author: PICKETT, Judge.

text:
    Carol Ann ST. JULIAN v. Harold WILTZ, et al.
    No. 09-323.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 2009.

      Julian Louis Gibbens, Gibbens & Stevens, New Iberia, LA, for Defendants-Appellants, SAIA Motor Freight Line, Inc., Harold Wiltz, Discover Property & Casualty Ins. Co.
    Randal Lee Menard, Attorney at Law, Lafayette, LA, for Plaintiff-Appellee, Carol Ann St. Julian.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT and BILLY HOWARD EZELL, Judges.
   PICKETT, Judge.

liThe defendants, Harold Wiltz, his employer, Saia Motor Freight Line, Inc. (Saia Motor), and their insurer, Discovery Property and Casualty Insurance Co. (Discovery) (collectively referred to as “Wiltz”), appeal the trial court’s judgment finding Wiltz 100% liable in a vehicular collision and the amount of damages awarded. The plaintiff, Carol St. Julian, has answered the appeal, seeking an increase in the award of general damages and property damages.

STATEMENT OF THE CASE

The accident in this case occurred on East St. Peter Street in New Iberia, Louisiana. At the point where the accident occurred, East St. Peter is a three-lane, one-way road. St. Julian testified that as she drove her Toyota Camry in the far right lane, the vehicle immediately ahead of her suddenly moved into the center lane of traffic. Before she had an opportunity to stop, she ran into the back of a tractor-trailer that was stopped in the far right lane. The tractor-trailer was owned by Saia Motor and was being driven by Wiltz in the course and scope of his employment. He testified that he had stopped or slowed down significantly in the far right lane and engaged his caution lights in anticipation of making a left turn into a private drive from the far right lane. St. Julian sustained physical injuries, lost wages, and damage to her vehicle as a result of the accident.

St. Juban sued Wiltz, Saia Motor, and their insurer, Discovery, seeking damages for medical injuries, property damages, and pain and suffering. Following a bench trial, the trial court found Wiltz 100% liable for causing the accident. It awarded medical damages of $6,330.84, lost wages of $276.75, property damage of |2$1,800.00, and general damages of $15,000.00. Wiltz appealed, and St. Julian has answered the appeal.

ASSIGNMENTS OF ERROR

The defendants-appellants assert three assignments of error:

1. The trial court erred manifestly in finding that Harold J. Wiltz was solely at fault in causing this accident; also, the trial court improperly condoned the behavior of the plaintiff, Carol Ann St. Julian, and found her free of fault.
2. The trial court was clearly wrong in rewarding plaintiff with $15,000.00 in general damages.
3. The trial court’s ruling is also plainly flawed by allotting to St. Julian an additional $5,000.00 for medical expenses which had been paid to her by her insurer, State Farm. Plaintiff subrogated to State Farm the sole right to assert that claim when she was paid by State Farm.

Answering the appeal, the plaintiff asserts two assignments of error:

1. The trial court erred in that the evidence supported an award of $30,000.00 in general damages but the plaintiff was awarded $15,000.00.
2. The trial court erred in that the evidence supported an award of $2,575.00 for property damage as paid for by the plaintiff but the plaintiff was awarded $1,800.00.

DISCUSSION

Supplemental Record

Initially we must address a matter of procedure raised by St. Julian. After this matter was appealed and the record prepared, Wiltz made a motion in the trial court to Substitute Correct Evidence Incorrectly Entered. In the motion, Wiltz alleged that they introduced into the record the plaintiffs answers to interrogatories, but they were not included in the record on appeal. Instead, Wiltz’s responses to St. Julian’s Requests for Production of Documents was incorrectly entered into the record as Defendant’s Exhibit Two. The trial court granted the motion, and a supplemental |srecord was filed with this court containing the answers to interrogatories. St. Julian filed a response to the motion in this court alleging that the answers to the interrogatories were not properly introduced in the trial court, thus the document should not be made a part of the record.

Louisiana Code of Civil Procedure Article 2132 states:

A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.

Appellate courts have reviewed the trial court’s correction of a record by applying an abuse of discretion standard. Diamond B Constr. Co., Inc. v. La. Dep’t Of Transp. and Dev., 00-1583 (La.App. 3 Cir. 12/22/00), 780 So.2d 439, writ denied, 01-246 (La.4/20/01), 790 So.2d 633.

It is clear from the transcript of the trial that Wiltz intended to introduce St. Julian’s responses to Wiltz’s interrogatories. That document, however, was not made a part of the record. Through some error, Wiltz’s responses to St. Julian’s request for production of documents was placed in the record. There is no evidence that the trial court considered the correct document in making its ruling, and in fact Wiltz contends that the trial court made an incorrect ruling on the issue of the effect of State Farm’s payment $5,000.00 of St. Julian’s medical expenses because of his failure to consider the document in question. In the Second Amended Reasons for Judgment, the trial court specifically noted that “[t]here was no evidence introduced at the trial of this matter with regard to any payments made by State Farm Mutual Automobile Insurance Company for payments of medical bills on behalf of plaintiff by anyone other than plaintiff.”

|4We find that St. Julian’s answers to interrogatories were not properly introduced in the record during the trial of this matter. The trial court abused its discretion in allowing Wiltz to supplement the record with evidence not submitted at trial and not considered by the trial court. The supplemental record is therefore stricken from the record on appeal and will not be considered in this appeal.

Liability

The trial court found that Wiltz was 100% liable for the accident. The supreme court discussed the standard of review appropriate to civil cases in Foley v. Entergy Louisiana, Inc., 06-983, pp. 9-10 (La.11/29/06), 946 So.2d 144,153-154:

[A] trial court’s factual findings will not be upset unless they are manifestly erroneous or clearly wrong. Ferrell v. Fireman’s Fund Insurance Co., 94-1252, pp. 3-4 (La.2/20/95), 650 So.2d 742, 745. Under this rule, the issue to be resolved by a reviewing court is not whether the trier of fact was right or ■wrong, but whether the fact finder’s conclusion was a reasonable one. Stobart v. State, Department of Transportation & Development, 617 So.2d 880, 882 (La. 1993). If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883.
When the findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the findings of fact, for only the fact finder is cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story, a reviewing court may well find manifest error even in a finding purportedly based upon a credibility determination. Id. Where such factors are not present, however, and a fact finder’s determination is based on its decision to credit the testimony of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id. The rule that questions of credibility are for the trier of fact applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony. Lasyone v. Kansas City Southern Railroad, 00-2628, p. 13 (La.4/3/01), 786 So.2d 682, 693.
| ./These standards for manifest error review are not new. These standards are the guiding principles that aid our review of a trial court’s factual determinations. A manifest error review is applicable to the fact-driven determinations presented in this case, including the finding of percentages of fault by the trier of fact. Clement v. Frey, 95-1119, p. 7 (La.1/16/96), 666 So.2d 607, 610.

Louisiana Revised Statutes 32:81(A) states, “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” “Louisiana jurisprudence has established a presumption that when a following vehicle rear-ends a vehicle in front of it, the following vehicle is presumed at fault and must prove a lack of fault to avoid liability.” LeBlanc v. St. Landry Parish Police Jury, 94-501, p. 6 (LaApp. 3 Cir. 12/7/94), 647 So.2d 614, 617. “To exculpate herself, the following motorist must prove that she kept her vehicle under control, that she closely observed the preceding vehicle, that she followed at a safe distance under the circumstances, or that the driver of the lead vehicle negligently created a hazard which the following vehicle could not reasonably avoid.” Id.

Only St. Julian testified about how the accident happened. She was proceeding on East St. Peter in the far right lane. The vehicle immediately in front of her obstructed her view, so she could not see the Saia truck until right before she hit it. She had been traveling behind the vehicle for several blocks. She knows that at some point there was another vehicle behind the Saia truck that turned right into a private drive before the accident. She did not see that vehicle until it turned. She was going about forty miles per hour and was about a car length behind the vehicle in front of her. Suddenly, the vehicle in front of her swerved into the center lane of traffic. That is the first time she saw the Saia truck. It was stopped in the far right lane and had no signals flashing. She could not go to the left to avert the truck 4¿>eeause there was another vehicle in that lane, and she could not veer to the right because there was a ditch.

Wiltz testified that he was stopped or nearly stopped in the far right lane. He claimed he had his warning lights flashing. He admitted that he was waiting for traffic to clear so that he could make a left turn from the far right lane into a narrow private driveway. He knew that such a turn was illegal, but stated it was the only way for him to get into the driveway.

The trial court found that St. Julian successfully rebutted the presumption that she was at fault by proving that Wiltz created a hazard in that he was preparing to make an illegal left turn in violation of La.R.S. 32:71(B) and he was impeding the free use of the roadway in violation of La.R.S. 14:100.1.

We find that the evidence supports the finding of the trial court. The trial court was not manifestly erroneous, and the finding of the trial court on this issue of liability is affirmed.

General Damages

General damages are speculative in nature and, thus, are incapable of being fixed with any mathematical certainty. Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70. They include pain and suffering, physical impairment and disability, and loss of enjoyment of life. Id. As they are speculative, a trial court’s award of such damages is reviewed in light of the standard set forth in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La. 1993), cert, denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). First, we determine if the trial court’s award for the particular injury and its effect under the particular circumstances on this plaintiff is a clear abuse of the trial court’s “much discretion.” Id. at 1260. “It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Id. at 1261.

| 7Bennet v. City of New Iberia, 08-1369, pp. 7-8 (La.App. 3 Cir. 4/1/09), 7 So.3d 822, 827-28.

Both parties argue that the general damages award of $15,000.00 should be reversed. The trial court found that the evidence showed that St. Julian suffered an injury to her ribs and shoulder. While she later complained of lower back pain, the trial court found the back pain was not a result of the accident. She missed one week of work. Doctors had cleared her to return to regular activities within eight months of the accident. At the time of trial three years after the accident, she still complained of some shoulder pain.

We find no abuse of the trial court’s great discretion in awarding general damages of $15,000.00. Wiltz’s second assignment of error and St. Julian’s first assignment of error lack merit.

Medical Expenses

Wiltz alleges in his third assignment of error that the trial court erred in failing to reduce the amount of medical expenses awarded by $5,000.00, the amount paid by State Farm pursuant to a policy of insurance issued to St. Julian. Wiltz correctly argues that the collateral source rule does not apply when the insurance policy which paid part of the debt owed by the tortfeasor includes a subrogation clause. See Great West Cas. Co. v. State ex rel. Dep’t of Transp. and Dev., 06-1776 (La.App. 1 Cir. 3/28/07), 960 So.2d 973, writ denied, 07-1227 (La.9/14/07), 963 So.2d 1005. The parties stipulated at trial that the State Farm policy included a sub-rogation clause. The trial court found that there was no evidence that State Farm paid any of the bills of St. Julian. We agree. The trial court record does not contain proof that State Farm [ 8paid any of St. Julian’s medical bills pursuant to their insurance policy. The trial court’s judgment is affirmed.

Property Damage

In her second assignment of error, St. Julian argues the trial court erred in awarding $1,800.00 for the damage to her vehicle rather than $2,575.00. The evidence supports a finding that the vehicle was totally destroyed in the accident. There was no appraisal or estimate of repairs introduced. The only evidence in the record are pictures of the vehicle before and after the wreck, a printout from the National Automobile Dealers Association website indicating a range of values for a 1990 Toyota Camry LE, and St. Julian’s testimony that the car was in good condition prior to the accident. The trial court’s award of $1,800.00 was based on the average retail price as of July 11, 2005. Given the meager evidence which was presented to support this element of damages, we cannot find that the trial court committed manifest error in its award.

CONCLUSION

The trial court’s order supplementing the record is reversed, and the supplemental record is stricken. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are cast equally between the Wiltz defendants and St. Julian.

MOTION TO STRIKE GRANTED. JUDGMENT AFFIRMED.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    PRIOLA CONSTRUCTION CORPORATION v. PROFAST DEVELOPMENT GROUP, INC., et al.
    No. CA 09-342.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 2009.

      Anna R. Gray, A.J. Gray, III, The Gray Law Firm, Lake Charles, LA, for Defendant/Appellee, Capital One, N.A.
    Thomas Patrick LeBlanc Loftin, Cain, & LeBlanc 113 Dr. Michael DeBakey Drive Lake Charles, LA, for Plaintiff/Appellant, Priola Construction Corporation.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

_JjThis appeal involves application of the Louisiana Credit Agreement Statutes, La. R.S. 6:1121-6:1124, and accession principles. At issue is whether Capital One, N. A., is liable to Priola Construction Corporation for improvements Priola made to the Capital One building in downtown Lake Charles. The improvements were made pursuant to a Letter of Agreement with several defendants referred to for simplicity as the “Johnson Defendants.” The trial court granted Capital One’s motions for summary judgment and dismissed all of Priola’s claims against Capital One. Priola appealed, and for the following reasons, we affirm the judgment of the tidal court.

FACTS

Blake McCaskill, a commercial loan officer with Capital One, knew one of the Johnson Defendants, Fulton “Flip” Johnson, from their days of playing football together at McNeese State University. Mr. McCaskill heard that Mr. Johnson was looking at constructing a modular building facility in addition to some condominiums in the Lake Charles area, so he contacted Mr. Johnson about Capital One doing business with him. Discussions soon evolved into discussing the need for office space, so Mr. McCaskill told him about the Capital One Building.

On October 18, 2006, Capital One entered into a lease agreement with the Johnson Defendants to lease Suites 2100 and 2200, the twenty-first and twenty-second floors, in the Capital One Building. The twenty-first floor had been a restaurant, and the Johnson Defendants wanted to open a restaurant and sports bar. The twenty-second floor was to be the private offices for Mr. Johnson.

| ¡According to Mr. McCaskill, he had discussed the potential projects with a client of Priola. Josh Priola wanted to be introduced to Mr. Johnson, so Mr. McCas-kill took him upstairs in the Capital One Building for an introduction. At the time, the Johnson Defendants had actually started some demolition work. On October 27, 2006, Priola entered into a Letter of Agreement with the Johnson Defendants to renovate the twenty-first floor of the Capital One Building. The anticipated costs were between $400,000.00 and $600,000.00. Priola agreed to be paid in a lump sum upon completion of the work or no later than January 31, 2007.

The Letter of Agreement further stated that Priola was agreeable to such terms provided:

Pro Fast Development Group, LLC, provides Priola Construction Corporation, on or before October 30, 2006, proof satisfactory to Priola Construction Corporation that Pro Fast Development Group, LLC, has obtained a line of credit from a federally insured lending institution in an amount not less than $600,000.00, and that its agreement with the lender with respect to said line of credit provides that monies may be drawn against the line of credit only if disbursed by draft or electronic funds transfer payable solely and directly to Priola Construction Corporation; and (2) Fulton Johnson and any and all other members/owners of Pro Fast Development Group, LLC, on or before October 30, 2006, execute within a reasonable time after acceptance of this proposal all contracts and related documents necessary to effect the agreements proposed herein on terms mutually agreeable to the parties.

The Johnson Defendants wanted the work completed in order to host a New Year’s Eve grand opening on December 31, 2006. Priola never received the proof that the Johnson Defendants had secured a line of credit. Due to the time constraints, Josh Priola claims he approached Mr. McCaskill a few days after the agreement was signed to inquire if Capital One had agreed to finance the improvements. Priola claims that Mr. McCaskill advised “they were collecting information, had one more piece of information to get. They got it, and it looked great and it was more than what they hoped for and the commitment process would begin when he got back in the | ^office.” At that point, Priola began and completed the improvements at a cost in excess of $1.1 million.

Prior to completion, Priola entered into an amended contract with the Johnson Defendants on November 15, 2006, which increased the budget to between $850,00.00 and $950,000.00. On December 22, 2006, a separate contract was entered into between the Johnson Defendants and Priola for renovations to a separate space known as The Y.I.P. Room for a proposed budget of $70,000.00.

A loan application to Capital One by the Johnson Defendants was not submitted until November 14, 2006. On December 4, 2006, the loan was denied for failure to submit proper financial documentation and supporting schedules. Priola found out that the loan had been denied on December 21, 2006.

On May 9, 2007, Priola filed suit against the Johnson Defendants claiming that they had paid nothing for the work performed by Priola and that it was owed $1,133,116.49. On June 1, 2007, the petition was amended to add Capital One as a defendant on the basis of negligent misrepresentation, detrimental reliance, and breach of contract. A preliminary default was entered against the Johnson Defendants on August 27, 2007. Capital One filed a motion for summary judgment.

A hearing on Capital One’s motion for summary judgment was held on August 19, 2008. The trial court granted Capital One’s motion and dismissed Priola’s claims against it. Priola then filed a supplemental and amending petition elaborating on its claim for damages under the principles of accession. Again, Capital One moved for summary judgment. A hearing on the matter was held on December 17, 2008, with the trial court again ruling in favor of Capital One. Judgment was signed that same day which also included the ruling on the previous motion for summary judgment, thereby dismissing all of Priola’s claims against Capital One in this matter. Priola 14then appealed the judgment.

SUMMARY JUDGMENT

Appellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910; Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342, 345 (La. 1991). A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and shall be construed to favorably accomplish these ends. La. C.C.P. art. 966(A)(2). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Duncan v. USAA Ins. Co., 06-0363, p. 4 (La.11/29/06), 950 So.2d 544, 546-547. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765-766.

King v. III. Nat.’l Ins. Co., 08-1491, p. 6 (La.4/3/09), 9 So.3d 780, 784.

Therefore, we will conduct a de novo review to determine if there are any genuine issues of material fact which would prevent the granting of summary judgment in favor of Capital One. We will also determine whether Capital One is entitled to summary judgment as a matter of law. La.Civ.Code art. 966(B).

LOUISIANA REVISED STATUTES 6:1124

Priola argues that the trial court erred in concluding that the Louisiana Credit Agreement Statutes, specifically La.R.S. 6:1124, bars all actions for damages between a bank and a non-customer third party, regardless of the legal theory of recovery, if there is no written agreement between the bank and the non-customer third party. Priola contends that while La.R.S. 6:1124 does preclude the creation of a fiduciary Rduty between a bank and either its customers or third parties in the absence of a written agreement specially creating a fiduciary relationship, the statute does not immunize a bank from all of its actions with respect to non-customer third parties.

Louisiana Revised Statutes 6:1124 provides (emphasis ours):

No financial institution or officer or employee thereof shall be deemed or implied to be acting as a fiduciary, or have a fiduciary obligation or responsibility to its customers or to third parties other than shareholders of the institution, unless there is a written agency or trust agreement under which the financial institution specifically agrees to act and perform in the capacity of a fiduciary. The fiduciary responsibility and liability of a financial institution or any officer or employee thereof shall be limited solely to performance under such a contract and shall not extend beyond the scope thereof. Any claim for breach of a fiduciary responsibility of a financial institution or any officer or employee thereof may only be asserted within one year of the first occurrence thereof. This Section is not limited to credit agreements and shall apply to all types of relationships to which a financial institution may be a party.

Priola claims that it does not allege a fiduciary relationship with Capital One or the existence of fiduciary duties of loyalty and prudent administration as between them. Instead Priola alleges that Capital One voluntarily assumed a duty to disclose information to Priola pertaining to the loan request of the Johnson Defendants and is liable for disclosing inaccurate and misleading information upon which Priola relied to its detriment. Priola argues that its claims for negligent misrepresentation, detrimental reliance, and breach of contract are not foreclosed by La.R.S. 6:1124.

After reviewing the record, we observe that there is no evidence whatsoever that there was a contract between Priola and Capital One. Therefore, summary judgment as to Priola’s breach of contract claim was certainly appropriate. In support of its argument regarding negligent misrepresentation and detrimental reliance, Priola cites BizCapital Business & Industrial Development Corp. v. Union Planters Corp., 03-2208 (La.App. 4 Cir. 9/8/04), 884 So.2d 623, writs denied, 04-2473, 04-2505 (La.1/14/05), 889 So.2d 267.

| s BizCapital involved lenders suing third-party banks for negligent misrepresentation and detrimental reliance regarding the financial status of the borrower. BizCapital alleged that Union Planters and Business Bank misrepresented to BizCapi-tal the reason they sought a pay-off on a loan to Media Direct and further omitted to tell BizCapital about a $4 million overdraft and the suspiciously high volume of monetary transactions occurring in Media Direct’s account. Other deliberate misrepresentations were also alleged. The trial court granted an exception of no cause of action filed by Union Planters and Business Bank relying on La.R.S. 6:1124.

On appeal, the fourth circuit found that La.R.S. 6:1124 does not afford banks blanket immunity in all settings and that a bank should not be rewarded for misleading a customer or third party. In finding that a bank is not immune from the claims of negligent misrepresentation and detrimental reliance, the fourth circuit reviewed the legislative history of La.R.S. 6:1124:

... [T]he bill concretely states that there is no fiduciary relationship between a bank and its customer just because the customer has an account at the bank or another relationship with the bank. An agreement would be required in order to establish a fiduciary relationship between a financial institution and a customer. This would not eliminate the obligation of good faith and fair dealing under the Civil Code
... [T]his bill simply clarifies that a bank has no implied fiduciary duty to its customers absent a specific trust or written agreement. This bill would say that there is no trust relationship or a fiduciary relationship with your customer unless there is a trust agreement to that respect.
Minutes, House Commerce Committee, 1991 Reg. Sess., May 15, 1991, at 12-13; Minutes, June 6,1991, at 3.

BizCapital, 884 So.2d at 626-27(alterations in original).

The fourth circuit reasoned that “the letter of the law should not lead to the absurd result that a bank should be rewarded for misleading a customer or third party.” Id. at 627.

| ^Louisiana Revised Statutes 6:1124 clearly provides that there is no fiduciary relationship between a bank and a third party unless agreed to in writing that a relationship of agency or trust exists between the parties. Singleton v. Am. Sec. Bank of Ville Platte, Inc., 02-1109 (La. App. 3 Cir. 4/30/03), 849 So.2d 72. It does not foreclose the possibility of lawsuits for other causes of action which do not involve a fiduciary obligation. Therefore, we will examine the remaining causes of action raised by Priola to determine whether summary judgment was appropriate.

Negligent Misrepresentation

In Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007 (La.1993), the supreme court reviewed the history of the tort of negligent misrepresentation and recognized that “there must be legal duty on the party of the defendant to supply correct information, there must be a breach of that duty, and the breach must have caused plaintiff damage.” Id. at 1015. “Whether a duty is owed is a question of law.” Id. The supreme court went on to discuss when a duty to supply correct information arises. It discussed cases in which the duty owed to the tort victim involved both non-disclosure and misinformation when there is privity of contract or a fiduciary relationship. The supreme court then discussed the situation in which there is a communication of misinformation by the tort feasor directly to the user or the user’s agent, in which case the tort feasor assumed the duty. In that situation, the tort feasor becomes a fiduciary and, therefore, liable for any negligent misrepresentation.

Citing Barrie among other cases, the supreme court recognized that “our jurisprudence has also limited negligent misrepresentation tort theory to cases wherein [a] contract or fiduciary relationship exists.” Daye v. Gen. Motors Corp., 97-1653, p. 6 (La.9/9/98), 720 So.2d 654, 659. The court then went on to hold that Louisiana negligent misrepresentation cases are evaluated using the duty-risk | ^analysis. Later, this court recognized that before a bank can be found liable utilizing the duty-risk analysis under La. Civ.Code art. 2315, “it must first be determined that the bank owed a fiduciary duty to the plaintiff.” D & J Tire, Inc. v. Bank One, La., Nat’l Ass’n, 02-935, p. 2 (La. App. 3 Cir. 2/5/03), 838 So.2d 112,114, writ denied, 03-667 (La.5/2/03), 842 So.2d 1107 (quoting Succession of McKnight, 33,802, p. 5 (La.App. 2 Cir. 10/4/00), 768 So.2d 794, 799, writ denied, 00-3072 (La.2/9/01), 785 So.2d 822). Also see Guidry v. Bank of LaPlace, 94-1758 (La.App. 4 Cir. 9/15/95), 661 So.2d 1052.

This conclusion is supported by the supreme court’s definition of “fiduciary” as found in Scheffler v. Adams and Reese, LLP, 06-1774, pp. 6-7 (La.2/22/07), 950 So.2d 641, 647-48:

A fiduciary relationship has been described as “one that exists ‘when confidence is reposed on one side and there is resulting superiority and influence on the other.’ ” Plaquemines Parish Commission Council v. Delta Development Company, Inc., 502 So.2d 1034, 1040 (La.1987), quoting Toombs v. Daniels, 361 N.W.2d 801, 809 (Minn.1985).

The word “fiduciary,” as a noun, means one who holds a thing in trust for another, a trustee; a person holding the character of a trustee, or a character analogous to that of a trustee, with respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires; a person having the duty, created by his undertaking, to act primarily for another’s benefit in matters connected with such undertaking.

State v. Hagerty, 251 La. 477, 492, 205 So.2d 369, 374 (1967), quoting 36A C.J.S. Fiduciary, p. 381. One is said to act in a fiduciary capacity “when the business which he transacts, or the money or property which he handles, is not his own or for his own benefit, but for the benefit of another person, as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other.” Hageriy, 251 La. at 493, 205 So.2d at 374-375, quoting BLACK’S LAW DICTIONARY (4th ed.1951).

The term “fiduciary” is defined in the Uniform Fiduciaries Law, LSA-R.S. 9:3801(2), as follows:

| ¡/‘Fiduciary” includes a trustee under any trust, expressed, implied, resulting or constructive, executor, administrator, guardian, conservator, curator, receiver, trustee in bankruptcy, assignee for the benefit of creditors, partner, agent, officer of a corporation, public or private, public officer, or any other persons acting in a fiduciary capacity for any person, trust or estate.

A required element of negligent misrepresentation is a fiduciary relationship or contract. Therefore, we find that La.R.S. 6:1124 would foreclose the possibility of a lawsuit against a bank for negligent misrepresentation unless there was a contract or a written agreement that the financial institution had a fiduciary obligation to the person claiming negligent misrepresentation. The trial court was correct in granting summary judgment in favor of Capital One regarding Priola’s claim that Capital One was guilty of negligent misrepresentation.

Detrimental Reliance

Louisiana Civil Code Article 1967 provides for the doctrine of detrimental reliance as follows:

A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

The supreme court in Suire v. Lafayette City-Parish Consolidated Government, 04-1459, 04-1460, 04-1466, p. 31 (La.4/12/05), 907 So.2d 37, 59, discussed the application of detrimental reliance as follows:

The doctrine of detrimental reliance is “ ‘designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence.’ ” Babkow v. Morris Bart, P.L.C., 1998-0256 (La.App. 4 Cir. 12/16/98), 726 So.2d 423, 427 (quoting Orr v. Bancroft Bag, Inc., 29,-046 (La.App. 2 Cir. (1/22/97), 687 So.2d 1068, 1070)). To establish detrimental reliance, a party must prove three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance. Lakeland |10Anesthesia, Inc. v. United Healthcare of La., Inc., 2003-1662 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 393, unit denied, 2004-0969 (La.6/25/04), 876 So.2d 834; Babkow, 726 So.2d at 427. Significantly, to prevail on a detrimental reliance claim, Louisiana law does not require proof of a formal, valid, and enforceable contract. Babkow, 726 So.2d at 429 (citing Morris v. People’s Bank & Trust Co., 580 So.2d 1029 (La.App. 3 Cir.), writ denied 588 So.2d 102 (La.1991)).

The deposition testimony in the present case reveals the following. Priola’s whole case is based on a statement made by Blake McCaskill to Josh Priola. Due to the New Year’s Eve deadline set by the Johnson Defendants, Mr. Priola contacted Mr. McCaskill by phone and inquired about the status of the loan to the Johnson Defendants. Mr. Priola stated that Mr. McCaskill told him “they were collecting information, had one more piece of information to get. They got it, and it looked great and it was more than what they hoped for and the commitment process would begin when he got back in the office.” Mr. McCaskill agreed that he told Mr. Priola that it looked good for the Johnson Defendants based on what he received. Based on this verbal communication, Priola began remodeling the restaurant. Priola never received the letter of commitment as required by its own contract with the Johnson Defendants. The loan application was finally submitted on November 14, 2006, and on December 4, the loan was denied. Priola continued to negotiate contracts with the Johnson Defendants, even negotiating a final contract after Priola had notice that the Johnson Defendants had not been approved for the loan. Priola admitted that it never did any independent evaluation of the Johnson Defendants’ ability to pay.

No deliberate attempt to mislead Mr. Priola on the part of Mr. McCaskill can be gleaned from these statements. Mr. Prio-la called Mr. McCaskill and asked about the status of the Johnson Defendants’ loan. Mr. McCaskill told Mr. Priola that on paper things looked good. He further told Mr. Priola that he was going to begin the commitment process when he got back to the office. Priola proceeded at its own risk [^without waiting for the letter of commitment that it required in the contract from the Johnson Defendants. Prio-la proceeded knowing that although the loan process had begun, the loan had not been approved. Furthermore, Priola negotiated a final contract with the Johnson Defendants knowing that the loan had not been approved, indicating that it would continue operating under the contracts as negotiated regardless of the loan status.

We find no genuine issues of material fact and that Capital One was entitled to judgment as a matter of law. Summary judgment was appropriate as to Priola’s claims for breach of contract, negligent misrepresentation, and detrimental reliance.

ACCESSION

Priola sought to recover from Capital One the cost of its improvements to the Capital One Building under the Louisiana Civil Code provisions on accession in relation to immovable property. Specifically, Priola relied on La.Civ.Code art. 495 which provides:

One who incorporates in, or attaches to, the immovable of another, with his consent, things that become component parts of the immovable under Articles 465 and 466, may, in the absence of other provisions of law or juridical acts, remove them subject to his obligation of restoring the property to its former condition.
If he does not remove them after demand, the owner of the immovable may have them removed at the expense of the person who made them or elect to keep them and pay, at his option, the current value of the materials and of the workmanship or the enhanced value of the immovable.

The trial court found that no contract existed between Capital One and Priola for the renovations and that the commercial lease between the Johnson Defendants and Capital One disposed of the accession rights reimbursement issue. Capital One claimed that the lease denied the Johnson Defendants any build-out expense since the place had previously operated as a restaurant/dining room and it considered the | ^improvements as cosmetic and unnecessary. Priola argues that the lease provisions do not apply because the provisions of the lease set the commencement date of the lease after Priola had completed substantially all of the improvements to the Capital One Tower.

Section 1.1 of the lease specifically provided that (emphasis in original): “Space shall be taken in ‘as-is’ condition.” Section 5.3 provided, in pertinent part:

All other property at the Leased Premises and any alteration or addition to the Leased Premises (including wall-to-wall carpeting, paneling or other wall covering) and any other articles attached or affixed to the floor, wall or ceiling of the Leases Premises shall become the property of Lessor and shall remain upon and be surrendered with the leased Premises as part thereof at the termination of this Lease, Lessee hereby waiving all rights to any payment or compensation therefor. If, however, Lessor so requests in writing, Lessee will, at its expense, promptly remove any and all fixtures, equipment and property placed or installed by it in the Leased Premises and repair any damage caused by such removal.

Comment (b) to Article 495 provides, in pertinent part: “When improvements are made by a lessee in accordance with the terms of the lease, the rights of the parties are determined by the contract or under the law of lease. Article 495 applies only in the absence of other provisions of law or juridical act.”

In Smith v. State, Department of Transporation & Development, 04-1317 (La.3/11/05), 899 So.2d 516, the supreme court discussed the application of Article 495, noting that it is a supplementary remedy that applies in the absence of other laws or juridical acts.

Louisiana Civil Code Article 2695 provides:

In the absence of contrary agreement, upon termination of the lease, the rights and obligations of the parties with regard to attachments, additions, or other improvements made to the leased thing by the lessee are as follows:
(1) The lessee may remove all improvements that he made to the leased thing, provided that he restore the thing to its former condition.
11S(2) If the lessee does not remove the improvements, the lessor may:
(a) Appropriate ownership of the improvements by reimbursing the lessee for their costs or for the enhanced value of the leased thing whichever is less; or
(b) Demand that the lessee remove the improvements within a reasonable time and restore the leased thing to its former condition. If the lessee fails to do so, the lessor may remove the improvements and restore the leased thing to its former condition at the expense of the lessee or appropriate ownership of the improvements without any obligation of reimbursement to the lessee. Appropriation of the improvement by the lessor may only be accomplished by providing additional notice by certified mail to the lessee after expiration of the time given the lessee to remove the improvements.
(c) Until such time as the lessor appropriates the improvement, the improvements shall remain the property of the lessee and the lessee shall be solely responsible for any harm caused by the improvements.

Comment (b) to Article 2695 provides, in pertinent part, that:

Article 2695 (Rev.2004) provides a sup-pletive rule of law that applies only in the absence of a contrary agreement regarding the fate of the improvements at the end of the lease. The agreement may be made at any time, such as at the making of the lease contract, or at any time before or after the making of the improvements.

Obviously, the law does not require that the lease have commenced when the agreement concerning improvements is made or even that the agreement regarding the fate of the improvements be confected before the improvements are made. In the present case, the agreement was made at the time of the making of the lease contract. Therefore, Article 495 does not apply in this case, since the lease determined that lessees would not be reimbursed for any improvements.

Furthermore as stated in Smith, 899 So.2d at 533(citations omitted):

Article 495 provides a mechanism for a person to retain those items of value he incorporates or attaches to the property of another. Further, the I ,,,article provides a mechanism for the landowner to have those improvements removed from his property, if he so desires, by demanding their removal. If upon demand the improver fails to remove, the owner may remove the items or elect to keep them and then pay the value of the items to the improver. However, Article 495 does not appear to contemplate a situation where the improver abandons his improvements, then makes a demands to be compensated for their value. Thus, Article 495 does not require a lessor to pay for improvements to a lessee if the lessee abandons the improvements upon the termination of the lease.

Even if Article 495 did apply, there is no testimony whatsoever that Capital One has demanded that Priola remove the improvements and restore the property to its former condition, a condition which must be met before Priola can demand compensation.

For these reasons, we find that summary judgment was also appropriate as to Priola’s claim for reimbursement due to accession principles.

The judgment of the trial court granting Capital One’s motions for summary judgment is affirmed. Costs of this appeal are assessed to Priola Construction Corporation.

AFFIRMED.

      . The Johnson Defendants included Profast Development Group, Inc., Profast Development Group, L.L.C., FJ80 Enterprizes, L.L.C., 430 Club, L.L.C., Fulton "Flip” Johnson, and Randall Keith Ballard.

      . We observe that pursuant to La.R.S. 9:4801-9:4855, The Private Works Act, Prio-la's claim for a privilege is limited to an owner who has contracted with it in writing to the price and work of the contract. In this case, that is the Johnson Defendants. This privilege is also inferior to the rights owed to the lessor.


author: SAUNDERS, Judge.

text:
    STATE in the Interest of T.W.
    No. JAK 09-532.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 2009.

      Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, T.W.
    Michelle Breaux, Assistant D.A., 15th JDC, Lafayette, LA, for Appellee, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

JpFACTS AND PROCEDURAL HISTORY

The State of Louisiana filed a petition for delinquency on August 12, 2008, contending the Juvenile, T.W., should be adjudicated a delinquent in that he committed armed robbery, in violation of La.R.S. 14:64. The trial court heard evidence on February 11, 2009, and found T.W. to be a delinquent child. The trial court then rendered a disposition, remanding the Juvenile to the Department of Juvenile Justice until the age of twenty-one.

The Juvenile was convicted of having robbed Cigarettes and Checks on Kaliste Saloom Road in Lafayette at 10:30 a.m. on August 8, 2008, while armed with a gun. The owner of the store indicated $12,000.37 was taken during the robbery. A Motion for Expedited Appeal and Designation of Record was filed on February 23, 2009, and subsequently granted. The Juvenile is now before this court asserting the following assignments of error:

APPELLANT’S ASSIGNMENTS OF ERROR:

1. The evidence introduced at the adjudication hearing of this case when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, was insufficient to prove all of the elements of the offense of armed robbery beyond a reasonable doubt.
2. The juvenile court failed to conduct a disposition hearing as required by La. Child. Code art. 893.
3. The juvenile judge failed to address the needs of [T.W.] in arriving at the disposition in this case[,] and the imposition of juvenile life is excessive.
4. The juvenile judge erred when it agreed with the prosecutor that it lacked discretion and was required to impose a disposition of secure confinement until [T.W.’s] twenty-first birthday.
5. Trial counsel rendered ineffective assistance by failing to move the court for dismissal of the Petition due to the State’s failure to timely set the adjudication hearing.

JaLAW AND DISCUSSION OF THE MERITS:

Assignment of Error No. 1

In his first assignment of error, T.W. contends the evidence introduced at the adjudication hearing was insufficient to prove all of the elements of the offense of armed robbery beyond a reasonable doubt.

In a juvenile proceeding, the state’s burden of proof is the same as in a criminal proceeding against an adult-to prove beyond a reasonable doubt every element of the offense alleged in the petition. La. Ch.Code art. 883; In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). “In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).

State in the interest of D.P.B., 02-1742, pp. 4-5 (La.5/20/03), 846 So.2d 753, 756. “[AJppellate review in juvenile delinquency proceedings extends to both law and facts.” State in the interest of L.T., 99-487, p. 6 (La.App. 3 Cir. 10/13/99), 747 So.2d 148,152.

In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and if such a basis does exist, (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. See Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). If there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. However, where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the appellate court may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Id.

State in the interest of D.H., 04-2105, pp. 7-8 (La.App. 1 Cir. 2/11/05), 906 So.2d 554, 560.

L[W]hen the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Weary, 03-3067 (La.4/24/06), 931 So.2d 297; State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649. Positive identification by only one witness is sufficient to support a conviction. Weary, 03-3067 at p. 18, 931 So.2d at 311; Neal, 00-0674 at p. 11, 796 So.2d at 658; State v. Mussall, 523 So.2d 1305, 1311 (La. 1988).

State v. Hughes, 05-992, pp. 5-6 (La.11/29/06), 943 So.2d 1047,1051.

“Identification by a single witness may support a conviction despite considerable alibi testimony. State in the Interest of Johnson, 461 So.2d 551 (La.App. 3 Cir.1984); State v. Brian, 502 So.2d 293 (La.App. 3 Cir.1987).” State v. Henry, 95-428, p. 6 (LaApp. 3 Cir. 10/4/95), 663 So.2d 309, 311, writ denied, 96-681 (La.5/16/97), 693 So.2d 793. “In Louisiana, a defendant can be convicted on the uncorroborated testimony of an alleged accomplice.” State v. Mitchell, 35,970, p. 10 (La.App. 2 Cir. 5/8/02), 818 So.2d 807, 814.

Luis Farfan (Farfan), the manager of Cigarettes and Checks, testified that he was robbed at gun point on August 8, 2008, between 10:30 and 11:00 a.m. by two men. Farfan described one-man as tall and the other as a little shorter. The taller man was five feet six or seven inches, and the shorter man was five feet three or four inches. The two men were dressed in black and wore sunglasses, and one had a red bandana over his face. He did not recall what the other man’s face was covered with. However, he testified that neither of the men wore a shirt over his face. The taller man, who wore the red bandana, possessed the gun. Farfan testified that one of the men was black.

Helen Mouton (Mouton) testified that she lived on Rosedale Drive and could see the back of Cigarettes and Checks from her home. On August 8, 2008, Mouton was having a yard sale and testified regarding what she saw that day as follows:

|4I told him we were having a yard sale and that we were in the driveway and looking towards the street and where my little table was about twelve (12) feet from the street and that we saw — first of all, we saw two guys walking down the street that we had previously seen in the neighborhood. And we waved to them, and they waved back to us.
Her testimony continued as follows:
And the same two guys at the approximate time of the robbery that the detective told me that the store had been robbed, these two guys were hauling it down our street toward Verot School Road. And that would be the same two guys that we had seen earlier go toward Kaliste Saloom Road.

She testified that the men wore black warmup apparel and, when they were running down the street, they had hoods on. She further testified that one wore a shirt that had a large red and white design. The men were between the ages of seventeen and twenty-five.

Brittney Bujard (Bujard) testified that she worked at Sugar and Spice Daycare which was across the street from the apartment complex where the Juvenile lived. On August 8, 2008, she saw a man grab a black bag out of the bushes. She testified that the bag looked like a purse, but it did not have straps. The man then ran to the apartment building. She could not identify the Juvenile as the person she saw retrieving the bag.

In her statement to police, Bujard said that the man wore a black shirt that had graffiti in various colors on it and baggy shorts that were tan, off-white, or khaki. He also wore red boxers with a light-colored print on them. She testified that she told police the man was five feet five to seven inches tall. She further testified that he was wearing pants.

Detective Craig Mouton was dispatched on August 8, 2008, to Cigarettes and Checks. Detective Mouton testified that he was informed that the men who robbed | sthe store were wearing “dark clothing, wind pants, dark ... hoodie, which is a jacket with a hood. And something covering their face. One had a red bandana.... And the other one had a black bandana.... ” They also wore sunglasses. Police, after following a lead, went to apartment sixty-eight at an apartment complex on South Beadle. Detective Mouton indicated police found a hoodie, wind pants, and a red bandana in the apartment. However, the clothes that were seized were “common clothes.” Police searched the apartment a second time looking for the gun used in the robbery, but it was not found. Additionally, no money was recovered.

Detective Mouton indicated that a person at Sugar and Spice Daycare reported seeing two black males walking on South Beadle Road toward the apartment complex carrying a purse. She was presented a photographic lineup from which she selected the Juvenile’s brother, stating she was seventy percent sure he was the person she observed walking on South Beadle Road.

Detective David LeBlane testified that Sugar and Spice Daycare was across the street from the apartment complex, and Cigarettes and Checks was about a mile away from the apartment complex. Detective LeBlane further testified that when searching the apartment, police found two black sweatshirts in the living room, a denim jacket with a hood in a bedroom, a black pair of wind pants in a bedroom, and a gold shoe in the closet with a plastic bag containing a substance that tested positive for cocaine. Police also seized two red bandanas, two black bandanas, and a pair of sunglasses. Police did not find a sweatshirt with bright colors on it. The items were found in the bedroom of the Juvenile’s brother. Detective LeBlanc also testified that Bujard was presented with a photographic lineup and indicated she was seventy percent sure the Juvenile’s brother was one of the people she saw acting suspiciously on the day in | ^question.

Antoine Charles (Charles), who was incarcerated at the time of the hearing, testified that on August 8, 2008, he and the Juvenile went to Cigarettes and Checks. Charles testified that the Juvenile entered the store with a gun, and he followed. The Juvenile then told the clerk to put the money in the bag. Charles testified that he forgot what kind of gun the Juvenile had. After the Juvenile got the money, the two ran toward the apartment complex and went to the Juvenile’s home. At that time, the Juvenile’s older brother was home. After they entered the apartment, the money was counted, and Charles left. Charles did not know what the Juvenile did with the money, and he did not get any of the money. In his statement to police, Charles said he went straight to his house after the robbery.

Charles testified that he wore all black clothing and a hoodie during the robbery, and his face was also covered with a bandana, which he thought was red. In a statement to police, he indicated the bandana was red. He testified that the Juvenile’s face was covered with a black shirt. He further stated, “[h]e had like it was a hoodie like but it was just a shirt.”

B.W., the Juvenile’s mother, testified that on the morning of August 8, 2008, she brought the Juvenile to Comeaux High School to complete registration and left him there at approximately 9:30 or 9:40 a.m. B.W. then stopped by her apartment for a few minutes and proceeded to work. She testified that her neighbor called her between 10:20 and 11:00 a.m. and informed her that her sons were in the back of a police car.

B.W. further testified that the Juvenile was five feet eight or nine inches tall at the time of the hearing, and he had not grown that much. B.W. indicated that the 17Juvenile and Charles once had words over Charles picking on a little boy. B.W. also testified that the Juvenile had never been in trouble before. However, she subsequently admitted that he had been involved in simple criminal damage to property in 2007 and a simple burglary in “November of 2008.” She then testified that she meant he had never been in trouble of this magnitude.

In brief to this court, the Juvenile does not dispute that an armed robbery occurred. However, he asserts the evidence was insufficient to prove he committed the offense. The Juvenile contends there was no testimony that physical evidence located at the scene linked him to the crime. No money was recovered from his residence or his person, the gun was not located, and, although clothes which matched the general description given by Farfan and Mouton were located in the apartment where he resided, most were found in his brother’s room and were very generic or common. Further, the Juvenile provided evidence to explain why Charles would falsely accuse him. The Juvenile concludes that the State failed to negate the probability of misidentification; thus, his adjudication should be set aside.

We note there are discrepancies in the testimony in this case. Farfan testified that the taller man wore the red bandana and had the gun, while Charles testified that he wore a red bandana, and the Juvenile had the gun. Charles further testified that the Juvenile wore his shirt over his face, and Farfan testified that neither of the men covered their face with a shirt. Mouton testified that Farfan said the men wore dark hoodies, and Farfan testified that the men were dressed in black. Further, a denim hoodie and two black sweatshirts were found at the Juvenile’s residence. However, Mouton and Bujard testified regarding a printed sweatshirt, and no printed sweatshirt was found at the Juvenile’s residence, and Farfan did not indicate that either man’s Rshirt bore a print or was any color other than black.

Although these discrepancies exist, we find that the judge made a credibility determination in this matter and found the Juvenile committed armed robbery. Accordingly, this court finds that this assignment of error lacks merit, and we affirm the trial court’s determination.

Assignment of Error No. 2

In his second assignment of error, the Juvenile contends the trial judge failed to conduct a disposition hearing in the case at bar.

Louisiana Children’s Code Article 892 provides: “Prior to entering a judgment of disposition, the court shall conduct a disposition hearing. The disposition hearing may be conducted immediately after the adjudication and shall be conducted within thirty days after the adjudication. Such period may be extended for good cause.”

More specifically, La.Ch.Code art. 893 adds, in pertinent part:

A.At the disposition hearing, unless the child waives the presentation, the court shall hear evidence as to whether the child is in need of treatment or rehabilitation and shall make and file its findings.
B. All evidence helpful in determining the proper disposition, including oral and written reports, the report of the predisposition investigation, any reports of mental evaluation, and all other evidence offered by the child or the state shall be received by the court and may be relied upon to the extent of its probative value even though not admissible at the adjudication hearing. Upon motion of the district attorney or the child, the court may hear testimony from the victim of the offense.
C. Counsel for the state and for the child shall be afforded an opportunity to present evidence and to examine and controvert written reports so received and to cross-examine individuals preparing the reports or other witnesses who give testimony at the hearing. Sources of confidential information need not be disclosed.

Immediately after the adjudication in the case at bar, the following transpired:

|flTHE COURT: All right. The Court finds the defendant guilty as charged and orders the defendant to serve—
MS. NEUMANN: Judge, before you set that, we might just indicate that he’s been in jail since August, which is six (6) months. He has been a model prisoner. He has helped in—
THE COURT: This is a serious offense. I understand. This kid is in denial, and I don’t like what I’ve heard. And he’s going to serve until his twenty-first (21st) birthday because that’s as long as I can lock him up for.
MS. BREAUX: You have to, Judge. You have no discretion.
THE COURT: Yes.
MS. BREAUX: Thank you.

The Juvenile asserts that familiarity with a juvenile and a lengthy history with the trial court does not absolve the trial court from conducting a disposition hearing. Further, counsel’s failure to object to the immediate disposition did not waive his right to a hearing. In support of his argument, the Juvenile cites State in the Interest of O.R., 96-890 (La.App. 5 Cir. 2/25/97), 690 So.2d 200; State ex reí. E.S., an unpublished opinion bearing docket number 08 — 41 (La.App. 4 Cir. 8/20/08); and State in the Interest of C.D., 95-160 (La.App. 5 Cir. 6/28/95), 658 So.2d 39.

In C.D., 658 So.2d 39, and O.R., 690 So.2d 200, the fifth circuit vacated the dispositions and remanded for disposition hearings where the record failed to reflect that disposition hearings had been held, and the record failed to reflect that the juveniles waived such a hearing.

In State in the interest of EG., 34,535 (La.App. 2 Cir. 1/24/01), 778 So.2d 716, the trial court conducted a summary disposition without a hearing. The second circuit vacated the disposition and remanded for a disposition hearing or a clear waiver of the hearing. In reaching its decision, the second circuit chose not to interpret defense | incounsel’s silence as a waiver.

In light of the mandatory language of La.Ch.Code art. 892, we vacate the disposition and remand the case for a disposition hearing.

Assignment of Error No. 3

In his third assignment of error, the Juvenile contends juvenile life was not the least restrictive disposition appropriate in this case and a lesser disposition would satisfy the needs of all concerned. In light of our decision that the disposition be vacated, no further discussion on this issue is necessary.

Assignment of En~ror No. ⅛

In his fourth assignment of error, the Juvenile contends that the trial judge erred in concluding it had no discretion as to the length of the disposition imposed. In light of our decision that the disposition be vacated, no further discussion on this issue is necessary.

Assignment of Error No. 5

In his fifth assignment of error, the Juvenile contends that trial counsel rendered ineffective assistance of counsel by failing to object to the time delays or failing to seek relief as a result of the untimely hearings held in this matter.

La.Ch.Code art. 854 requires a child continued in custody to appear to answer the petition within five days after the filing of the petition, unless it is filed prior to or during the continued custody hearing. When that occurs, the court can order the juvenile to answer the petition at the conclusion of the hearing. The Juvenile asserts that it is possible that he was called on to appear and answer the petition more than five days after it was filed, which would have violated the mandates of La. Child.Code art. 854.

11 ¡Further, La.Child.Code art. 877 requires that adjudication hearings be set within thirty days of the appearance to answer the petition if the child is continued in custody, and within ninety days if the child is not continued in custody.

Based on the original court minutes, appellate counsel asserts the Juvenile appeared to answer the petition on October 29, 2008, and the adjudication hearing was set for December 3, 2008. The Juvenile asserts the adjudication hearing was set five days in excess of the thirty-day period provided for by article 877. The December hearing was continued by joint motion and set for January 7, 2009. Further on January 7, 2009, the State sought a continuance, and counsel for the Juvenile objected to the continuance. However, the continuance was granted and the matter was set for February 11, 2009. The Juvenile noted the transcript of the continuance is not contained in the record and the minutes of court do not indicate any showing of good cause for the continuance.

The Juvenile asserts the record indicates he remained in custody between the appearance date of October 29, 2008, and the hearing date of December 3, 2008. The Juvenile further asserts this setting clearly violated La.Ch.Code art. 877. Further, the adjudication hearing was not held until February 11, 2009, fifteen days after the lapse of the ninety-day period allowed by article 877, when the Juvenile was not in custody. In a footnote in her brief to this court, appellate counsel asserts that although the minutes of court for December 3, 2008, indicate a bond was set and the Juvenile was placed under house arrest, there was no evidence that he actually posted bond and information obtained from the Juvenile indicated he was not released on bond after his arrest on August 8, 2008. The Juvenile further asserts the record does not indicate the State attempted to show good cause for any of the settings or a finding by the 112court that good cause for extension of the time limitations existed.

The Juvenile contends it was error for the case to be heard outside the thirty day and the ninety-day periods without a showing of good cause. He further contends that if counsel would have filed a motion to dismiss the petition after the first hearing date, which exceeded the thirty-day period, the petition would have likely been dismissed, and he would have been discharged from custody. He asserts that the same result would likely have occurred even if a motion was filed after the adjudication hearing.

We note that although the original court minutes of October 29, 2008, indicate the Juvenile was arraigned, the transcript of that date and corrected court minutes do not show the Juvenile was arraigned. At a hearing held on December 3, 2008, the State asserted legal delays were waived because the matter had to proceed to trial within thirty days. However, the waiver of delays does not appear in the record. Furthermore, the Juvenile did not object to a continuance that was granted on December 3, 2008, which the State sought because it was not prepared to proceed to trial. On January 7, 2009, the State sought another continuance, which was granted over the objection of the Juvenile. However, there is no recording of the hearing held on that date. Thus, the basis for the objection is not clear.

For the above stated reasons, we find the record before this court is insufficient to make definitive findings as to the Juvenile’s claims that counsel was ineffective for failing to object to the time delays or to seek relief as a result of untimely hearings. Accordingly, the Juvenile’s claims are relegated to post-conviction relief proceedings where, if warranted, a full evidentiary hearing may be conducted to develop a sufficient record on the issues raised. See State v. Leger, 05-11 (La.7/10/06), 936 _JjoSo.2d 108, cert, denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).

CONCLUSION:

For the reasons stated above, the Juvenile’s adjudication is affirmed. However, the Juvenile’s disposition is vacated and the matter remanded for a disposition hearing.

ADJUDICATION AFFIRMED, DISPOSITION SET ASIDE, AND REMANDED WITH INSTRUCTIONS.


author: COOKS, Judge. AMY, J.,

text:
    Mary J. PERRIN and Hunter Perrin v. RANDY TUPPER HOMES, et al.
    No. 08-1418.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 14, 2009.
    Jere Jay Bice, Bice, Palermo & Veron, L.L.C., Lake Charles, LA, for Plaintiffs/Appellants, Mary J. Perrin and Hunter Perrin.
    Charles V. Musso, Jr., Plauche’, Smith & Nieset, Lake Charles, LA, for Defendants-Appellees, Randy Tupper Homes, Et Al.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, MARC T. AMY, ELIZABETH A. PICKETT, and BILLY H. EZELL, Judges.
   COOKS, Judge.

hFACTS

Hunter Perrin and his wife, Mary J. Perrin (Plaintiffs), while driving through a developing subdivision on a Sunday afternoon, focused their attention on a townhouse nearing completion in Graywood Subdivision, Lake Charles, Louisiana (Graywood). The couple, looking to purchase a new home in Graywood, stopped to take a closer look at the home, observing that it appeared to be near completion and perhaps available for purchase. Although it is disputed whether this town-house had a “for sale” sign posted, it is undisputed and admitted by Defendant Tupper there were no signs, tape, nor barricade warning, preventing, or prohibiting persons from entering upon the premises. Defendants’ own exhibit in support of the Motion For Summary Judgment demonstrates there was signage against the exterior wall of the house advertising Tupper Homes posted on the property. The sign included a telephone number and contact names. The development had several homes and town-homes under various stages of construction, many posted with “for sale” signs, as well as many signs advertising various builders, contractors, and construction companies in the subdivision, including Tupper Homes.

There was no concrete or paved walkway leading to the house. Instead, a series of wooden pallets were placed on the damp ground to fashion a makeshift walkway from the street to the garage to allow access to the home. The photograph in evidence depicts such a wooden pallet directly in front of the Tupper Homes sign. Because the ground was “tacky and damp” that day, Plaintiffs decided to use the pallet walkway to get to the town-house from the street. As she walked across the wooden pallets, Mary Perrin fell and allegedly injured her right shoulder. Plaintiffs | .¿sued Randy Tupper Homes d/b/a Fantasy Homes, Inc., the general contractor building the town-house, and Employers Mutual Casualty Company (Defendants), its general liability insurer.

The trial court granted summary judgment in favor of Defendants dismissing the case, finding Plaintiffs entered the property without express or implied legal consent from either the owner or the custodian of the property. The trial court ruled from the bench and mentioned in its oral reasons for judgment Plaintiffs did not have implied consent to be on the property and were not on the property “for making a delivery or conducting business or communicating with the owner or custodian.” Based on these conclusions, the trial court found Plaintiffs were trespassers in violation of La.R.S. 14:63, despite also finding Plaintiffs had a legitimate reason to “look at the property.” Under the provisions of La.R.S. 14:63(H)., the trial court found Defendants were immune from suit by such trespassers and for these reasons granted summary judgment dismissing Plaintiffs’ suit. Plaintiffs appealed alleging the trial court committed legal error and must be reversed. We agree. The judgment of the trial court is reversed and the case is remanded for further proceedings.

LAW AND ANALYSIS

Plaintiffs did not commit criminal trespass. The provisions of La. R.S. 14:63(F) provide in pertinent part:

The following persons may enter or remain upon immovable property of another, unless specifically forbidden to do so by the owner or other person with authority, either orally or in writing: (3) Any person making a delivery, soliciting, selling any product or service, conducting a survey or poll, a real estate licensee or other person who has a legitimate reason for making a delivery, conducting business or communicating with the owner, lessee, custodian or a resident of the immovable property, and who, immediately upon entry, seeks to make the delivery, to conduct business or to conduct the communication. (Emphasis added.) |:iLa. R.S. 14:63(F)(3)

Defendant Tupper admits there were no signs, warning tape, nor barricades whatsoever on the subject property forbidding anyone to enter upon the premises. The trial court made a factual finding that Plaintiffs had a legitimate reason to be on the property, i.e. they were looking at the property as prospective home buyers. Under the express provisions of La. R.S.14:63 (F)(3) Plaintiffs were “other persons” who had a “legitimate reason” for conducting business or communicating with the owner or a custodian of the property. Plaintiffs testified they were attracted to the home where the accident occurred because it appeared to be the type of house they were looking to purchase in Graywood. Defendant testified he was the sole contractor building houses on the street where the alleged accident occurred. He also testified there were many of his signs throughout Graywood, and on this street, advertising Tupper Homes/Fantasy Homes. Depicted in Defendants exhibits are his own photographs of the subject property showing a Randy Tupper Homes Design and Construction sign. Defendant also admits some homes were for sale although this particular home was built for identified owners.

The statute does not define “implied consent” and is not necessary that we fashion a definition nor determine whether Mrs. Perrin had implied consent to walk up to the house nearing completion in a developing subdivision with many newly constructed or partially constructed homes for sale. Nevertheless, it would certainly appear that the area was being actively marketed and was intended to invite and attract prospective home buyers like the Plaintiffs. Be that as it may, the pertinent provisions of La.R.S. 14:63 at paragraph F. clearly place the burden on the “owner or other person with authority” to either post a written notice forbidding persons from entering upon the property or to orally forbid access. Clearly, neither prohibition was |4present here. The statute further authorizes certain persons to “enter or remain” upon immovable property of another when there is no notice forbidding entry. Plaintiffs are included in that list of authorized persons: “Any person ... .who has a legitimate reason for conducting business or communicating with the owner, lessee, custodian or resident ... who immediately ... seeks to conduct business or to conduct the communication.” La. R.S. 14:63(F)(3). As the trial court found, Plaintiffs obviously had a legitimate reason for conducting business with or communicating with the owner or custodian of the property. Plaintiffs were prospective buyers, not criminal trespassers.

We agree with Plaintiffs that their behavior, engaged in frequently in all developing subdivisions, was not the sort of behavior criminalized by La.R.S. 14:63. Signs in the area were no doubt meant to attract the attention of prospective buyers or home builders who might logically conclude that they were welcome to stop and examine such homes in various stages of completion. It certainly could come as no surprise to Tupper that Plaintiffs, and no doubt many others, might approach these properties to take a closer look, get information, or attempt to make contact with or to conduct business with any representative of the owner or custodian they might encounter by visiting the property. No doubt, it would be disappointing indeed to Tupper if no one showed any interest in the homes he was building in Graywood or in his work being actively advertised through his products in Graywood.

The trial court erred as a matter of law in basing its ruling on whether Mrs. Perrin had implied consent to be on the property, and in making this erroneous application of law, further erred in applying the immunity provisions of La. R.S. 14:63. Because there were no signs posted on the premises forbidding entry thereon, the Plaintiffs were permitted to enter upon the property for legitimate reasons, in this 15case for the purpose of conducting business with or communicating with the owner or custodian of the immovable property. La.R.S. 14:63(F)(3).

Because the judgment on appeal is a summary judgment, our review is de novo, and we employ “the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. Under the provisions of La.Code Civ. P. art. 966, Defendants, as movers herein, are entitled to summary judgment only if they prove (1) there are no genuine issues of material fact in dispute and (2) they are entitled to judgment as a matter of law. We find Defendants are not entitled to judgment as a matter of law. Plaintiffs were not criminal trespassers as envisioned by La. R.S.14:63 and the immunity protection Defendants affirmatively rely on as a defense does not extend to any person whose activity falls within the exception expressly made in La.R.S. 14:63(F)(3). The ruling of the trial court is reversed and the case is remanded for further proceedings. All cost of appeal are assessed against Defendants.

REVERSED AND REMANDED

AMY, J., dissents and assigns reasons.

PICKETT, J., dissents for the reasons assigned by AMY, J.

EZELL, J., concurs.

AMY, J.,

dissenting.

U respectfully dissent from the majority opinion as I find that an affirmation is warranted and that the circumstances of this case do not implicate La.R.S. 14:63(F)(3).

Rather, La.R.S. 14:63(A) provides that “[n]o person shall enter upon immovable property owned by another without express, legal, or implied authorization.” In my opinion, the mere construction of this home in a neighborhood under development did not convey authorization for entry onto this privately owned property. Without such authority, and absent intentional acts or gross negligence, “owners, lessors, and custodians of structures, watercraft, movable or immovable property shall not be answerable for damages sustained by any person who enters upon the structure, watercraft, movable or immovable property ... [.]” La.R.S. 14:63(H). As there was no evidence of intentional acts or gross negligence, I find that the trial court correctly entered summary judgment.