author: PAUL A. BONIN, Judge.

text:
    STATE Of Louisiana v. Torian CARTER.
    No. 2011-KA-1357.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 2012.
    Leon A. Cannizzaro, Jr., District Attorney, Felicity Strachan, Assistant District Attorney, Matthew R. Payne, Assistant District Attorney, New Orleans, LA, for the State.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Appellee.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   PAUL A. BONIN, Judge.

| lorian Carter was tried along with his co-defendant, Tysean Riles, for attempted simple burglary of an inhabited dwelling. See La. R.S. 14:27 and La. R.S. 14:62.2. A unanimous jury verdict found both defendants guilty as charged. Mr. Carter now appeals his conviction, making two assignments of error; he does not appeal his sentence. We are limiting our decision, however, to one aspect of the motion for new trial. Mr. Carter argues that the trial judge erroneously failed to consider video evidence proffered at the hearing on his motion for new trial.

Because we find that “evidence” which Mr. Carter argues would have impeached the testimony of the arresting detective and which has been received by us as a proffer or offer of proof is of such materiality that “the ends of justice” require the district court to consider it in connection with the motion for new trial, we reverse the trial judge’s ruling excluding that evidence and remand for a further hearing on the motion for new trial.

J¿

We turn first to a brief consideration of the issues developed during the trial in light of the defense made to the jury in order to contrast the importance of the evidence submitted on the proffer.

The prosecution charged Mr. Carter with attempted simple burglary of an inhabited building. Simple burglary of an inhabited dwelling is “the unauthorized entry of any inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein.” La. R.S. 14:62.2. “Attempt” is defined by La. R.S. 14:27 A:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Also, “[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, [or] aid and abet in its commission, ..., are principals.” La. R.S. 14:24.

Mr. Carter’s defense was that he had not entered the apartment complex with the intention of burglarizing one of the apartments, but instead to go swimming in the pool albeit without the owner’s permission. See La. R.S. 14:63 B (criminal trespass).

No one testified that Mr. Carter directly committed the act of trying to enter the apartment; the prosecution contended, however, that Mr. Carter was one of the lookouts while another person in his group tried to enter an apartment through the ^window. Notably, the occupant of the apartment, Crystal Burke, testified that she had not observed any damage to her apartment’s window and was unaware that a burglary had been attempted until some time much later when the police contacted her.

II

With that background, we turn to the evidence at the trial.

Detective Reno Bax and his partner, Detective Robert Barrere, testified that they were conducting a surveillance of The Saulet, a large apartment complex. Although they do not often engage in prolonged surveillance, if the need arises, the police do target certain areas. On the night in question, April 8, 2010, The Saulet was being targeted for surveillance because of recent thefts and burglaries. The detectives were dressed in street clothes and were not in traditionally marked police cars. Det. Bax was especially familiar with this apartment complex because he worked special paid police details at The Saulet and functioned as its 24-hour “courtesy” officer.

The surveillance began early that day in the morning and lasted all day. After 10:00 p.m., the detectives observed a group of seven young males walking towards downtown on Annunciation Street. The detectives noted that there were no stores in the direction the group was walking and observed that the males looked young, as if they were not yet “bar age.” Of the seven people in the group, five were juveniles; only Mr. Carter and his co-defendant were majors.

The detectives observed the group approach the perimeter fence of The Saulet. The detectives parked on Race Street and continued to observe the group walk in the direction of their unmarked police vehicle. The detectives testified that they then watched the group as they climbed over a drive-in gate on Race Street in |4order to gain access to The Saulet. This prompted the detectives to drive to the other side of the complex to observe the group further. Once on the other side of the fence, the group huddled next to a dumpster and appeared to discuss a plan. Thereafter, one of the five juveniles in the group proceeded to remove the screen from the window of one of the first-floor apartments. The detectives testified that the group acted in a very coordinated fashion: while one juvenile pried the screen off a window, the rest of the group, including Mr. Carter, spread out in a localized area and appeared to act as “lookouts.”

The detectives then identified themselves by shouting, “Stop, Police.” All seven of the subjects ran out of the complex and continued running in a group down Chippewa Street. The detectives radioed for backup while giving chase on foot. Other police units arrived, and all the subjects were surrounded and apprehended.

Detective Bax identified Mr. Carter and Mr. Riles in the courtroom. Det. Bax further testified that the only damage to the apartment was to the screen, which was bent away from the window. When cross-examined about whether or not the screen had been completely removed or halfway removed from the window, the detective testified that he could not remember.

Detective Barrere stated that he and Det. Bax went back to the apartment to contact the resident, but no one answered. The detectives then contacted the management of the complex, which identified the apartment as belonging to Crystal Burke. Ms. Burke testified that on April 8, 2010, she resided alone in a one bedroom apartment at The Saulet in New Orleans. She was not at home on April 8, 2010 at 10:00 p.m., and she had not given anyone permission to enter her apartment that day. Moreover, Ms. Burke testified that she had never heard the | Bname “Torian Carter” or the names of any other member of the group prior to their arrests.

Ms. Burke identified her apartment address as 810 Euterpe Street, but the bill of information identified her address as 805 Euterpe Street. The apartment number, however, was constant. And Ms. Burke testified that her apartment had one window in the bedroom, which was near a dumpster.

Mr. Riles’ cousin, who was twelve years old at the time of the incident, was a witness for Mr. Carter’s co-defendant. He testified that Mr. Riles and he were with the group walking down Annunciation Street and that the group cut through the park and then cut across Race Street to the gate of the apartment. He contradicted the testimony of Det. Bax, testifying that the group did not climb the fence but opened the gate with the combination to the keypad. Importantly, Det. Bax on rebuttal claimed that no such keypad access existed.

During its deliberations the jury expressed an interest in viewing evidence of the keypad. After the guilty verdict, Mr. Carter later attempted to introduce photographic and video evidence that the gate did in fact have a keypad in order to refute the detective’s testimony. While the trial judge viewed the photographic evidence, he refused to view the video evidence.

Mr. Riles’ cousin also testified that certain members of the group that entered The Saulet intended to burglarize an apartment. But he also testified that although Mr. Carter was with the group, he was not part of the plan. He testified that Mr. Carter wore a white T-shirt and blue or black swimming trunks or basketball shorts. The clothing is relevant because, as we noted earlier, Mr. Carter has asserted that he was only in the apartment complex to go swimming.

_kin

Mr. Carter argues that the district court erred when it denied his motion for new trial. Based upon some photographs and a video which the defense procured after the jury’s verdict, Mr. Carter contends that the prosecution used the mistaken or even perjured testimony of Det. Bax to discredit the testimony of Mr. Riles’ cousin. He argues that the photographic and video evidence contradicted the detective’s testimony and established inaccuracy or lying. Mr. Carter further contends that because Det. Bax works a private-pay detail as a courtesy officer with The Saulet, he had a personal interest in securing a conviction.

At the outset we note that Mr. Carter properly preserved for our review the video evidence that the trial judge would not consider at the hearing on his motion for new trial. See La. C.E. art. 103 A(2), and La.C.Cr.P. art. 921 (“A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.”) See also State v. Magee, 11-0574, p. 61 (La.9/28/12), 103 So.3d 285, 318.

Having reviewed the proffered video, which clearly shows a keypad and a person entering a code which resulted in the gate opening, we have no doubt that the trial judge should have viewed this evidence before deciding to deny the motion for new trial.

A trial judge is entrusted -with the discretion to grant a new trial when he is “of the opinion that the ends of justice would be served by the granting of a new 17trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.” La.C.Cr.P. art. 851(5). Here, in light of the special knowledge that a reasonable person would expect Det. Bax to possess about The Saulet’s entry and exit facilities, the video evidence would tend— in the absence of some explanation by Det. Bax — to cause a reasonable person to suppose that an injustice has been done to Mr. Carter. See La.C.Cr.P. art. 851. But that determination is the province of the trial judge and not us. We are only holding that the trial judge erroneously failed to view the video evidence; we are not concluding that the trial judge abused his discretion in denying the motion. See State v. Guillory, 10-1231, p. 4 (La.10/8/10), 45 So.3d 612, 615. Thus, the relief to which Mr. Carter is entitled is a remand to the trial court to conduct a further hearing on the motion for new trial, during which the trial judge is instructed to view the -video evidence.

REMAND INSTRUCTIONS

We remand this matter in its entirety to the district court. The trial court shall reopen the hearing on the motion for new trial during which it is instructed to view the video evidence previously proffered. The trial court shall also permit the parties to present additional testimony or evidence to explain the apparent discrepancy or consistency between the video evidence, on the one hand, and the testimony of Detective Bax and Mr. Riles on the other hand.

Upon the conclusion of the hearing and the trial judge’s ruling on the motion, if the ruling is adverse to Mr. Carter, he may file anew for an appeal of his conviction and sentence.

I ¡¿DECREE

The ruling of the trial judge denying the admissibility of the video evidence at the hearing on the motion for new trial is vacated. We remand the motion for new trial to the district court in accord with our remand instructions, reserving unto the defendant, Torian Carter, to file anew an appeal of his conviction in the event of an adverse ruling on his motion.

REMANDED

      . In his two assignments of error, see La. C.Cr.P. art. 920(1), Mr. Carter contends, first, that the district court erred in denying his motions for new trial and for post-verdict judgment of acquittal and, second, that the evidence was insufficient to support a guilty verdict under the well-known Jackson v. Virginia standard of review. We would ordinarily first consider the Jackson v. Virginia insufficiency of evidence claim (raised also by the motion for judgment of acquittal). See State v. Hearold, 90-2094 (La.1992), 603 So.2d 731, 734. We are pretermitting, however, the insufficiency of evidence claim because we are allowing the defendant to re-urge that ground in the event that the trial court on remand does not grant his motion for new trial.

      . The hearing transcript was clear that a proffer of the video had been allowed, but the record when lodged did not contain the proffered materials. Mr. Carter's appellate counsel took no step to obtain supplementation of the record even though the excluded video formed a basis of the assignment of error, and it was necessary for us to order supplementation in order to view the video.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of T.H.
    No. 2012-CA-0223.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 2012.

      Tenee Felix, Juvenile Regional Services, New Orleans, LA, for Appellant/T.H.
    Leon A. Cannizzaro, Jr., District Attorney, Felicity Strachan, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   TERRI F. LOVE, Judge.

|! This appeal arises from the juvenile court’s denial of a juvenile’s motion to suppress evidence, a handgun, which was discovered during a pat-down for officer safety. Once the juvenile court denied his motion to suppress evidence, the juvenile entered a plea, pursuant to State v. Crosby, 338 So.2d 584 (La.1976), for a violation of La. R.S. 14:95.8, illegal possession of a handgun by a juvenile, and preserved his right to appeal the denial of the motion to suppress evidence. The juvenile court committed the juvenile to the Department of Public Safety and Corrections for placement in a non-secure facility for a term not to exceed six months, with fifteen days suspended, and one year of active probation. We find that the trial court did not abuse its discretion in denying the motion to suppress evidence based on the totality of the circumstances in this case and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On Saturday, October 8, 2011, at approximately 9:57 p.m., Officers Kevin Doucette and Patrice Swan of the New Orleans Police Department were on proactive patrol in the Seventh District in New Orleans East. According to Officer Doucette, he and his partner were looking for people who were committing crimes in that area, which “experienced an increase in property and persons crimes.”

|2As Officer Doucette was driving the marked police car on Lourdes Street and attempted to make a left turn onto Corsica Place, he stated that he observed four juveniles, including T.H., walking in the street. Upon stopping and exiting the police car, Officers Doucette and Swan called the four juveniles to the front of the police car. Three of the juveniles walked to the police car; T.H. continued to walk away. Officer Doucette approached T.H., escorted him to the police car, and directed him to place his hands on the police car. Officer Doucette conducted a pat-down of T.H. and retrieved an unloaded handgun. T.H. was then arrested.

Pursuant to the Louisiana Children’s Code, a petition alleging T.H. to be delinquent was filed based upon the alleged commission of illegal possession of a handgun by a juvenile, a violation of La. R.S. 14:95.8. The juvenile court found probable cause for T.H.’s arrest, remanded him, and set bond at $15,000.00. T.H. pled not guilty.

The suppression hearing and the adjudication hearing were held on the same date. The suppression hearing was conducted first, and the juvenile court denied the juvenile’s motion to suppress the handgun. T.H. entered a Crosby plea, preserving his right to appeal the denial of the motion to suppress evidence. Following a disposition hearing, which examined the pre-dis-positional investigation, the juvenile court imposed a disposition of commitment to the Department of Public Safety and Corrections for placement in a non-secure facility for a term not to exceed six months, with fifteen days suspended, and one year of active probation. T.H.’s appeal followed.

\ ¡MOTION TO SUPPRESS

T.H. contends that the juvenile court erred in denying his motion to suppress the handgun, since the handgun was allegedly obtained in violation of his Fourth Amendment rights under the United States Constitution and Article I, § 5 of the Louisiana Constitution. T.H. asserts that reasonable suspicion was lacking when Officer Doucette approached him and conducted a search. Therefore, the detention and the subsequent search were unlawful and the fruit of the search — the handgun — should have been suppressed. We disagree.

Standard of Review

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. La.C.Cr.P. art. 703(D). “A trial judge’s decision to deny a motion to suppress will be afforded great weight and will not be set aside unless to do so is clearly mandated by a preponderance of evidence.” State v. Adams, 99-2123, p. 4 (La.App. 4 Cir. 1/24/01), 779 So.2d 113, 117. Therefore, when a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court’s discretion, i.e., unless such ruling is not supported by “reliable evidence.” State v. Green, 94-0887, p. 11 (La.5/22/95), 655 So.2d 272, 281. “[T]he district court’s findings of fact on a motion to suppress” are reviewed “under a clearly erroneous standard” and “the district court’s ultimate determination of Fourth Amendment reasonableness” is reviewed de novo. State v. Pham, 01-2199, p. 3 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218. Accordingly, “[o]n mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo.” Id.

| AThe Initial Investigatory Stop

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. “If evidence was derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial.” State v. Benjamin, 97-3065, p. 3 (La.12/1/98), 722 So.2d 988, 989. “It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonablé subject only to a few specifically established and well-delineated exceptions.” State v. Owen, 453 So.2d 1202, 1205-06 (La.1984).

This Court recently set forth the law regarding investigatory stops in State v. Harveston, 10-1402, p. 7 (La.App. 4 Cir. 5/11/11), 71 So.3d 954, 957, as follows:

La. C. Cr. P. art. 215.1(A) codifies the U.S. Supreme Court’s authorization of stops based on reasonable suspicion set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and provides:
A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
“Reasonable suspicion” to stop is something less than probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether a detaining officer had sufficient facts within his or her knowledge to justify an infringement of the suspect’s rights. State v. Jones, 99-0861, p. 10 (La.App. 4 Cir. 6/21/00), 769 So.2d 28, 36-37.

A person is seized within the meaning of Article I, § 5 of the Louisiana Constitution when that person is either “actually stopped” or when an “actual stop” of the person is “imminent.” State v. Tucker, 626 So.2d 707, 712 (La.1993). An | factual stop” occurs when an individual “submits to a police show of authority or he is physically contacted by the police.” Id. An “imminent actual stop” occurs “when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain.” Id.

The four juveniles were walking on Corsica Place, the street on which K.B. allegedly lived. In the instant case, K.B., a juvenile walking with T.H., testified that: “[w]e was [sic] walking home from by my house heading to go bring a friend home,” when they saw the police car turn the corner and face them. KB. testified that when the NOPD officers stopped the police car, he was already on the sidewalk and that T.H. continued walking away. However, when questioned by the juvenile court judge, KB. admitted that all four juveniles were walking in the center of the street for some period of time before walking toward the sidewalk. KB. stated that this was due to trucks blocking access to the sidewalk. KB. testified that the streetlight was operational.

According to K.B., all four juveniles were ordered to the police car, but were not informed as to why. KB. and two of the juveniles went to the car; T.H. continued walking away, but did not run. K.B. further stated that T.H. did not “tug” at his pants. Officer Doucette and K.B. testified that Officer Doucette approached T.H. and escorted him to the police unit. KB. testified that the NOPD officers “unbuckled they [sic] little buckle thing to their gun and was like about to pull it out on him and they grabbed him and they took him to the car.” Finally, K.B. testified, when asked about the alleged search of T.H., that “[y]ou can say patted him down.”

| (¡Officer Doucette testified that the four juveniles were stopped, during a proactive patrol, to advise them to walk on the sidewalk because the area was “poorly lit” and the four juveniles were walking in the middle of the street wearing dark clothing. Officer Doucette also stated that he wanted to see if the four juveniles lived in the area because it was approximately 9:57 p.m., which Officer Doucette believed to be three minutes from curfew. Officer Dou-cette testified the four juveniles were not ordered to freeze. However, when Officer Swan asked the four juveniles to walk towards the front of the police car, T.H. walked away “in a rapid direction” across a lawn immediately and “tugged on his waistband with his right hand.” The lawn T.H. was walking on was not T.H.’s residence. Officer Doucette testified that: “To be honest,” T.H. “does not even live anywhere close to the area I stopped him at.” Officer Doucette did not see T.H. with a handgun. When questioned by the juvenile court judge about T.H. allegedly tugging at his pants, Officer Doucette stated that “[d]ue to my experience, ma’am, when I see individuals do that, they’re normally trying to pull a handgun up before they either try to run or move at a more rapid pace.”

Upon consideration of the testimony, the juvenile court judge stated that there “was a violation of Municipal Code Section 54.401, Obstructing Public Passages, which then warranted reasonable suspicion and a stop of the youth at that point in time” and denied T.H.’s motion to suppress.

Given the juvenile court judge’s ability to examine the credibility of witnesses, a review of the testimony, and that both Officer Doucette’s and KB.’s testimony placed the four juveniles walking in the middle of the street, we do not 17find that the juvenile court abused its discretion in finding reasonable suspicion for the stop. Therefore, under the totality of the circumstances, Officer Doucette possessed reasonable suspicion to justify the investigatory stop of T.H.

Pat-Down

Because we find there was adequate reasonable suspicion to justify the investigatory stop of T.H., we must address whether the subsequent pat-down of T.H. was justified.

“When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon” or “[i]f the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.” La.C.Cr.P. art. 215.1(B). “[A] police officer has the right to conduct a limited “frisk” for weapons after making the investigatory stop when he has drawn a specific reasonable inference from facts and experience that he is dealing with an armed and dangerous individual.” State v. Wade, 390 So.2d 1309, 1311 (La.1980). See also State v. Taylor, 96-1843, p. 3 (La.App. 4 Cir. 10/29/97), 701 So.2d 766, 769. “The purpose of allowing a limited weapons search is to prevent harm to police officers by allowing action prior to a crisis stage.” Id. at 1312.

Officer Doucette testified that “[d]ue to my experience, ma’am, when I see individuals do that, they’re normally trying to pull a handgun up before they either try to run or move at a more rapid pace.” Therefore, once T.H. was legally stopped, Officer Doucette could have reasonably suspected that T.H. possessed a dangerous weapon based on Officer Doucette’s experience. Further, Officer Doucette testified that the area “experienced an increase in property and persons Retimes.” Officer Doucette conducted a pat-down of T.H. and “felt a hard metal like object, which was consistent to the butt of a handgun.” “If the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.” La.C.Cr.P. art. 215.1(C). Because T.H. did not lawfully possess the handgun that the parties stipulated to, T.H. was lawfully arrested. Therefore, coupled with the juvenile court’s finding of reasonable suspicion, we do not find that the juvenile court abused its discretion in denying T.H.’s motion to suppress the evidence and affirm.

DECREE

For the above mentioned reasons, we find that under the totality of the circumstances, reasonable suspicion existed to justify the investigatory stop of T.H. Thus, the pat-down for the safety of the NOPD officers revealed the handgun in T.H.’s possession and it was legally seized. Therefore, we find the juvenile court did not abuse its discretion in denying T.H.’s motion to suppress the evidence and affirm.

AFFIRMED

BONIN, J., dissents.

      . To maintain the confidentiality of the proceedings required by Louisiana Children's Code Articles 407 and 412, initials for the juvenile defendant in this case are used.

      . The Louisiana Supreme Court in State v. Crosby, 338 So.2d 584 (La. 1976) held that a defendant may enter into a plea agreement and maintain his right to appeal pre-plea rulings.

      . The testimony revealed that Officer Dou-cette was mistaken about the time of curfew because it was a Saturday night, which meant curfew began at 11:00 p.m.


text:
    STATE of Louisiana v. Ronald SIMS.
    No. 2011-KA-1447.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Jane L. Beebe, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

I,Ronald Sims was charged with the second degree murder of Brandon Franklin. See La. R.S. 14:30.1. Mr. Sims opted for a bench trial, and, on November 18, 2010, the district judge found him guilty of the responsive verdict of manslaughter. See La.C.Cr.P. art. 814 A(3); La. R.S. 14:31. The district judge then sentenced him to a term of thirty years in the Department of Corrections, without the benefit of parole or suspension of sentence. Mr. Sims’s sole assignment of error is that his sentence is excessive.

After our review, we conclude that the district judge did not abuse the considerable discretion entrusted to him in imposing this sentence and that the sentence imposed does not violate Mr. Sims’ constitutional protection against an excessive sentence.

We explain our conclusions in greater detail below.

We first turn to describe the facts of the offense for which Mr. Sims is being punished.

Mr. Sims had been living with his child and Ivoronne Fortenberry, his girlfriend and the mother of his child, for approximately one and one half years. Ms. For-tenberry had another child, who also resided with them, fathered by the victim, Mr. Franklin.

The day before Mother’s Day in 2010, Ms. Fortenberry asked Mr. Sims to leave their house. Mr. Sims was about to go to work a night shift at that time anyway, so he went to work. When Mr. Sims returned to their house the next day, however, Ms. Fortenberry did not want to see him and called the police, who told him that he had to leave. Mr. Sims did not argue with the police and left. The police officers told him that he could call them for an escort when he returned for his things.

Later that day, Mr. Sims returned to the house to retrieve his belongings; he did not call for a police escort. By that time, Ms. Fortenberry had removed Mr. Sims’ clothing to the shed outside, and Mr. Franklin had arrived to change the locks. When Mr. Sims came to the house, Ms. Fortenberry did not let him in and directed him to the shed.

Mr. Franklin was standing behind Ms. Fortenberry listening to what she told Mr. Sims. As soon as Ms. Fortenberry shut the door, Mr. Franklin ran outside through the back door towards the shed, approached Mr. Sims, and said, “What |3you gonna’ do now?”; “You need to get your stuff outta here.”; “And that gun, you got on you, I’ma make you use it today.” While saying this, Mr. Franklin was pressing his body up against Mr. Sims’ and shoving him. Mr. Sims remained on his phone and said nothing in response. Ms. Fortenberry physically pulled Mr. Franklin away from Mr. Sims before Mr. Franklin returned to the house.

Once inside the house, Mr. Franklin asked Ms. Fortenberry whether there were supposed to be police present. When Mr. Sims knocked on the door a second time, Ms. Fortenberry asked him where the police were. Mr. Sims replied that he did not need the police. Neither Ms. For-tenberry nor Mr. Franklin called the police at that point.

Mr. Sims knocked on the door a second time, asking for his television. Ms. For-tenberry told him he was not getting it and shut the door on him. Mr. Franklin was again standing in the doorway behind Ms. Fortenberry during her exchange with Mr. Sims.

Mr. Sims knocked on the door a third time, this time asking for his PlayStation. Ms. Fortenberry closed the door, gathered the game console, and then handed it to Sebron Magee, Mr. Sims’ Mend who had come to help him collect his belongings.

When the door opened this final time, all four individuals were standing in the doorway, including Mr. Franklin and Mr. Sims. Mr. Franklin and Mr. Sims starting arguing. The two men argued for a few minutes before Mr. Sims pulled a RGlock pistol from his waistband. Mr. Sims owns a firearm because his job requires him to work late nights.

As soon as the gun came out, Mr. Magee grabbed Mr. Sims’ arm and held the gun down. Mr. Magee told Mr. Sims that it is not worth it, that he should just leave. Mr. Magee testified that after saying this, he turned to walk back to his car, and he heard a shot fired. He then ran to his car and drove away. Mr. Magee heard only one shot fired.

When Mr. Sims started shooting, Ms. Fortenberry moved to her right, back inside the residence. Ms. Fortenberry testified that she just saw Mr. Sims shooting and Mr. Franklin backing up. Ms. For-tenberry was unable to testify as to how many shots were fired. But the evidence shows that Mr. Franklin was shot thirteen times. Ms. Fortenberry’s two children were home at the time of the shooting.

Two hours later, Mr. Sims called the police to turn himself in. When he met the police officers at a gas station, the designated location, the police officers found his Glock in his car.

The autopsy report showed that Mr. Franklin died from the gunshot wounds.

II

Mr. Sims’ assignment of error focuses on his claim that the sentencing judge did not adequately consider the statutory guidelines set out in La.C.Cr.P. art. 894.1, which resulted in under-weighing sentence-mitigating characteristics associated with Mr. Sims and in over-weighing sentence-aggravating characteristics associated with the victim. Mr. Sims also argues for the first time |Bon appeal that the sentencing judge neglected to satisfactorily express the factual basis for the sentence imposed. See La.C.Cr.P. art. 894.1 C (“The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”)

A

Excessive punishment is prohibited by the federal and state constitutions. The Eighth Amendment provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The prohibition of cruel and unusual punishments “prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.” Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

La. Const, art. I, § 20 expressly prohibits excessive punishment: “No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment.” A punishment will be found excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. See State v. Bonanno, 384 So.2d 355, 357 (1980); see also State v. Cann, 471 So.2d 701, 703 (La.1985) (To be found excessive, the penalty must be “so grossly disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice”).

We review a challenge to the excessiveness of the sentence under the abuse of discretion standard. State v. Square, 433 So.2d 104, 110 (La.1983). When | (¡reviewing a sentence, “the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion.” State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462.

As a general rule, the factors listed in La.C.Cr.P. art. 894.1 that must be given weight in determining whether a defendant should be placed on probation or have his sentence suspended “[ajnalogically ... provide guidance as to whether the sentence should be closer to the maximum rather than to the minimum statutory range of sentence.” State v. Sepulvado, 367 So.2d 762, 767-768 (La.1979). The criteria in Article 894.1 “are similar to those evolved by other courts in other American jurisdictions with a constitutional or statutory duty to review excessiveness” and “provide appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives.” Sepulvado, 367 So.2d at 769.

In discharging our review function, we first look to whether the sentencing judge adequately considered the guideline factors under La.C.Cr.P. art. 894.1. See State v. Batiste, 06-0875, p. 18 (La.App. 4 Cir. 12/20/06), 947 So.2d 810, 820. Our purpose is not to enforce mechanical compliance by a sentencing judge, but to ensure that there is a factual basis for the sentence imposed. Id.; see also State v. Lanclos, 419 So.2d 475 (La.1982). If we find that the district court adequately considered the factual basis and individual considerations for the sentence, “then 17review will focus upon whether the trial court’s large discretion has been abused.” State v. Saunders, 393 So.2d 1278, 1281 (La.1981), citing State v. Spencer, 374 So.2d 1195 (La.1979).

B

We specially note at the outset of our discussion of Mr. Sims’ complaint about the sentencing judge’s compliance with Article 894.1 two important aspects of this case. First, the sentencing judge was the trier of fact who returned a verdict lesser than the offense charged; thus the sentencing judge had already well-considered many of the numerous guidelines or factors, especially those tending to mitigate the punishment. Second, the sentencing judge not only ordered a pre-sentence investigation report but also conducted a sentencing hearing at which Mr. Sims was permitted to, and did, offer witnesses to testify to mitigating considerations.

During the sentencing hearing, the Reverend Joseph Merrill, the victim’s pastor, as well as Mr. Franklin’s two brothers and his father testified that Mr. Franklin was a loved and respected member of his community. Mr. Franklin was a band leader and taught music to children. Three thousand people were in attendance at Mr. Franklin’s funeral. All testified as to how much Mr. Franklin was loved and how he will be missed. One of Mr. Franklin’s brothers and the Reverend Merrill requested specifically that Mr. Sims be given the maximum punishment available, which is forty years.

18With respect to mitigation, Mr. Sims’ two aunts testified that Mr. Sims is a loving and caring person and that two wrongs do not make a right and asked that he be given a second chance. One of his aunts was the person who raised him because Mr. Sims’ parents died when he was young. She testified that taking Mr. Sims away from her would be devastating to her.

Ms. Fortenberry, the girlfriend of both men and the mother of a child by each, also took the stand at the sentencing hearing. She testified that her children, including her son fathered by Mr. Franklin, asked her every day when they can go get their daddy out. She testified that Mr. Sims’ actions that day were completely out of character and that he deserves a second chance. At the time of the sentencing hearing, Mr. Sims and Ms. Fortenberry were engaged.

Mr. Sims himself took the stand during the sentencing hearing as well. There, he stated that there is no question that he shot Mr. Franklin, but that he feels very sorry about it because nobody deserves to lose his life.

Immediately before sentencing Mr. Sims, the sentencing judge expressed himself:

This is a sad day. This is truly a sad day. One young man’s life has been taken and another stands before this Court for sentencing in connection with his untimely death. You know every human life is a treasure. And the loss, particularly a premature loss of a human life, is an unspeakable tragedy, particularly when it is a result of violence — an unjustified violence. I didn’t know Brandon Franklin, but I have come to know through the testimony of those who did know him that he, indeed, was a beloved person in his community. He was a son; he was a father; he was a friend; he was a musician; a band leader; a mentor; many things to many people. By all accounts, a bright and promising future. 19Your rage, your temper, your blind emotion took all those possibilities away from him.
There was some suggestion during the course of this trial that the actions you took you felt were justified because of some fear you felt for your personal safety. You fired once, there is no further concern for your personal safety, even twice. But you fired a third, a fourth time, and a fifth time. You kept on firing. Without me being a medical professional, I certainly thought you were firing at that point in time to a lifeless body, one that posed no continuing threat to you. You’ve committed the ultimate sin, and it’s so tragic that you took that young person’s life, and it’s deeply tragic, in this Court’s mind, for me to have to impose a sentence that is commensurate with the crime you have committed. You have committed the ultimate sin. There is no justification for it.

While it is true that the sentencing judge did not mention the mitigating factors that Mr. Sims’ imprisonment would be a hardship on his dependent child, or that Mr. Sims attempted to cooperate with the police by turning himself in, or that he had no history of prior criminal conduct — other than throwing a football through a window as a child, it is also true that the district judge did not mention other potentially aggravating factors: that there were other people in the house who could have been hurt or that a dangerous weapon had been used. See La.C.Cr.P. art. 894.1 B(5, 10, 28, 31). The court, instead focused on La.C.Cr.P. art. 894.1 A(S), B(9), and B(24).

La.C.Cr.P. art. 894.1 A(3) provides that “a court should impose a sentence of imprisonment if any of the following occurs: .... (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.” The sentencing judge found that Mr. Sims had committed “the ultimate sin.” And he declared that he was required “to impose a sentence that is commensurate with the crime.”

|1flLa.C.Cr.P. art. 894.1 B(9) provides that another factor to be accorded weight is that “[t]he offense resulted in a significant permanent injury or significant economic loss to the victim or his family.” The fact that Mr. Franklin died as a result of Mr. Sims’ actions is clearly a large factor taken into account by the district court. The sentencing judge did not, and should not have, overlooked the severe impact Mr. Franklin’s death was having on his family and community.

Another factor to be considered by the sentencing court is whether the defendant “acted under strong provocation.” La. C.Cr.P. art. 894.1 B(24). The sentencing judge stated that even if the first few shots had been in self-defense, Mr. Sims’ continuing to shoot at Mr. Franklin after he was no longer threatened deprived Mr. Sims of this mitigating factor. The factor was, therefore, properly considered.

Mr. Franklin’s age also weighed heavily on the court’s decision, as the sentencing judge noted that Mr. Franklin had a bright and promising future and that Mr. Sims’ action took all that away from him. The district judge stated, “This is truly a sad day. One young man’s life has been taken and another stands before this Court for sentencing.” But the court at the same time also took into account Mr. Sims’ age as well. Age, while not a factor listed in Article 894.1, may be considered because the list in the Article is not exhaustive. See Schlosser, La.Crim. Trial Prac. § 26:3 (4th ed.).

Although the sentencing judge did not, and need not, list every factor in Article 894.1, it is not necessary for every factor in that article to be enumerated, ^especially where all the mitigating factors were brought to the court’s attention. See Square, 433 So.2d at 110, citing State v. Bradley, 414 So.2d 724 (La.1982). Additionally, it would be inappropriate to remand for resentencing based on the court’s failure to list all the criteria listed in Article 894.1:

In cases in which the trial court has left a less than fully articulated record indicating that it has considered not only aggravating circumstances but also factors militating for a less severe sentence, State v. Franks, 373 So.2d 1307, 1308 (La.1979), a remand for resentenc-ing is appropriate only when “there appear[s] to be a substantial possibility that the defendant’s complaints of an excessive sentence ha[ve] merit.” State v. Wimberly, 414 So.2d 666, 672 (La.1982).

State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608.

There is nothing in this record which suggests to us that the sentencing judge did not, first, afford Mr. Sims ample opportunity to present mitigating facts for the sentencing judge’s conscientious decision, and, second, adequately consider the guidelines of Article 894.1. The sentencing judge expressed the factors that weighed most heavily on his decision. And, as we discuss, post, the sentence does not appear to be excessive. We, therefore, do not find that the district court failed to consider sufficiently the factors in Article 894.1.

C

Even though we find nothing in this record to suggest that the sentencing judge failed to consider mitigating factors in the sentence, we nevertheless compare the sentence imposed on Mr. Sims to similar sentences to see if the sentencing judge abused his discretion.

In State v. McBride, 01-0588 (La.2/8/02), 807 So.2d 836, the Supreme Court overturned this court’s judgment reducing the defendant’s sentence from thirty years to fifteen years. The defendant had shot and killed the victim in a bar while trying to stop the victim from abusing the victim’s girlfriend. See State v. McBride, 99-2904, p. 4 (La.App. 4 Cir. 11/29/00), 776 So.2d 546, 549. In overturning this court’s decision, the Supreme Court stated, “On sentence review the only pertinent question is ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” McBride, 807 So.2d 836 quoting State v. Cook, 95-2784, p. 4 (La.5/31/96), 674 So.2d 957, 959.

In State v. Bowman, 95-0667 (La.App. 4 Cir. 7/10/96), 677 So.2d 1094, this court upheld the thirty-three year sentence of a sixteen-year-old, who was charged with second-degree murder and convicted of manslaughter. The defendant was the driver in a drive-by shooting. He did not shoot a firearm, there was no evidence that he knew his passenger would shoot anyone, and this was his first offense; yet he was sentenced to seven years below the maximum. See Bowman, p. 14, 677 So.2d at 1101. This court affirmed the sentence because the district court “adequately complied with La.C.Cr.P. art. 894.1 by stating both mitigating and aggravating factors.” Bowman, p. 15, 677 So.2d at 1102. The district court took into account the defendant’s youth, as well as the fact that he was a principal to the crime and that the jury verdict of manslaughter reflected his reduced culpability. Id.

In State v. Jefferson, 02-1159 (La.App. 4 Cir. 12/4/02), 834 So.2d 572, the defendant was charged with first-degree murder, convicted of manslaughter, and sentenced under La.C.Cr.P. art. 893.3 to twenty-five years at hard labor. The defendant shot the victim during an argument when the victim was drunk and the defendant was relatively sober. This court found no abuse of discretion. Id., p. 9, 834 So.2d at 577-578.

Based upon this comparative review of other convictions for manslaughter involving relatively youthful offenders with scant criminal backgrounds, we do not discern any disproportionate treatment of Mr. Sims which leads us to conclude that the sentencing judge abused his considerable discretion in sentencing.

DECREE

In the absence of errors patent and of any assignment of error, we affirm the conviction of Ronald Sims for the crime of the manslaughter killing of Brandon Franklin. Because we find no abuse of the sentencing judge’s considerable discretion, we conclude that there has been no abuse of discretion and that the sentence imposed does not violate Mr. Sims’ constitutional protections and, accordingly, affirm the sentence imposed.

AFFIRMED

      . Initially, the sentence as reflected in the minute entry caused us to question whether there existed an error patent because the penalty for manslaughter does not provide for the "without benefit of parole or suspension of sentence” except when the victim was under the age of ten years old. See La. R.S. 14:31 B. The District Attorney filed a motion under La.C.Cr.P. art. 893.3, however, which authorizes such restriction under certain circumstances. Mr. Sims did not assign as error that aspect of the sentence. See La.C.Cr.P. art. 902(1). Because we conclude that there is no error patent with respect to the sentence and that there was no assignment of error, we express no view as to the imposition of the restriction.

      . We have, as we always do, reviewed the record for errors patent with respect to the conviction as well and detected none.

      . Here, as pointed out in n. 1, ante, Mr. Sims did not object in the trial court to the Article 893.3 motion and has not assigned error in the appellate court to the use of Article 893.3. As a result, probation or suspension of sentence is not an actual consideration in imposing sentence.

      . The presentence investigation report was not, however, referenced and Mr. Sims did not ask that it be included in the record on appeal.


text:
    FRENCH’S WELDING & MAINTENANCE SERVICE, L.L.C., v. HARRIS BUILDERS, L.L.C., et als.
    No. 2012-CA-0200.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 2012.

      C. Lee Drake, Marcus L. Giusti, Steven M. Hannan, Hannan, Drake & Giusti, L.L.P., Metairie, LA, for Appel-lee/French’s Welding & Maintenance Service, L.L.C.
    Lloyd N. Shields, Jeffrey K. Prattini, Jessica R. Derenbecker, Shields Mott Lund L.L.P., New Orleans, LA, for Appellant/Harris Builders, L.L.C.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge, PAUL A. BONIN).
   TERRI F. LOVE, Judge.

11 This appeal arises from the issuance of a permanent injunction against Harris Builders, L.L.C. prohibiting any further action from being taken in furtherance of arbitration proceedings. French’s Welding & Maintenance Services, L.L.C. entered into a subcontract to perform work contracted by the State of Louisiana with Harris Builders, L.L.C. The trial court found that no written agreement signed by all parties existed and that error vitiated the contract. We find that the trial court did not commit manifest error in finding that no written agreement existed and that error vitiated consent because French’s Welding & Maintenance Services, L.L.C. was unaware that the State was not subject to arbitration and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This Court previously summarized the relevant facts in the previous appeal on the issuance of a preliminary injunction as follows:

Harris Builders, LLC was awarded a Public Works contract with the State Division of Administration in February of 2008 to perform post-Katrina repair and renovation of the Pass-a-Lou-tre/Dennis Pass WMA. On March 11, 2008, French’s Welding & Maintenance Services, LLC executed a subcontract to perform a portion of the work under Harris Builders’ contract. French’s attorney, Marcus L. Giusti, reviewed this contract prior to its execution and advised his client that the arbitration clause should be deleted. However, Harris Builders insisted that the provision was required under the State’s Public Works contract and thus could not be | {.deleted. Based upon this representation as well as Mr. Giusti’s review of what Harris Builders said was their contract with the State, French’s signed the subcontract. Despite subsequent requests, French’s did not receive a copy of the fully executed document signed by Harris Builders.
Work began pursuant to the contract and French’s received periodic payments at least through July of 2008. Disputes concerning Harris Builders’ delay in payments and/or French’ performance subsequently arose, resulting in French’s decision in October of 2008 to stop work on the project and to record a lien against Harris Builders’ proceeds under the State contract. After mediation failed, Harris Builders notified French’s in January of 2009 that it was invoking the arbitration clause in their contract. During the discovery proceedings in preparation for arbitration, Mr. Giusti learned that the State had deleted the arbitration clause from its contract with Harris Builders and that Harris Builders had not executed the subcontract signed by French’s.
On July 27, 2009, French’s filed suit seeking damages as well as an injunction prohibiting arbitration of the parties’ disputes under the March 11, 2008 subcontract. French’s asserted that the arbitration agreement was not binding and was not enforceable because Harris Builders never signed the contract containing the arbitration provision. French’s also contended that because Harris Builders misrepresented the necessity for retaining the arbitration clause and did not furnish a complete copy of its contract with' the State, French’s consent to arbitrate was vitiated. The trial court agreed with French’s and issued a preliminary injunction on October 30, 2009.

French’s Welding & Maint. Serv., L.L.C. v. Harris Builders, L.L.C., 10-0089, pp. 1-2 (La.App. 4 Cir. 8/11/10), 45 So.3d 1148, 1149; reh’g denied (Sept. 15, 2010), writ denied sub nom. French’s Welding & Maint. Serv., L.L.C, v. Harris Builders, L.L.C, 10-2345 (La.12/10/10), 51 So.3d 732. This Court found that the trial court did not abuse its discretion in granting the preliminary injunction and affirmed. French’s, 10-0089, pp. 3-4, 45 So.3d at 1150.

After a hearing, the trial court granted French’s Welding & Maintenance Services, L.L.C.’s (“French’s”) request for a permanent injunction. The trial court |sheld that the arbitration proceedings were declared “null, void and unenforceable.” The trial court stayed and prohibited “Harris Builders, L.L.C. and their arbitrators, employees, officers and agents, ... from taking any further action or proceedings in furtherance of the Arbitration Proceedings.” Harris Builders, L.L.C.’s (“Harris”) appeal followed.

Harris contends that no irreparable harm exists and that the trial court did not have jurisdiction to consider French’s’ request for injunctive relief.

STANDARD OF REVIEW

Appellate courts review a trial court’s granting of a permanent injunction utilizing the manifest error standard. Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 03-2220, p. 9 (La.4/14/04), 875 So.2d 22, 29. “The issuance of a permanent injunction takes place only after a trial on the merits in which the burden of proof is a preponderance of the evidence.” Id.

PERMANENT IN JUNCTION

Harris asserts that no irreparable harm existed to warrant a permanent injunction and that the trial court did not have jurisdiction to consider French’s’ request. The only issue before this Court is whether the trial court committed manifest error in granting French’s a permanent injunction.

At the hearing on the permanent injunction, Paul Guidry, a fifty-percent owner of French’s testified that French’s believed the primary contract between the State and Harris contained an arbitration clause. Marcus Giusti, French’s attorney, advised Mr. Guidry to request the removal of the arbitration clause contained in the draft of the subcontract between French’s and Harris. Mr. Guidry stated that he|4signed the original subcontract with the arbitration clause because he was informed that removing the clause would defect Harris’ contract with the State and that French’s wished to be paid for the services French’s already rendered and all future services provided. However, Mr. Guidry testified that he would not have signed the subcontract if he knew the primary contract did not require the State to arbitrate. Mr. Guidry did not discover that the State was not required to arbitrate until after arbitration proceedings began.

Mr. Giusti testified that he possessed no full copy of the contract between the State and Harris because he trusted a former vice-president at Harris. Like Mr. Gui-dry, Mr. Giusti was unaware that the State did not have to participate in arbitration until after the arbitration proceedings began. Mr. Giusti also testified that Harris never signed the subcontract.

Lloyd Harris, the president and chief executive officer of Harris, testified that he believed he signed the subcontract, but did not possess a signed copy. Mr. Harris also stated that he was unaware that the State was not required to arbitrate.

Following the testimony, the trial court stated:

The court is going to rule in favor of the plaintiff, French Weldings & Maintenance Services, and against the defendant, Harris Building, LLC, declaring that the arbitration proceedings be null, void, and unenforceable and issuing a permanent injunction against them and their arbitrators, employees, officers, and agents, staying and prohibiting them from taking and farther action or proceeding in furth — furtherance of the arbitration proceedings.
The court notes that not all arbitration provisions are valid under state law. Louisiana has enacted the Louisiana Arbitration Law, with regards to the validity of arbitration agreements in Revised Statutes 9:4201 and 4202. The court finds the application of the arbitration law presupposes the existence of a written agreement.
lBThe court also notes that Louisiana courts have found that arbitration is a restriction of a party’s access to courts and consent to such a process should not be casually presumed. The court finds that a written agreement signed by all parties do [sic] not exist in this case. Thus, the court finds that the arbitration agreement is not valid.
Assuming I am wrong with that statement, the court further finds that, if it would be find [sic] that there is a written agreement and it’s a valid arbitration agreement, that French’s enter [sic] into the arbitration agreement with Harris based on error. Error vitiates consent, referring to Civil Code Articles 1948 and 1949.
The court finds that French received informa — incorrect information from Harris Building regarding that the state required arbitration under this contract. French would not have entered into the arbitration agreement but for this incorrect information that French received from Harris Building.

We agree. Not “ ‘all arbitration provisions are valid under state law.”’ Abshire v. Belmont Homes, Inc., 04-1200, p. 9 (La.App. 3 Cir. 8/2/05), 896 So.2d 277, 284, quoting Rodriguez v. Ed’s Mobile Homes of Bossier City, La., 04-1082, p. 3 (La.App. 3 Cir. 12/8/04), 889 So.2d 461, 463. “[R]ather, the application of arbitration law presupposes the existence of a written agreement not subject to any grounds at law or in equity for its revocation.” French’s, 10-0089, p. 3, 45 So.3d at 1150.

Importantly, “[o]ne of the conditions of a valid contract is the consent of both parties. Consent may be vitiated by error. Error can ‘invalidate a contract if it is related to the princip[al] cause, or motive, for making the agreement’ [Scott v. Bank of Coushatta, 512 So.2d 356, 361 (La.1987) ] and is ‘known or should have been known to the other party.’ [Hidalgo v. Julian, 98-83, p. 7 (La.App. 3 Cir. 5/20/98), 715 So.2d 498, 501.] Cause is the ‘reason why a party obligates himself.’ [La.Civ.Code art. 1967.]” Id. at 464 (footnote omitted).

Abshire, 04-1200, pp. 9-10, 896 So.2d at 284.

The case sub judice, as this Court noted in the previous appeal, does not | Rcontain a contract with an arbitration clause signed by all parties. In fact, Harris did not sign the subcontract with French’s. As the testimony demonstrates, discrepancy exists as to French’s’ knowledge and whether Harris kept knowledge of the State’s contract and its lack of an arbitration provision from French’s. Forcing a party to arbitrate when the record contains evidence of error, lack of consent, and the alleged secreting of the State’s contract under the facts and circumstances of this case could result in irreparable harm. Therefore, we do not find that the trial court committed manifest error in its factual findings, which led to the issuance of a permanent injunction and affirm.

DECREE

For the above-mentioned reasons, we find that the trial court did not commit manifest error in granting French’s’ request for a permanent injunction and affirm.

AFFIRMED

BONIN, J., concurs in the result.

      . Harris contends that French’s is challenging the entire subcontract. However, French’s contests the validity of the arbitration clause based on alleged misrepresentations and that the State’s contract did not include an arbitration clause.

      . The former vice-president has since passed away.


author: JOY COSSICH LOBRANO, Judge.

text:
    STATE of Louisiana v. Sidney SMITH.
    No. 2011-KA-0805.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 2012.

      Kenneth J. Beck, Gretna, LA, for Appellant.
    Leon A. Cannizzaro, Jr., District Attorney, Michael B. Redmann, Assistant District Attorney, New Orleans, LA, for Ap-pellee.
    (Court composed of Chief Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| Jn this bond forfeiture proceeding, Bankers Insurance Company (“Bankers”) appeals the district court’s judgment denying its motion to set aside the judgment of bond forfeiture. For the reasons that follow, we affirm the district court’s judgment.

On March 30, 2007, Bankers posted a $50,000.00 commercial surety bond to secure the appearance of defendant, Sidney Smith, in Orleans Parish Criminal District Court for extradition on an out of state warrant. Defendant appeared in court with counsel for an extradition arraignment on April 30, 2007, and was notified the hearing was continued to May 7, 2007. On May 7, 2007, defendant appeared in court without counsel, and was notified the hearing was continued again to May 21, 2007. On May 21, 2007, defendant failed to appear in court for the extradition arraignment. At that time, the court rescheduled the extradition arraignment for May 31, 2007, and set a bond forfeiture hearing for June 21, 2007.

|2On May 31, 2007, the defendant failed to appear for the extradition arraignment hearing and the matter was continued without date. The bond forfeiture hearing scheduled for June 21, 2007, was continued three more times to August 13, 2007. On August 18, 2007, defendant again failed to appear in court and the docket master and minute entries for that date indicate the matter was continued without date.

Two years passed with no action taken in this ease. On November 19, 2009, the State filed a “set sheet” to schedule a status hearing. The trial court scheduled the status hearing for November 24, 2009, but defendant faded to appear. At that time, the court scheduled a bond forfeiture hearing for December 9, 2009, and ordered defendant and the surety to be served with notice of the date. On December 9, 2009, defendant failed to appear; the docket master and minute entries from that date indicate defendant and the surety were never served with notice. The trial court rescheduled the bond forfeiture hearing to December 22, 2009, and then to January 6, 2010.

At the hearing on January 6, 2010, defendant failed to appear, and the State offered into evidence the bond and the subpoenas to the defendant and the surety and asked the trial court to forfeit the bond. The trial court rendered a judgment, ordering forfeiture of the bond. On February 10, 2010, the Clerk of Court mailed, |svia certified mail return receipt requested, notice of the signing of the bond forfeiture judgment to the surety company, its agent and defendant.

On July 28, 2010, Bankers filed a motion to set aside judgment of bond forfeiture, asserting that, although the bond was forfeited for the defendant’s failure to appear on August 13, 2007, the Clerk of Court mailed notice of the bond forfeiture judgment on February 10, 2010 , which was not within sixty (60) days after the bond forfeiture date as mandated by La. R.S. 15:85(3)(c) and, therefore, failure to timely mail notice released Bankers of its obligation under the bond.

At the hearing on Bankers’ motion, the State argued that Bankers failed to produce any evidence that the State had moved for a forfeiture of defendant’s bond in 2007, as asserted in its motion. The State pointed out that it was the State’s prerogative to move for forfeiture of the bond on a specific date pursuant to La. R.S. 15:85(1).

|4In denying Bankers’ motion to set aside the judgment of bond forfeiture, the trial court found that none of defendant’s failures to appear in 2007 was the basis of the bond forfeiture, explaining, “[T]he defendant was in effect still out on bond then all this time. It wasn’t till 2010 when the bond was forfeited.” The trial court concluded the hearing, stating,

A lawyer appeared for the defendant and the forfeiture was continued. The surety company was placed on notice on the very first day the defendant did not appear. The surety company was placed on notice every time they were served and told there was going to be a bond forfeiture hearing. The surety company could have appeared at any one of those time to say, hey, I waive my rights. They have never done that till now, till now. I’m going to deny your motion.

Bankers now appeals from the judgment denying it motion to set aside the judgment of bond forfeiture, raising one assignment of error: the trial court erred in denying its motion to set aside the judgment of bond forfeiture when notice of judgment of bond forfeiture was not mailed to the defendant and the surety within sixty (60) days of the defendant’s initial failure to appear as required by former La. R.S. 15:85(3)(c). After reviewing the record, we find no merit to the assignment of error.

Pertinent to the discussion herein is State v. Kelly, 96-1949, 96-1950 (La.App. 4 Cir. 7/23/97), 698 So.2d 993, a consolidated case involving two bonds posted by Bankers in Orleans Parish Criminal District Court that were eventually

| ¡¡forfeited after defendant had missed his first five court dates. The chronology in Kelly is as follows:

Kelly was ordered to appear for arraignment for case 371-507 on January 4, 1995. Because there was no evidence that Kelly had been notified of the arraignment date, it was rescheduled for January 11, 1995, and notice was sent to Kelly at the address recorded on the bond. No copy of this notice is contained in the record. He failed to appear and the trial court issued an alias capias for his arrest.
Kelly’s arraignment for case 373-526 was set for February 7, 1995, and notice was sent to the address on the bond. There is no copy of this notice in the record. He did not appear and the trial court issued another alias capias for his arrest.
The record indicates that on February 7, 1995, when the arraignment was continued until February 22, the Assistant District Attorney requested that the Clerk of Court subpoena the defendant, the bondsman, and the surety company. The minute entry for February 7, 1995 indicates that he trial court ordered that the defendant, the bondsman and the surety company be notified of the February 22 hearing.
The minute entries for February 22, 1995 indicate the trial court reset the bond forfeiture hearing for March 3, 1995, at the request of the surety company. Again the trial court ordered notices of the continuance sent to the defendant and the surety. By certified mail, return receipt requested, the Office of the District Attorney sent notice to Kelly and his sureties of the March 3, 1995 hearing date and their required appearance.
Kelly did not appear on March 8, 1995, although counsel for his surety did. As a result of Kelly’s nonappearance on March 8, 1995, the trial court granted forfeiture of both bonds.

Id, 96-1949, 96-1950, pp. 1-2, 698 So.2d at 994-995.

In appealing the bond forfeitures, Bankers argued that no evidence was presented at the March 3, 1995 hearing that the surety and its agent were given proper notice of either the January 4, 1995 or February 7, 1995 hearing. This |fiCourt found the argument unpersuasive, concluding the alleged failure of the State to provide proper notice to the defendant and surety of the two scheduled arraignment dates did not invalidate the bond forfeiture, because the forfeiture was not based on those non-appearances but rather on “Kelly’s non-appearance at the March 3, 1995 hearing as noted in its transcript[.]” Id, 96-1949, 96-1950, p. 4, 698 So.2d at 995-996.

In the present case, as in Kelly, Bankers argues that the bond was forfeited at an earlier hearing, either May 21, 2007 or August 13, 2007, when defendant failed to appear. However, the case record and specifically the transcript of the January 6, 2010 bond forfeiture hearing clearly indicate that the State moved for the bond forfeiture on that date after the defendant failed to appear and presented the trial court with the bond and the subpoenas sent to the surety and defendant to appear in court that day. Furthermore, the transcript of the August 5, 2010 hearing on Bankers’ motion to set aside the bond forfeiture judgment indicates the trial court forfeited the bond because defendant did not appear in court on January 6, 2010 for the bond forfeiture hearing.

As to the timely mailing of the notice of the judgment of bond forfeiture, the record indicates the Clerk of Court mailed the notice of the judgment on February 10, 2010, which was within sixty (60) days after the defendant failed to appear, resulting in the bond forfeiture, as mandated by former La. R.S. 15:85(3)(c). Because mailing of notice of the judgment of bond forfeiture was timely, the surety has not been released of its obligations under the bond.

|7In conclusion, we find the trial court correctly denied Bankers’ motion to set aside the judgment of bond forfeiture.

Accordingly, for the reasons stated herein, the August 5, 2010 judgment of the trial court denying Bankers’ motion to set aside the judgment of bond forfeiture is affirmed.

AFFIRMED

      . The record indicates that in November 2002, the defendant was charged by a Texas grand jury with burglary of a building in Dallas. The 195th Judicial District Court of Dallas County, Texas, deferred adjudication and placed defendant on probation for a period of five (5) years. In September 2005, after defendant violated the terms of his probation, the court adjudicated him guilty and issued a warrant for his arrest when he failed to appear in court. Defendant was arrested in Orleans Parish on March 28, 2007, and charged with being a fugitive from Texas.

      . The record mentions a sheriff's return marked "subject moved” for the defendant and contains a signed receipt from the surety’s agent, Louella Joseph, for the date of January 6, 2010. The sheriff’s return on defendant is not in the record. Nonetheless, Bankers has not alleged any defect in the forfeiture notices for January 6, 2010.

      . In the written motion to set aside judgment of bond forfeiture that was filed in the record, Bankers incorrectly stated the date of mailing of notice of the bond forfeiture judgment as February 22, 2010.

      . La. R.S. 15:85 was amended by Acts 2010, No. 915, § 3, effective August 15, 2010. However, the law in effect at the time of the forfeiture applies. See Bankers Ins. Co. v. State, 37,080, p. 4 (La.App. 2 Cir. 4/11/03), 843 So.2d 641, 644, n. 2, citing State v. Adkins, 613 So.2d 164 (La.1993). At the time of the forfeiture hearing in this case, La. R.S. 15:85(3)(c), provided:
      Failure to mail proper notice of the signing of the judgment within sixty days after the defendant’s failure to appear shall release the sureties of any and all obligations under the bond.

      . In its appellant brief, Bankers argues that the bond was forfeited on May 21, 2007, when defendant initially failed to appear, and thus it was relieved of its obligation under the bond on July 21, 2007, sixty-one days following his failure to appear.

      . Prior to the 2010 amendment, La. R.S. 15:85(1), provided:
      Failure to appear and answer. If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence in-eluding: the bail contract; the power of attorney if any; and the notice to the defendant and the surety as required by Article 344 of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.

      . See n. 5, infra.


text:
    M J SAUER/Owner v. Sandra JOHNSON.
    No. 2012-CA-0197.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 2012.
    Rehearing Denied Jan. 16, 2013.

      Kyle S. Sclafani, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Eric Foley, Robert A. Braun, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| defendant, Sandra Johnson, suspen-sively appealed the December 21, 2011 judgment of First City Court for the City of New Orleans, ordering her to vacate the property located at 307 South Cortez Street in New Orleans, Louisiana.

On October 31, 2011, the plaintiff, M.J. Sauer, owner of the premises located at 307 South Cortez Street in New Orleans, Louisiana, sent to Ms. Johnson, her tenant, a “Notice to Vacate Premises.” In that notice, Ms. Sauer stated that the lease between the parties had been on a month-to-month basis since the end of March, 2011. She further stated that she wanted Ms. Johnson to vacate the premises by the end of November, 2011, because she did not wish to renew the lease for another month.

Ms. Johnson did not vacate the premises by the end of November, 2011, so Ms. Sauer tacked a notice to her door entitled, “FIVE (5) Day Notice to Vacate Premises,” stating that she had given her the required thirty-day notice that she would not renew her lease, and that the lease had expired. On motion of Ms. Sauer, Ms. Johnson was served with a “Rule for Possession of Premises,” ordering | ?her to show cause in First City Court on December 19, 2011, why she should not be evicted from the premises. A copy of the lease between the parties was attached to the “Rule for Possession of Premises.”

In response to the “Rule for Possession of Premises,” Ms. Johnson filed an exception of lis pendens. In her exception, she stated that on November 30, 2011, she filed a petition in Civil District Court for Orleans Parish, alleging that Ms. Sauer’s refusal to renew the lease and subsequent attempts at eviction are violations of anti-discrimination provisions of the Fair Housing Act, 42 U.S.C. § 3604. Ms. Johnson also stated that she was seeking to enforce, as a third-party beneficiary, Ms. Sauer’s contract with the Housing Authority of New Orleans, preventing eviction based on Ms. Johnson’s status as a stalking victim. She also asserted a claim of abuse of right. In her petition, Ms. Johnson seeks declaratory, injunctive and equitable relief, and attorney’s fees. In support of her exception, Ms. Johnson submitted a memorandum, a copy of her lease, and a copy of her lawsuit that was filed in Civil District Court.

Citing La. C.C.P. articles 531 and 925(A)(3), Ms. Johnson argued where two suits are pending in a Louisiana court or courts and arise from “the same transaction or occurrence, between the same parties in the same capacities,” a defendant may dismiss the second suit by pleading the declinatory exception of lis pendens. Accordingly, she argued that Ms. Sauer’s “Rule for Possession of Premises,” filed after Ms. Johnson’s discrimination lawsuit, should be dismissed because it arose out of the same transaction or occurrence, i.e. Ms. Sauer’s decision |snot to renew Ms. Johnson’s month-to-month lease and to pursue an eviction. She further argues that the two cases involve the same parties in the same capacities, i.e. lessor and lessee.

Ms. Sauer filed a memorandum in support of her “Rule for Possession of Premises.” In her memorandum, Ms. Sauer argued that her rule should be granted because a lessor may choose to terminate a lease at the completion of any term for any reason, and the non-renewal of a lease at the expiration of a term is not equivalent to termination during a lease term.

Following a hearing, the trial court rendered judgment on December 21, 2011, in favor of Ms. Sauer and against Ms. Johnson, ordering Ms. Johnson to vacate the premises at 307 South Cortez Street within twenty-four (24) hours, and to pay all costs of the proceedings. Ms. Johnson suspen-sively appealed the December 21, 2011 judgment.

At trial, the parties stipulated that the initial term of the lease between the parties expired on March 31, 2011, and that after that date, the lease provided for an automatic renewal on a month-to-month basis. The parties also stipulated that Ms. Johnson is receiving assistance in the form of a Section 8 voucher, with her portion of the rent being $197.00 out of a total rent of $850.00. On October 31, 2011, the lessor, Ms. Sauer, gave Ms. Johnson notice to vacate the premises within thirty (30) days, or prior to December 1, 2011. On December 1, 2011, because Ms. Johnson had not yet vacated, Ms. Sauer tacked a five (5) day notice to vacate on Ms. Johnson’s door.

RAfter the above stipulations were made by the parties, the trial court stated that Ms. Johnson’s exception of lis pendens would be overruled. As for the rule filed by Ms. Sauer, the trial court stated that there was no need at that time for evidence to be presented as to disputes regarding damages, repairs, or disputes with neighbors because of the court’s opinion that the lessor was entitled to possession of the premises for any reason once the lease terminated after the lessor provided the lessee with the thirty (30) day notice of non-renewal. However, counsel for Ms. Johnson stated that his client’s argument is that this was a discriminatory eviction, and offered the following evidence in support of that argument.

Ms. Johnson testified that in December 2010, she had a dispute with a neighbor regarding a barking dog. She spoke to her landlord, Ms. Sauer, about the problem and then wrote several letters to the neighbor to complain about the dog, including threatening to call the police if the excessive barking did not stop. After sending four letters to the neighbor, the dog escaped from its enclosure and killed Ms. Johnson’s cat, which she had for thirteen years. At that point, she called the police and the SPCA to report that the neighbor’s dog had killed her cat. She said the barking problem continued after her cat was killed. She stated that the owners of the dog in question were not Ms. Sauer’s tenants; rather, they own the property behind the property owned by Ms. Sauer.

Ms. Johnson testified that she has been diagnosed with post-traumatic stress disorder and bipolar disorder. She also stated that she has been a victim of | ^domestic violence, and has been stalked by a former neighbor who has harassed her for five years. Ms. Johnson told Ms. Sauer about being stalked by the former neighbor, and asked Ms. Sauer if she could put metal bars on her windows. Ms. Sauer said she did not want bars on the windows of her property, but recommended that Ms. Johnson call a security alarm company. Ms. Johnson testified that during a September 2011 discussion with Ms. Sauer regarding the stalker, Ms. Sauer made the statement, “I don’t want that stuff around my place.”

The security alarm company that Ms. Johnson called would not install an alarm for her because she was not the owner of the property. She admitted that she did not report back to Ms. Sauer about her conversation with a representative of the alarm company. Ms. Johnson also testified about some discussions and disagreements between her and Ms. Sauer regarding repairs to her apartment.

Ms. Johnson said she is on medication for bipolar disorder, and for post-traumatic stress disorder. She said she never talked to Ms. Sauer about her mental problems until after Ms. Sauer gave her notice to move out of the apartment. She does not know if Ms. Sauer was aware of her problems, other than being stalked, prior to the time that Ms. Sauer notified her that she had to move out within thirty days. Ms. Johnson admitted that although she suspected that the person allegedly stalking her had been to the property owned by Ms. Sauer, she was not certain that this had ever happened.

At the conclusion of the hearing, the trial court overruled Ms. Johnson’s exception of lis pendens, granted Ms. Sauer’s rule, and ordered Ms. Johnson to |6vacate the premises at issue within twenty-four (24) hours. The court found that Ms. Johnson presented no evidence at the eviction proceeding that a stalker ever came to the property or caused any incident at the property. Furthermore, no evidence was presented to show that Ms. Sauer instituted her eviction action against Ms. Johnson because of the stalking issue. The court found that Ms. Sauer followed proper procedures for the eviction of Ms. Johnson, and is entitled to have Ms. Johnson evicted from the property. The trial court noted that Ms. Johnson is still entitled to pursue her discrimination claim against Ms. Sauer in Civil District Court, but did not produce any evidence at the eviction proceeding to support her claim that Ms. Sauer discriminated against her because of her mental conditions.

On appeal, Ms. Johnson asserts two assignments of error: 1) the trial court erred in overruling her exception of lis pendens, and 2) the trial court erred in failing to require that Ms. Sauer prove “good cause” for evicting Ms. Johnson.

We find that the trial court correct ly overruled Ms. Johnson’s exception of lis pendens. La. C.C.P. article 581 provides as follows:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

In Revel v. Charamie, 05-0976, p. 4 (La.App. 4 Cir. 2/15/06), 926 So.2d 582, 584, this Court stated:

17The test for ruling on an exception of lis pendens is to inquire whether a final judgment in the first suit would be res judicata in the subsequently filed suit. Domingue v. ABC Corp., 96-1224, p. 3 (La.App. 4 Cir. 6/26/96), 682 So.2d 246, 248. The exception of lis pendens has the same requirements as the exception of res judicata and is properly granted when the suits involve the same transaction or occurrence between the same parties in the same capacities. Id.

We conclude that Ms. Johnson is not entitled to have the second suit (the eviction suit) dismissed under the doctrine of lis pendens because a final judgment in the discrimination case would not be res judicata in the eviction proceeding. The parties stipulated that the initial term of the lease between them expired on March 31, 2011, and after that date, the lease provided for an automatic renewal on a month-to-month basis only. As this Court has stated, “[i]t is clear under Louisiana law, that the owner, at the expiration of a lease, whether month to month, or a fixed term, has the right to demand possession of his property without giving any reason.” (Emphasis added); Capone v. Kenny, 94-0888 (La.App. 4 Cir. 11/30/94), 646 So.2d 510, 512-513, citing Mascaro v. Hudson, 496 So.2d 428, 430 (La.App. 4 Cir. 1986). Thus, even if Ms. Johnson were to receive judgment in her favor on the issue of discrimination, Ms. Sauer would still be able to evict Ms. Johnson without giving any reason because of the fact that the lease is on a month-to-month basis. However, we note, as did the trial court, that Ms. Johnson can still pursue her discrimination claim against Ms. Sauer in Civil District Court, and recover any damages to which she is found to be entitled.

Ms. Johnson’s second argument is that the trial court erred in failing to require that Ms. Sauer prove “good cause” for evicting Ms. Johnson. She cites language in an agreement the parties signed with the Housing Authority of New | «Orleans (“HANO”), called a HAP (“Housing Assistance Payments”) Contract, which set forth certain conditions applicable to housing provided through the Section 8 program. In the section entitled, “Termination of Tenancy by Owner,” the subsection entitled, “Grounds,” states as follows:

During the term of the lease (the initial term of the lease or any extension term), the owner may only terminate the tenancy because of:

(1) Serious or repeated violation of the lease;
(2) Violation of Federal, State, or local law that imposes obligations on the tenant in connection with the occupancy or use of the unit and the premises;
(3) Criminal activity or alcohol abuse (as provided in paragraph c); or
(4) Other good cause (as provided in paragraph d)

Paragraph d under the “Termination of Tenancy by Owner” section is entitled “Other good cause for termination of tenancy,” and states as follows:

(1) During the initial lease term, other good case for termination of tenancy must be something the family did or failed to do.
(2) During the initial lease term or during any extension term, other good cause includes:
(a) Disturbance of neighbors,
(b) Destruction of property, or
(c) Living or housekeeping habits that cause damage to the unit or premises.
(3) After the initial lease term, such good cause includes:
(a) The tenant’s failure to accept the owner’s offer of a new lease or revision;
(b) The owner’s desire to use the unit for personal or family use or for a purpose other than use as a residential rental unit; or
(c) A business or economic reason for termination of the tenancy (such as sale of the property, renovation of the unit, the owner’s desire to rent the unit for a higher rent).

Although inartfully worded, the above-quoted language requires that a landlord/owner prove “good cause” for an eviction only during the initial term of the lease or during an extension term. Ms. Johnson argues that her month-to-month continuation of the lease after the initial term, which ended on March 31, |a2011, constituted an extension of the lease, and therefore, Ms. Sauer was required to prove “good cause” to evict her.

A similar argument was rejected by the Third Circuit in the case of Granger v. Tri-Tech, LLC, 07-1392 (La.App. 3 Cir. 4/2/08), 981 So.2d 88. In the Granger case, as in the instant case, it was undisputed that the tenant had remained on the premises after the expiration of the initial lease term, had continued to pay rent to the landlord, and that the landlord had continued to receive the rental payments. The question presented in the Granger case was whether the tenant’s continued presence was due to an extension of the lease, and therefore subject to a fixed term, or was on a month-to-month basis by virtue of reconduction and therefore subject to termination. The Granger court held that because the tenant failed to offer proof regarding the nature of its continued presence on the property, i.e. that the tenant availed itself of the option to renew, the trial court correctly found that the lease reconducted to a month-to-month lease pursuant to La. Civil Code article 2723. Id., pp. 4-5, 981 So.2d at 91-92. In reaching that ruling, the Granger court relied on the case of Governor Claiborne Apartments, Inc. v. Attaldo, 256 La. 218, 235 So.2d 574, 577 (La.1970), which stated:

While assent to a contract may be implied, that implication must be established and cannot be presumed. Defendant’s burden was to establish a lease for a fixed term. He had to prove a meeting of the minds of the contracting parties that their relationship as lessor and lessee was for the alleged fixed term, by either express language or by circumstances (action or inaction) that | innecessarily implied the proposition. The facts and circumstances of the instant case establish only the existence of a lease by the month between the parties because of the reconduction of the written lease.

Although the lease in the Granger case included language regarding an “option to renew,” whereas the lease in the instant case refers to an “extension term,” we find that the same principle applies. Ms. Johnson offered no proof that the parties had agreed to an extension term of the lease, thereby extending the “good cause” requirement included in the HAP contract. The evidence and stipulations presented at the eviction proceeding established only the existence of a month-to-month lease between the parties after the initial lease term expired on March 81, 2011. As such, Ms. Sauer was entitled to possession of the premises after that date, without giving any reason, after providing Ms. Johnson with the thirty (30) day notice of non-renewal. We find no merit in Ms. Johnson’s argument that the trial court erred in failing to require that Ms. Sauer prove “good cause” for the eviction.

For the reasons stated above, we affirm the trial court’s judgment.

AFFIRMED

      . The exception of lis pendens is included in a list of declinatory exceptions in La. C.C.P. article 925.

      . La. Civil Code article 2723 states, in pertinent part,
      "The term of a reconducted nonagricultural lease is: (1) From month to month in the case of a lease whose term is a month or longer.”
      La. Civil Code article 2721 states, in pertinent part:
      "A lease with a fixed term is reconducted if, after the expiration of the term, and without notice to vacate or terminate or other opposition by the lessor or the lessee, the lessee remains in possession: ... (2) For one week in the case of other leases with a fixed term that is longer than a week.”