author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Christopher BAZILE, Appellant.
    No. 47,412-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      Christopher Bazile, Pro se.
    Douglas Lee Harville, for Appellant.
    J. Schuyler Marvin, District Attorney, Charles A. Smith, Marcus R. Patillo, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART, and LOLLEY, JJ.
   BROWN, Chief Judge.

| jDefendant, Christopher Bazile, pled guilty to attempted aggravated rape and was sentenced to serve 40 years at hard labor, without benefit of probation, parole, or suspension of sentence. Defendant has appealed his conviction and sentence. We affirm.

Facts

Defendant was indicted by a grand jury on August 3, 2009, on charges of aggravated rape, armed robbery, and possession of a firearm by a convicted felon. The state notified defendant that discovery indicated that a firearm was discharged or used in the commission of the crime and that under the firearm sentencing provisions in La. C. Cr. P. art. 893.1(B), any sentence imposed would not be suspended, and defendant would not be eligible for parole. Defendant was also notified that the state would be introducing evidence of his confession at trial.

Guilty Plea Hearing

On August 6, 2010, Defendant appeared before the court to withdraw his previous plea of not guilty and as part of an agreement with the state, pled guilty to the lesser charge of attempted aggravated rape. The prosecution provided details of the agreement as follows:

• If the guilty plea was accepted, the other two charges would be dismissed.
• A pre-sentence investigation report would be ordered.
• There would be an agreed sentence cap of 40 years at hard labor, without benefit of probation, parole, or suspension of sentence.

The statement of facts provided that on July 8, 2009, Defendant appeared at the victim’s residence in Minden where she lived with her infant | ..child. Armed with a firearm, he forced the victim to perform oral sex on him and attempted to have anal intercourse with her. Defendant also stole her cell phone and money.

The transcript of the guilty plea colloquy provided the following regarding the knowing and voluntary nature of defendant’s guilty plea.

Defendant confirmed to the court that he was not under the influence of any type of medication, drugs, or alcohol. He stated that he was 23 years old, had completed the 10th grade and could read and write. Defendant had discussed the matter with his attorney and was satisfied with his representation. He agreed that he understood the charge of attempted aggravated rape. Defendant affirmed that he understood the rights that he was giving up by pleading guilty and that he would be admitting guilt. He affirmed that no one promised him anything to plead guilty or persuaded or forced him to plead guilty. Following defendant’s advisement of his Boykin rights, he pled guilty to attempted aggravated rape. The other two charges were nol prossed. A pre-sentence investigation report was ordered.

After a recess, the trial court advised defendant that the charge to which he pled guilty to was classified as a sex offense, and that he was subject to the requirements for sex offender registration. Defendant affirmed that defense counsel had reviewed the sex offender notification forms with him, and that he had initialed and signed the forms.

On October 25, 2010, the trial court sentenced defendant to 40 years’ imprisonment at hard labor, without benefit of probation, parole, or | ¡^suspension of sentence. The sentence was ordered to be served consecutive to defendant’s other sentence of eight years on a prior felony.

On December 21, 2010, defendant filed a “Motion for My Post Conviction Sentence.” The trial court advised him by letter dated January 25, 2011, that his request could not be considered until he submitted a properly signed and notarized uniform application, and provided a blank form for his use. On December 1, 2011, defendant filed a uniform application for post-conviction relief and requested an out-of-time appeal, which was granted by the trial court on December 21, 2011.

Appeal

On appeal, appellate defense counsel filed an Anders brief, wherein he stated that he found no nonfrivolous issues to raise on appeal, as the issue of defendant’s sentence was procedurally barred due to the plea agreement of a 40-year cap. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.04/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlined the procedural history and facts of the case. The brief also contains “a detailed and reviewable assessment for both the defendant and the Dappellate court of whether the appeal is worth pursuing in the first place.” State v. Jyles, supra. Appellate counsel stated that considering that defendant’s sentence was within the agreed cap, the benefits he received by pleading guilty, and the trial court’s discretion in sentencing, any claim that the sentence was constitutionally excessive would be without merit. Counsel also asserts that the short delay in defendant being notified of the sex offender requirements was not enough to render his guilty plea involuntary, as he was informed of the requirements on the same day that he pled guilty, and he was represented by counsel at all times. Defense counsel also verified that he mailed copies of the motion to withdraw and his brief to the defendant, in accordance with Anders v. State, State v. Jyles, State v. Montan, and State v. Benjamin, swpra.

By letter dated April 18, 2012, the state agreed that there are no nonfrivolous issues to raise on appeal.

Defendant has filed a pro se brief claiming that his guilty plea was involuntary and that the sentence imposed was excessive. According to defendant, the trial court’s failure to advise him of the sex offender registration and notification requirements prior to accepting his guilty plea rendered his plea involuntary because the late notice was noncompliant with La. R.S. 15:548. He relies upon State v. Calhoun, 96-0786 (La.5/20/97), 694 So.2d 909, in which the state supreme court found that the trial court’s failure to advise the defendant of the sex offender registration requirements before accepting his guilty plea was a factor that undercut the volun-tariness of his plea. Defendant also contends that his plea was not knowing and | ¿voluntary because he was not informed about the sex offender notice registration requirements prior to pleading guilty.

Finally, defendant claims that his sentence was excessive and that the trial court “dehumanized and downplayed” his mitigating factors during sentencing.

Discussion

A review of the appellate record revealed no errors patent and no explicit problems with the bill of information, the guilty plea or the sentencing proceedings. Furthermore, defendant is precluded from seeking review of his sentence because it was imposed in conformity with a plea agreement set forth in the record at the time of the plea. La. C. Cr. P. art. 881.2.

La. R.S. 15:543 was modified by Acts 2007, No. 460, § 2. Prior to this change, the trial court was required to provide written notification to any person charged with a sex offense of the registration and notification requirements. The modification changed the requirement so that any person convicted of a sex offense must receive notification. Defendant bases his argument on the holding set forth in State v. Calhoun, supra, but this decision was based on the language of La. R.S. 15:543 prior to the changes in 2007. The court’s notice was compliant with the current text of the La. R.S. 15:543 at the time of defendant’s plea, so his argument is without merit.

Defendant’s other claim, that his plea was not knowing and voluntary because he was not informed about the sex offender notice registration ^requirements prior to pleading guilty, is likewise without merit. As noted above, the trial court was not required to give notice to defendant of the sex offender registration requirements pri- or to accepting his guilty plea, but upon his conviction. See La. R.S. 15:543. Nonetheless, the guilty plea transcript shows that in the course of determining whether defendant had discussed the nature of his charges with his counsel and whether he understood the charges against him, the court advised defendant that because the charge to which he had pled guilty to was a sex offense, he was subject to the sex offender registration requirements. Defendant indicated his understanding to the court and also stated that his discussion with his attorney had included counsel going over the sex offender forms, which defendant had initialed and signed. See, State v. R.A.L., 10-1475 (La.App. 3d Cir.06/29/11), 69 So.3d 704.

Conclusion

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

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . Defendant had a prior felony conviction for which he received an eight-year suspended sentence and was on probation when he was arrested for the instant offense. His probation was subsequently revoked.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      .Appellate counsel indicated that the plea agreement was that the sentence would be imposed concurrent to defendant's prior sentence, but this is incorrect. There was no agreement as to whether the subsequent sentence would be concurrent or consecutive, and the trial court ordered that defendant's sentence on the instant offense would be served consecutively to the prior sentence.


source: Caselaw Access Project

author: SEXTON, Judge Pro Tem.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Frandisia WHITE, Appellant.
    Nos. 47,413-KA, 47,414-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.
    Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    J. Schuyler Marvin, District Attorney, C. Sherburne Sentell, III, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before CARAWAY, MOORE & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

| defendant, Frandisia White, pled guilty as charged to possession of cocaine with intent to distribute, a violation of La. R.S. 40:967(A)(1), and distribution of cocaine, a violation of La. R.S. 40:967(A)(1). He was subsequently sentenced to concurrent terms of 25 years’ imprisonment at hard labor, with the first 2 years to be served without benefit of parole, probation or suspension of sentence. The trial judge also recommended Defendant for mental health and substance abuse treatment. Defendant now appeals. For the reasons set forth herein, Defendant’s convictions and sentences are affirmed.

FACTS

On October 29, 2010, a confidential informant working with the Webster Parish Sheriffs Office narcotics investigators purchased $40 of crack cocaine from Defendant. The transaction was captured on audio and video. A short time later, on November 22, 2010, Minden police officers were patrolling an area near Shreveport Road in response to vehicles being burglarized. Defendant, his girlfriend, Bobbie Ellis, and another individual were observed in the area. Defendant and Ellis were known by at least one of the officers. An officer observed Defendant throw a black bag to the ground. The bag was retrieved by the officers and was found to contain 25 rocks that the officers suspected to be crack cocaine with an estimated street value of $500. Subsequent testing by the North Louisiana Crime Lab confirmed the substance to be cocaine. Defendant denied ownership of the drugs, but Ellis explained that the cocaine did belong to Defendant and that | ¡¿Defendant intended to sell it. At the time of his arrest, Defendant had $215 in cash on his person.

As stated, Defendant was charged with distribution of cocaine and possession of cocaine with intent to distribute. Pursuant to a plea agreement, Defendant pled guilty as charged on September 19, 2011. In exchange for the plea, the State agreed that no habitual offender bill of information would be filed against Defendant. There was no agreed upon sentence; however, the parties agreed that a presentence investigation (“PSI”) would be ordered and that any sentences imposed would run concurrently.

During sentencing, the trial judge noted the facts of the offenses, Defendant’s social history, as well as his criminal history and other information contained in the PSI. The trial judge further indicated that Defendant provided a statement for the PSI in which he related that he was a smoker (of drugs) who was trying to support his habit. Defendant’s criminal history included four convictions for cocaine-related offenses, including a 1992 felony conviction for possession of cocaine for which he received a probated sentence. Defendant’s probation was later revoked in August 1995. Defendant’s history also included a 1998 conviction for two counts of distribution of cocaine for which he received consecutive sentences of eight years at hard labor. Defendant was paroled three times on these sentences. The first two parole terms were revoked; Defendant was paroled on the third occasion and, during that term of parole, a warrant was |sissued for his arrest. The parole board later recalled the warrant and terminated Defendant’s parole unsatisfactorily.

Defendant’s criminal history also included prior convictions for illegal discharge of a weapon, as well as several incidents of assaultive behavior resulting in a conviction of simple battery. Other convictions included criminal damage to property, disturbing the peace (fighting) and resisting an officer.

As previously stated, the trial judge then sentenced Defendant to two concurrent terms of 25 years’ imprisonment at hard labor, with the first 2 years of the sentences to be served without benefit of probation, parole or suspension of sentence. Defendant was given credit for time served and the trial judge recommended that he be evaluated, and receive treatment if necessary, for any mental health issues, as well as substance abuse treatment. A timely motion to reconsider sentence was denied and this appeal followed.

DISCUSSION

Excessive Sentence

Defendant argues that the sentence is excessive because the trial judge failed to consider all appropriate factors in determining the sentences. He contends the trial court merely focused on his criminal history and did not give adequate regard to any other factors. While Defendant agrees that he has a criminal history, he suggests that he is not the worst of offenders.

|4The State responds that the sentences are within the sentencing range of the statute. It notes that Defendant received a considerable benefit from the plea agreement, including reducing his sentencing exposure.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La. App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09) 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

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 and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

The applicable sentencing provision of La. R.S. 40:967 states:

B(4)(b) Distribution, dispensing, or possession with intent to produce, manufacture, distribute, or dispense cocaine or cocaine base or a mixture or substance containing cocaine or its analogues as provided in Schedule 11(A)(4) of R.S. 40:964 or oxycodone as provided in Schedule II(A)(l)(o) of R.S. 40:964 or methadone as provided in Schedule II(B)(11) of R.S. 40:964 shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.

During the sentencing hearing, the trial court carefully noted the presentence investigation information. The trial judge opined that Defendant was not a good candidate for supervision because of his previous poor performance while under supervision. The trial judge specifically indicated | fithat he considered Defendant’s criminal history, his substance abuse issues and prior hard labor sentences. While the trial judge did not specifically recite the factors of La. C. Cr. P. art. 894.1, the record does indicate he adequately considered the appropriate factors in determining the Defendant’s sentence.

Given Defendant’s criminal history, as well as his performance while on supervised release, we conclude that Defendant has clearly shown that he did not wish to avail himself of the opportunities he had received in prior cases. On the contrary, Defendant has repeatedly returned to the same type of criminal conduct. On the instant charges, Defendant received a great benefit from his plea agreement with the imposition of concurrent sentences. Considering these factors, we do not find Defendant’s concurrent 25-year sentences to be grossly disproportionate to his crimes, nor are they nothing more than a purposeless and needless infliction of pain and suffering.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant, Frandi-sia White, are affirmed.

AFFIRMED.


author: STEWART, J.

text:
    Darlene HUDDLESTON, Plaintiff-Appellant, v. Renee D.S. HUDDLESTON and Joseph Trichell, Jr., Defendants-Appellees.
    No. 47,418-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      Walter F. Clawson, Shreveport, LA, for Plaintiff Appellant Darlene Huddleston.
    Hayes, Harkey, Smith & Cascio, Monroe, LA, by Thomas M. Hayes, III, for Defendant Appellee Richard L. Fewell, Jr.
    Donald L. Kneipp, Monroe, LA, for Defendant Appellee Ronald K. Cook.
    Renee D.S. Huddleston, In Proper Person.
    Richard L. Fewell, Jr., for Defendant Appellee Joseph A. Trichell, Jr.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   STEWART, J.

liThe plaintiff, Darlene Huddleston (“Darlene”), is appealing a judgment that sustained exceptions of prescription filed by the defendants, Richard Fewell, Jr. (“Fewell”), and Ronald Cook (“Cook”), and dismissed her claims against them for damages under the Electronic Surveillance Act, La. R.S. 15:1301 et seq. Because we find that the plaintiffs action is prescribed, we affirm.

FACTS

Darlene filed a petition for damages on December 1, 2008, against Renee D.S. Huddleston (“Renee”) and Joseph A. Tric-hell, Jr. (“Trichell”), alleging violations of the Electronic Surveillance Act. According to the petition, Darlene had obtained a money judgment in a separate suit against Renee and Renee’s son with Trichell on November 10, 2005. Then, on July 31, 2007, Trichell and his attorney, Cook, sued Darlene in the same suit record to annul the money judgment for fraud or ill practices. In the nullity suit, Darlene’s attorney filed an exception of unauthorized use of summary proceedings. Cook and Fe-well, representing Trichell, re-filed the nullity petition under a new docket number pursuant to a joint motion to transfer the nullity action.

The basis of Darlene’s action is that a transcript of a telephone conversation from 2005 between herself and her former husband, Dennie Huddleston (“Dennie”), concerning their now deceased son, was attached to the above-described filings in the nullity action. At some point, Darlene learned that Dennie had not recorded their conversation. Darlene alleged that Renee recorded the phone call in violation of La. R.S. 15:1303 and that 12Renee and Trichell further violated the statute by disclosing the transcript in the nullity action filings. Darlene prayed for compensatory and punitive damages, along with attorney fees.

Trichell answered Darlene’s petition for damages, but Renee did not. Darlene obtained a default judgment against Renee awarding her $100,000 in damages and $9,990 in attorney fees.

On March 11, 2010, Darlene filed a supplemental and amending petition adding Cook and Fewell as defendants and alleging them to be solidary obligors with Renee and Trichell. Her claims against the two attorneys are based on Cook having filed the nullity petition with the transcript attached and on Fewell having attached the transcript to an opposition to the exception of unauthorized use of summary proceeding. She also alleged that Fewell and Cook filed the joint motion to transfer the nullity action that resulted in its refiling under a new docket number. Darlene requested judgment against all the defendants for “punitive damages, attorney fees and all costs of these proceedings” and “for all general and equitable jury relief to which she is entitled!.]”

Fewell and Cook filed peremptory exceptions of prescription. In support of his exception, Fewell noted that Darlene filed the original petition on December 1, 2008, but that she alleged that the transcript was attached to the petition for nullity filed against her on July 31, 2007. Cook likewise asserted that Darlene would have known about the transcript when she was served with the nullity action on October 1, 2007, and that she had ample opportunity at that time to determine whether the phone call had been ^recorded illegally. Thus, her petition for damages filed more than one year after she learned her phone conversation had been recorded had prescribed.

In response, Darlene argued that she filed her petition for damages within one year of discovering on March 26, 2008, that her phone conversation with Dennie had been recorded by a third person. She further argued that prescription was interrupted as to Cook and Fewell, whom she alleged to be solidary obligors with Renee and Trichell due to their disclosure of the transcript in the nullity action.

Citing Ross v. Conoco, Inc., 2002-0299 (La.10/15/02), 828 So.2d 546, Cook and Fe-well argued that because Darlene is seeking only punitive damages against them, they cannot be held liable in solido with the other defendants. Thus, the original petition, if timely, did not interrupt prescription as to them.

The trial court heard arguments on the exceptions, took the matter under advisement, and then rendered judgment on June 6, 2011, sustaining the exceptions of prescription and dismissing Darlene’s action as to Cook and Fewell. In reasons for judgment, the trial court found that the face of the petition showed that it was filed more than one year after the “last meaningful action on the part of the defendant.” The trial court also agreed with the argument that there is no solidary liability for punitive damages and thus prescription was not interrupted.

Darlene filed a motion for a new trial, which was argued before the trial court and then denied in a judgment rendered on November 14, 2011.

|4On appeal, Darlene assigns as error the trial court’s granting of the exceptions of prescription, its failure to find Cook and Fewell to be solidary obligors with Trichell and Renee, and its reliance on Ross, supra, in support of its ruling.

Fewell filed a peremptory exception of no cause of action before this court. He asserts that his actions as alleged by Darlene cannot constitute a “disclosure” under La. R.S. 15:1303(A)(3), because the transcript had already been filed in the suit record prior to his enrollment as counsel. We referred Fewell’s peremptory exception to the merits of this appeal.

DISCUSSION

At issue is whether Darlene’s claims against Fewell and Cook are prescribed. Darlene’s action is for alleged violations of the Electronic Surveillance Act, specifically La. R.S. 15:1303(A), which makes it unlawful for any person to:

(1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire or oral communication;
(2) Willfully use, endeavor to use, or procure any other person to use or endeavor to use, any electronic, mechanical, or other device to intercept any oral communication when:
(a) Such device is affixed to, or otherwise transmits a signal through a wire, cable, or other like connection used in wire communication; or
(b) Such device transmits communications by radio or interferes with the transmission of such communication;
(3) Willfully disclose, or endeavor to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this Subsection; or
|fi(4) Willfully use, or endeavor to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this Subsection.

A person whose wire or oral communication is intercepted, disclosed, or used in violation of the provisions of the Electronic Surveillance Act has a cause of action for civil damages under La. R.S. 15:1312(A) and is entitled to recover: (1) actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is greater; (2) a reasonable attorney’s fee and other litigation costs; and (3) punitive damages.

The focus of Darlene’s appeal is whether Cook and Fewell are solidary obligors with the other defendants such that prescription was interrupted when the petition for damages was filed on December 1, 2008. She asserts that all the defendants were obligated not to violate the Electronic Surveillance Act and that they all violated its provisions by attaching the transcript to the pleadings filed in the nullity action. According to Darlene’s pleadings, Cook allegedly used or disclosed the transcript when he attached it to Trichell’s nullity petition filed on July 31, 2007. Fewell allegedly used or disclosed the transcript when he attached it to an opposition to an exception of unauthorized use of summary proceedings; no date was alleged for this act. Finally, Cook and Fewell allegedly used or disclosed the transcript when they re-filed the nullity petition pursuant to a joint motion to transfer; again, no date was alleged. The only alleged use or disclosure of the petition by Trichell, Cook, and Fewell was in the nullity action. It does not appear from Darlene’s | ^pleadings that Renee was a party to the nullity action. Thus, her alleged interception of Darlene’s telephone conversation with Dennie is a separate violation from the alleged disclosure and use of the transcript in the nullity proceedings by Trichell, Cook, and Fewell.

Whether prescription was interrupted as to Cook and Fewell cannot be reached until a determination is made as to whether the original petition was timely. Delictual actions are subject to a liberative prescriptive period of one year, which commences to run from the day injury or damage is sustained. La. C.C. art. 3492. Our law recognizes that prescription commences when a plaintiff obtains actual or constructive knowledge of facts that would indicate to a reasonable person that he or she is the victim of a tort. Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502; Martinez Management, Inc. v. Ca-ston, 39,500 (La.App.2d Cir.4/13/05), 900 So.2d 301. Constructive notice exists when a party possesses information sufficient to incite curiosity, excite attention, or place a reasonable person on guard to call for inquiry. Scranton v. Ashley Ann Energy, L.L.C., 46,984 (La.App.2d Cir.4/11/12), 91 So.3d 1174; Martinez, supra.

Ordinarily, the party who asserts the peremptory exception of prescription bears the burden of proof at the trial of the exception. Carter v. Haygood, 2004-0646 (La.1/19/05), 892 So.2d 1261; Scranton, supra. However, when prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to prove that the action has not prescribed. Denoux v. Vessel Management Serv., Inc., 2007-2143 (La.5/21/08), 983 So.2d 84; Carter, supra; Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383 (La.1993); Scranton, supra.

The manifest error standard of review applies to the trial court’s findings of fact when evidence is introduced at the hearing on the exception of prescription. Carter, supra. However, if no evidence is introduced, the exception is decided on the allegations of the petition with the properly pleaded allegations of fact accepted as true. Denoux, supra; Trust for Melba Margaret Schwegmann v. Schwegmann Family Trust, 09-968 (La.App.5th Cir.9/14/10), 51 So.3d 737.

In her pleadings, Darlene alleged that the transcript was attached to the nullity action filed against her on July 31, 2007. Darlene did not file her action for damages until approximately 15 months later on December 1, 2008. Her action appears prescribed on the face of the pleadings. Therefore, Darlene had the burden to prove that her action had not prescribed.

Before reviewing whether Darlene met the burden of proving that her action had not prescribed, we must address whether any evidence was offered on the exception. Though the record includes an exhibit of the pleadings in the nullity action, neither the minutes nor the transcript of the hearing on the exception of prescription indicate that any exhibits were offered and introduced. From our review of the transcript of the arguments on the motion for a new trial, it appears that the exhibit may have been physically placed into the record on that date. Counsel for Darlene | ^mistakenly believed that he had introduced the exhibit into the record at the hearing on the exception. He then sought to have it entered into the record at the hearing on the motion for a new trial, at which time opposing counsel refused to agree to introduction of the exhibit. We note that the trial court ordered the motion for new trial to be heard for arguments only. Pursuant to La. C.C.P. art. 1978, no new evidence could be adduced. Exhibits that were not formally introduced into evidence cannot be considered, even if physically placed in the record that is on appeal. Denoux, supra; Meaux v. Miller, 2008-712 (La.App. 3d Cir.12/10/08), 999 So.2d 281. Although the exhibit of the nullity action filings is physically in the record before us, the record shows that it was not introduced at the hearing on the exception of prescription. Also, the record does not indicate that the trial court took judicial notice of the nullity action proceedings in ruling on the exceptions of prescription. Therefore, it cannot be considered on appeal, and our review is limited to determining whether the properly pleaded material allegations of fact show that the plaintiffs action is not prescribed. Schwegmann, swpra.

In her original petition, Darlene alleged that Renee recorded the phone call in 2005 and that the transcript of the phone call was made public in the nullity action pleadings filed on July 31, 2007. Paragraph nine of the petition states that she “knew the telephone conversation had been made public by the defendants in pleadings and otherwise, but did not know it had been illegally recorded until her ex-husband told her he didn’t record it.” Though she alleged that she “subsequently” learned that Dennie had neither | Recorded their conversation nor knew it had been recorded, she did not allege when she learned this information. She did not file her suit for damages until December 1, 2008, approximately 15 months after the transcript had first been used or disclosed in the nullity action. She did not allege when the subsequent alleged uses of the transcript occurred. Accepting the facts stated in the petition as true, we find them to show that Darlene’s action for damages stemming from the use or disclosure of the transcript in the nullity action had prescribed.

As of the filing of the nullity action on July 31, 2007, or soon thereafter when served, Darlene would have discovered that her phone call had been recorded, disclosed, and was being used against her. This is information that would be expected to incite curiosity, excite attention, and put a reasonable person on notice to ask questions about how a private telephone conversation came to be recorded, transcribed, and given to third parties for use in a lawsuit. Based on the facts alleged by Darlene, we find that she would have had constructive knowledge sufficient to start the running of prescription when the nullity action was first filed.

The running of a prescriptive period may be suspended under the jurisprudential doctrine of contra non valentem. Carter, swpra; Martinez, swpra. This doctrine applies in four instances: (1) where some legal cause prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s behalf; (2) where some condition coupled with a contract or connected with the proceedings prevented the creditor from suing for action; (3) where the debtor did some act effectively to prevent the creditor | infrom availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant. Carter, supra.

Neither the first or second category is implicated by the facts pled. The third category applies when the defendant engages in some conduct that prevents the plaintiff from availing himself of his judicial remedies. Carter, supra. The pleadings do not suggest that the defendants did anything in this regard. The fourth category, known as the discovery rule, suspends prescription until the plaintiff discovers or should have discovered the facts upon which his cause of action is based. Martinez, supra. However, ignorance of the cause of action cannot be attributable to the plaintiffs own willfulness or neglect. Id., citing Renfroe v. State ex rel. Dept. of Transp. and Dev., 01-1646 (La.2/26/02), 809 So.2d 947. A plaintiff is deemed to know what he or she could have discovered by reasonable diligence. Id.

Darlene admitted in her original petition that she knew her telephone conversation with Dennie had been made public in the pleadings of the nullity action. Once she obtained this knowledge, she could have discovered by the exercise of reasonable diligence that Dennie had not recorded their conversation. The pleadings do not allege that Dennie or any of the defendants did anything to prevent Darlene from inquiring about how a private telephone conversation came to be recorded, disclosed to third parties, and used in a lawsuit against her. In her memorandum filed in opposition to the exceptions of prescription, Darlene stated that she discovered on or about March 26, 2008, that a third person had recorded her |ntelephone conversation with Dennie. However, Darlene offered no evidence on trial of the exceptions to explain why she did not make this discovery until March 26, 2008, or why she could not have discovered this information during the preceding seven months that had elapsed since the initial filing of the nullity action. Therefore, neither the third nor fourth categories of contra non valentem applies under the facts alleged to suspend the commencement of prescription.

Accepting the allegations of the plaintiffs petition as true, we find her action is prescribed on the face of the pleadings and that she did not meet her burden of proving that her claim had not prescribed. Darlene did not offer any evidence to prove that her original petition was timely, that prescription was interrupted as to Cook and Fewell, or that her claims were otherwise timely as to them. Thus, the trial court did not err in sustaining the exceptions of prescription filed by Cook and Fewell.

Because we find that Darlene’s action for damages was not filed within a year of when she is deemed to have had constructive notice of the facts giving rise to her claim, we find it unnecessary to address those assignments of error pertaining to whether prescription was interrupted as to Cook and Fewell as solidary obligors. Our ruling also pretermits consideration of Fe-well’s peremptory exception of no cause of action.

CONCLUSION

For the reasons set forth in this opinion, we affirm the trial court’s judgment sustaining the exceptions of prescription and dismissing the |12claims of the plaintiff, Darlene Huddleston, against defendants Richard Fewell and Ronald Cook. Costs are assessed against the plaintiff.

AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Melanie Renee SMALL, Appellant.
    No. 47,438-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      Louisiana Appellate Project by Douglas L. Harville, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Robert R. Smith, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   STEWART, J.

|! Defendant Melanie Small was charged with possession of Schedule II narcotics, methamphetamine, with intent to distribute, a violation of La. R.S. 40:967(A), and two counts of possession of Schedule IV narcotics, violations of La. R.S. 40:969(C). In exchange for the dismissal of the Schedule IV charges, the defendant agreed to plead guilty to attempted possession of Schedule II narcotics, methamphetamine, with intent to distribute. The trial court sentenced her to serve three years’ imprisonment at hard labor, consecutive with any other sentence she may have to serve. The defendant now appeals. For the reasons discussed below, we affirm the defendant’s conviction and sentence.

FACTS

On May 10, 2010, the defendant and Christy Napier were in the Dillard’s department store in the Pierre Bossier Mall in Bossier City. Security officers observed the defendant leaving the store and noticed that her purse, which was initially thin, had become significantly thicker. The security officers stopped both the defendant and Napier, and the defendant admitted that she had stolen merchandise from the store and put it in her purse. When the officers searched the defendant’s purse, they found seven individually wrapped bags of methamphetamine. She denied that the drugs, along with the other contents of the purse, belonged to her, and informed the officers that it belongs to Napier. The officers found more methamphetamine inside of the defendant’s car. The defendant and Napier admitted to smoking methamphetamine earlier that day.

|20n July 10, 2010, a bill of information was filed, charging the defendant and Napier with one count of possession with intent to distribute a Schedule II controlled dangerous substance, to wit, methamphetamine, in violation of La. R.S. 40:967(A), one count of possession of a Schedule IV controlled dangerous, to wit: Alprazolam, in violation of La. R.S. 40:969(C), and with one count of Schedule IV controlled dangerous substance, to wit, Soma, in violation of La. R.S. 40:969(C).

After ensuring that the defendant understood and waived her rights and that the sentence would be up to the court, the trial court accepted the defendant’s guilty plea to attempted possession with intent to distribute a Schedule II controlled dangerous substance, to wit, methamphetamine, in violation of La. R.S. 40:967(A), on August 28, 2011. Based on the plea agreement, the second and third counts were nol prossed.

On November 15, 2011, the defendant appeared for sentencing. After reviewing the presentence investigation report, which included the defendant’s criminal history, the trial court made the decision not to suspend her sentence for the instant offense. It sentenced her to serve three years’ imprisonment at hard labor, consecutive with any other sentence she may have to serve.

Although the record does not reflect that the defendant filed a formal motion to reconsider sentence, it does include a pro se letter that she wrote to the judge arguing that her sentence was too harsh. The defendant further requested to appeal her sentence or have the trial court enter her into a drug ¡¡¡program. The trial court granted the defendant an appeal. She has filed the instant appeal, asserting one assignment of error.

LAW AND DISCUSSION

In her sole assignment of error, the defendant argues that the three-year prison sentence imposed by the trial court is unconstitutionally excessive. More specifically, she asserts that the sentence gives her no opportunity to rehabilitate herself or become a productive member of society. She further argues that the sentence is simply a needless imposition of pain and suffering.

La. R.S. 40:967 provides in pertinent part:

A. Manufacture; distribution. Except as authorized by the Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally;
(1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II;
B. Penalties for violation of Subsection A. Except as provided in Subsection F, any person who violates Subsection A with respect to:
(1) A substance classified in Schedule II which is an amphetamine or methamphetamine or which is a narcotic drug, except cocaine or cocaine base or a mixture or substance containing cocaine or its analogues as provided in Schedule 11(A)(4) of R.S. 40:964 and except oxyco-done as provided in Schedule II(A)(l)(o) of R.S. 40:964 shall be sentenced to a term of imprisonment at hard labor not less than two years nor more than thirty years; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.

14Additionally, since the defendant pled guilty to attempted possession of methamphetamine with intent to distribute, there was no minimum sentence and the maximum sentence was 15 years’ imprisonment at hard labor. La. R.S. 14:27(D)(3). Although the defendant’s pro se letter was not captioned as a motion to reconsider sentence, we find it sufficient to afford her full appellate review of her sentence.

The trial court has wide discretion in imposing sentences within minimum and maximum limits allowed by the statute; therefore a sentence will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710; State v. Young, 46,575 (La.App.2d Cir.9/21/11), 73 So.3d 473; The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque, 46,515 (La.App.2d Cir.9/21/11), 73 So.3d 1021.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reveals that he adequately considered 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 articulation of the factual basis for a sen tence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows Lan adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (his 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. All convictions and all prior criminal activity may be considered as well as other evidence normally excluded from the trial. State v. Platt, 43,708 (La.App.2d Cir.12/3/08), 998 So.2d 864, writ denied, 2009-0265 (La.11/6/09), 21 So.3d 305. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2 Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07) 964 So.2d 351.

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 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 considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2 Cir.1/24/07), 948 So.2d 379.

As indicated above, a person who violates La. R.S. 40:967(A)(1) is subject to imprisonment at hard labor for not less -than two years and not more than 30 years, with the first two years to be served without benefit of | (¡probation, parole, or suspension of sentence. The defendant’s sentence of 3 years’ imprisonment at hard labor falls within the statutory guidelines.

A trial court is not required to render a suspended sentence or probation on a first (or qualifying second) felony offense. The court may consider whatever factors and evidence are deemed in the best interest of the public and the defendant. State v. Bradford, 29,519 (La.App.2 Cir.4/2/97), 691 So.2d 864.

The trial court complied with the sentencing guidelines and jurisprudence by considering the defendant’s criminal history, arrests, and parole violations. Her criminal history included:

1998: Theft of property by check (Texas); 180 days’ probation;
2003: Possession of Schedule II and IV CDS; 3 years’ hard labor, suspended, 3 years’ supervised probation, terminated unsatisfactorily;
2004: Issuing worthless checks, 3 years’ hard labor, suspended, 3 years’ supervised probation, terminated unsatisfactorily;
2006: Possession of Schedule II CDS; reduced from a charge of possession with intent to distribute, referred to drug court, conviction then set aside;
2010: Theft of good; failure to appear; warrant issued.

We note that even though the trial court did not relate a finding of any mitigating factors, it nevertheless imposed a sentence far below the maximum permitted by law. The trial court made the decision not to suspend the defendant’s sentence for the instant offense. It noted that the defendant, who was 33 years old at the time of trial, had been given several ^opportunities, via drug court and probation, to straighten her life out, but had failed to do so.

It is clear that the defendant’s persistent involvement in drug offenses, in addition to her current offense of possession of at least seven packages of methamphetamine, suggests that a period of incarceration is an appropriate punishment for her. Further, the defendant obtained some benefit by pleading guilty in exchange for the dismissal of the two other drug charges.

Given the defendant’s prior criminal history, particularly the drug offenses and the two probationary periods that she failed to complete, we find the sentence imposed is not disproportionate to the severity of the crime, does not shock the conscience and is not a needless infliction of pain and suffering. This assignment of error lacks merit.

CONCLUSION

For the aforementioned reasons, we affirm the conviction and sentence of the defendant, Melanie Renee Small. AFFIRMED.


author: LOLLEY, J.

text:
    Larry MODICUE, Plaintiff-Appellant v. STATE FARM FIRE AND CASUALTY COMPANY and Rose Kennedy, Defendants-Appellees.
    No. 47,444-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      Street & Street, Monroe, LA, by C. Daniel Street, for Appellant.
    Davenport, Files & Kelly, Monroe, LA, by M. Shane Craighead, for Appellees.
    Before DREW, LOLLEY and SEXTON (Pro Tempore), JJ.
   LOLLEY, J.

|! Larry Modicue (“Modicue”) appeals the judgment of the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, wherein the trial court granted defendants Rose Kennedy’s and State Farm Fire & Casualty Company’s motion for summary judgment. For the following reasons, we affirm the trial court’s judgment.

FACTS

On November 18, 2009, Modicue went to the office of Rose Kennedy (“Kennedy”), an insurance agent for State Farm Fire & Casualty Co. (“State Farm”), in West Monroe, Louisiana. Kennedy directed Modicue to a private office and offered him a chair of a steel tubular construction with only two legs in the front as opposed to the traditional four-legged chair. Modicue accepted Kennedy’s offer; however, when the 404-pound Modicue sat down, the chair collapsed and dropped Modicue to the floor where he sustained injury to his shoulder. Modicue required medical treatment as a result of his injuries.

Modicue brought suit against Kennedy and State Farm for the injuries sustained. Kennedy and State Farm filed a motion for summary judgment and the trial court granted the motion, finding no genuine issue as to any material fact and that defendants were entitled to judgment as a matter of law. This appeal followed.

DISCUSSION

As his only assignment of error, Modi-cue argues that the trial court erred in granting summary judgment and thereby dismissing Modicue’s claim. Specifically, Modicue asserts that a Louisiana business owner has a |¡>duty to provide seating which is adequate for the general population of the United States — a significant proportion of which weighs over the 250-pound carrying capacity of the chair as testified by Modicue’s expert witness. Modicue also argues that summary judgment was improper, because the facts of the case permit the application of res ipsa loquitur. We disagree.

The plaintiff or defendant may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored by the courts and construed to accomplish these ends. La. C.C.P. art. 966.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Young v. Marsh, 46,896 (La.App.2d Cir.01/25/12), 86 So.3d 42.

Louisiana C.C. art. 2317.1 concerns an owner’s liability for damages caused by the ruin, vice, or defect of a thing under his control and states:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate ease.

Here, the trial court properly granted the motion for summary judgment. Modicue failed to provide any evidence which could support a finding that appellees State Farm or Kennedy had constructive knowledge |sthat the chair offered to Modicue contained a defect. On the contrary, the record reflects that Mod-icue had used the chair before without incident. Modicue’s expert testified that the chair did not contain a warning concerning its carrying capacity. The expert also stated that there was no reason why Modicue should find the chair incapable of sustaining his weight. Therefore, it can be surmised that neither State Farm or Kennedy should have thought the chair incapable of holding Modicue’s weight.

Furthermore, the trial court properly found that the doctrine of res ipsa loquitur did not apply. Res ipsa loquitur is a rule of circumstantial evidence that applies when the facts suggest that the negligence of the defendant is the most plausible explanation of the injury. This evidentiary doctrine is applicable when three requirements are met: 1) the circumstances of the accident are so unusual that, in the absence of other evidence, there is an inference of negligence by defendant; 2) defendant had exclusive control over the thing causing injury; and, 8) the only reasonable conclusion is that defendant’s breach of duty caused the accident. Harper v. Advantage Gaming, 38,-837 (La.App.2d Cir.08/18/04), 880 So.2d 948.

Here, Modicue’s prodigious weight makes it unlikely that the only reasonable explanation for the collapse of the chair was that it contained a defect. Additionally, the record indicates that the chair had held Modicue’s weight in the past and, therefore, does not support an inference of negligence on the part of State Farm or Kennedy. Ultimately, Modicue has failed to produce evidence sufficient to show that the negligence of the defendants was the most plausible explanation for his injury.

| ¿CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court in favor of Rose Kennedy and State Farm Fire & Casualty Co. All costs of this appeal are to be paid by Larry Modicue.

AFFIRMED.


author: DREW, J.

text:
    Lanny JAMES, Plaintiff-Appellant v. John WITHERINGTON and Wanda Witherington, Defendant-Appellee.
    No. 47,461-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.
    Law Offices of Street & Street, Monroe, LA, by C. Daniel Street, for Appellant.
    Hayes, Harkey, Smith & Cascio, LLP, Monroe, LA, by Harry McClellan Moffett, IV, Paul Ford Lensing, Jr., for Appellee.

      Before DREW, LOLLEY and SEXTON (Pro Tempore), JJ.
   DREW, J.

11 Lanny James originally filed a petition for injunction and damages against his neighbors, John and Wanda Witherington, requesting that they be enjoined from keeping and maintaining dogs on their property. James asserts that Sammie, the Witheringtons’ Sheltie dog, constantly barked and yipped, causing a great deal of nuisance to him and the surrounding community. James also claims another dog belonging to the Witheringtons, T.J., is dangerous and should have preventive measures taken against him to keep him from attacking other dogs, such as being enclosed in a fence instead of allowing him to roam around the neighborhood. James asserts Sammie’s barking has prevented him from enjoying outdoor and indoor activities on his property. James later amended his original petition to allege that another of the Witheringtons’ dogs, B.B., was also a nuisance because of his incessant barking.

Trial was held in April 2011 and judgment was rendered in favor of the Wither-ingtons. The court ruled that because Sammie did not bark during the nighttime hours, James was not being deprived of sleep. This, coupled with the fact that the court could find no evidence that James sought medical attention for anything associated with the barking, made him ineligible for damages. The court also held that the issue with Sammie’s barking was moot as the Witheringtons had permanently given the dog away. Finally, the court held that James had not met his burden of proving that T.J. was dangerous and that enjoining the Witheringtons from owning any dogs would be unnecessary and unreasonable. James now appeals.

| ¿TESTIMONY

Lanny James

Lanny James, plaintiff, testified that:

• he and the Witheringtons enjoyed a friendly relationship as neighbors, until the barking problem became intolerable;

• upon the death of Mrs. Witherington’s father in the spring of 2009, James visited the family and brought food and his condolence;

• the nuisance actually began when the Witheringtons acquired a Sheltie (“Sammie”) in late 2008, but he made no protest initially, because of the emotional trauma recently suffered by the Wither-ingtons;

• Sammie was left outside early in the morning when defendants would leave for work, and the dog would bark and yip throughout the day, until they returned home, causing a great deal of frustration;

• Sammie’s daytime barking caused him to lose his desire to engage in outside activities, such as sunbathing and fishing off his dock;

• the dog’s barking was often louder than the television inside his home;

• the constant barking rendered useless his in-home recording studio;

• he asked John Witherington to quell the barking;

• Witherington agreed, but Sammie continued to be a nuisance;

• he purchased a barking control device, which transmits a high-pitched sound designed to curb a dog’s barking, to no avail;

• his subsequent request for relief from his neighbors was met with Mrs. Withering-ton’s unhelpful suggestion that he purchase ear plugs;

• The Witheringtons also owned two other overly vocal dogs;

• after contacting the Witheringtons several times, he hired an attorney to draft a letter asking them to provide some relief;

• even after the Witheringtons received the letter, the barking did not lessen in frequency or pitch, which led him to file suit;

| a* he never visited a physician for sleep deprivation regarding the barking;

• T.J. was an aggressive “attack dog” that was allowed to freely roam the neighborhood, attacking his Dachshund on perhaps 10 occasions;

• B.B. was a nuisance due to barking and would often accompany T.J. on his misadventures throughout the neighborhood; and

• his new dog has been attacked three times by T.J., since defendants still allowed him to roam free.

Sandra Prince

Sandra Prince testified that upon visiting her brother for a week, the incessant barking prevented her from being able to enjoy even the shortest amount of time outside her brother’s lake home. Prince testified that she could not stand more than 10 minutes outside before the annoyance of the barking simply drove her inside. This happened on the first and second day of her stay, so for the remainder of the trip, Prince stayed inside to avoid the shrill yelps and barks.

Thomas O. Sutton

Sutton testified that, as a neighbor, he was friends with both James and the With-eringtons. He testified that he had heard the Witheringtons’ dogs bark on occasion even though he was 150 yards away. Sutton asserts that the barks were shrill and at times could even be heard inside his house but only faintly. Sutton testified that he witnessed the Witheringtons’ dog attack another dog, which belonged to his friend Dixie Ramsay. This was the only instance in which he had witnessed T.J. being aggressive. Sutton | testified that he never contacted the Witheringtons about the barking or the attack that he witnessed on his friend’s dog.

Wanda Smith Witherington

Witherington testified that she purchased the Sheltie called Sammie for her granddaughter, Milan, around Easter, using money that Milan earned doing household chores when she lived with them. Witherington testified that they put Sammie outside in the mornings when they left for work. She testified they went to great lengths to appease James’ anger about the barking. The first step was to install the barking tool James had purchased for them. When the Witheringtons realized it was ineffective, they gave it back to James and purchased a shock collar, which was also unsuccessful.

Witherington testified that they then enrolled Sammie in an obedience school and got her medicine for animals with separation anxiety. None of these attempts to suppress the barking worked, and she testified that James’ anger intensified and even led to what she considered a threat when James stated that “he would handle it (the barking) in another manner.” Mrs. Witherington testified that her family was in the midst of a crisis because of sudden deaths occurring in a short amount of time and this distress led her to tell James to buy ear plugs.

Witherington testified that as a result of the increasing complaints from James, they kept Sammie inside and eventually gave the dog away to family friends to appease James. Witherington testified that T.J. and B.B. were good natured but bold dogs that did nothing more than protect their property and bark occasionally like the other dogs in the neighborhood. She | «added that she did not know about T.J.’s attack on Ramsay’s dog until Ramsay called to inform them several months later. Witherington stated that no one besides James or Ramsay had ever told her T.J. was aggressive. She also stated that measures had been taken to secure T.J. in a fence, as well as tethering while in the yard, but that as result of her elderly mother’s slow pace while entering and leaving the fenced-in yard, at times T.J. escaped. The Witheringtons built another gate in the fence to stop this occurrence.

Witherington asserted that even after putting Sammie in her house before giving her away for good, James still proceeded with his complaints by contacting an attorney and later filing suit. Witherington testified that the dogs’ barking never disturbed her, her husband, or granddaughter. Witherington testified that on one occasion, James called the sheriff to complain about B.B.’s barking; when the deputy arrived, she quickly put the dog inside the house to appease James and the officer.

Tony Edgar Smith

Smith is Mrs. Witherington’s brother and lives about 100 yards away from the Witheringtons’ house. Smith testified that he had heard the Sheltie bark before, but not from inside his house. He also testified that it was common to hear dogs bark in his neighborhood as there were so many. Smith asserted that he had never seen T.J. be aggressive toward anyone or even heard T.J. bark. Smith testified that he spent time between Lake D’Arbonne and another home in Tyler, Texas, but that while in Louisiana, he would spend a great deal of time around the Witheringtons’ property.

| «DISCUSSION

James asserts that the trial court erred by not enjoining the Witheringtons from keeping dogs on their property and thus abating this nuisance. He asserts that even after receiving a letter from his attorney, the Witheringtons refused to quell Sammie’s barking and continued to allow their “attack dog” T.J. to roam the neighborhood freely. The Witheringtons claim they had already sent Sammie to live with another family permanently before suit was filed. James disputes this and argues he would not bring suit against someone to force them to do something they had already done.

In Robertson v. Shipp, 50 So.2d 699 (La.App. 2d Cir.1951), the court recognized that the barking, howling, and whining of dogs may constitute a nuisance and may be enjoined if the barking results in serious annoyance to neighboring residents and interferes with the reasonable use and enjoyment of their property. The court recognized that one dog is enough to be a nuisance. The Witheringtons assert that because James did not show any irreparable harm as a result of the barking, he was not entitled to an injunction or damages; however, Robertson dismissed this same argument by stating that no one could be expected to continuously experience such a nuisance for a sum of money.

In Ryan v. Louisiana Soc. for Prevention of Cruelty of Animals, 62 So.2d 296 (La.App.Orl.Civ.1953), the defendant nonprofit organization, which was running an animal shelter, was enjoined because the dogs kept there were a nuisance to the nuns living in a convent next door. The constant barking kept them from sleeping, and a permanent injunction was [7issued against the nuisance and affirmed on appeal. The court in Hernandez v. Richard, 2000-471 (La.App. 3d Cir. 12/6/00), 772 So.2d 994, issued a preliminary injunction against a defendant whose 17 dogs kept barking continuously and became a nuisance to a neighbor who lived 250 yards away. The court held that the frequent barking of the dogs constituted a nuisance which would be abated by an injunction.

In the instant case, James complained of the barking of two dogs, not the 17 in Hernandez, which would be exponentially louder than the barking of the Withering-tons’ dogs. James admitted that the barking did not occur during nighttime hours, which is a distinct contrast to the situations of both the Ryan and Hernandez situations.

James also claims that the trial judge erred when he did not enjoin the Wither-ingtons from allowing their dog T.J. to roam about the neighborhood freely because he is a dangerous dog. La. R.S. 14:102.14 defines a “dangerous” dog as any dog unprovoked on two occasions within 36 months, that has killed, seriously bitten, inflicted injury, or otherwise caused injury to a domestic animal off the property of the dog’s owner. It also states that it is unlawful for a person to own such a “dangerous” dog without properly confining or restraining it. James asserts that T.J. had attacked his dog on several occasions on his property.

James also asserts that T.J. has caused serious harm to other animals, most notably, Dixie Ramsay’s dog. The Withering-tons claim they did not learn of the attack on Ramsay’s dog until months after it had occurred, and that James can provide no proof that T.J. ever attacked his dog or why T.J. |sshould be considered dangerous. James asserts that he should not have to be afraid to let his dogs out for fear of T.J.’s attack and that the Witheringtons should take the action of confining the animal in a fence. James argues that the court should award him damages for the loss of sleep and enjoyment of his property he has suffered as a result of the dog’s barking. We note that James never visited a doctor to aid in his endeavor for more or better sleep and, therefore, has proven no damages.

While the trial court has broad discretion in deciding whether to grant injunc-tive relief, preliminary injunction is an extraordinary remedy and should be issued only when the party seeking it is threatened with irreparable loss without adequate remedy at law. La. C.C.P. art. 3601; Chandler v. State, 2002-1410 (La.App. 1st Cir.3/28/03), 844 So.2d 905. In the case at hand, James could not establish such grievous harm as would justify in-junctive relief. While we have sympathy with plaintiffs claims of annoyance, the defendants did take some steps to ameliorate the situation, and we do not feel this is an appropriate situation for an injunction.

In Myer v. Minard, 21 So.2d 72 (La.App. 2d Cir.1945), a somewhat analogous case, this court held that the crowing of a rooster was not a nuisance which constituted sufficient justification for injunctive relief, as this was a sound that all animals of that species naturally produce.

[flHere, the dogs, just like the rooster, were simply producing the sounds that came naturally to them. These barks were no different than those of any other dogs, including those owned by James. The barking did not conflict with James’ sleep. The trial court was eminently correct in declining to award any damages.

Further, this record does not establish any irreparable harm, and we find that the trial court was correct to deny the request for injunctive relief.

DECREE

For the foregoing reasons, and at the costs of appellant, the judgment is AFFIRMED.

      . There are detailed procedures in Title 14 by which to seek a declaration that a particular dog is dangerous or vicious. See La. R.S. 14:102.12-102.18.

      . As stated by this court, at 76-77:
      We cannot conceive of a normal person, endowed with ordinary sensibilities and ordinary habits, being greatly discomforted by the announcement of a new day from the well-trained voice of a stately cock, the sound of which is used as a symbol of good cheer by many advertisers. The voice of the rooster can be heard daily in motion pictures, on the radio and at the birth of a new day all over the world, whether in the country, town or city, one only has to awaken to hear the cheery voice of Chantecler announce the day. He has been doing that all over the world since before the year 1 and, so far as we can find, no one has until now tried to silence his cheerful greetings.
      The time for this action is most inopportune, with the Government taking for the Armed Forces of our Nation all the broilers, friers, excess hens and eggs from our large poultry-producing centers, as well as a great part of the beef and other meats, and the Agriculture Department at Washington urging everyone to raise poultry, eggs, Victory gardens and other foods. The figures given out at Washington showing the quantity of vegetables produced and canned from Victory gardens last year were astounding and the figures, if given, showing the number of chickens raised and eggs produced in back yards of towns and cities would be more astounding. If we destroyed the roosters, within a very short time the chicken family would become extinct and the familiar American breakfast of bacon and eggs would be no more.
      The rooster and his crow, besides being the symbol of good cheer and happiness, have been made use of for many purposes as far back as centuries go. The Indonesian seafarers made use of them on their ships to keep the man-eating sharks away. When the rooster crowed aboard ship — and every ship carried one or more — the sharks thought they were near land and, through fear of being washed ashore to lie there and die, swam away from the ship thereby relieving the seamen from their menace. Without further proclaiming the cheerful and gallant qualities of the big red rooster, we are convinced beyond a reasonable 'doubt that the cheery outbursts at the break of day cannot be so disturbing as to become a nuisance to a normal person of ordinary sensibilities and of normal habits and tastes, and that to continue to allow the rooster to crow is not in derogation of the rights of the plaintiffs.


author: MOORE, J.

text:
    James Leonard CAMERON, Plaintiff-Appellant v. Michael BRUCE, et al., Defendant-Appellees.
    No. 47,463-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      See also 981 So.2d 204.

      Shuey Smith, LLC, Shreveport, LA, by Richard E. Hiller, for Appellant.
    Charles G. Tutt, Shreveport, LA, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   MOORE, J.

|TThe buyer, James Michael Cameron, appeals a judgment that rejected his claim for damages for breach of contract, awarded only $2,500 in redhibition for a defective fireplace in the house, and denied his claim for attorney fees. For the reasons expressed, we affirm.

Factual Background

The seller, Michael Bruce, had bought the house and 2.5-acre lot on McCutcheon Street in Shreveport’s Pinecroft Subdivision in 1976. He testified that at the time, it was a “shell” of a house sitting on piers and beams in the front of the lot; he hired a professional house mover to move it to the rear of the lot and set it on piers and beams. Over the next two years, with the help of a hired carpenter, Bruce added rooms to three sides of the house and installed brick veneer. He testified that he had been buying and remodeling houses as rental properties since 1971, but this one was to be his residence; he and his family lived there 18½ years. In the late 1990s he moved out and began renting the house to tenants, the last being his ex-wife and son. In 2001, he decided to sell the house, listing it with Century 21 agent Sharon Hutchinson.

Cameron saw the house on Century 21’s website and was attracted to it not just because of the house but the large freestanding garage, which he could convert to a metalworking shop, and the 2.5 acres on which he could plant Christmas trees for additional income. Before making an offer, he toured the house for 15-20 minutes and thought everything looked fine. He never met Bruce, however, until the closing on December 4, 2001; all communications were between Bruce’s seller’s agent, Ms. Hutchinson, and | ..Cameron’s buyer’s agent, Billy Crownover (also a Century 21 agent).

On October 29, Bruce filled out a sellers disclosure statement admitting that he had made “additions, structural changes, or alterations to the property,” for which “permits and approvals in compliance with building codes” had been obtained, and denying any knowledge of “termites, dry rot, or pest on or affecting the property.”

On November 1, Cameron offered $92,000 for the property; Bruce accepted the next day. A contract addendum dated November 2 listed five items that Bruce was to repair or replace. Of significance to this appeal is No. 5, typewritten as “The fireplace is to be brought into a safe and normal operation” and handwritten as “Replace cap on fireplace chimney.” Bruce testified that he made all these listed repairs, including the chimney cap, and had no idea there was any further problem with the brick fireplace.

On November 9, Cameron hired HouseMasters Home Inspections to inspect the house; this turned up a number of additional problems. Cameron drafted a second contract addendum, dated November 14, listing 10 more items that Bruce was to repair or replace. Of significance to this appeal are the following, next to which someone made the handwritten notations printed here in italics:

4. SUB-STRUCTURE: Replace the broken pier near the entry of the sub-structure. OK but someone will have to show what to do.
5. Repair/replace the “several” floor joist [sic ] below the living room and center bedroom insuring the flooring is level. Show him * * *
9. EXTERIOR ELEMENTS: (settlement cracking) repair the cracks noted at the right side below the Isgable and at the rear center window. Insure any settling problems are corrected to include if necessary leveling the entire structure. Can’t do this.

Neither party knew who made the handwritten notations, perhaps one of the real estate agents, and Cameron testified he did not see them until after the closing. Nevertheless, Bruce testified that he met with the inspector from HouseMasters, who took him under the house and showed him the cracked pier and which joists were sagging. Bruce testified that he promptly “scabbed” several boards and added half a dozen joists, and made all the other repairs by November 19, except for No. 9. He testified that had he been required to level the whole structure, he would have “backed out” of the deal.

Shortly before the closing on December 4, Cameron handwrote a third contract addendum asking Bruce to replace two outdoor lights in the backyard (this had been item No. 1 in the second addendum). Bruce testified that he completed this just before the closing, and Cameron agreed that the new lights were in place. The parties closed the sale and Cameron moved in with his family.

Cameron and his wife began noticing problems about three months later, after they removed two interior walls and pulled up some carpet. This showed the floor slightly sagging in the livingroom and hall area, and “bouncing” when they walked over it. They then noticed the fireplace was cracking and separating from the wall, with only the roof beams keeping it from tumbling down.

|4In October 2002, Cameron hired a civil engineer, Don Durr, who found that the fireplace had no piers under it and that several beams were sagging under the weight. He advised installing four piers under the fireplace, jacking up the joists to a level position and adding several new beams.

Procedural History and Evidence at Trial

Cameron filed this redhibition suit against Bruce in December 2003; he later amended the petition to add HouseMasters as a defendant for failing to find the structural defect under the fireplace. HouseMasters obtained a partial summary judgment limiting its liability to $1,000, but this court reversed and remanded. Cameron v. Bruce, 42,873 (La.App. 2 Cir. 4/23/08), 981 So.2d 204, writ denied, 2008-1127 (La.9/19/08), 992 So.2d 940. HouseMasters later settled with Cameron.

The case was tried over two days in August 2011. In addition to the testimony outlined above, Cameron called several expert witnesses. Jimmy Sitter, a building inspector who examined the house in 2006, generated a long list of defects, including that there was too much space between the beams, several floor joists under the living-room floor had been spliced instead of replaced, and one of the piers was tilted; all of this contributed to the “bounce” in the floor and needed repair. Don Durr, the civil engineer, found one cracked pier, four joists deflected, one joist cracked, and a sag under the fireplace because it had no foundation. Sammie Craft, another civil engineer, examined the house in March 2004; he corroborated Sitter’s and Durr’s findings and suggested hiring a foundation company to level the | Spiers. None of these witnesses thought that any of the joists or beams had been replaced or properly repaired. Dean Cole, wee-president of Interstate Foundation, testified that at today’s prices, repairing this foundation would cost $6,995, even though the normal cost for a pier-and-beam house was $2,500 to $4,000. Darrell Barnhill, a contractor, generated an estimate for all the repairs suggested by Sitter, Durr and Craft; this came to $188,000, not including the foundation repair.

Cameron testified that owning the house had been financially and emotionally devastating. Not only had the costs of inspections and repairs added up, but he had declined to sell his mineral rights for $56,000 at the height of the Haynesville Shale boom. He testified that he did this on the advice of an attorney who felt the title was clouded by this litigation.

Bruce testified that the house mover had moved the structure, including the fireplace and foundation, in 1976, and he (Bruce) never did any structural work until he went in the crawlspace with the HouseMasters inspector in 2001. He insisted that he had indeed “scabbed” some of the boards; he could not explain why Cameron’s experts saw no recent work on the substructure, except that they were looking perhaps five years later. Bruce’s ex-wife, Gloria, testified that as long as she lived in the house (from 1979 to 1990 and then for six months in 2001) she noticed no problem with the fireplace or any sag or bounce in the floor.

Bruce also called three experts. Matt Snyder, a realtor and rental property manager, testified that at 1,842 square feet on 2.5 acres, the house |fihad an average rental value of $950 a month, based on compa-rables. Clyde Brossette, a real estate appraiser, testified that when he appraised the house in November 2001, it was worth $96,839 (using the cost method) or $94,000 (comparables method). Philip McDonald, a termite inspector, examined the house in November 2001 and found evidence of old termite damage which had been treated; there were no active termites.

Action of the District Court

The district court gave oral reasons for judgment, finding that both parties were “nice gentlemen” who had been ill served by their respective real estate agents. The court found no meeting of minds as to the items in the three contract addenda, and the only issue at closing was replacing the two backyard lights. The court concluded there was no breach of contract, as there was no agreement as to the items in the addenda.

On the redhibition claim, the court found the seller was not in bad faith, so no attorney fees could be awarded. However, the absence of piers under the fireplace was a redhibitory defect which the seller was obligated to repair. The court awarded $2,500, “the best estimate that I can come up with” from Interstate Foundation’s proposal. Finally, the court expressed its regret for the “wrong advice” Cameron received regarding the Haynes-ville Shale.

Cameron has appealed, raising three assignments of error.

Discussion: Breach of Contract

By his first assignment of error, Cameron urges the district court erred in holding that Bruce did not breach the sales contract and thus was 17not liable to Cameron for damages and attorney fees. He identifies three areas of breach. First, Bruce breached the sellers disclosure statement by failing to disclose that he had moved the house from the front to the rear of the lot, cut it in half to effect the move, and then added rooms to it, and that the house had been infested with termites; these omissions had a material and adverse effect on the value of the house. Second, Bruce breached the contract addenda by failing to repair or replace several floor joists below the livingroom and to bring the fireplace into a safe and normal operation; repairing the substructure was the most important part of the addenda, yet all Bruce did was to replace the fireplace cap and “scab” the joists around it. Third, Bruce breached the buy-sell agreement by selling a house with a redhibitory vice, lacking piers under the fireplace; this, he contends, activated the attorney fee provision (line 78) of the buy-sell agreement.

Bruce responds that the district court’s factual findings regarding a meeting of the minds cannot be disturbed unless they are manifestly erroneous. Clark v. Christus Health N. La., 45,668 (La.App. 2 Cir. 9/22/10), 47 So.3d 1135. He shows that neither the contract addenda nor the HouseMasters report mentioned any need for repairs to the substructure under the fireplace, and this supports the court’s finding that no meeting of the minds occurred as to the lack of support for the fireplace. He also submits that the minor redhibitory defect found by the court does not constitute a breach of contract.

Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear |sand explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046; Campbell v. Melton, 2001-2578 (La.5/14/02), 817 So.2d 69. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050.

When a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law. Prejean v. Guillory, 2010-0740 (La.7/2/10), 38 So.3d 274; El-ston v. Montgomery, 46,262 (La.App. 2 Cir. 5/18/11), 70 So.3d 824, writ denied, 2011-1292 (La.9/23/11), 69 So.3d 1165. Nonetheless, factual findings that pertain to the interpretation of a contract will not be disturbed absent manifest error. Campbell v. Melton, supra; Elston v. Montgomery, supra.

Cameron’s main argument is that Bruce breached the contract by failing to install piers and beams under the fireplace. We have closely examined the buy-sell agreement and the three contract addenda and, with the district court, do not find that the parties had a meeting of minds for Bruce to add substructure under the fireplace. As noted above, the only reference to the fireplace was in the first addendum, where Cameron asked that the fireplace be “brought into a safe and normal operation,” and Bruce agreed to “replace cap on fireplace chimney,” which he did. The second addendum called for Cameron to replace “the broken pier near the entry of the sub-structure” and “repair/replace ‘several’ floor joists below the living room and center bedroom insuring the floor is level”; Cameron agreed and [ testified that he did these. Of course, Cameron’s building inspector, Jimmy Sitter, and contractor, Darrell Barnhill, found the joists spliced instead of replaced, but this record supports a finding that splicing or “scabbing” substantially complied with the addendum to “repair/replace” the joists. The salient point is that neither the buy-sell agreement nor any of the three addenda specified adding new piers, beams or joists under the fireplace.

Admittedly, the second addendum includes Cameron’s request to “insure any settling problems are corrected to include if necessary leveling the entire structure.” Someone handwrote next to this (obviously on Bruce’s behalf), “Can’t do this,” and Bruce testified that leveling the entire foundation was such a large undertaking that it would have killed the deal. Although Cameron insisted he was unaware of the notations on the second addendum, he signed it on November 19 and signed the cash sale deed on December 4. The record fully supports the district court’s finding that there was no meeting of minds as to leveling the entire foundation. We perceive no manifest error.

Cameron also argues that omissions from the sellers disclosure statement constituted a breach of contract. Although Bruce disclosed that he had made “additions, structural changes, or alterations,” the statement provided no details, and it denied “termites, dry rot, or pest” on or affecting the property. Omissions from a disclosure statement, if serious enough, can indeed supply proof of a redhibitory vice and the seller’s bad faith, as in Ollis v. Miller, 39,087 (La.App. 2 Cir. 10/29/04), 886 So.2d 1199. However, the trial court is entitled to find substantial compliance with the | mdisclosure statement and to reject a claim of rescission for a technical violation, as in Clement v. Graves, 2004-1831 (La.App. 1 Cir. 9/28/05), 924 So.2d 196. While more detail about the additions and structural changes would have been helpful, the district court was entitled to find that a comprehensive list of improvements to a nearly 60-year-old house would be impracticable. And while the disclosure statement denied knowledge of termites affecting the property, the next line of the statement referred to termite treatment “in the past 3 years,” which may have led Bruce to think that disclosure of only recent termite activity was requested. On this record, we do not find violations serious enough to rescind the contract.

Cameron’s final argument is that the existence of the redhibitory defect equated to a breach of contract, thus activating the attorney fee provision of the buy-sell agreement. However, an action for breach of the warranty of fitness, unlike other contractual breaches, is founded in redhibition; even the presence of an express warranty does not convert such an action into one for breach of contract. Manning v. Scott-Hixson-Hopkins Inc., 605 So.2d 233 (La.App. 2 Cir.1992); Berman Daferner Inc. v. Causey, 97-1647 (La. App. 1 Cir. 9/25/98), 723 So.2d 467; PPG Industries Inc. v. Industrial Laminates Corp., 664 F.2d 1332 (5 Cir.1982). The award or denial of attorney fees depends on a finding of bad faith under La. C.C. art. 2531, which we will discuss in conjunction with Cameron’s third assignment of error. The first assignment of error lacks merit.

|^Bruce’s Status as Manufacturer

By his second assignment of error, Cameron urges the court erred in failing to find Bruce was a manufacturer under La. C.C. art. 2545 and thus failing to find him liable for damages and attorney fees. Cameron argues that Bruce made such extensive repairs to the house-in fact, he made a living buying old houses and refurbishing them for rental-that he should be deemed a manufacturer, as occurred in Foust v. McKnight, 95-2008 (La.App. 1 Cir. 5/10/96), 675 So.2d 1147, writ denied, 96-2117 (La.11/8/96), 683 So.2d 277, and Goodman v. Roberts, 587 So.2d 807 (La.App. 3 Cir.1991). Cameron also cites Bruce’s admission on cross-examination (“you really became your own builder” and “acted as your own contractor to do the building” of his other rental houses) and concludes that this activates Art. 2545’s presumption that he knew of the defects in the thing sold.

Bruce responds that Foust and Goodman do not establish a bright-line rule that anybody who remodels a house is a manufacturer for purposes of Art. 2545. Critically, Bruce did not install the fireplace and cannot be charged with knowledge of the defects in its construction.

A seller is deemed to know that the thing he sells has a redhibitory defect when he is a manufacturer of that thing. La. C.C. art. 2545; Aucoin v. Southern Quality Homes LLC, 2007-1014 (La.2/26/08), 984 So.2d 685. A vendor-builder of a residence is a manufacturer who cannot avoid the conclusively presumptive knowledge of defects in the thing he manufactures. Cox v. Moore, 367 So.2d 424 (La.App. 2 Cir.), writ denied, 369 So.2d 1364 (1979). The trial court’s factual findings in a redhibition |,2claim may not be set aside in the absence of manifest error or unless they are plainly wrong. Aucoin v. Southern Quality Homes, supra; Doge v. Obed, 40,414 (La.App. 2 Cir. 12/14/05), 917 So.2d 713.

Bruce was obviously not a homebuilder or a contractor and thus not presumptively a manufacturer under Art. 2545. The record shows, however, that he either performed or directed significant remodeling of the house, thus raising the possibility that his involvement elevated him to the status of a manufacturer even without the presumption of Art. 2545. In Gaston v. Bobby Johnson Equip. Co., 34,028 (La.App. 2 Cir. 11/3/00), 771 So.2d 848, this court approached the question of whether a mechanic, who adapted and installed a rebuilt engine in a dump truck, was a manufacturer of the engine by reference to the definition of “manufacturer” in the Louisiana Products Liability Act, La. R.S. 9:2800.53(1). Applying these principles, we find no manifest error in the district court’s conclusion that Bruce was not a manufacturer. He was not in the business of building houses for placement into trade or commerce, and he did not label the house as his own product. Although Bruce might have been a manufacturer of those portions | lsof the house that he added or significantly remodeled, he did not build the substructure under the fireplace — thus distinguishing the case from Foust v. McKnight, supra, and Goodman v. Roberts, supra, where “inadequacies of the installation and renovation * * * resulted in the [redhibitory] defects,” 587 So.2d at 810. On this record, the district court was not plainly wrong to find that Bruce was not a manufacturer of the house. This assignment of error lacks merit.

Damages and Attorney Fees

By his third assignment of error, Cameron urges the district court erred in awarding damages of only $2,500 and denying attorney fees. He cites his expert contractor Darrell Barnhill’s estimate of $188,000 to fix everything in the house and his expert foundation repairman Dean Cole’s estimate of $6,995 to level the piers and beams. He also cites his attorney’s pretrial affidavit claiming fees and costs of $51,502.08, argues that trial fees ran to $10,600, and requests a reasonable amount for this appeal.

Bruce responds that because he was not a manufacturer and was not found to be a bad-faith seller, the denial of attorney fees was proper. He also submits that the award of $2,500 was a reasonable portion of Cole’s estimate of $6,995 to level the whole foundation, as only the portion around the fireplace was a redhibitory defect. He dismisses Barnhill’s estimate of $188,000 to rebuild the house as totally out of proportion to its appraised value of $96,839.

A seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows |14it does not have, is liable to the buyer for, inter alia, the return of the purchase price, reasonable expenses, damages and reasonable attorney fees. La. C.C. art. 2545. Such a seller is called a “bad faith seller.” Id., Revision Comments (f), (g); Capitol City Leasing Corp. v. Hill, 404 So.2d 935 (La.1981). Whether a seller is in bad faith is a question of fact subject to manifest error review. Ollis v. Miller, supra, and citations therein. Likewise, the amount awarded for a reduction of purchase price is a question of fact for the trial court and will not be disturbed in the absence of manifest error or abuse of discretion. Mayfield v. Reed, 43,226 (La.App. 2 Cir. 4/30/08), 981 So.2d 235; Ollis v. Miller, supra.

As noted above, the record does not show that either the buy-sell agreement or any of the contract addenda specified any problems with, or necessary repairs to, the foundation under the fireplace. Bruce testified that in the nearly 20 years he lived in the house, he never noticed any problem with the fireplace. The HouseMasters inspection, conducted shortly before the sale, identified only sagging joists which would be repaired or replaced, but no defects in the foundation. Cameron admitted that he did not even notice any problem with the floor by the fireplace until he had been in the house about three months, notably after he removed some interior walls and tried to install new flooring. On this record, the district court was not plainly wrong to find that at the time of the sale, Bruce was unaware that the foundation under the fireplace was defective, and hence he was not a bad faith seller. There is no error in the denial of attorney fees.

| ifiFinally, Bruce contests the judgment of $2,500 by showing, without elaboration, that his expert foundation repairman, Dean Cole, set the price of leveling this foundation at $6,995, and that his building inspector Jimmy Sitter compiled a punch list of repairs, and his expert contractor Darrell Barnhill prepared a detailed estimate to perform all these repairs for a total of $188,000. The district court found, however, that the only redhibitory defect was the lack of piers and beams under the fireplace. With this finding, the court was not plainly wrong to reject Sitter’s list, which included electrical, roofing, ventilation and myriad other repairs completely unrelated to the redhibitory defect.

The court admitted its difficulty isolating, from Cole’s comprehensive estimate, the cost of repairing the defective part of the foundation. Cole testified that leveling this entire foundation would cost $6,995, even though the normal cost for a pier- and-beam house was $2,500 to $4,000. The court’s award of $2,500, Cole’s lowest estimate and roughly 35% of his highest estimate, seems reasonable to repair a small portion of the foundation that needs only four piers and perhaps six beams. We find no abuse of the court’s great discretion. Ollis v. Miller, supra. This assignment of error lacks merit.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the plaintiff, James Leonard Cameron.

AFFIRMED.

      . Bruce did not define "scabbing” but this court understands it to mean nailing or screwing a flat piece of wood to both sides of the joist to straighten and strengthen it.

      . (1) "Manufacturer” means a person or entity who is in the business of manufacturing a product for placement into trade or commerce. "Manufacturing a product” means producing, making, fabricating, constructing, designing, remanufacturing, reconditioning or refurbishing a product. "Manufacturer” also means:
      (a)A person or entity who labels a product as his own or who otherwise holds himself out to be the manufacturer of the product.
      (b) A seller of a product who exercises control over or influences a characteristic of the design, construction or quality of the product that causes damage.
      (c) A manufacturer of a product who incorporates into the product a component or part manufactured by another manufacturer.
      (d) A seller of a product of an alien manufacturer if the seller is in the business of importing or distributing the product for resale and the seller is the alter ego of the alien manufacturer. * * *