source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    STATE of Louisiana v. Jeffery M. HAYDIN
    NO. 17-KA-234
    Court of Appeal of Louisiana, Fifth Circuit.
    December 20, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Anne M. Wallis, Andrew Decoste
    COUNSEL FOR DEFENDANT/APPELLANT, JEFFERY M. HAYDIN, James A. Williams, Lynléigh G. Noel, Mary Vallon Hicks
    Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Hans J. Liljeberg
   CHAISSON, J.

| defendant, Jeffery M. Haydin, appeals his conviction and enhanced sentence for second degree battery. For the reasons that follow, we affirm defendant’s conviction and sentence; however, we remand the matter for correction of an error patent as noted herein.

PROCEDURAL HISTORY

On January 20, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with the second degree battery of Katie Haydin, in violation of La. R.S. 14:34.1; Defendant pled not guilty at his arraignment on January 21, 2015. The matter proceeded to trial before a six-person jury on June 21, 2016. The following day, the jury returned a verdict of guilty as charged.

On August 4, 2016, the trial court sentenced defendant to five year's imprisonment at hard labor. The State filed a multiple offender bill of information, alleging defendant to be a second felony offender, to which defendant stipulated , on September 1, 2016. On the same date, the trial court resentenced defendant as a second felony offender, pursuant to La. R.S. 15:529.1, to ten years imprisonment at hard labor without benefit of probation or suspension of .sentence. Defendant now appeals.

FACTS

On November 21, 2014, defendant and his wife, Brandy Haydin, traveled from Mississippi to Metairie, Louisiana, to attend his mother’s funeral. While at his deceased mother’s home in Metairie, he noticed that certain items had been taken from her house. Nicole Jolly, a family friend who lived nearby, informed Brandy that she had observed Katie Haydin, defendant’s sister-in-law, at I ¡defendant’s mother’s house-removing boxes of items. Defendant called Scott Haydin, his brother and Katie’s husband, to inquire as to the whereabouts of the missing items and was informed that Scott and his family were celebrating his daughter’s birthday at Chuck E. Cheese and did not intend on discussing the subject at that time. Defendant then drove his family to the birthday party where an altercation ensued between defendant and Katie after defendant again attempted to broach the subject regarding his mother’s missing belongings.

Deputy Ryan Anear of the Jefferson Parish Sheriffs Office was dispatched to Chuck E. Cheese on Veterans Boulevard in Metairie, where he encountered defendant, who had called the police to report that he had been punched in the face by his sister-in-law Katie. However, according to Katie and her husband Scott, when defendant angrily confronted Scott about his mother’s belongings, Katie attempted to intervene at which time defendant berated her and then “chest bumped” her, prompting her to slap him in the face. When Deputy Anear advised defendant that Katie would not be arrested, but rather issued a misdemeanor citation for simple battery, he became upset, indicating his desire to have Katie taken to jail. Defendant then left the scene, refusing to provide a statement, and thus, a citation was never issued. Katie and Scott, who also did not live in the area, were advised to stay somewhere other than Denis Haydin’s house, if possible, since they suspected that defendant might go there.

Approximately one hour later, Deputy Anear responded to a call of a reported battery at Denis’s residence on Canterbury Lane. Upon arrival, Deputy Anear again encountered Katie and Scott, who explained that when they arrived at Denis’s house, defendant was standing outside of his truck yelling and “bouncing around” while on his phone. After informing the person on the phone that he was going “to beat this bitch up,” defendant walked straight up to Katie, knocked a box |,qout of Katie’s hands, and started hitting her and Scott before attempting to flee in his truck, which was being driven by defendant’s wife. Katie testified that she remembered being hit twice by defendant, the first time did not cause her injury, but the second time defendant punched her in the middle of her face with such force that she fell to the ground. Katie described that blood “gushed” from her nose and mouth and that she could not see or breathe.

Scott tried to stop defendant from leaving the scene by standing in front of defendant’s truck, as defendant instructed his wife to run him over. When Scott would not move, defendant got out of his truck with a broken glass bottle in hand and started to chase Scott. Defendant eventually returned to his truck and left the scene.

Deputy Anear noted that Katie was sitting in the driveway in a pool of her own blood and that Scott had “some visible marks on his face.” Katie was subsequently transported to the hospital for treatment of her injuries. Dr. Ramiz Khalaf, who treated Katie at the hospital, testified that Katie sustained a broken nose and had considerable swelling to her eye.

At trial, defendant presented a different version of events. According to Ms. Jolly, who was with defendant and his wife at the time of the incident, Katie and Scott arrived at Denis’s house and began yelling at defendant and his wife. Katie then approached defendant and threw a box at him, which defendant knocked away. She further testified that Katie punched defendant in the face and spit on him, prompting defendant to “slap” Katie. She recalled that defendant and Scott then began fighting with one another. Ms. Jolly further claimed that Scott’s son brought his father a drinking glass which he used to hit defendant. Defendant’s wife Brandy testified in accordance with Ms. Jolly’s account of the incident. .

ASSIGNMENT OF ERROR NUMBER ONE

(Sufficiency of the Evidence)

In his first assigned error, defendant challenges the sufficiency of the evidence used to convict him of second degree battery. First, he contends that the State failed to prove that Katie suffered “serious bodily injury,” and secondly, that the evidence presented at trial proved he acted in self-defense when he slapped Katie.'

In reviewing the sufficiency of the evidence, an appellate court must determine if the evidence, whether direct or circumstantial, or. a mixture of both, 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 have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Howard, 15-473 (La. App. 5 Cir. 12/9/15), 182 So.3d 360, 363. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Rather, a reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La. App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

In the present case, defendant was convicted of second degree battery. La. R.S. 14:34.1(A) provides, in pertinent part: “Second degree battery is a battery when the offender intentionally inflicts serious bodily injury.” La. R.S. 14:34.1(B)(3) defines “serious bodily injury” as “bodily injury, which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.”

| sIn the present case, defendant does not contest that a battery occurred.' However, he contends that his actions constituted simple battery, rather than second degree battery, because 'the State failed to prove Katie suffered “serious bodily injury.” Defendant specifically -claims that a broken nose that did not require surgery does not reach the threshold of “serious bodily injury” necessitated by the statute’s definition.

In State v. Mullins, 537 So.2d 386 (La. App. 4th Cir. 1988), the victim, who stood at five feet five inches, and the defendant, who was six feet tall, were driving home when an argument ensued. The victim and the defendant slapped each other, causing the victim to stop the car and get out. The defendant then followed her, grabbed her by the shirt, and punched her in the nose, breaking it. Afterwards, the two drove home, and once the defendant fell asleep, the victim went to her mother’s home and then to an area hospital for medical treatment of her broken nose. On appeal, the Fourth Circuit found that the evidence presented was sufficient to sustain the defendant’s conviction for second degree battery. In finding that the defendant possessed the requisite specific intent to inflict serious bodily injury, the appellate court noted, “when a larger man punches a smaller woman in her nose with enough force to break it, that bodily injury involves extreme physical pain.” Id. at 892'.

In State v. Accardo, 466 So.2d 549 (La. App. 5th Cir. 1985), writ denied, 468 So.2d 1204 (La. 1985), the twenty-one-year-old male defendant struck the seventeen-year-old female victim in the" head with either his fist or a blackjack after she refused his ■sexual advances. Regarding her injuries, the victim testified at trial that she was “stunned” and her head was swollen. On appeal, this Court found the evidence sufficient to establish that the defendant inflicted “serious bodily injury” on the victim even though “nowhere in her testimony did the victim, speak of losing consciousness, extreme pain (or any pain), disfigurement, or impairment [ñof a body function or part.” In affirming the defendant’s conviction, this Court noted that the victim did testify to receiving a blow to the head with either the defendant’s fist or a blackjack; that the injury suffered by the victim did cause pain and swelling to her head; and that when a twenty-one-year-old man strikes a seventeen-year-old girl on the head with either his fist or a blackjack, there is a substantial risk of death, serious injury, or possible disfigurement. Id. at 552-53. See also State v. Stowe, 93-2020 (La. 4/11/94), 635 So.2d 168 (where the Louisiana Supreme Court found that, reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the State proved the defendant had intentionally inflicted extreme physical pain on the officer without his consent).

Likewise, in this case, we find that the evidence was sufficient to establish all the elements of the offense of second degree battery, including that of “serious bodily injury” being challenged by defendant. At trial, the State presented evidence that after an altercation at Chuck E. Cheese, defendant and Brandy drove to Denis’s house where Katie and Scott were staying. Upon Katie and Scott’s arrival, they observed defendant .standing outside of his truck yelling and “bouncing around” while on his phone. After informing the person on the phone that he was going “to beat this bitch up,” defendant, who is larger than Katie, rushed towards her, knocked a box out of her hands, and started hitting her and Scott before attempting to flee in his truck. Katie testified that defendant punched her with a closed fist in the middle of her face with such force that she fell to the ground. Katie described that she could not see or breath as blood “gushed” from her nose and mouth. When the police arrived, Katie reported'her pain as a ten on a scale from one to ten. Katie was then transported to the hospital and treated by Dr. Khalaf for complaints regarding pain and swelling to her hose and eye. At the hospital, Katie reported her pain as a five on a scale of one to ten. After several |7tests, it was determined that Katie had sustained a broken nose and considerable swelling to her eye, for which Dr. Khalaf prescribed her pain medication.

In the present case, while the evidence did not show that Katie’s injury involved unconsciousness, disfigurement, protracted loss or impairment of the function of a bodily member/organ, or mental faculty, or a substantial risk of death, the evidence did establish that Katie’s injury caused her extreme physical pain. Moreover, as noted by the Fourth Circuit in State v. Mullins, supra, “when a larger man punches a smaller woman in her nose with enough force to break it, that bodily injury involves extreme physical pain.” Accordingly, viewing the evidence presented at trial in the light most favorable to the prosecution, we conclude that a rational trier of fact could have determined that the elements of the crime of second degree battery were proven beyond a reasonable doubt; thus, defendant is not entitled to a reduction of his conviction to the lesser offense of simple battery.

In his appellate brief, defendant also contends that he presented sufficient evidence at trial to prove by a preponderance of the evidence that he was acting in self-defense when he struck Katie.

The fact that an offender’s conduct is justifiable, although otherwise criminal, constitutes a defense to prosecution for any crime based on that conduct. La. R.S. 14:18; State v. Patterson, 10-415 (La. App. 5 Cir. 1/11/11), 63 So.3d 140, 148, unit denied, 11-338 (La. 6/17/11), 63 So.3d 1037. The use of force or violence upon- the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass |sagainst property in a person’s lawful possession, provided that the force or violence used,must be reasonable and apparently necessary to prevent such offense. La. R.S, 14:19(A); State v. Steele, 01-1414 (La. App. 5 Cir. 9/30/02), 829 So.2d 541, 547, unit denied, 02-2992 (La. 9/19/03), 853 So.2d 632. The aggressor or the person who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue ' the conflict. La. R.S. 14:21; State v. Howard, 182 So.3d at 363.

In a non-homicide case, the defendant has the burdefr of proving by a preponderance of the evidence that his actions were in self-defense or in defense of others. The defense of self-defense in a non-homicide situation requires a dual inquiry: an objective inquiry into whether the force used-was reasonable under the circumstances and a subjective inquiry into whether the force was apparently necessary. State v. Nailor, 10-1062 (La. App. 5 Cir. 11/15/11), 78 So.3d 816, 821-22, unit denied, 11-2780 (La. 4/27/12), 86 So.3d 626.

In the present case, the jury was presented with conflicting testimony regard-, ing the altercation at Denis’s house. The State presented testimony that upon Katie and Scott’s arrival at Denis’s house, they observed defendant standing outside of his truck yelling and “bouncing around” while on his phone. After informing the person on the phone that he was going “to beat this bitch up,” defendant, unprovoked, rushed towards her, knocked a box out of her hands, and started hitting her and Scott' before attempting to flee in his truck. "

Defendant presented a contrasting version of events to the jury through the testimony of Ms. Jolly, a long-time family friend, and his wife Brandy. In their version, Katie approached defendant, threw the box she was holding at him, punched him in the face and spit on him, which prompted defendant to “slap” Katie.

19In the present case, the jury clearly chose to believe Katie and Scott’s account of the events over that of defendant’s version. The credibility of witnesses is within the sound discretion of the trier of.fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Howard, 182 So.3d at 364. It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442, 443.

In light of the evidence presented at trial, we find that a rational trier of fact could have determined that defendant did not prove by a preponderance of the evidence that he acted in self-defense. Accordingly, defendant’s arguments relating to the sufficiency of the evidence are without merit.

ASSIGNMENT OF ERROR NUMBER TWO

(Authentication of Text Message)

In his second assignment of error, defendant argues that the trial court erred in admitting a text message, allegedly sent by defendant to his brother Scott, into evidence without proper authentication. Defendant claims that because only a printout of a screenshot of the text message was presented at trial, rather than the actual cell phone on which the text message was received, or testimony from the officer who took the screenshot, the message should not have been admitted into evidence.

At trial, defendant’s brother, Scott, testified that on the day of the incident, defendant sent him a text message after he and his wife had left Chuck E. Cheese, and before they arrived at them brother Denis’s house, which read:

So who gonna finish this? You or her let me know im bout that shit!
So me and you can finish talking lime [sic] we was before she came up or whatever you want to do? Let me know!

Defendant objected to the introduction of the text message, as being “unauthenticated,” claiming the State was attempting to provide a screenshot of the text .rather than the actual cell phone containing the text message. In response, the 11flState argued that the text message could be authenticated by the owner of the phone and recipient of the text message, Scott Hay-din. The trial court instructed the State to lay a foundation before the text message would be permitted into evidence. Thus, the State questioned Scott, as follows:

STATE: Alright, Scott, 2014, did you have a cell phone?
SCOTT: Yes.
STATE:' Alright, Who was the carrier, or provider, for your cell phone service?
SCOTT: I believe it was AT & T.
STATE: Did you receive on that phone, communications like phone calls and text messages?
SCOTT: Yes. •
STATE: Did you have in your phone, a phone number for your brother Jeffery?
SCOTT: Yes.
STATE: Did you have him saved in your contacts as “Jeffery”? If you remember.
SCOTT: I believe so, yes.
STATE: Alright. Has he communicated to you before on the number that you had saved “Jeffery” as?
SCOTT: That was—I believe that was the first time he actually texted me. We’ve only had actual voice calls—
STATE: I got you.
SCOTT:—up until that point.
STATE: Alright. Now that same number “Jeffery” that he would call you from, you also received a text message from that same Jeffery, correct?
SCOTT: Yes.
STATE: As the same number, because it’s your phone, and you would know?
J^SCOTT: Yes.
STATE: After the incident, did you take any pictures, or copies or photographs of the text message you received from Jeffery?
SCOTT: The police officer on the scene, took a picture of my cell phone, with a camera.
STATE: You were present?
SCOTT: Yes.
STATE: You provided that cell phone, that was yours, to that officer?
SCOTT: Well when you say that was my cell phone, let me be straight here. This—the cell phone was in my possession, the cell phone actually belonged to my employer; it was a work cell phone. But I had full use of the cell phone, twenty-four hours a day.
STATE: So you would be custodian, operator of the phone?
SCOTT: Correct.

The State again moved to admit the text message, and defendant objected, noting that if the police officer who took the photograph of the text testified, he would withdraw his objection. The trial court denied defendant’s objection, noting, “it goes to the weight and admissibility.”

Authentication of evidence is required in order for evidence to be admissible at trial. La. C.E. art. 901 states that “authentication” is a “condition precedent to admissibility” that is “satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” State v. Lee, 01-2082 (La. App. 4 Cir. 8/21/02), 826 So.2d 616, 624, writ denied, 02-2549 (La. 9/5/03), 852 So.2d 1019. La. C.E. art. 901(B) provides an illustrative, though not exhaustive, list of examples of authentication or identification that conforms with the requirements of the article. Generally, the standard applied by state and federal courts alike with respect to the authentication of a document is whether there is sufficient evidence 11?from which a reasonable juror could find the proposed evidence is what the proponent claims it to be. State v. Smith, 15-1359 (La. App. 4 Cir. 4/20/16), 192 So.3d 836, 840.

In the present case, the text message at issue was properly authenticated by Scott, the recipient of the text, on a cell phone used exclusively by him and was sent by defendant, whose contact information was saved into Scott’s phone and who had communicated with him before via the same number used in the text message sent the afternoon of November 21, 2014. Moreover, while the officer who took the picture of the text message was not called at trial to authenticate the screenshot, Scott testified that he was present when the picture was taken and testified that the text message presented at trial was the text that the officer photographed and that the text photographed was the one he received from defendant on the date of the incident. Accordingly, this assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

(Excessive Sentence)

In his third assigned error, defendant challenges his sentence as excessive. In the present case, as a second felony offender convicted of second degree battery, defendant faced a sentencing range of between four and sixteen years. See La. R.S. 14:34.1 and La. R.S. 15:529.1(A)(1). The trial court sentenced defendant to a mid-range sentence of ten years at hard labor.

Defendant now contends that the “maximum sentence” was unwarranted as he was not the “worst kind of offender.” He specifically maintains that his actions |1sin this case amounted to a simple .battery, having only “slapped” Katie once in the face and in self-defense, after Katie continuously hit him and spit on him. Moreover, defendant asserts that the sentence . imposed by the trial court is not comparable to like offenses in other courts. He further claims the record is lacking in consideration by the trial judge of any mitigating circumstances as defined by La. C.Cr.P. art. 894.1, and that his alleged excessive punishment is out of proportion to the seriousness of the offense committed, equating to nothing more than a “purposeless and needless infliction of pain and suffering.”

The Eighth Amendment of the United States Constitution and Article 1, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is in the applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so' disproportionate as to shock .the court’s sense of justice. State v. Holmes, 12-579 (La. App. 5 Cir. 5/16/13), 119 So.3d 181, 200, writ denied, 13-1395 (La. 1/10/14), 130 So.3d 318.

The trial judge is afforded wide discretion in determining sentences, and the court of appeal will not set aside' a sentence for excessiveness if the record supports the sentence imposed: La. C.Cr.P. art. 881.4(D). A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case and, therefore, is given broad discretion in sentencing. The. issue on appeal is whether the trial court abused its discretion, not whether another sentence might 1 uhave been more appropriate. State v. Ross, 13-924 (La. App. 5 Cir. 5/28/14), 142 So.3d 327, 333.

In the present case, while the sentence is severe, we cannot say that the trial court abused its discretion in sentencing defendant as a second felony offender to ten years at hard labor. Prior to originally sentencing defendant to five years, the trial court considered a statement submitted on behalf-of. the victim expressing that the incident caused her a high degree of physical pain and suffering as well as emotional pain and suffering and imploring the court to impose a sentence commensurate with her suffering. Additionally, the trial, court heard; defendant’s apology to his family, in which he accepted full responsibility for his actions on that day and -asked for the court’s understanding in light of the highly emotional situation on the day of the incident. Thereafter, the judge con-' sidered the testimony he heard at trial regarding the incident and specifically recalled a witness’s testimony that “he hit that woman like she was a man.”

The trial court also articulated that he considered the sentencing guidelines set forth in La. C.Cr.P. art. 894.1 and specifically noted that considering defendant’s record, there was a “serious implication” that defendant may commit another crime, that defendant was in need of a custodial environment, and that any lesser sentence would deprecate the seriousness of the offense.

Thereafter, at the sentencing on the multiple bill, the trial court was reminded by defense counsel that defendant was employed and was supporting his five children. In responding to defendant’s argument for leniency, the prosecutor referenced defendant’s criminal record as well as the victim’s pain and suffering as a result of this incident. The trial court then sentenced defendant to ten years at hard labor.

In light of these factors considered by the trial court, we cannot say that the imposition of a ten year sentence was excessive. We particularly note that | ^defendant, who was larger in stature, punched Katie in the face with a closed fist with such force that she was knocked to the ground and immediately began bleeding profusely from her nose and mouth causing her to not be able to see or breathe. As" a result of the punch, Katie sustained a broken nose and considerable swelling to her eye, for which she received medical treatment at the hospital. We further note that defendant was a multiple offender and had prior felony convictions, including the drug offenses referenced in the multiple offender: bill of information. Additionally, although the trial court thought it was imposing the maximum sentence, defendant.actually received a mid-range sentence of ten years.

We have also reviewed the range of sentences imposed in other second degree battery cases and recognize that in some instances, lesser sentences have been imposed under more severe factual circumstances than' those' presented herein. Nonetheless, while a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La. App. 1st Cir. 1991).

Accordingly, under- the circumstances presented herein, we find that defendant’s sentence of ten years is not excessive and that the trial court did not abuse its discretion in imposing such a sentence.

ASSIGNMENT OF ERROR NUMBER FOUR

(Improper Recitation of Defendant’s Criminar History)

In his final assignment of error, defendant contends that the State recited an erroneous criminal history for defendant at the multiple bill hearing which caused him prejudice. Specifically, defendant .maintains that the State referenced a simple robbery conviction when detailing for the trial court defendant’s criminal history; however, the record contained no proof of such a conviction. He concludes that this incorrect recitation of his criminal history diminished his reputation before the |1ficourt and resulted in his being sentenced to the maximum allowable sentence under the multiple bill.

On September 1, 2016, prior to resen-tencing defendant as a second felony offender, the trial court permitted the State and defense counsel to make a statement. During this time, the State discussed the facts of the case and further referenced defendant’s criminal history, which it alleged included a conviction for simple robbery. On appeal, defendant claims he was prejudiced by the State’s reference to the simple robbery conviction for which there was no proof in the record. However, defendant did not object to the alleged erroneous and prejudicial reference to the pri- or conviction at the time of the occurrence, and therefore, he is precluded from raising this issue on appeal. See La. C.Cr.P. art. 841. Further, defendant did not mention this issue in his motion to reconsider sentence based on excessiveness.

ERRORS PATENT REVIEW

We have reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). We note one error that requires corrective action.

In particular, both the original uniform commitment order and the multiple bill uniform commitment order contain the incorrect offense date. Specifically, these commitment orders reflect the date of the offense as December 11, 2014, when the record indicates that the offense was committed on November 21, 2014. In accordance with established procedure, we remand this case to the district court with instructions to correct the uniform commitment orders to reflect the proper date of the offense. We further instruct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected uniform commitment order(s) to the officer in charge of the institution to which defendant has been | ^sentenced and the Department of Corrections’ legal department. See State v. Lyons, 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, 41, writ denied, 14-481 (La. 11/7/14), 152 So.3d 170.

Accordingly, for the reasons set forth herein, defendant’s conviction and enhanced sentence for second degree battery are affirmed. The matter is remanded for the correction of an error patent as noted herein.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS

      . The multiple bill was filed on June 27, 2016.

      . Subsequent to the granting of his appeal, defendant filed a motion to reconsider his ten-year multiple offender sentence. Pursuant to its authority under La. C.Cr.P, art, 916(3), the trial court denied defendant’s motion to reconsider sentence on September 27, 2016.

      . Denis Haydin is the brother of Scott and Jeffery Haydin.

      . A battery is defined in La. R.S. 14:33 as "the intentional use of force or violence upon the person of another.”

      . At trial, Katie testified that since the incident, she takes pain medication for migraines that have increased in severity and suffers from blurry vision, However, Katie could not positively attribute these conditions to the incident because she suffers from an illness known as Huntington’s Disease, which had presented similar symptoms ih the past. In fact, when confronted on cross-examination with her medical records, it was established that Katie had been suffering from blurry vision prior to the incident.

      . In his appellate brief, defendant relies on State v. Helou, 02-2302 (La. 10/23/03), 857 So.2d 1024, to support his argument that the evidence was insufficient to sustain his conviction for second degree battery. In Helou, the Louisiana Supreme Court reversed defendant's conviction for second degree battery on the basis that the State failed to offer any evidence of extreme physical pain. Rather, the evidence presented dealt solely with the amount of blood lost by the victim, and the State’s direct examination of its witnesses completely avoided the subject of pain. The instant case is clearly distinguishable from the Helou case insofar' as the State, at trial in the present matter, introducéd evidence relating to the victim’s extreme physical pain.

      . It appears that both the trial court and defense counsel erroneously thought that ten years was the maximum possible penalty defendant could have received, In imposing sentence, the trial court referenced the 2014 version of La. R.S. 14:34.1, which was no longer in effect at the time of the commission of the instant offense. Specifically, prior to imposing defendant’s original and enhanced sentences, defendant was informed that he faced a sentencing range of zero to five years for his underlying conviction of second degree battery and two and one-half to ten years as a second felony offender. Defendant committed the instant offense on November 21, 2014. The 2014 amendment by Act No. 722, effective August 1, 2014, increased the sentencing range for second degree battery from zero to five years, to zero to eight years, See La. R.S. 14:34.1. .Thus, as a second felony offender, defendant faced a sentencing range between four and sixteen years of imprisonment. La. R.S. 15:529.1(A)(1),

      . In the present case, defendant filed a motion to reconsider sentence, in which he merely alleged that the sentence, imposed was excessive. La. C.Cr.P. art. 881.1 requires a motion for reconsideration of sentence to set forth specific grounds upon which the motion is based. The failure to state the specific grounds upon which a motion to reconsider is based precludes a defendant from raising issues relating to statutory errors or deficiencies such as compliance with La. C.Cr.P. art. 894.1 and limits a defendant to a review of the sentence for constitutional excessiveness only. State v. Hunter, 11-787 (La. App. 5 Cir. 4/24/12), 94 So.3d 797, 800.


author: GRAVOIS, J.

text:
    Lynda VINET and Larry Vinet v. D AND M RENOVATION, LLC, Darryl C. Ray, Sr., Individually and as Owner of D and M Renovation, LLC and their Liability Insurance Carrier, XYZ Insurance Company
    NO. 17-CA-161
    Court of Appeal of Louisiana, Fifth Circuit.
    December 20, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, LYNDA VINET AND LARRY VINET, Robert R. Faucheux, Jr., Chris-tophe L. Faucheux, Lindsay M. Faucheux
    Panel composed of Judges Jude G. Gravois, Robert M. Murphy, and Stephen J. Windhorst
   GRAVOIS, J.

|,Plaintiffs/appellants, Larry and Lynda Vinet, appeal a trial court judgment that was rendered against them and in favor of defendant, D & M Renovation, L.L.C. (“D & M”), which awarded $9,547.51 to D & M on its reconventional demand against plaintiffs, the sum D & M claimed it was owed from plaintiffs as an extra amount on the home renovation contract the parties had entered into. The trial court also dismissed plaintiffs’ principal demand for damages against D & M and its principal, Donald C. Ray, Sr., for alleged defective construction work under the contract. After thorough review of the record, evidence, and applicable law, we find no manifest error in the trial court’s factual findings, or legal error in the trial court’s conclusions of law. Accordingly, we affirm the judgment -in favor of D & M on its reconvention demand and the dismissal of plaintiffs’ principal demand.-

FACTS AND PROCEDURAL HISTORY

Plaintiffs’ home in LaPlace, Louisiana, sustained flood damages from Hurricane Isaac in 2012. Plaintiffs contracted with D & M to perform the renovations required to remedy the flood damages to their home. Plaintiffs became familiar with D & M after observing at least three flood renovation projects that D & M had performed in their neighborhood. Plaintiffs’ home required remediation for up to four feet above floor level, the approximate level of the flooding. The home had already been completely gutted prior'to D <⅞ M’s beginning the job. This “gutting” included the removal of cabinets and removal of sheetrock up to four feet above the floors, except in the living room, where wall, paneling had been removed from the floor to the ceiling. , .

The parties’ negotiations led to several successive written contracts that described the scope of the work and the. contract price. The first contract had a 12total price of $36,000.00 for the project, but due to Mr. Vinet’s concerns, about keeping to a budget, some items, and materials were changed and the contract was reworked to a total price of $30,000.00. However, plaintiffs later added a Jacuzzi tub to the requested work, which resulted in a written contract with a total final price of $32,500.00, which contract was signed by the parties on November 8, 2012 (the “final contract”). The mortgagee, Wells Fargo, held the insurance proceeds and controlled disbursement of the contract proceeds to D & M upon verification through home inspections that the claimed work had been performed.

Work began on the project on or about December 1, 2012 and the project was substantially completed on December 24, 2012. Throughout the renovation process, Mr. Vinet continued to live in the- home. Mrs. Vinet and other family members stayed elsewhere during the construction. Mr. Ray testified that he is a “fast track” contractor who works onsite on his jobs rather than in the office (which was in Gretna, Louisiana). Accordingly, he was present at the Vinet jobsite during most days while the work was going on. He testified that Mr. and Mrs. Vinet made numerous changes and additions to the contract after the work began on December 1, 2012, including:

• adding a second Jacuzzi tub;
• changing the floors from laminate tile throughout the house to more expensive ceramic tile in certain spaces of the house;
• applying and reapplying interior paint in rooms and to several ceilings that already had been painted;
• installing bi-fold doors in the kitchen, hall closet, and living room instead of standard doors;
• patching holes in the drywall and ceilings of several rooms;
• performing temporary skim coat repair of a crack in the garage ceiling;
• installing a clothing dryer vent set and a hall furnace vent set;
Is* sound-proofing the master bedroom’s interior walls to mute noise caused by the Vinets’ grandchildren; and
• installing window casings.

Mr. Ray testified that as per .the fingí contract, he was not responsible for anything over four feet high in the house, except for the kitchen cabinets ⅛ and the walls in the living room where the paneling had to be replaced with sheetrock. He testified that Mr. Vinet asked him to perform certain repairs or jobs that were not included in the original contract because they were higher than four feet.

Mr. Vinet agreed at trial that he did in fact request the additional work and upgrades; he testified, however, that 'Mr. Ray told him that he (Mr. Ray) would “add” these items to the original contract, which Mr. Vinet thought meant that the upgrades and additions would be included in the final contract without any additional charges) At trial, Mr.r Ray testified to the contrary, however, stating that he told Mr. Vinet several times that additional'charges would be incurred for the additional work and for making repairs above the four-foot mark. The testimony presented at trial confirms that Mr. Vinet made the requests for changes and additions verbally, with Mr. Ray agreeing verbally that he would add the items to the contract. Both parties testified that the additional work and changed materials that plaintiffs requested were in' fact done, though Mr. Vinet claimed in his suit that the workmanship was defective in many respects.

, Mr. Ray testified that because Mr, Vinet made so many requests for additions and changes as the work progressed, it would have been too time consuming for him to go back to his office in Gretna to write each one up as a change order every time Mr. Vinet made a change request. Rather, he compiled all of the extra work into documentation that he presented .to Mr. Vinet for signature Rafter the job was complete, in order for D & M to get payment from Wells Fargo. Mr. Ray testified that he prepared and presented two documents to Mr. Vinet for signature. Both documents were entitled “Extra Work Order.” The first Extra Work Order, which was personally presented to Mr. Vinet at his home on January 8, 2013, totaled $5,941.89, and according to Mr. Ray, represented only a “rough estimate” of the changes and additions to the final contract. The second Extra Work Order (hereinafter, the “final Extra Work Order”), which was mailed to Mr. Vinet on February 4, 2013, totaled $9,547.51, and represented the final total cost of all of the extra work done on the Vinet job. Mr. Vinet, however, refused to sign either Extra Work Order, claiming that Mr. Ray had agreed to “include” the extra work in the final contract, and accordingly, D & M was owed nothing more.

Mr. Vinet responded to the final Extra Work Order by reporting D & M to numerous consumer groups, including the Better Business Bureau and the Louisiana Attorney General’s Office, alleging that D & M had performed substandard work and had defrauded the Vinets. D & M responded by placing a lien against the Vinets’ home for the amount claimed in the final Extra Work Order. According to testimony, Wells Fargo declined to pay plaintiffs the balance of the insurance proceeds until their dispute with D & M was resolved. The Vinets then filed suit against E & M and Mr. Ray individually, alleging that were performing substandard work under the contract, and for wrongfully placing the lien against them property. D & M reconvened for the extra amount it claimed was due from plaintiffs for work performed and materials used on the project, as set forth ⅛ the final Extra Work Order, as well as for damages for defamation. After a trial on the merits, the court rendered | - judgment with written reasons in favor of d & M in the amount of $9,547.51, the amount D & M claimed was due for the additions to the contract. No damages were awarded to D & M for defamation. The judgment denied plaintiffs’ claims for damages for defective workmanship and filing of the lien. Plaintiffs’ appeal followed.

On appeal, plaintiffs assign the following errors:

1. The trial court erred by ignoring testimony and evidence clearly demonstrating that D & M did not adhere to the contract in that it allowed plaintiff to make verbal change orders;
2. The trial court erred by ignoring testimony and evidence clearly establishing a breach of contract (ie., the performance of extra work pursuant to verbal, not written, change orders);
3. The trial court incorrectly ignored the uncontradicted expert testimony of Keith Morvant, inspector, South Central Planning and Development Commission;
4. The trial court ignored trial testimony and evidence clearly demonstrating damages due to defective workmanship; and
5. In rendering final judgment, the trial court erred in awarding D & M $9,547.51, plus legal interest thereon, and court costs.

STANDARD OF REVIEW

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error”- or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).

I «ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

Contract requirements and breach of contract

In them first two assignments of error, plaintiffs argue that the trial court erred in not enforcing the provision in the final contract that required that change orders be written prior to execution of the work contained therein. Plaintiffs, argue that D & M, therefore, breached the final contract by executing the additional work and changes verbally requested by the Vinets, without first executing a written change order. Plaintiffs do not appear to claim, however, that the extra work and upgrades they requested verbally were not, in fact, completed by D & M.

In Lantech Constr. Co., L.L.C. v. Speed, 08-811 (La. App. 5 Cir. 5/26/09), 15 So.3d 289, 293-94 (internal citations omitted), this Court provided the following concerning oral modification of written contracts, to-wit:

A written contract is the law between the parties, and the parties will be held to full performance of' the obligations flowing from their contract. However, the law is clear that written contracts may be modified by oral contracts and the conduct of the parties, even when the written contract contains a provision that change orders must be in writing. Modification of a written agreement can be presumed by silence, inaction, or implication. The party who asserts that an obligation has been modified must prove by a preponderance of the evidence facts or acts giving rise to the modification. It is a question of fact, therefore, as to whether there were oral agreements that modified the written contract. Oral modifications alleged to be in excess of $500 must be proved by at least one ‘credible witness’ and ‘other corroborating circumstances.’ Only general corroboration is required. Parol evidence is admissible for this purpose.

In the present case, the provision in the final contract- that purports to require written change orders reads as follows, to-wit:

Any alterations or deviation from the above specifications involving extra cost of material or labor will be executed upon written order for same, and will become an extra charge over the sum mentioned in this contract. All agreements must be made in writing.

Upon review, we find that it is not necessary to determine whether the final Extra Work Order complied with this provision, as it is clear by the parties’ conduct, as revealed by trial 'testimony, that the written contract was modified to allow the 17additional work' and changes requested by plaintiffs to be executed upon plaintiffs’ ■ verbal requests to Mr. Ray. Both parties testified that plaintiffs did in fact request the additional work and changes listed in the final Extra Work Order. Mr. Vinet lived at the home during the renovation, and therefore was present at the jobsite much of the time, by his own testimony, including those times when the extra work and changes requested were being performed. The record fails to show that at any time did Mr. Vinet ever protest that the extra work and upgraded materials he requested should not be executed because a written work order had not been presented to him first by Mr. Ray. Defendants showed, therefore, by the testimony of credible witnesses and corroborating circumstances (the parties’ conduct) that the parties 'modified the construction contract to allow verbal change orders.

The above-quoted contract provision also states that the alterations or deviations involving extra cost of material or labor “will become an extra charge over the sum mentioned in this contract,” yet plaintiffs claimed that Mr.'Ray either never said that extra money would be owed or that they somehow thought that their supplemental requests would be done at no additional charge or change to the $32,500.00 total in the final contract. Mr. Ray’s testimony claimed otherwise, however, his version being that plaintiffs knew they were incurring extra costs by their additional requests for material and labor that were not specifically itemized in the final contract, because he told them so, and because the contract provision quoted above so stated.

The trial court’s factual findings and credibility determinations are entitled to great.weight and will not be disturbed on appeal absent manifest error. When findings, of fact are based on determinations regarding the credibility of witnesses, the manifest error-dearly wrong standard demands great deference to the trier of fact’s findings. Rosell v. ESCO, supra; Stead v. Swanner, 12-727 (La. App. 5 Cir. 5/16/13), 119 So.3d 110, 117. The trial court, faced with the. contradictory |8testimony of Mr, Vinet and Mr. Ray, as well as the entirety of the evidence, clearly believed Mr, Ray’s testimony over Mr. Vinet’s, that plaintiffs knew that the additions to the contract also came with additions to the price. Upon review, we find that there is no manifest error in the trial 'court’s conclusions that D & M did not breach the construction- contract by performing the additional ■ work ■ upon plaintiffs’ verbal requests without a con-, temporaneous written change order. These assignments of error are without merit..

ASSIGNMENT OF ERROR NUMBER THREE

Failed inspection

In their next assignment of error, plaintiffs argue that the trial court .was manifestly erroneous in failing to find that D & M performed shoddy and substandard work. First, plaintiffs argue that the trial court incorrectly ignored the uncontradict-ed expert testimony of Keith Morvant, an inspector with South Central Planning and Development Commission, who inspected plaintiffs’ home in July of 2013 and concluded that some of the home’s electrical components failed inspection.

Mr. Morvant performed two inspections of plaintiffs’ home. Both inspections, he testified, concerned only electrical components. The first inspection occurred in October of 2012, prior to D & M’s engagement. The scope of that inspection determined that the electrical components that had gotten wet in the flood had been replaced. Mr. Morvant’s second inspection of plaintiffs’ home took place on July 1, 2013, more than six months after D & M completed the job. Mr. Ray testified that neither he nor his crew set foot in the house after the end of December of 2012. Plaintiffs occupied the home during that time period. The inspection report, entered into evidence, reveals that the only items that caused the inspection to fail were electrical issues. The report stated that: “Receptacles need to be secured where they do not move when in use. Cover plates are needed on all [flreceptacles and switches. Lights need to be fastened to celling. Receptacles for tubs need to be mounted on walls, not laying face up on the floor. Owner present for Inspection.”

Mr. Morvant, who testified at trial, did not have an independent recollection of this particular inspection. He guessed that a “bunch” of electrical cover plates must have been missing, and further guessed that light fixtures must have been hanging from the ceiling. He testified that the tub receptacles were mounted on the floor, which was not allowed.

There is no evidence, however, that the electrical items were deficient at the time D & M completed the project. The video made by Mr, Ray upon the job’s substantial completion, entered into evidence, notes three uncovered outlets, but Mr. Ray testified that these were completed after the video was made and prior to Mr. Mor-vant’s inspection. Also, an inspection was performed at the behest of Wells Fargo in December of 2012, in order to certify that the contract work was complete. This inspection was required before Wells Fargo would release the remainder of the $32,500.00 contract price to D & M, which it did following the inspection.

Furthermore, the evidence reflects that, as noted earlier, the electrical work was done by a “Mr. Martinez,” whom D & M had hired as an electrical subcontractor for this job because of Mr. Martinez’s prior work at plaintiffs’ house, There was no evidence presented that D ■& M was responsible for the electrical deficiencies noted in the second inspection or, if even D & M was responsible for the location of the tub receptacles; that it was ever given ah opportunity to remedy the deficiency, Accordingly, while Mr. Morvant’s | intestimony was uncontradicted, there is no evidence that the trial court ignored his testimony. This assignment of error is without merit; ¡

ASSIGNMENT OF ERROR NUMBER FOUR

Evidence of defective workmanship

Next, plaintiffs argue that the trial court erred in ignoring trial testimony and evidence clearly demonstrating damages due to defective workmanship. Specifically, they argue that they presented evidence in the form of Mr Vinet’s testimony, Mr. Morvant’s testimony, pictures of the house depicting the defective workmanship, and two estimates from other construction companies of the purported costs to renovate their home: Defendants countered with the videos of the progress of the work made by Mr. Ray during the course of the project, including on December 24, 2012 near the end of the project, Mr. Ray’s testimony, and the testimony of his son, Darryl Ray, Jr.

If an undertaker fails to do the work he has, contracted to do, or if he does not execute it in the manner and at the time he has agreed .to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract. La. C.C. art. 2769.- To establish the contractor’s liability for damages due to defective workmanship, the owner must prove the following: (1) the existence and nature of the defects; (2) that the defects are due to faulty materials or workmanship; and (3) the cost of repairing the defects. Melancon v. Tri-Dyne Tele-Pier, LLC, 11-1055 (La. App. 5 Cir. 5/31/12), 95 So.3d 576, 581.

In its reasons for judgment, the trial court provided:

The plaintiffs presented no expert testimony to prove that D & M’s performance was below industry standards nor was there testimony by an expert regarding the cost to remedy such alleged defects. Instead, the plaintiffs provided quotes from two construction companies. The first quote was handwritten and illegible from what appeared to be excessive photocopying, and it was only recently prepared in 2015, three years after D & M completed the work on the Vinet home. The other quote was from a Mississippi based company that is no longer licensed to do business in either Mississippi or InLouisiana. The plaintiffs also presented several undated and unclear photographs of alleged defects, several'of which depicted work that was not covered in the contract between the parties, such as work done above the four-foot mark as stipulated in the parties’ contract. Mr. Vinet had a daily opportunity to complain about the alleged poor workmanship of D & M, or alternatively telLD & M to cease the work on his property. However, the evidence reveals that Mr. Vinet did not do so.
Considering all of the evidence, and circumstances, including the fact that Wells Fargo completed its final- inspection and released $32,500 based on the house passing inspection, the Court finds that plaintiffs’ claims are unsupported and that D & M completed the work on plaintiffs’ home in a substantial and workmanlike manner.

Our review of the evidence shows no manifest error in the trial court’s factual findings and conclusion that plaintiffs failed to establish the existence of defective workmanship. This Court has reviewed all of the photographs submitted by plaintiffs, as well as three videos of the Vinet house made by Mr. Ray during the construction progress. The final video fails to corroborate the photographs of “defective work” submitted by plaintiffs. Many of photographs themselves are unclear or cannot be clearly identified as depicting the Vinets’ house after the work was completed. While Mr. Vinet testified that the photographs depicted his home after D & M had finished the work, Mr. Ray testified that a few of the photographs that he could identify appeared to show work in progress. Again, faced with a credibility determination, the trial court clearly credited Mr. Ray’s testimony and evidence over that of Mr. Vinet. The trial court’s determinations are entitled to great deference by this Court, and we find no manifest error therein.

Likewise, we find no manifest error in the trial court’s assessment of the two construction estimates submitted by plaintiffs. These estimates do not establish that D & M performed defective construction work in plaintiffs’ home. Besides the issues noted by the trial court in its reasons for judgment, we note that neither estimate states that D & M performed defective construction work, and additionally, |Ti>the estimates include renovations that were not included in either the final contract or the final Extra Work Order.

Finally, the trial court correctly noted that plaintiffs had numerous opportunities to complain about the quality of the work while the construction project was ongoing, especially given that Mr. Vinet continued to reside in the home during construction, and failed to do so. Even after the project was completed, Mr. Vinet admitted that he never called Mr. Ray to complain about the work or to request that he remedy any problems. Defendants submitted two letters, dated February 19, 2013 and March 1, 2013, that the Vinets sent to D & M after the project was completed, both asking if D & M had received the final check from Wells Fargo (which did not include the amount due on the final Extra Work Order). The letters asked D & M to notify the Vinets if they had not received the check so that a replacement check could be issued. These letters are otherwise identical, and fail to express any displeasure in the work D & M performed. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Damage award

Lastly, plaintiffs argue that the trial court erred in awarding defendant $9,547.51 in damages, representing the amount D & M claimed was due for the extra work and materials as set forth in the final Extra Work Order. In brief, however, plaintiffs do not contest the calculation of this amount or the itemization of the changes and additions noted by D & M in the final Extra Work Order. Plaintiffs argue, again, that the trial court erred in not giving effect to the contract provision that required written changes orders prior to extra work, and they also point to their testimony that they believed the extra work requested on the job was included in the final contract. They argue that D & M should not be rewarded for its “arbitrary actions.”

| ^Previously in this opinion, we have rejected plaintiffs’ position that the final contract’s provision regarding written change orders was hot subsequently modified by the parties’ assents and conduct. We have further rejected plaintiffs’ position that D & M breached the contract by performing the extra work plaintiffs verbally requested. We also found no merit to plaintiffs’ contention that they believed the extra work would be included in the original price of the final contract. Accordingly, the arguments reiterated here, as a basis to reverse the monetary judgment in D & M’s favor, are without merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment under review is affirmed.

AFFIRMED

      . Some electrical work had already been performed at the Vinet home by a "Mr. Martinez,” which included replacing wall electrical receptacles, prior to D & M's engagement. D & M later retained Mr, Martinez to elevate the receptacles once it was determined that this was required by the applicable building code.

      . Mr. Vinet testified' that his insurance proceeds were needed not only for the repairs to his home, but also to purchase some new furniture and other items damaged by the flood waters.

      . Darryl Ray, Jr., Mr. Ray’s son, who worked as a laborer on the house on a daily basis, testified that several times Mr. Vinet would request some work outside the scope'of the contract and Darryl would stop work on a contract item and begin the new job immediately to accommodate Mr. Vinet.

      . Mr. Ray testified that his encounter with Mr. Vinet at the Vinet home on January 8, 2013 was contentious. During this encounter, Mr. Ray described that Mr. Vinet would not let him in the house, yelled at him, “sicced” his dog on him, and even physically pushed him.

      . In its reasons for judgment, the trial court found that Mr. Ray could not be held personally liable for the damages claimed by plaintiffs.

      .Originally, D & M also appealed the trial court’s judgment. However, D & M’s appeal was dismissed as abandoned pursuant to Uniform Rules—Courts of Appeal, Rule 2-8.6. D & M did not file an appellee brief in the Vinets’ appeal.

      . The inspection was requested by Mr. Vinet.

      . Mr. Martinez was hired by plaintiffs to replace the wet electrical components prior to D & M’s engagement. D & M hired Mr. Martinez to do additional electrical work based on the fact that plaintiffs had hired him previously,

      . Mr. Ray testified that he did not place the tub’s electrical receptacles in the floor,

      . The three videos depict when the work began, midway through the work, and upon substantial completion of the job.

      . The trial court found in its reasons for judgment that plaintiffs had requested the additional work and upgrades, that such had been performed by D & M in a workmanlike manner, and that it would be unjust enrichment if plaintiffs were not required to pay for them.


author: JOHNSON, J.

text:
    Angela D. Lowe DOLCE v. Yvenert Charles DOLCE, Sr.
    NO. 17-CA-354
    Court of Appeal of Louisiana, Fifth Circuit.
    December 20, 2017

      COUNSEL FOR DEFENDANT/APPELLANT, YVENERT CHARLES DOL-CE, SR., Roy M. Bowes, Mitchell A. Palmer, Gary J. Clark, Joshua P. Mathews
    Panel-composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg
   JOHNSON, J.

| t Defendant/Appellant, Yvenert Charles Dolce, Sr., appeals a judgment that partitioned property and ordered reimbursement' of extraordinary- child care expenses in favor of Plaintiff/Appellee, Angela D. Lowe Dolce, from the 24th Judicial District Court, Division “0”. For the following reasons, we grant Mr. Dolce’s motion to dismiss and dismiss the appeal with prejudice.

This matter arises from a divorce proceeding and incidental matters between the parties. Ms. Dolce sought a partition of the community property and reimbursement of certain claims from Mr. Dolce. On September 29, 2016, the trial court rendered a judgment in open court in favor of Ms. Dolce that: invalidated an act of donation for property located at 2404 Wood-mere Boulevard in Harvey, Louisiana, on the basis that Ms. Dolce did not sign the act of donation, and declared the property to be community property; allocated the property located at 1741 Stall Drive in Harvey, Louisiana to Ms. Dolce; and awarded Ms. Dolce, reimbursement of $13,638.33 for extraordinary child care expenses and $10,635.33 for extraordinary household expenses. Mr. Dolce filed a motion for new trial, which was heard and denied on October 4, 2016. Mr. Dolce filed the instant appeal from the September 29th judgment, alleging the trial court exceeded its authority in the manner in which, it considered evidence regarding the community property and by awarding the reimbursements to Ms. Dolce.

On December 4, 2017, Mr. Dolce filed a motion to dismiss his appeal with prejudice with this Court. In his motion, Mr. Dolce asserts the matter between the | ¡parties has been settled,' and he desires to have the appeal dismissed with prejudice. Accordingly, we grant Mr. Dolce’s motion and dismiss his appeal with prejudice. Mr. Dolce is to bear the costs of this appeal.

MOTION TO DISMISS GRANTED; DISMISSED WITH PREJUDICE

      . This memorandum opinion is issued in compliance with Uniform Rules—Courts of Appeal, Rule 2-16.1.B.

      . The judgment was signed on October 13; 2016. The judgment also contained other findings that are not relevant to this appeal.

      . The judgment denying Mr. Dolce’s motion was signed on January 20, 2017.

      . Ms. Dolce did not file an answer or a brief in this appeal.