see the pothole before because “the grandchildren were ahead” of her and she “was trying to keep an eye on them.” She testified that if she had seen it beforehand, she would have avoided it and that if she had looked down she was “sure” she would have seen it.

The photographs depict the location of the fall as a previously patched three-foot circular area. The patch was an asphalt repair of a hole with deteriorating frayed borders that had cracked and broken off, creating a change in elevation. The repaired pothole was located on that portion of the parking lot which provided vehicular access between two parking areas. A sidewalk was located on the south front of the larger parking lot which led to the various entrances into the Civic Center. The area was used mainly for vehicular traffic. While the depth of the cracked edge of the pothole patch is difficult to discern from the photographs, for purposes of the summary judgment, the City stipulated that in accordance with one of plaintiffs 1 ^photographs, the largest variance in the surface caused by the patch was 1-1/2 inches.

At the hearing on the motion for summary judgment, the City stipulated to all factual issues in a light most favorable to the plaintiff and argued that as a matter of law, the “shallow imperfection” in the asphalt roadway was not unreasonably dangerous. The plaintiff argued that the issue of an unreasonable risk of harm was a factual inquiry which was inappropriate for summary judgment. In a written ruling, the trial court rendered judgment in favor of the City, finding that the social value and utility of the parking lot outweighed its potential harm to others and that the defect was open and obvious.

Discussion

We review the grant of a motion for summary judgment de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991); Beck-ham v. Jungle Gym, L.L.C., 45,325 (La. App.2d Cir. 5/19/10), 37 So.3d 564; Moore v. Oak Meadows Apartments, 43,620 (La. App.2d Cir.10/22/08), 997 So.2d 594. A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to summary judgment as a matter of law. La. C.C. P. art. 966(B). A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if treasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. King v. Illinois Nat. Ins. Co., 08-1491 (La.4/3/09), 9 So.3d 780.

If the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

Plaintiffs claim is governed by Article 2317.1 of the Louisiana Civil Code. This article provides that:

The owner or custodian of a thing is answerable for damage occasioned by its rain, 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.

Article 2317.1 actions require proof that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage and that the defendant knew or should have known of the defect. Beckham,, supra; Pamplin v. Bossier Parish Community College, 38,533 (La.App.2d Cir.7/14/04), 878 So.2d 889, writ denied, 04-2310 (La.1/14/05), 889 So.2d 266.

There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. The trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Simply put, the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify its potential harm to others. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362.

The courts have recognized that it is common for the surfaces of streets, sidewalks and parking lots to be irregular and that it is not the duty of the party having garde of these locations to eliminate all variations in elevations existing along the countless cracks, seams, joints and curbs. These surfaces are not required to be smooth and lacking in deviations because such a requirement would be impossible to meet. Reed, supra; Beckham, supra. This fact alone, however, is insufficient to eliminate the defendant’s li ability under the unreasonable risk analysis. Reed, supra; Beckham, supra. Not every imperfection or irregularity will give rise to liability, but only a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Netecke v. State, through Dept. Of Transp. and Dev., 98-1182 (La.10/19/99), 747 So.2d 489.

Defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of | ^condition should have been obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff.

In determining whether a condition is unreasonably dangerous, courts have adopted a four-part test. This test requires consideration of: 1) the utility of the complained-of condition; 2) the likelihood and magnitude of the harm, which includes the obviousness and apparentness of the condition; 3) the cost of preventing the harm; and 4) the nature of the plaintiffs activities in terms of its social utility, or whether it is dangerous by nature. Dauzat v. Curnest Guillot Logging, Inc., 08-0528 (La.12/2/08), 995 So.2d 1184. A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care, or which was as obvious to a visitor as it was to the landowner. Id.

In determining the reasonableness of a risk, the court must consider the broad range of social, economic and moral factors and the social utility of the plaintiffs conduct at the time of the accident. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566; Oster v. Department of Transp. and Dev., State of Louisiana, 582 So.2d 1285 (La.1991). One cannot be protected from all risks. The court must decide what risks are unreasonable. Graves, supra at 573.

The Louisiana Supreme Court has addressed the issue of the unreasonableness of conditions on a sidewalk and parking lot in the two frequently cited cases of Reed, supra and Boyle v. Board of Sup’rs, Louisiana State University, 96-1158 (La.1/14/97), 685 So.2d 1080. Both cases were tried on the merits in the district courts.

Boyle reversed both lower courts’ determinations that a 1/2 to 1-inch depression between side-by-side concrete sidewalk slabs created an unreasonable risk of harm. In finding that no unreasonable risk of harm existed, the court considered the substantial risk of harm caused by the depression, the small risk of injury due to the several years of heavy traffic in the location without reported injury and the social utility including the large cost to repair all or worse defects in the approximate 25 miles of sidewalks located at the university. In noting the courts’ consistent holdings that state entities are not liable for every irregularity in a street or sidewalk, the court referred to its earlier decision of White v. City of Alexandria, 216 La. 308, 43 So.2d 618 (1949), which also reversed lower court determinations that a 1/2 to 2-inch depression between contiguous sidewalk slabs did not present an unreasonable risk of harm.

In Reed, the plaintiff tripped and fell on the expansion joint crack between two of the several concrete blocks which made up a store parking lot. The height variance between the blocks was 1/4 to 1/2 inch. Comparing the facts to Boyle, and considering the same factors as those considered in the earlier decision, the court determined that the height variance did not create an unreasonably dangerous condition.

In this summary judgment setting, the City has presented the evidence asserted by plaintiff in her deposition and the photos of the accident site which she obtained. Plaintiff obviously makes no assignment of error that | sher essential evidence presented in support of the City’s motion raises any issue of material fact. The plaintiff does assert that the trial court improperly discounted the accident site as a seldom traveled area by pedestrians. With the Civic Center’s use by the general public for this fair and other heavily attended events, we agree with plaintiff that the roadway in question between the parking areas would be expected to have a large amount of pedestrian traffic.

A review of the plaintiffs photos shows that the rough gravel/asphalt surface at the Civic Center is a typical level travel way for vehicles. Other nearby patched areas reveal that this was not the only asphalt patch of the roadway. The patched areas are clearly distinguishable in the roadway. The area in question had not been recently repaired as the traffic over the patch in question had caused multiple cracks around the edges of the circular patch. As seen in the photos, loose pieces of cracked asphalt were lying around the patch. From the view of our highest court in Reed, supra and Boyle, supra, this is an irregular surface of a common asphalt parking lot/driveway which is not expected to be free from variances in the surface level.

In Reed, supra, the Supreme Court addressed the standard of appellate review for a trial court’s determination of whether a condition of the thing or property presents an unreasonable risk of harm. A conflict |aamong the circuits existed for review of verdicts after a trial on the merits regarding whether the legal and policy issues surrounding the risk/utility balancing test allowed the appellate court to be unrestrained by the manifest error rule and to decide the existence of an unreasonable risk of harm de novo. The court affirmed the application of the manifest error standard as follows:

In Tillman, we stated that whether a defect presents an unreasonable risk of harm “is a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of the facts.” Tillman, 612 So.2d at 70 (citing to Entrevia, 427 So.2d 1146; Landry, 495 So.2d 1284; and Oster, 582 So.2d 1285). “The unreasonable risk of harm criterion entails a myriad of considerations and cannot be applied mechanically.” Oster, 582 So.2d at 1288 (citing to Landry, 495 So.2d at 1287). The concept, which requires a balancing of the risk and utility of the condition, is not a simple rule of law which can be applied mechanically to the facts of the case. Id. Because of the plethora of factual questions and other considerations involved, the issue necessarily must be resolved on a case-by-case basis. Additionally, an appellate court, reviewing a cold record, is not in the best position to weigh and evaluate the evidence presented and make this determination. Rather, the original fact finder, viewing live testimony and evidence, is best positioned to make a determination so heavily laden with factual issues.
Because a determination that a defect presents an unreasonable risk of harm predominantly encompasses an abundance of factual findings, which differ greatly from case to case, followed by an application of those facts to a less-than-scientific standard, a reviewing court is in no better position to make the determination than the jury or trial court. Consequently, the findings of the jury or trial court should be afforded deference and we therefore hold that the ultimate determination of unreasonable risk of harm is subject to review under the manifest error standard.

Reed, supra at 364-365.

h (Reed was decided in a case fully tried on the merits. The trier of fact was presented disputed facts and then required to apply the risk/utility evaluation as the legal measure of those facts. Reed was not a summary judgment ruling. In the present case, the procedural rule of La. C.C.P. art. 966(C)(2) placed the burden upon the plaintiff to produce in opposition to the motion for summary judgment factual support different from the evidence of the City to show that a genuine issue of material fact exists. However, as shown above, the best evidence of the condition of the patched roadway is the plaintiffs photos of the accident site. That evidence along with plaintiffs testimony is fully before the court and undisputed. Thus, given the common condition of this public asphalt road and the simple explanation of the plaintiffs fall, this court, like the parties, cannot articulate a genuine issue of material fact for the trial court to decide to serve as a rationale for reversal in this case.

Therefore, the question posed from the above quoted ruling of Reed is whether a decision concerning the existence of an unreasonable risk of harm for an alleged defective thing may never be reached by a motion for summary judgment. With summary judgment expressly “favored” “to secure the just, speedy, and inexpensive determination of every action” under the Code of Civil Procedure, we do not view Reed, which did not involve summary judgment, as a bar to summary judgment under these |, circumstances where no fact dispute is asserted. La. C.C.P. art. 966(A)(2). The court is charged legislatively by this favored procedure to determine the legal significance of the undisputed facts.

A review of the jurisprudence reveals that the appellate courts have resolved on motions for summary judgment the issue of whether a condition presented an unreasonable risk of danger. In Llorence v. Broadmoor Shopping Center, Inc., 2011-233 (La.App. 3d Cir.10/5/11), 76 So.3d 134, the plaintiff was injured when she fell in a pothole in a shopping center parking lot. The defendant shopping center sought summary judgment urging that plaintiff could not satisfy her burden of proof at trial because she could not prove that the parking lot was defective or that her fall was the result of that condition. The trial court granted defendant’s summary judgment. Based upon the photographs submitted by plaintiff into evidence and affidavits submitted by defendants stating that there had been no claims, complaints or suits arising out of the area, the court of appeal affirmed the summary judgment on the grounds that plaintiff had failed to establish a genuine issue of material fact with regard to the existence of an unreasonably dangerous condition or causation.

In Leonard v. Parish of Jefferson, 05-32 (La.App. 5th Cir.4/26/05), 902 So.2d 502, the plaintiff tripped and fell while walking on a sidewalk owned by Jefferson Parish. The parish sought summary judgment on the grounds that the sidewalk did not contain an unreasonably dangerous defect. The trial court granted summary judgment in favor of the parish. At the time of the summary judgment, there was no dispute that the plaintiff had | ^tripped over a sidewalk differential in side by side slabs which measured 1 to 1.3 inches, as evidenced by photographs. Recognizing accepted law that owners of sidewalks have no duty to eliminate all variations in elevations in sidewalks and parking lots and considering the social utility and cost of repairing the single height differential, the court of appeal affirmed the summary judgment in favor of the parish.

In Reitzell v. Pecanland, Mall Associates, Ltd., 37,524 (La.App.2d Cir.8/20/03), 852 So.2d 1229, a plaintiff tripped and fell on a place of transition between a handicap ramp and parking lot which had been patched with a black asphalt-like substance. The trial court granted summary judgment in favor of the mall. Recognizing the above-noted law regarding irregularities in streets, sidewalks, and parking lots, this court determined that the patched area did not present an unreasonable risk of harm. In concluding that the pedestrian was required to use caution in navigating the expected risk, the court affirmed the trial court’s summary judgment.

In contrast, in Beckham, supra, a patron slipped and fell on an unpaved parking lot after encountering chunks of asphalt. The parking lot was on a slope. The trial court granted summary judgment in favor of the defendant. On appeal, this court reversed the summary judgment because of remaining issues of material fact regarding the “unusual feature” of the parking lot involved in the accident which would “be better assessed at a trial on the merits.”

With undisputed facts in this case, the City’s duty was to maintain the roadway in a condition that was reasonably safe and did not present an [ ^unreasonable risk of harm to pedestrians using the Civic Center and exercising ordinary care and prudence. Under the risk/utility balancing test, the roadway serves a social utility primarily for providing vehicles access to parking around the Civic Center. It additionally, serves a purpose of allowing the pedestrian to walk to and from the Civic Center for the public activities of the facility-

The second factor examines the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition. It was obvious to the plaintiff in stepping off the curb from the adjacent sidewalk that she had entered a gravel/asphalt roadway. The patch in question and other nearby patches were visibly distinguishable from the remainder of the road’s surface. The edges of the patchwork would indicate that the surface of the roadway was not entirely smooth around those repaired areas. These facts go to the likelihood of the harm in that the prudent pedestrian understands that she has left a sidewalk area and entered onto the more rough and irregular surface of the roadway. Thus, it is likely that a pedestrian would use greater care and avoid injury. The undisputed fact presented by the City was that it had received no reports of a similar accident in the area of plaintiffs fall.

The third factor focuses on the cost of preventing harm. The cost of some additional repair or repatching of this pothole was not specifically addressed in the record. Yet, for one pothole the cost would not be that great. Nevertheless, as indicated in the ruling in Boyle regarding the maintenance of public sidewalks, the cost of repair to be considered in the | urisk/utility evaluation “includes not just the minor costs of repairing the single defect in question, but the cost of repairing all similar or worse defects” for the City’s roadways and parking lots. Boyle, supra, 685 So.2d at 1083.

Finally, we must consider the nature of the plaintiffs activity in terms of its social utility, or whether it is dangerous by nature. Clearly, the use of the public facility by the plaintiff and all pedestrians has social utility. However, plaintiff greatly increased the pedestrian’s risk of tripping by her focus on her nearby grandchildren which, admittedly, distracted her from seeing the patched area of the roadway.

From this review, we find that the irregularity of the repaired area of the roadway where plaintiff tripped did not present an unreasonable risk of harm. The policies emphasized by the Supreme Court in Reed and Boyle likewise are present for consideration of this public asphalt roadway. The City did not owe a duty to plaintiff because, under the undisputed facts of this common roadway setting, the observable irregularity in the road surface did not pose an unreasonable risk of harm.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Dowdy.

AFFIRMED.

DREW, J., dissents and assigns reasons.

DREW, J.,

dissenting.

_JjAs this appears to me to be a comparative liability case, I must respectfully dissent.

      . Jesse Dowdy is now deceased.

      . Plaintiff's description of the accident was that her foot hit something causing her to trip. She did not say that she stepped on a loose piece of asphalt. The pieces of asphalt shown in the photos taken 5-6 months after the accident were therefore apparently not the cause of the accident and may not have been present at the time of the accident. The variance between the height of the edge of the asphalt patch and the surrounding surface is the asserted cause of the plaintiff's trip and fall.

      . The complete citations omitted from the above quote include in the order listed, Tillman v. Johnson, 612 So.2d 70 (La.1993); Entrevia v. Hood, 427 So.2d 1146 (La. 1983), Landry v. State, 495 So.2d 1284 (La.1986) and Oster v. Dep’t of Transp. and Dev., 582 So.2d 1285 ](La.1991).

      . In addressing the propriety of the summary judgment in Robertson v. State, through Dep't of Planning and Control, 32,309 (La.App.2d Cir. 12/10/99), 747 So.2d 1276, 1279, writ denied, 00-0041 (La.2/25/00), 755 So.2d 882, we observed: "From a pragmatic view, understanding that this suit against the governmental entities will not be tried before a jury, the trial court’s decision that Tech did not breach any duty owed to Trey because of the design of the Roof, or the three prior incidences involving the Roof, will be difficult to alter by our remanding the case for determination of an ill-defined fact issue which neither party is now suggesting.”


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Elston CALDWELL, Appellant.
    No. 46,718-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      Mark O. Foster, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Marcus R. Patillo, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART, and LOLLEY, JJ.
   BROWN, Chief Judge.

| ¶ Defendant, Elston Caldwell, pled guilty to second offense possession of marijuana and was subsequently sentenced to serve four years at hard labor. He now appeals asserting that the sentence imposed was cruel, unusual, and excessive. We affirm.

Facts and Procedural History

Defendant worked at Alex Edwards’ Auto Sales in Springhill, Louisiana. The record does not show what his job entailed. Defendant had a key to the business and on the night or morning of August 3, 2010, he was entering the office when this incident occurred. The presentence investigation report (PSI) states that Springhill Police Officer Brian Montgomery, while on patrol on August 3, 2010, observed a black male trying to enter Alex Edwards’ Auto Sales. Officer Montgomery spoke with the black male (defendant) and asked for identification, which defendant produced. Officer Montgomery then asked defendant to empty his pockets. At this point, defendant turned and walked away into the parking lot. Defendant returned and became combative at which time he was ordered to the ground and arrested. During a search of defendant’s pockets, Officer Montgomery found a loose green leafy substance which he believed to be marijuana. The crime lab confirmed that the substance was marijuana.

Defendant was charged by bill of information with second offense possession of marijuana, in violation of La. R.S. 40:966(C) and La. R.S. |,40:982. Defendant’s prior conviction for possession of marijuana occurred in 2004. On December 17, 2010, after being advised of his Boykin rights, defendant pled guilty as charged to second offense possession of marijuana. See, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The plea was entered with the state’s agreement not to file a multiple offender charge. Defendant had previously been convicted of distribution of cocaine in 1991 and possession of cocaine in 2000.

The trial court reviewed defendant’s PSI. Specifically, at sentencing, the trial court remarked that defendant had become combative with police during the arrest and that defendant continued to maintain that the police officer had no business stopping him. Defendant states that the officer knew that he worked at the business. The trial court also took into consideration defendant’s social and employment history. Defendant was 49 years old, had obtained his GED, and worked approximately 30 hours a week at that time. In addition to defendant’s March 15, 2004, conviction for possession of marijuana, the trial court reviewed defendant’s criminal history which included the two prior felony convictions for distribution of cocaine in 1990 and possession of cocaine in 2000. He also had some misdemeanor convictions. However, defendant’s record was clean from 2003 until 2010. In 2010, he pled guilty to domestic battery and the present offense.

|sThe trial court sentenced defendant to four years imprisonment at hard labor. Defense counsel made an oral motion for reconsideration of the sentence, arguing that the amount of marijuana in question was small, defendant actually worked at the location of the arrest, and he did express remorse. The trial court denied the motion and defendant filed the present appeal.

Discussion

The only issue raised on appeal by defendant is whether “the sentence imposed by the trial court was cruel, unusual and excessive, in violation of Article I, § 20 of the Louisiana Constitution of 1974.” La. Const. Art. I, § 20 provides, in pertinent part: “No law shall subject any person to ... to cruel, excessive, or unusual punishment.”

Appellate review of sentences for alleged excessiveness is a two-pronged inquiry. State v. Ashley, 45,563 (La.App.2d Cir.09/22/10); 48 So.3d 332. First, the record must show that the sentencing court complied with La. C. Cr. P. Art. 894.1 by establishing a factual basis for the sentence. Id. The second prong is constitutional excessiveness. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no | reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528 (La.05/16/00); 769 So.2d 1158; State v. Ashley, supra.

A trial court has broad discretion in sentencing offenders. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La.App.2d Cir. 11/03/10); 55 So.3d 90.

The relevant statute to defendant’s conviction is La. R.S. 40:966(E)(2)(a), which provides:

Except as provided in Subsection F or G of this Section, on a second conviction for violation of Subsection C of this Section with regard to marijuana, tetrahy-drocannabinol or chemical derivatives thereof, the offender shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than five years, or both.

First, defendant argues that the trial court ignored the required La. C. Cr. P. art. 894.1 review. The trial court need not articulate every mitigating circumstance, but the record must reflect that the court adequately considered the sentencing guidelines in particularizing the sentence to the defendant. State v. Lathers, 414 So.2d 678 (La.1982). Moreover, the court is not required to assign greater weight to any one factor than to any other. State v. Taves, 03-0518 (La.12/03/03); 861 So.2d 144. A review of the record reveals that the trial court did review the factors listed in La. C. Cr. P. art. 894.1 in formulating its sentence. The trial court noted defendant’s age, family history, and work history, but it also examined his criminal history and his combativeness with police during the arrest.

Defendant urges that his sentence of four years at hard labor is constitutionally excessive. La. R.S. 40:966(E)(2) empowers the sentencing [ r,court to impose up to five years with or without hard labor and up to a two thousand dollar fine for violation of the statute. The sentence imposed, four years at hard labor, was within the sentencing range. The trial court elected not levy any of the allowable fíne upon defendant. Further, the state agreed that no habitual offender enhancement would be sought.

Defendant’s primary argument is that the amount of marijuana found on his person was loose and not “even enough to make a joint.” Defendant points to a recent dissent of Justice Knoll’s:

Indeed, there are circumstances where a prosecutor may be ethically required to pursue something other than the most severe sanction. The “responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.” I believe this is just such a case. The amount in controversy is so small, and the circumstances of the alleged crime so uncertain, that the instant prosecution and the grossly disproportionate sentence do not further the ends of justice. Compare the $8 Jackson allegedly stole with the burden the taxpayers will bear to keep him incarcerated for the remainder of his life. Today, it costs the state of Louisiana $54 per day, or nearly $20,000 per year, to keep each inmate in prison.

State v. Jackson, 09-2406 (La.01/19/11), 55 So.3d 767, 775.

The quantity of the illegal substance found on a defendant is not necessarily a compelling factor in imposing an appropriate sentence. Defendant’s prior record with cocaine and marijuana as well as his combative attitude with the police are significant. We note that defendant’s prior misdemeanor charges were for battery and resisting arrest. Further, defendant received a break when the prosecutor chose not to pursue a habitual offender charge. Based on these facts, we cannot say the trial court | ^manifestly abused its discretion in sentencing. Therefore, we hold that this sentence is not cruel, unusual or excessive by constitutional standards.

Conclusion

For the reasons set forth above, the defendant’s sentence is affirmed.

AFFIRMED.

      . In brief defendant states that he was opening the office that morning; however, the trial court at sentencing stated that defendant was opening the office that night. All agree that he was legitimately opening the business.

      . No motion to suppress was filed. Defendant claimed that the officer knew that he worked at this business. No information is in the record that a pat down search was done.

      . Although the bill of information listed La. R.S. 40:982 for authority to charge defendant with second offense possession of marijuana, La. R.S. 40:966(E)(2) contains the relevant, more specific provisions for such.

      .We note that defendant’s parole expired in 1996 on the distribution conviction and he received a four-year sentence on the 2000 conviction. See the cleansing period set forth in La. R.S. 15:529.1.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Travis GABRIEL, Appellant.
    No. 46,670-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    J. Schuyler Marvin, District Attorney, Marcus Patillo, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before CARAWAY, PEATROSS and MOORE, JJ.
   MOORE, J.

liThe defendant, Travis Gabriel, pled guilty pursuant to a plea agreement to one count of forgery in violation of La. R.S. 14:72 for displaying a counterfeit 60-day license plate. The state agreed to nolle prosse a second count of forgery for possession of a counterfeit temporary insurance card, to not file an habitual offender bill of information, and a five-year sentencing cap in exchange for the guilty plea. The court sentenced Gabriel to three years at hard labor. Gabriel now appeals, alleging the sentence is excessive. We affirm.

FACTS

Gabriel was stopped on March 22, 2008, by Louisiana State Police Trooper Sterling Brett Davis, who spotted the suspected counterfeit temporary license plate tag. After the stop, Davis learned that both the license plate and Gabriel’s insurance card were counterfeit. The defendant admitted he purchased them both for $50.00.

Gabriel was charged by bill of information with two counts of forgery in violation of La. R.S. 14:72. On October 18, 2010, he pled guilty to one count of forgery. In exchange for his guilty plea, the state nolle prossed count two, agreed not to file an habitual offender bill, and agreed to a sentencing cap of five years at hard labor. The court accepted defendant’s guilty plea and ordered a pre-sentence investigation (“PSI”) report.

At sentencing on October 18, 2010, the court reviewed the PSI and sentencing guidelines in accordance with La. C. Cr. P. art. 894.1. The court noted that the defendant was a second felony offender with previous convictions in 1997 for theft and in 2000 for aggravated battery and theft, 12which were reduced charges from attempted first degree murder and armed robbery. The court also considered the defendant’s statement that he was not a danger to society, but considering that he was previously sentenced to hard labor sentences for the violent crimes, the court felt that any lesser sentence than three years at hard labor, consecutive to any other sentence he was serving, would deprecate the seriousness of the offense. The defendant was sentenced accordingly, which was within the agreed-upon sentencing cap. Defendant now appeals, arguing that his sentence is excessive.

DISCUSSION

The defense argues that his three-year sentence is excessive and unduly harsh. Although the sentence was within the agreed-upon sentencing cap, the defendant nonetheless contends he should be allowed to appeal his sentence for exces-siveness because the trial court informed him, after sentencing, that he had 30 days to appeal this sentence.

A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. La. C. Cr. P. art. 881.2(A)(2). This provision applies to both agreed-upon sentences and sentencing ceilings, ranges and caps. State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Burford, 39,801 (La. App. 2 Cir. 6/29/05), 907 So.2d 873.

In State v. Fizer, 43,271 (La.App. 2 Cir. 6/04/08), 986 So.2d 243, we considered whether a defendant could seek review of his sentence, made within an agreed-upon sentencing cap, when the trial court informed the defendant of the time limitations within which to appeal his sentence | ¡¡immediately after sentencing. We concluded that because the trial court did not mention any appeal rights during the defendant’s plea colloquy, the defendant’s plea was not influenced by a belief that he could later seek review of his sentence. Id. at 244-45. See also State v. Taylor, 44,205 (La.App. 2 Cir. 5/13/09), 12 So.3d 482; State v. Martin, 43,243 (La.App. 2 Cir. 6/04/08), 985 So.2d 1253.

Here, the defendant pled guilty to forgery in exchange for the state’s dismissal of the second count of forgery, its agreement not to multi-bill the defendant, and a sentencing cap of five years at hard labor. The defendant was sentenced, within the sentencing cap, to three years at hard labor. The record does not show any evidence that the defendant reserved his right to seek review of his sentence. Although the trial court mentioned, after sentencing, the time limitations within which to file an appeal, the court did not inform the defendant of a right to appeal or seek review of his sentence during the plea colloquy. Therefore, since the trial court’s advisement was made after defendant entered his plea, it had no effect on the voluntariness of defendant’s guilty plea. The defendant is precluded from seeking review of his sentence, which was made in conformity with the plea agreement. See State v. Taylor, supra; State v. Martin, supra; State v. Fixer, supra.

This assignment of error is therefore without merit.

CONCLUSION

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

CONVICTION AND SENTENCE AFFIRMED.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Joshua SHIPP, Appellant.
    No. 46,715-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      Carey J. Ellis, III, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Marcus R. Patillo, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   WILLIAMS, J.

|, The defendant, Joshua Shipp, was charged by bill of information with one count of felony theft of $500 or more, a violation of LSA-R.S. 14:67. Pursuant to a plea agreement, the defendant pled guilty to the felony theft charge and the state agreed to dismiss other pending charges. The district court sentenced defendant to serve seven years at hard labor, with all but one year of his sentence suspended, and placed him on five years of supervised probation, subject to special conditions. The defendant appeals his sentence as excessive. For the following reasons, we affirm.

DISCUSSION

The record shows that in September 2010, the defendant cut a hole in the roof of his grandmother’s convertible automobile and stole jewelry and other property worth approximately $11,000. The victim told police she was keeping those items in her vehicle because the defendant had already taken other property from her house. The defendant was arrested and charged with felony theft, simple burglary, possession of stolen things and making harassing telephone calls. As a result of the plea bargain, defendant pled guilty to felony theft and the state agreed to dismiss the other pending charges. The defendant was sentenced to serve seven years at hard labor, with all but one year of his sentence suspended. In addition, the district court placed him on supervised probation for five years with special conditions requiring defendant to pay $11,500 in restitution to the victim and prohibiting him from any contact with the victim or her family. The defendant’s motion to reconsider sentence was denied and this appeal followed.

1 j>The defendant contends the district court erred in imposing an excessive sentence. Defendant argues that a lesser sentence is appropriate considering his age and that he is a first-felony offender.

A reviewing court imposes a two-prong test in determining whether a sentence is excessive. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects adequate consideration of the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dillard, 45,633 (La. App.2d Cir.11/3/10), 55 So.3d 56. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal history, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Dillard, supra.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. The penalty for felony theft of $500 or more was imprisonment, with or without hard labor, for not more than ten years or a fine of up to $3,000, or both. LSA-R.S. 14:67(B).

13Prior to imposing sentence, the district court reviewed a presentence investigation report, which included the facts of the offense and a victim’s impact statement. Specifically, the trial court stated that although the conviction was defendant’s first felony offense, the 19-year-old did have a juvenile criminal history. The court found that the offense caused a significant economic loss to the victim and that a term of imprisonment was necessary to impress upon defendant the seriousness of his conduct.

Regarding the defendant’s personal history, the court was aware of defendant’s age, that he had dropped out of high school, that he had been employed and that he was the father of a young child. However, the court pointed out that the defendant had victimized his grandmother after she gave him a place to stay. In addition, the sentence imposed was within the statutory range for the offense of conviction.

The record demonstrates that the district court was cognizant of the appropriate factors in determining the defendant’s sentence, which is neither grossly disproportionate to the severity of the offense committed nor an abuse of the court’s discretion. Thus, we cannot say the sentence is constitutionally excessive. The assignment of error lacks merit.

We have examined the record for error patent and found none.

CONCLUSION

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

AFFIRMED.


author: CHARLES R. JONES, Judge. BONIN, J., concurs with additional reasons.

text:
    MOBILE-ONE AUTO SOUND, INC. v. WHITNEY NATIONAL BANK, Gary Lorio, Harlan Bush, and Bill Jolly.
    No. 2011-CA-0535.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 9, 2011.

      S.C. Garcia, III, Joseph F. Bishop, Jr., Garcia & Bishop, Covington, LA, for Plaintiff/Appellant.
    Robert S. Stassi, William T. Finn, Carver Darden Koretzky Tessier Finn Bloss-man & Areaux, LLC, New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge CHARLES R. JONES, Judge PAUL A. BONIN, and Judge DANIEL L. DYSART).
   CHARLES R. JONES, Judge.

BThe appellant, Mobile One Auto Sound, Inc. (Mobile One), appeals an adverse judgment of the district court granting the peremptory exception of no cause of action of Whitney National Bank, Mr. Gary Lo-rio, Mr. Harlan Bush, and Mr. Bill Jolly, the named appellees. After a careful review of the record, we affirm the judgment of the district court.

Mobile One and Whitney entered into a Commercial Business Loan Agreement for Lines of Credit on December 31, 1997. Whitney and Mobile One, on several occasions over the years, mutually agreed to renew or replace the original loan with new loans.

Beginning in 2008, the line of credit of Mobile One was reduced on more than one occasion by Whitney. Mobile One averred that the reduction in the line of credit had a severe effect on its ability to borrow against the line of credit and its ability to conduct business activities.

The subject promissory note matured in May 2009, and the parties executed an allonge to extend the promissory note until June 30, 2009. Mobile One, [¡.however, did not pay the promissory note on June 30, 2009; rather, Mobile One made principal reduction payments and interest payments in July of 2009.

At the end of July of 2009, Mr. Paul Campo, the President of Mobile One, met with Mr. Gary Lorio, a Vice President of Whitney. At the meeting, Mr. Lorio informed Mr. Campo that additional collateral was needed in order for an additional extension of the promissory note to be granted. Mr. Lorio advised Mr. Campo that either the home of Mr. Campo or a payment of $150,000 would be required to extend the promissory note. Mr. Lorio also inquired of Mr. Campo whether a payment would be made. Mr. Campo asked if a $100,000 payment would suffice to make the account current. Mr. Lorio advised Mr. Campo that he would check into the matter and get back to him, but Mr. Lorio also advised Mr. Campo that if additional collateral was not received, that the Mobile One account would be referred to the Special Assets department.

By August of 2009, the Mobile One account had been referred to the “special assets” division of Whitney and assigned to Mr. Bill Jolly, a Vice-President at Whitney.

Mr. Campo then received a phone call from Mr. Harlan Bush, also a Vice President at Whitney. Mr. Bush mentioned to Mr. Campo that he noticed a large number of deposits in the operating account, and further inquired whether Mobile One intended to make a payment on the line of credit. Mr. Campo indicated that the monies contained in the account were earmarked for payments to floor plan creditors. Mr. Bush indicated that the account could be referred to the “special assets” division of Whitney.

13Mr. Jolly contacted Mr. Campo indicating that he had been assigned the account and that he wanted to meet with Mr. Cam-po to discuss the account. On August 14, 2009, Mr. Jolly met with Mr. Campo and informed him that Whitney had withdrawn $600,000 from the Mobile One operating account and applied it to the outstanding loan- balance. Mr. Jolly also handed Mr. Campo a letter indicating same. Also, at the meeting, Mr. Jolly indicated that the zero balance checking account (“ZBA account”) at Wachovia Bank, which was used as a clearinghouse account by Mobile One, had been closed by Whitney.

Mobile One had just issued a check to its floor plan creditors for payment, in addition to payroll checks. However, contemporaneously with the withdrawal of the $600,000 from Mobile One’s operating account, Whitney closed the ZBA account. Mobile One was not able to raise funds to cover the checks it had issued. Mobile One subsequently ceased its business relationship with Whitney.

Mobile One filed a Petition for Damages and Breach of Contract on August 12, 2010. In response, Whitney, Mr. Lorio, Mr. Bush, and Mr. Jolly collectively filed an exception of no cause of action.

At the hearing on the exception, the district court sustained the exception and dismissed the Petition for damages and breach of contract of Mobile One, with prejudice. This timely appeal followed.

In its sole assignment of error, Mobile One argues that the district court erred by sustaining the exception of no cause of action of Whitney, thereby dismissing the Petition of Mobile One with prejudice.

\ .DISCUSSION

In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of New Orleans v. Bd. Of Com’rs of Orleans Levee District, 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. Wright v. Louisiana Power & Light, 2006-1181, p. 15 (La.3/9/07), 951 So.2d 1058, 1069, citing Ramey v. DeCaire, 03-1299, p. 8 (La.3/19/04), 869 So.2d 114, 118-19. Furthermore, “[n]o evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La.Code Civ. Proc. art. 931.

Mobile One argues that in order for Whitney to pursue any default remedies available to them, Whitney had a contractual and/or statutory duty to give Mobile One notice of any such default; or rather, Whitney was required to “put” Mobile One in default. Mobile One argues that the mere existence of an “event” of default did not place it in default. Mobile One further argues that a declaration of default was exclusively the option of Whitney as is reflected in the applicable terms of the contracts and agreements between the parties.

Mobile One further argues that the “event of default” at the heart of this dispute was its failure to make the payment due on June 30, 2009, as required in the allonge dated May 28, 2009. While Mobile One agrees that there are default |sprovisions throughout the various agreements and promissory notes that comprise the contract at issue, it maintains that in order to properly determine whether Whitney had a duty to give formal notice of default, one must look to the controlling agreements.

In particular, Mobile One argues that the master agreement defines default but does not specify procedures, rights or remedies that could result from any such default; rather, it directs the reader to the loan document. Mobile One argues that there is no mention anywhere in the master agreement of any express waiver of rights by any party. Mobile One argues that Paragraph G of the agreement, entitled Miscellaneous Provisions, reads: “No condition or other term of this Agreement may be waived or modified except by a writing signed by Borrower and Whitney.” Mobile One argues, however, that the promissory note contains different procedures for certain aspects of default, and that some provisions required that Whitney “put” Mobile One in default, for example:

INTEREST AFTER DEFAULT: If Lender declares this Note to be in default, Lender has the right prospectively to adjust and fix the simple interest rate under this Note until this Note is paid in full ... (emphasis added).

Mobile One argues that the above paragraph establishes that Whitney, in order to take advantage of adjusting the interest rate on a defaulted loan, was required to declare the promissory note to be in default. Mobile One argues that until such time that Whitney declared the promissory note to be in default, Mobile One could reasonably presume that Whitney was not exercising its right to adjust the interest rate.

Mobile One argues that it was clear from the terms of the promissory note that Whitney had to formally declare default before adjusting interest rates or | (¡insisting upon payment in full. Mobile One also points out that the above section of the note, also gives the lender the right to declare formal default and insist upon payment of all other debts of any kind owed to the lender, “without further notice or demand.” Mobile One argues that Whitney previously argued that the phrase “without further notice or demand” applied to the primary obligation of Mobile One, as set forth in the promissory note, and was an express waiver of notice of default by Mobile One. Mobile One argues, however, that the argument of Whitney fails in two ways: first, the plain language still obligates Whitney to declare formal default on the second obligation, if one is owed, which Whitney argues was not the case in the instant matter; and second, “further notice” indicates that notice of default has already been given, which Mobile Once argues, was also not the case. Mobile One argues that the instant matter only concerns one debt owed to Whitney which is evidenced by the promissory note, and that Mobile One argues that the contractual terms are very clear that Whitney was required to formally declare default before exercising the remedies available.

Mobile One further argues that the terms of the promissory note indicate: (1) it never waived notice of default, expressly or impliedly; (2) an “Event of Default” can exist or occur and Whitney has no duty or obligation to exercise its rights or remedies; and (3) before Whitney could pursue any rights or remedies, the promissory note must be “put in default,” thereby giving Mobile One formal notice of default. Mobile One does not dispute that it failed to make the final payment due under the promissory note, which is considered an “event of default.” However, as argued by Mobile One, while the promissory note gives Whitney certain rights that it can exercise at its option, the list of rights is exclusive. Mobile One argues that there is no qualifying term in the agreement giving Whitney any |7more rights than those listed, and that before any remedy can be pursued by Whitney, it must make a formal declaration of default, which Whitney failed to make.

Mobile One also argues that Whitney’s withdrawal of funds in its deposit account was improper. And, assuming that Whitney would be entitled to the remedy of application of deposit account funds as set forth in La. R.S. § 6:316(0, that remedy is modified by the contractual relationship established by the parties, which has the effect of law between the parties. La. C.C. art. 1983. Thus, Mobile One argues that the clear language of the promissory note requires formal notice of default prior to Whitney taking action adverse to Mobile One. Mobile One notes that the promissory note contains a paragraph entitled “Deposit Accounts” which purports to give Whitney a continuing security interest in any funds that Mobile One had on deposit with Whitney Bank. It also states:

Borrower further agrees, to the extent permitted by law, [that] Lender may at any time apply any funds that Borrower may have on deposit with Lender or in certificates of deposit or other deposit accounts as to which Borrower is an account holder against the unpaid balance of this Note and any and all other present and future indebtedness and obligations that Borrower may then owe to Lender in principal, interest, fees, costs, expenses, and reasonable attorneys’ fees.

Mobile One points out that the aforementioned section initially appears to favor Whitney. However, Mobile One suggests the phrase “to the extent permitted by law” does not specify any code articles or statutes. Mobile One maintains that the language is vague with regard to what “law” it is referring. Mobile One maintains that while Whitney may argue that the above provision .¡contained in the promissory note refers to La. R.S. § 6:316(C) the plain language of the statute requires formal notice of default prior to Whitney having the right to proceed.

Mobile One also argues that while Whitney provided some correspondence related to the imminent withdrawal of funds from the ZBA checking account at Wachovia Bank, that the correspondence was sent in an effort to limit its own liability, and that the correspondence did not serve as formal notice of default. Rather, the letter provided compliance with the notice requirement of La. R.S. § 6:816(D), which served to relieve Whitney of any liability as a result of Wachovia’s dishonor of checks or drafts drawn on the account. Mobile One also argues that Whitney did not insist that Mobile One make “immediate payment in full”, and that the ZBA account is not addressed nor contemplated in any of the credit agreements or promissory notes. Mobile One maintains that the establishment and operation of its ZBA account at Wachovia Bank is separate and apart from the credit agreements.

Whitney argues that nothing written in the loan agreement required that Whitney agree to make any additional loans to Mobile One beyond the original loan evidenced by the first promissory note. Whitney also argues that the Petition of Mobile One did not allege that the indebtedness was not owed, or that Whitney |3did not actually have the remedies and rights in the collateral. Whitney argues that the Petition instead averred that Mobile One was entitled to prior notice, and that on that basis alone, Mobile One sued for breach of contract and/or for some alleged failure to extend credit and/or to make some sort of financial accommodation based on a course of conduct and/or verbal representations.

Whitney argues that under the express terms of the subject promissory note, however, Mobile One expressly waived notice. Particularly, Mobile One waived (1) demand; (2) presentment for payment; (3) protest; (4) notice of protest; (5) notice of non-payment; and (6) all pleas of division and discussion. In addition, Whitney argues that under the applicable law and jurisprudence, it did not owe any notice of default, and that the Louisiana Credit Agreement Statute (LCAS), La. R.S. § 6:1121, expressly prohibits actions by a borrower against its lender based on verbal agreements to make financial accommodations, and therefore, this Court should affirm the ruling of the district court dismissing the Petition of Mobile One with prejudice.

Whitney also argues that Petition of Mobile One does not state a cause of action for breach of contract based on pursuing collateral without prior demand or notice. Whitney notes that the Petition of Mobile One alleged that a breach of contract occurred because Whitney did not have the right to pursue collateral without first giving written notice to Mobile One. Whitney argues that while Mobile One maintains that the there was a breach of contract, the actual promissory note supports the proposition that notice was waived.

In reference to the ZBA account, Whitney argues that it was entitled to apply the funds that Mobile One had on deposit towards the payment of the indebtedness of Mobile One, and to apply them without prior notice. Further, Whitney argues | mthat the LCAS prohibits claims against Whitney related to the ZBA account, and that the Petition of Mobile One has failed to state a cause of action against individual defendants named in the Petition. Lastly, Whitney maintains that it was not required to extend credit or make financial accommodations to Mobile One.

“Contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. Contracts must be performed in good faith.” La. C.C. art. 1983. Considering the aforementioned precept, we must first look to the relevant provisions of the loan agreement related to default.

F. DEFAULT: The occurrence of (i) the failure of Borrower to make payment on any Loan when due ... shall constitute a default agreement.... In the event of a Default, Whitney, at its option, shall have the right to exercise any and all of its rights and remedies under the Loan Documents.

The following paragraphs from the promissory note also address default, in pertinent part:

DEFAULT: Each of the following shall constitute an event of default (Event of Default) under this Note:
Payment Default: Borrower fails to make any payment when due under this Note.
LENDER’S RIGHTS UPON DEFAULT. Should any one or more default events occur or exist under this Note as provided above, Lender shall have the right, at Lender’s sole option, to declare formally this Note to be in default and to accelerate the maturity and insist upon immediate payment in full of the unpaid principal balance then outstanding under this Note, together with reasonable attorneys’ fees, costs, expenses, and other fees and charges as provided herein. Lender shall have the further right, again at Lender’s sole option, to declare formal default and to accelerate the maturity and to insist upon immediate payment in full of each and every other Inloan, extension or credit, debt, liability and/or obligation or every nature and kind that Borrower may then owe to Lender ... all without further notice or demand, unless Lender shall otherwise elect.

La. C.C. art. 1990, provides in part that “[w]hen a term for the performance of an obligation is either fixed, or is clearly determinable by the circumstances, the obli-gor is put in default by the mere arrival of that term.” In the instant matter, the promissory note matured on June 30, 2009, per the allonge executed May 28, 2009. Given that the promissory note was due in its entirety on June 30, 2009, and further considering that Mobile One failed to either: (1) obtain another extension from the bank to extend the maturity date, or (2) pay the promissory note in full, Whitney had the express right to determine that Mobile One was in default by its failure to adhere to the terms of the promissory note. Thus, it was not unreasonable for Whitney to conclude that Mobile. One defaulted on the promissory note.

The second issue to be addressed is whether Notice was required. The plain language of the subject promissory note reads:

WAIVERS. Borrower and each guarantor of this Note hereby waive demand, presentment for payment, protest, notice of protest and notice of nonpayment, and all pleas of division and discussion, ... Borrower and each guarantor additionally agree that Lender’s acceptance of payment other than in accordance with the terms of this Note, or Lender’s subsequent agreement to extend or modify such repayment terms, or Lender failure or delay in exercising any rights or remedies granted to Lender, shall likewise not have the effect of releasing Borrower or any other party or parties from their respective obligations to Lender, or of releasing any collateral that directly or indirectly secures repayment hereof. In addition, any failure or delay on the part of Lender to exercise any of the rights and remedies granted to Lender shall not have the effect of waiving any other rights and remedies. Any partial exercise of any rights and/or remedies granted to Lender shall furthermore not be construed as a waiver of any other rights and remedies; it being Borrower’s intent and agreement that | ^Lender’s rights and remedies shall be cumulative in nature. Borrower and each guarantor further agree that, should any default event occur or exist under this Note, any waiver or forbearance on the part of Lender to pursue the rights and remedies available to Lender, shall be binding upon Lender only to the extent that Lender specifically agrees to any such waiver or forbearance in writing. A waiver or forbearance on the part of Lender as to one default event shall not be construed as a waiver or forbearance as to any other default.... [Emphasis supplied].

Considering that the promissory note does include specific language regarding waiver, we find that the executed promissory note clearly indicates that Mobile One accepted the terms contained therein. Hence, the promissory note effectively stands as prima facie proof of the rights and obligations of the parties. Mobile One has not raised any arguments that the promissory note was defective or that some act or omission by Whitney vitiated consent of the terms contained therein. The above clause clearly reads: “[bjorrower and each guarantor of this Note hereby waive demand, presentment for payment, protest, notice of protest and notice of nonpayment, and all pleas of division and, discussion.” We find that Mobile One waived its right to notice.

The third issue herein concerns whether Mobile One stated a valid cause of action against Whitney, given the terms of the promissory note.

Our review of the record indicates that the promissory note and the respective amendments were all reduced to writing and signed by the parties. The date the Note matured, as reflected in the final allonge, was June 30, 2009. However, while Mobile One repeatedly claims that verbal promises were made by Whitney executives, Mobile One repeatedly refers to the subject promissory note — a written document — in support of its allegations. We, as a Court of record, may only review materials that are made a part of the record for review. There is no | ^evidence of record which purports to be a verbal promise by Whitney intending to serve to suspend the aforementioned June 30, 2009 maturity date. Thus, we can only rely on the written promissory note as the law between the parties.

The LCAS, La. R.S. § 6:1122, entitled Credit agreements to be in writing, provides:

A debtor shall not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.

In addition, La. R.S. § 6:1122 expressly prohibits an action against a creditor based upon an oral credit agreement unless the agreement is in writing, expresses consideration, sets forth relevant terms and conditions, and is signed by the creditor and the debtor. Whitney National Bank v. Rockwell, 94-3049, p. 11 (La.10/16/95), 661 So.2d 1325, 1331. [Emphasis supplied] Furthermore, a “creditor” is defined in La. R.S. § 6:1121 as “a financial institution or any other type of creditor that extends credit or extends a financial accommodation under a credit agreement with a debtor.” The same statute defines “credit agreement” as “an agreement to lend or forbear repayment of money or goods or to otherwise extend credit, or make any other financial accommodation.”

Paragraphs XVI, XXXVII, and XXXVIII of the Petition, in particular, set forth allegations of wrongdoing and/or liability against Whitney and its executives, including, but not limited to cash flow problems due to an inability of Mobile One to obtain extended credit terms and/or an extension of the maturity date of the promissory note beyond June 30, 2009. Mobile One also alleged that its reputation was also damaged due to the ZBA account being closed by Whitney. However, we cannot say that the failure to extend credit to Mobile One, or the exercise of 114express rights conferred to Whitney by the promissory note was unreasonable or illegal under the terms of the promissory note. Thus, while the Petition in this matter alleges that Whitney and its executives, Mr. Lorio, Mr. Bush, and Mr. Jolly, were somehow liable for the hardship experienced by Mobile One, the hardship alleged could be attributed to the event of default, rather than willful and deliberate acts by Whitney or its executives.

Therefore, considering (1) the arrival of maturity of the promissory note; (2) the failure of Mobile One to pay the promissory note in full, thereby constituting an event of default; and (3) the allegations contained in the Petition in its entirety, we find that the Petition of Mobile One did not state a cause of action against any of the named defendants.

DECREE

Considering the foregoing, the judgment of the district court granting the exception of no cause of action of Whitney National Bank, Gary Lorio, Harlan Bush, and Bill Jolly, is affirmed.

AFFIRMED

BONIN, J., concurs with additional reasons.

BONIN, J., concurs with additional reasons.

hi respectfully concur in the result and assign additional reasons.

Our de novo review accepts as true the well-pleaded allegations of Mobile-One’s petition along with the written agreements between it and Whitney which are attached to and referenced by the petition. See Decatur-St. Louis Combined Equity Properties, Inc. Venture v. Abercrombie, 411 So.2d 677, 680 (La.App. 4th Cir.1982); see also Fink v. Bryant, 01-0987, pp. 3-4 (La.11/28/01), 801 So.2d 346, 349.

Mobile-One’s failure to pay in full the principal and interest by the due date stated in the promissory note constituted default on its obligation to perform by repayment of the money borrowed. See La. Civil Code art. 1990 (“When a term for the performance of an obligation is ... fixed, ... the obligor is put in default by the mere arrival of that term.”).

None of the written agreements specified that Whitney had to give Mobile-One formal notice of default before taking advantage of its statutory remedies; the remedies that required prior formal notice of default were acceleration and attorneys’ fees, remedies not provided by operation of law. Whitney was not required by law or written agreement to give formal prior notice of its application of Mobile-One’s funds on deposit in which it has a security interest towards the | ^payment of Mobile-One’s principal obligation. See La. R.S. 6:316 C. And Whitney did give the requisite timely written notice after it removed funds from Mobile-One’s operating account. See La. R.S. 6:316 D. So long as the bank gives timely notice to its depositor, “the bank shall have no liability to the depositor or to any other person or persons as a result of the bank’s dishonor of checks or drafts drawn on the depositor’s accounts with the bank.” Id.

With respect to the credit agreement statutes addressed in the majority’s opinion, it is worthwhile to specially note that the other defendants in this case, that is the employees of the Whitney, are as protected from liability as the bank itself from assertions of liability based on an oral amendment to a credit agreement. See La. R.S. 6:1121-1124; King v. Parish National Bank, 04-0337, p. 14 (La.10/19/04), 885 So.2d 540, 549. “To allow otherwise would provide a means to circumvent the credit agreement statutes by merely asserting a bad faith or breach of contract claim against the bank employee instead of the institution itself.” Id. “Such a result would render the statute effectively meaningless and thwart the clear legislative intent expressed by the statutes.” Id.

Thus, accepting the allegations of the petition and its attachments as true, I conclude that Mobile-One failed to state a cause of action for damages against Whitney and its employees for a violation of any statute or any written agreement.

      . La. R.S. § 6:316(C) provides:
      In the event that the depositor should default under any loan, extension of credit or other direct or indirect obligation of any nature and kind whatsoever in favor of the depository bank, the bank shall have the right to apply any and all funds that the depositor then has on deposit with the bank or on which the bank has taken a security interest under Chapter 9 of the Louisiana Commercial Laws (R.S. § 10:9-101, etseq.) towards the payment of the depositor's indebtedness or obligations, whether such payment satisfies the indebtedness or obligations in whole or in part. The exercise of the bank's remedies under this Subsection shall not affect any other rights and remedies available to the bank following the depositor’s default.