author: Judge Daniel L. Dysart

text:
    Dr. Majid MORIDANI v. STONE CLINICAL LABORATORIES, LLC
    NO. 2017-CA-0519
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 22, 2017

      James F. Willeford, Reagan L. Toleda-no, WILLEFORD & TOLEDANO, 201 St. Charles Avenue,'Suite 4208, New Orleans, LA 70170, COUNSEL FOR PLAINtiff/appellaNt
    Philip. A, Franco, Lauren L. Tafaro, Raymond P. Ward, ADAMS AND REESE,. LLP, 701 Poydras Street, Suite 4500, New Orleans, LA 70139-6534, COUNSEL FOR DEFENDANT/APPEL-LEE ■
    (Court composed of Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Regina Bartholomew Woods)
   Judge Daniel L. Dysart

|,In this breach of contract• case, the plaintiff-appellant, Dr. Majid Moridani, appeals the trial court’s grant of a summary judgment in favor of defendant-appellee, Stone Clinical Laboratories, ‘ LLC (“Stone”), while Stone answers the appeal, seeking an award from this Court of damages for a frivolous appeal. For the reasons that follow, we affirm the trial court’s judgment, but we decline to award frivolous appeal damages.

FACTS AND PROCEDURAL BACKGROUND

On October 21, 2016, Dr. Moridani filed a Petition for Breach of Contract (the “Petition”) against Stone. In the Petition, Dr. Moridani alleged that he and Stone had entered into a written employment contract on August 16, 2016, by which Stone was to pay Dr. Moridani a base salary of $150,000 per year, plus $500 per month in expenses and moving expenses of $3,000. According to the Petition, Dr. Moridani began working for Stone on August 24, 2016; however, his employment with Stone was terminated on September 24, 2016 by email from Jody Lutz, Stone’s Executive Vice President. Dr. Moridani alleged that, pursuant 12to the terms of the employment contract, he was entitled to two months’ notice prior to termination-, in addition to his salary for that two-month period ($25,-000), as well as monthly and moving expenses.

Dr. Moridani made demand for the payment of these wages on October 5, 2016. Stone notified him on ■ October 17; 2016 that it would not make any payment to him. Dr. Moridani then filed this lawsuit seeking those amounts claimed due under the employment contract, in addition to attorney’s fees and penalties of $37,500 pursuant to La. R.S. 23:631 and La. R.S. 23:632.

On December 23, 2016, Stone moved for summary judgment on the -general basis that a final employment contract had not been signed by the parties. -After a hearing on March 24, 2017, the motion for summary judgment (“Motion”) was granted. Dr. Moridani requested written reasons for judgment, which were issued on April 12, 2017. Dr. Moridani timely filed- an appeal of the December 23, 2016 judgment. Stone answered the appeal, seeking an award of damages for a frivolous appeal pursuant to La. C.C.P. art. 2164.

DISCUSSION

In an appeal involving the grant of a summary judgment, a de novo standard of review is applied by the appellate court, “using the same standard applied by the trial court in deciding the motion for summary judgment.” City of New Orleans v. Jazz Casino Co., LLC, 15-1150, p. 4 (La. App. 4 Cir. 6/22/16), 195 So.3d 1252, 1255, writ denied, 16-1393 (La. 11/7/16), 209 So.3d 99, citing Sanchez v. Harbor Const. Co., Inc., 08-0316, pp. 3-4 (La. App. 4 Cir. 10/1/08), 996 So.2d 584, 587. That standard is set forth in La. C.C.P. art. 966 A(3), which provides that “a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and |sthat the mover is entitled to judgment as a matter of law.” “The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions.” La. C.C.P. art. 966 A(4).

The burden of proof rests with the party moving for summary judgment. La. C.C.P. art. 966 D(l). However, “if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense.” Id. Instead,- the mover must “point out to the court the absence-of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” Id. “The burden is on the adverse party to produce factual support sufficient to establish .the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.” Id. .

We have conducted a de novo review of the record, and find that the trial court properly granted Stone’s Motion.

- Dr. -Moridani’s appeal is largely based on his contention that the parties entered into a “simple written and signed employment contract,” which required “severance wages if [Stone] terminated [his] employment with or-without cause.” Dr. Moridani further maintains that the trial court’s judgment was based on inadmissible, parole evidence submitted by Stone in support of its Motion. Dr. Moridani contends that the trial court should have only considered the employment contract, itself, and that any documents that varied the terms of the contract should have been excluded from consideration.

| ¿The trial court rejected Dr. Moridani’s contentions, finding in its reasons for judgment, “that the final contract had not been confected, theré was no «meeting of the minds’ between the parties, and thus, an absence of an enforceable contract.” After our de novo review of the record, we find that the trial court correctly granted summary judgment in Stone’s favor.

We first address Dr. Moridani’s argument that the trial court improperly considered Stone’s “parole evidence in support of the motion without first considering and ruling on [his] filed objection” to this evidence.

Under La. C.C.P. art. 966 D(2), when an objection has been made by way of a “timely filed opposition,” the trial court is to “consider all objections prior to rendering judgment” and “specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider.” The transcript of the hearing on Stone’s Motion reflects that the trial court did not state Ron the record that- it held any of the documents submitted in support of the Motion to be inadmissible or that it declined to consider any documents. And, while counsel for Morida-ni made mention of the objections by stating “[t]hat’s why we’ve objected to the Court,” at the hearing, the issue was otherwise not addressed at that time. Because we find that Dr. Moridani’s objection to the documents submitted in support of the Motion to be without merit, the trial court properly considered those documents and was not required to make any specific statements on the record or in writing as to their admissibility.

There are no cases that address the issue of whether a trial court’s failure to specifically address an objection to documents submitted on a motion for summary judgment under La. C.C.P. art 966 D(2) constitutes reversible error, as Dr. Moridani contends. However, we believe the mandate of Article 966 D(2) to be clear. Article 966 D(2) only requires that the trial court state on the record (or in writing) which documents, “if any,” it deemed inadmissible or othenvisé declined to consider. The inclusion of the language “if any” clearly supports our finding that, when all supporting documents are properly before a trial court, it is under no obligation to comment on their admissibility.

We further note that the only documents attached to Stone’s Motion are depositions (of Dr. Moridani and Christopher Ridgeway, Stone’s corporate representative). There can be no question that depositions are proper evidence in support of a motion for summary judgment, as La. C.C.P. art. 966 expressly provides that “[t]he only documents that may be filed in support of or in opposition to the motion [for summary judgment] are pleadings, memoranda, affidavits, ^depositions .... ” (Emphasis added). To the extent that Dr. Moridani’s objection is to the documents attached to the depositions, it is clear that these documents were referred to and discussed during the depositions and the parties identified them without any objections to their authenticity. In fact, many of the documents were admittedly generated by Dr. Moridani, himself. Those document, therefore, were properly considered by the trial court and this Court, in its de novo review of the record. See, e.g., Boland v. W. Feliciana Par.Police Jury, 03-1297, p. 7 (La. App. 1 Cir. 6/25/04), 878 So.2d 808, 814 (“as attachments to Boland’s deposition that were identified, verified, and referred to in the deposition, the photographs were admissible on that basis .... ”). We therefore find no merit to Dr. Moridani’s contention that impermissible parole evidence was admitted into the record of this matter.

Nor are we persuaded by Dr. Moridani’s contention that parole evidence may be considered only after a court finds that a written contract is ambiguous, citing New Orleans Redevelopment Auth. v. Irving, 15-1366, p. 11 n.2 (La. App. 4 Cir. 8/10/16), 198 So.3d 1193, for the principle that “the use of extrinsic evidence is proper only where a contract is ambiguous after examination of the four corners of the agreement.” As discussed infra, in this case, there was no valid contract at the outset and therefore this general principle is inapplicable.

We next address the issue of whether the record demonstrates that Dr. Moridani and Stone had entered into a valid and enforceable contract, rendering Stone liable for contractual severance wages. We also consider the issue of whether,' as Dr. Moridani contends, the trial court erred in making the factual determination that there was no “meeting of the minds” between the parties, an improper determination for the purposes of a summary judgment motion.

17Under Louisiana law, “[a] contract is formed by the consent of the parties established through offer and acceptance.” La. C.C. art. 1927. This Court has consistently noted that “[c]onsent is an absolute necessity to the formation of a contract, and ‘where there is no meeting of the minds between the parties the contract is void for lack of consent.’ ” Marseilles Homeowners Condo. Ass’n, Inc. v. Broadmoor, L.L.C., 12-1233, p. 18 (La. App. 4 Cir. 2/27/13), 111 So.3d 1099, 1111, quoting Philips v. Berner, 00-0103, p. 5 (La. App. 4 Cir. 5/16/01), 789 So.2d 41, 45; see also, Landix v. Blunt, 12-1231, p. 5 (La. App. 4 Cir. 3/20/13), 112 So.3d 376, 379 (“[a] binding contract requires consent of the parties, established through offer and acceptance, and a meeting of the minds.); DePodesta v. Breaux, 12-1594, p. 6 (La. App. 4 Cir. 5/29/13), 116 So.3d 1017, 1021.

In order for a contract to be formed, the “offer must be accepted as made.” Rodrigue v. Gebhardt, 416 So.2d 160, 161 (La. App. 4th Cir. 1982). “A modification in the acceptance ■ of an offer constitutes -a new offer which must be accepted in order to become a binding contract.” Id. See also, La. C.C. art. 1943 (“[a]n acceptance not in accordance with the terms of the offer is deemed to be a counteroffer.”). In Ro-drigue, for example, this Court found that because “defendant’s ‘acceptance’ did not conform to plaintiffs’ offer[,] no- contract was formed.” Id. To the contrary, because the- defendant’s acceptance “contained a modification of the terms of the offer,”-it was a “new offer,” Id. See also, ECW Recoveries v. Woodward, 15-1915, p. 5 (La. App. 1 Cir. 6/3/16), 196 So.3d 122, 125 (“an acceptance not in accordance with the terms of the offer is deemed to be a counteroffer”); Tombrello v. Bd. of Comm’rs of Caddo Levee Dist., 129 So.2d 595, 598 (La. App. 2nd Cir. 1961)(“a. modification in the acceptance of a [contract] | sconstitutes, in effect, a new offer which, in order to become a binding contract, must be accepted by the-one first making the [offer]”).

We further note that La. C.C: art. 1947 provides that “[w]hen, in the absence of a legal requirement, the. parties have contemplated a certain form, it is presumed that they do not intend to be bound until the contract is executed in that form.” This Court recognized that Article 1497 “codifies the long recognized concept that when the parties ‘intended from the beginning to reduce their negotiations to a written contract, neither the plaintiff nor the defendant was bound until the contract was reduced to writing and signed by them.’ ” JCD Mktg. Co. v. Bass Hotels & Resorts, Inc., 01-1096, p. 8 (La. App. 4 Cir. 3/6/02), 812 So.2d 834, 839; See also, Rainey v. Entergy Gulf States, Inc., 09-572, p. 20 (La. 3/16/10), 35 So.3d 215, 228, quoting Fredericks v. Fasnacht, 30 La. Ann. 117, 118 (La. 1878)(“where. the negotiations contemplate and provide that there shall be a' contract in writing, neither party is bound until the writing is perfected and signed”(emphasis supplied).

We need only look to Dr. Moridani’s deposition testimony and the' documents identified by Dr, Moridani during his deposition to confirm that the parties intended to enter into an employment contract, but never reached an agreement as to its terms. As such, we agree with the trial court’s finding that the parties never entered into a binding and enforceable contract.

According to Dr. Moridani, he was, approached by a Stone employee. about an employment opportunity, which led to a meeting between Dr. Moridani and Christopher Ridgeway (Stone’s founder and CEO) on August 16, 2016. At that time, Mr. Ridgeway indicated that he was seeking a. lab director for Stone, a company he was in, the process of forming. The following day, Mr. Ridgeway | asent, by email, a letter to Dr. Moridani, which made an offer of. employment, and which stated:

Your execution of an at-will employment contract prepared by me that will be submitted to you for review and execution no later than August 22nd, 2016 [sic]. The at-will employment contract .will contain, among other provisions, non-competition, non-solicitation, confidentiality and non-disclosure .documents. (Emphasis added).

This letter was, as Mr. Ridgeway testified in his deposition, a “cover letter.” It was accompanied by a second document that set forth further terms of the offer; a base salary of $120,000, a provision for a $10,000 bonus upon 'attainment of certain goals during the Jirst'year of employment, a 401K plan and fourteen days of paid vacation and/or sick' leave. This second document contained signature lines for both Dr. Moridani and Mr. Ridgeway.

When questioned whether he understood from this letter “that there would be an at-will employment contract prepared that would contain other provisions,” Dr. Moridani admitted that he “did ' understand] that, but [he] did not accept that.”

After a conversation on August 18, 2016, Mr. Ridgeway sent Dr. Moridani an updated offer on August 19, 2016, which increased the base salary to $150,000 and $500 per month for expenses. This offer was, again, comprised-of two documents: a cover letter and a document setting forth the terms of the employment. The cover letter mirrored the language of the initial cover letter with respect to Dr. Moridani’s “execution of an at-will employment contract ... that will be submitted- to [him] for review and execution.”

ImShortly after receiving the updated offer letter, on August 19, 2016, Dr. Morida-ni sent Mr. Ridgeway an email indicating that, while he accepted the offer of “$150,-000 + $500 per month,” he sought some “adjustments.” Those included fifteen days of vacation and five days of sick leave, “a minimum of 2 mohth[s’] notice (and his assurance that he would give two months’ notice if he decided to leave), $5,000 in travel expenses, and up to $3,000 for moving expenses. Dr. Moridani also advised that, although he would agree to the confidentiality and non-disclosure provisions, he would not agree to the non-competition and non-solicitation clauses as they were “too vague for [his] position.” He also indicated his intent to “do consulting services on [the] side as well [as] during after-hours on case by cases [sic] or weekends.”

The following day, August 20, 2016, Dr. Moridani sent two emails to- Mr. Ridge-way, indicating that he had made “a modification to [Mr. Ridgeway’s] letter of offer with track[ed] changes,” which he signed. Those changes included changes to the actual offer letter, to include a two-month notice provision and the deletion of the reference to non-competition and non-solicitation clauses. The agreement attached to the offer letter included some of the changes. Dr. Moridani outlined in his August 19, 2016 email, but. added other changes, including a salary adjustment “to $190,000 one month after the lab starts testing + bonuses TBD based on performance.” Dr. Moridani requested that Mr. Ridgeway “let [him] know if [he] agree[d] with this modification.

Mr. Ridgeway revised the offer letter to include some of Dr. Moridani’s requests; it was notably different in that it did not include Dr. Moridani’s request that there be a salary adjustment with'bonuses based on performance. Mr. Ridgeway signed the new offer letter (previously signed by Dr. Moridani); Inhowever, Mr. Ridgeway modified the offer letter to delete the clause allowing for outside consulting" work and placed his initials by that modification (and as Mr. Ridgeway testified in his deposition). Dr. Moridani admitted that he understood that Mr. Ridgeway did not agree that he would be allowed to perform outside consulting work. Dr, Moridani agreed that this modified offer letter is the only document he received that Mr. Ridgeway had signed and that it indicated that Dr. Moridani could not perform outside work (i.e.,- varied from the terms Dr. Moridani sought).

Additionally, on August 21, 2016, Dr. Moridani sent an email to Mr. Ridgeway indicating that “there are a few items on this agreement that needs [sic] to be ironed out.” Those items, again, included Dr. Moridani’s refusal to agree to non-competition and non-solicitation provisions.

The record does not contain any documents reflecting discussions between Dr. Moridani and Stone until mid-September, 2016, although Dr. Moridani testified, in accordance with one of his emails, that negotiations continued between September 6 and September 20, 2016.

On September 20, 2016, Dr. Moridani received ap email from Stone’s president stating that “[t]he non-compere language is going to exist in your agreement.” Dr. Moridani responded by email stating: “I do not agree with the non-compete after employment.”

Stone’s executive vice-president, Jody Lutz, sent an email to Dr. Moridani on September 22, 2016, with a revised employment contract, which Dr. Moridani admitted he never signed. Rather, Dr. Mori-dani responded to Ms. Lutz by sending 112yet another email with changes he sought to be made to the employment contract, including the deletion of the non-competition and non-solicitation clauses. This was met with an email from Ms. Lutz advising that, because the parties “could not come to an agreement and no employment contract [had] been signed [Stone would] no longer be utilizing [Dr. Morida-ni’s] services.”

The foregoing clearly demonstrates two salient points. First, as Dr. Moridani admitted, while offer letters were sent to him (the complete terms of which were never agreed to by the parties), he and Stone contemplated that there would be an employment agreement executed at a later date. Dr. Moridani’s suggestion to the contrary is misplaced. Dr. Moridani states in his appellate brief that “nothing in the August 21, 2016 signed agreement ... even suggest that ... a follow-up contract was to be confected” is belied by both Dr. Moridani’s own deposition testimony and by the fact that the document signed on August 21, 2016 was accompanied by an offer letter that clearly states that Dr. Moridani would have to execute an “at-will employment contract” that would be submitted to him “for review and execution.”

Second, again as Dr. Moridani conceded, the parties never came to a full agreement as to all of the terms of the employment contract. Indeed, at all times, there were disagreements as to the content of the employment contract. On each occasion that Stone provided Dr. Moridani with an employment contract, Dr. Moridani requested various changes to it. Ultimately, the parties never signed a contract and, thus, the trial court properly found the “absence of an enforceable contract. See JCD Mktg. Co., 01-1096, p. 8, 812 So.2d at 839-40 (where the parties “contemplated that the ... Contract would be signed by both parties, yet the 11s[defendant] never signed it[,] [i]t follows that no contract was ever entered into between the parties.”).

Moreover, as our jurisprudence clearly indicates, Dr. Moridani’s changes to the drafts of the employment contract constituted counter-offers to Stone. See JCD Mktg. Co., p. 8., 812 So.2d at 839-40 (the plaintiffs altering of a proposed contract, “as a matter of law, was „[a]n acceptance not in accordance with the terms of the offer [and thus] is deemed to be a counteroffer.’”). Stone never accepted the changes sought by Dr. Moridani. Likewise, while Dr. Moridani steadfastly maintains that the signed offer letter of August 21, 2016 is an employment contract, it is clear that even that document constituted a counteroffer. Mr. Ridgeway clearly indicated that Stone would not permit outside consulting work, by striking that clause in the offer letter, thereby modifying the offer letter and evidencing a lack complete agreement with the terms of the offer letter.

We find Dr. Moridani’s reliance on the case of Dickerson v. Cajun Commc’ns of Texas, Inc., 40,026 (La. App. 2 Cir. 8/17/05), 910 So.2d 477, to be misplaced. In Dickerson, the court found that a signed letter of intent bound the parties to an agreement. The court found that, “[a]l-though the letter of intent states that a „formal agreement’ would follow within 30 days of the beginning of the parties’ association,” the court did not find that “this demonstrate^] an intent to be bound only by a subsequent document.” Id., 40,026, p. 5, 910 So.2d at 480 (emphasis supplied). The fact that the defendant’s owner “not only wrote the letter of intent but also signed it,” demonstrated its consent. Because the plaintiff “went to work for [the defendant] under the terms of the letter of intent ... his intent to be bound by its terms” was evidenced as well. Id. 40,026, p. 5, 910 So.2d at 481 (emphasis added).

|uUnlike Dickerson, and as we, have found herein, there was never a full and complete agreement as to the terms of the offer letter. While the parties came to an agreement as to certain terms, Dr. Mori-dani never agreed to the non-competition or non-solicitation provisions, which the offer letter indicated would be contained in the subsequent employment contract; and Stone never agreed to allow Dr. Moridani to conduct outside consulting work.

Accordingly, there is no genuine issue of material fact that the fundamental elements of a contract — offer and acceptance, as set forth in La. C.C. art. 1927— are absent in this case. We thus need not reach the issue of whether the trial court made a factual determination, improper for a motion for summary judgment, that there was no “meeting of the minds,” as Dr. Moridani suggests, although we find that the record amply supports the conclusion that there was no meeting of the minds. Inasmuch as Dr. Moridani admitted that there was never a completed, signed contract by both parties, or an agreement as to all of the terms of the contract, it follows that there could be no meeting of the minds.

Having found that there was no valid employment contract between Dr. Moridani and Stone, we now turn to Stone’s answer to the appeal, by which it seeks an award of damages for frivolous appeal.

Louisiana Code of Civil Procedure art. 2164 provides, in pertinent part, that an appellate court “may award damages, including attorney fees, for frivolous appeal

This Court examined this Article and explained when frivolous appeal damages should be awarded in Dugas v. Thompson, 11-0178, p. 15 (La. App. 4 Cir. 6/29/11), 71 So.3d 1059, 1068:

11BLa. C.C.P. art. 2164 and Rule 2-19, which allow damages for a frivolous appeal, are penal in nature and must be strictly construed in the appellant’s favor. See Levy v. Levy, 02-0279, pp. 17-18 (La. App. 4 Cir. 10/2/02), 829 So.2d 640, 650. Appeals are favored, and frivolous appeal damages are not granted unless they are clearly due. Haney v. Davis, 04-1716, p. 11 (La. App. 4 Cir. 1/19/06), 925 So.2d 591, 598. Even when an appeal lacks serious legal merit, frivolous appeal damages' will not be awarded unless the appeal was taken solely for the purpose of delay or the appellant’s counsel is not serious in the position he- advances. Elloie v. Anthony, 95-0238, p. 3 (La. App. 4 Cir. 8/23/95), 660 So.2d 897, 899.

" In this' matter, while we agree with Stone that Df: Moridani’s own deposition testimony confirms that no enforceable employment contract was created, we cannot say that the appeal was taken for the purpose of delay or that counsel for Dr. Moridani did not seriously believe in’ his contentions. Thus, we cannot say that Dr. Moridani’s argument is so vacuous as' to warrant damages for frivolous appeal; and we decline to make such an award in this appeal. .

CONCLUSION

Based on the foregoing, we affirm the trial court judgment granting Stone’s motion for summary judgment. The request for damages for frivolous appeal is denied.

AFFIRMED

      , Dr. Moridani states in his appellate brief that the trial court’s failure to rule on his "objection to the submission of parole documentary evidence” is a "clear violation of C.C.P. Art. 966 and is legal error requiring the judgment to be reversed.” In support of this contention, he cites the case of Snider v. Louisiana Med. Mut. Ins. Co., 13-0579, pp, 6-7 (La. 12/10/13), 130 So.3d 922, 929, and its internal cite to Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 735. Evans is cited by the Snider Court for the principle that “[w]hen a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo." Snider, 13-0579, pp. 6-7, 130 So.3d at 929. Neither case addresses the issue of a trial court's failure to rule on an objection to the admissibility of evidence in a motion for summary judgment and, thus, neither applies to the issue at hand.

      . We note that, .in a brief filed in reply to Dr. Moridani's opposition memorandum in the trial, Stone raises the issue of the timeliness of the opposition memorandum, noting that the new provisions of La. C.C.P. art. 966 B(2) require that an opposition to a motion for summary judgment must be filed and served not less than fifteen days prior to the hearing on the motion. According to Stone, the hearing date for its Motion was March 10, 2017 (as is also reflected in the Rule to Show Cause, which indicates a March 10, 2017 hearing date). Dr. Moridani's opposition memorandum, due no later than February 23, 2017, was filed on March 3, 2017. The judgment reflects a hearing date of March 24, 2017, although there is nothing in the record indicating that the March 10, 2017 hearing date was continued to March 24, 2017. Thus, on the face of the record, Dr. Moridani’s opposition memorandum appears to have been untimely. Because there is no indication in the record that the timeliness of the opposition memorandum was addressed by the trial court, we pretermit a discussion as to whether Dr. Moridani’s objection was contained in a "timely filed opposition.”

      . We note that Mr. Ridgeway testified that all Stone employees execute a written employment contract.

      . Dr. Moridani’s position is that Mr. Ridge-way verbally agreed to allow him to perform outside consulting work’, despite Mr, Ridge-way’s having stricken this modification to the offer letter.

      . Rule 2-19 of the Uniform Rules, Courts of Appeal states: "The court may award damages for frivolous appeal in civil cases as provided by law.”


source: Caselaw Access Project

author: Judge Edwin A. Lombard

license: Public Domain

text:
    GULF COAST BANK & TRUST COMPANY, INC. v. Gilles J. CASSE, GMD International, Inc. and Damon Baldone
    NO. 2017-CA-0489
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 22, 2017

      Jack A. Ricci, Michael S. Ricci, Jonathan L. Schultis, Brian G. LeBon, RICCI PARTNERS, LLC, 101 W. Robert E. Lee Boulevard, Suite 400, New Orleans, LA 70124, COUNSEL FOR PLAINTIFF/AP-PELLEE
    Damon J. Baldone, Thomas E. Dunn, 162 New Orleans Blvd., Houma, LA 70364, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Roland L. Belsome)
   Judge Edwin A. Lombard

|,The instant appeal involves a dispute over attorneys’ fees pursuant to a contingency fee agreement between Gulf Coast Bank and Trust (“GCBT”) and the Appel-lee, Ricci Partners, LLC (“the Appellee”). The Appellant, Damon Báldone, seeks review of the district court’s January 10, 2017 judgment wherein it reduced its prior award of attorneys’ fees to the Appellee to $800,000. Finding the district court did not abuse its discretion, we affirm.

Facts

The Appellee represented GCBT in a contract suit filed by GCBT in 2010 against Mr. Baldone in his capacity as a personal guarantor for obligations that were defaulted upon. In January 2014, GCBT and the Appellee entered into a contingency fee agreement.

Following the trial and while the matter was under advisement in Civil District Court (“district court”), in May 2014, Mr. Baldone filed a complaint with the Federal Deposit Insurance Corporation (“FDIC”) — and a similar complaint with the Louisiana Office of Financial Institutions (“OFI”) — seeking damages and penalties for himself against GCBT as well as the revocation of GCBT’s charter. According to the Appellee, Mr. Baldone’s filings referenced this litigation and | ^asserted that GCBT purposefully hid or destroyed documents. The FDIC claim against GCBT was closed in May 2014, after the Appellee intervened on behalf of GCBT.

The following month, Mr. Baldone filed a bar complaint against Jack A. Ricci (“Mr. Ricci”), who is an attorney with the Appellee’s firm and was representing GCBT, with the Office of Disciplinary Counsel (“ODC”). The bar complaint was later dismissed by the ODC.

Mr. Baldone then filed a petition for damages on July 23, 2014, in the 32nd Judicial District Court for the Parish of Terrebonne, raising spoliation claims against GCBT. Such claims had previously been raised by Mr. Baldone in a motion for spoliation of evidence in the district court, but had been dismissed. As such, on August 4, 2014, GCBT filed a declinatory exception, which was granted by the 32nd Judicial District Court. The matter was dismissed and transferred to the district court.

In January 2015, Mr. Baldone filed an amended petition in the. lawsuit that had been transferred from Terrebonne Parish to the district court and consolidated with the underlying- litigation. GCBT, in response, filed an exception of res judica-ta/collateral estoppel to dismiss the new claims raised in the amended petition.

[¡¡On February 11, 2015, the district court rendered judgment in favor of GCBT, and granted its declinatory exceptions .dismissing the claims raised in Mr. Baldone’s amended petition. The district court awarded GCBT $2,109,221.69, plus unpaid fees in the amount of $127,030.85, plus interest until paid. Lastly, the district court awarded attorneys’ fees to GCBT, pursuant to the contingency fee agreement, in the .amount of 40% of the final judgment, or approximately $894,501.00.

Mr. Baldone appealed the February 11, 2015 judgment, which was affirmed in all respects by this Court, except as to the attorneys’ fee award. The attorneys’ fee award was vacated and the matter was remanded to the district court to conduct a reasonableness hearing. The Supreme Court denied Mr. Baldone’s application for a writ of certiorari on September 16, 2016.

The district court held a reasonableness hearing on August 22, 2016, and later rendered a judgment reducing its award to' $800,000. Mr. Baldone timely'filed the instant appeal. He raises three assignments of error:

1. The district court erred in awarding attorneys’ fees to the Appellee based on a contingency fee agreement;
2. The district court erred in awarding attorneys’ fees based on an affidavit of counsel for GCBT that it had stopped billing GCBT. after the execution of a contingency .fee agreement; and,
3. The district court erred in accepting the Appellee’s misleading representations of the number of hours spent in prosecuting GCBT’s case.

^Standard of Review and Applicable Law

The trial court has much discretion in fixing an award of attorneys’ fees, and its award ■ will not be modified on appeal absent a showing of an abuse of discretion. Whitney Bank v. NOGG, L.L.C., 15-1399, pp. 6-7 (La.App. 1 Cir. 6/3/16), 194 So.3d 819, 824 (citing Regions Bank v. Automax USA, L.L.C., 02-1755, p. 4 (La.App. 1 Cir. 6/27/03), 858 So.2d 593, 595. The trial court’s determination of whether a fee is clearly excessive is a factual question which will not be disturbed absent manifest error. Teche Bank and Trust Co. v. Willis, 93-732 (La.App. 3d Cir. 02/02/94), 631 So.2d 644, 647.

The First Circuit recently set forth the role of Louisiana courts in reviewing contracts executed between attorneys and their clients involving the amount of attorneys’ fees charged:

Further, “[cjourts are vested with the responsibility of both monitoring and analyzing the attorney-client relationship, even when it is based on a written contract between the parties.” In re Interdiction of DeMarco, 2009-1791 (La.App. 1 Cir. 4/7/10), 38 So.3d 417, 427. However, that responsibility must be carried out with restraint, especially when the parties have signed a contract that sets the terms of the attorney-client relationship. DeMarco, 38 So.3d at 427. Part of any attorney-client relationship is the fee the attorney may charge the client for-professional services. Any court-ordered reduction in an attorney’s fee must rest upon a factual finding that the excessive fee amount was never earned. DeMarco, 38 So.3d at 427. Absent a showing that the fee charged was clearly excessive, a contractual relationship between an attorney and client should not be altered. DeMarco, 38 So.3d at 427. [Emphasis added].

Whitney Bank, 15-1399, p. 5, 194 So.3d at 823-24.

| ^Assignments of Error

-The crux of Mr. Baldone’s appeal is that attorneys’ fees awarded in this matter are unreasonable. Despite Mr. Baldone listing the above-referenced three - (3) assignments of error, the arguments Mr. Bal-done actually discusses in his brief do not-correspond to the above-listed assignments of error. The following issues are actually briefed by Mr. Baldone: 1) there are errors contained with the Appellee’s prebills evidencing that the Appellee did not perform the amount of work it contends and calling into question the Appellee’s credibility; 2.) Mr. Ricci’s affidavit contains material misrepresentations and his fees should be disallowed; and 3.) the Appellee cannot collect its judgment pursuant to the terms of the contingency fee agreement as the. underlying judgment to GCBT has not been paid. We understand the above-listed issues to be Mr. Baldone’s assignments of error and will refer to these as such throughout this opinion.

Errors within the Appellees’ Prebills

In his first assignment of error, Mr. Baldone avers that the Appellee’s pre-bills contain errors evidencing that the Appellee did not perform the amount of work it contends and calling into, question the Appellee’s credibility. Mr, Baldone raises four (4) issues regarding the prebills drafted by the Appellee: 1) the prebills are false, unreliable documents evidencing an absence of billing judgment;

2) the time entries on the prebills are illogical and physically impossible;
3) the billing rates in the prebills are overly inflated; and
4) the prebills impermissibly contain billing entries for the Appellee’s defense of itself with the Louisiana Disciplinary Board and an - FDIC investigation of GCBT, which are unrelated to the instant matter: ’

|nMr. Baldone asserts that the prebills drafted by the Appellee should not be given any evidentiary weight because the documents are false and unreliable. The prebills were not submitted to GCBT. Furthermore, Mr. Baldone maintains that the prebills reflect that the Appellee lacked billing judgment and that the billing is patently unreasonable as evidenced by billing entries in increments of 10 and 12 hours. According to Mr. Baldone, the Appellee explained that these billing increments represented a full day, but not “actual, measured increments of time.” Mr. Baldone, maintains that the Appellee continued billing GCBT after the contingency fee agreement was executed by the parties.

Mr. Baldone asserts that this Court may take judicial notice that it is reasonable and customary for clients to insist that their attorneys bill ,in tenth or quarter hour increments. Mr. Baldone challenges the reasonableness of the Appellee’s various entries of 10.0 and 12.0 hour increments for an entire day based upon vague and repetitive billing entries. He further maintains that Mr. Ricci’s allegedly inconsistent; testimony further reflects that Mr. Ricci cannot support these entries or quantify the actual time he expended. Mr. Bal-done avers that during his deposition, Mr. Ricci related that he had numerous 10.0 hour entries because that is his billing maximum when he works for a full day on a file. He later offered the same explanation for the 12-hour entries stating that generally his max is 10 hours, but that number can occasionally increase to 12.

Mr. Baldone notes that Mr. Ricci admitted in his testimony that the prebills contained errors; however, Mr, Baldone maintains that said entries comprise a substantial portion of the prebills. According to Mr. Baldone, from May 11, 2Ó14 to July 3, 2014 — a period of fifty-four (54) days— the Appellee’s prebill |7contained 36 ten-hour entries, equaling 360 hours. During this fifty-four day period, he alleges that Mr. Ricci’s individual billing hours totaled 600.25 hours. Mr. Baldone also asserts that in a 23-day period spanning from July 13, 2015 to August 4, 2015, Mr. Ricci’s portion of the prebills included 31 ten-hour entries, and the total amount of hours he worked during that time equaled 375.4 hours. Mr. Baldone ¿sserts that these times are excessive and unreasonable.

Moreover, Mr. Baldone maintains that the Appellee’s prebills defy logic in that it is physically impossible within one day to bill for as many, hours as those included in the Appellee’s prebills. Mr. Baldone avers that Mr. Ricci’s explanation that the pre-bills are inaccurate is an insufficient explanation. Mr. Baldone lists other discrepancies contained within the prebills:

• The prebills include billing for the attorneys attending a four-day trial in May 2014; yet, there was no trial in this case during that time. The trial in this matter occurred from April 28, 2014 to May 1, 2014. Counsel had already billed for two days of trial in April. The prebills are simply false and unreliable.
• The prebills contain at least two billing entries of more than 24 hours, both in the month of July 2015. This is impossible as there are only 24 hours in a day.
• ' The prebills also include entries, of more than 20 hours a day. Mr. Bal-done urges this’ Court to view said entries with skepticism, especially since the bills actually tendered to GCBT do not contain the same large hourly billing increments, which Mr. Baldone characterizes as “erratic, irregular, and unreliable.”
• The prebills dated August 3-4, 2015 stated that the Appelleé worked for 20 hours on the appellate brief " on ’ August 3rd and another 10 hours on ' August 4th. Mr. Baldone notes that the Appellee filed its appellate brief at approximately 5:00 p.m. on August 3; thus, the attorneys at the firm could not have worked on said brief for 20 hours on August 3rd and not at all oh August 4th.

^Additionally, Mr, Baldone avers that attorney rates contained in the prebills are inflated, which further evidences, the Ap-pellee’s attempt to augment the award. Mr. Baldone, relies upon discrepancies between the actual bill of the Appellee as opposed to the prebills. The actual bill contained the following hourly billing rates: Mr. Rieci-$250/hour; Michael Ric-ci~$176/hour; and Johnathan Sehultis-$150/hour, According to Mr. Baldone, the prebills increase the hourly rate for each of the. attorneys as follows: Mr. Ricci-$350/hour; Michael Ricci-$250/hour; and Johnathan Schultis-$200/hour. Mr. Bal-done avers that the prebills are “inconsistent and disingenuous insofar as at the same time Ricci Partners is claiming these higher rates to the trial coui't, it was in fact billing its original, lower rates to the Bank.” Mr. Baldone further alleges that Mr. Ricci admitted in his deposition testimony that although the inflated prebill rates were in effect, the firm continued to bill GCBT at the original lower rate. Mr. Baldone additionally contends that Mr. Ricci further testified that the Appellee continued receiving payments from GCBT during this time.

Lastly, Mr. Baldone argues that the pre-bills contain matters that were outside of the scope of the Appellee’s representation of GCBT, and thus, are unrecoverable under the applicable contractual attorney-fee clause, which provides that the guarantor is responsible for the costs and expenses incurred by GCBC “in connection with the collection of all or any party of the indebtedness and obligations owing by Obligor under the RPA [Receivables Purchase Agreement], or the protection of, or realization upon, the collateral securing all or any party of |9such indebtedness and obligations.” Mr. Baldone avers that the Ap-pellee has impermissibly attempted to stretch the above-referenced language to encompass the defense of counsel for GCBT regarding disciplinary complaints, or investigations by applicable regulatory agencies relating to GCBT’s compliance with regulations.

Mr. Baldone avers that clients cannot reasonably be expected to pay for their lawyer’s defense of his or her law license when he or she is accused of unethical conduct during the course of representing their clients. Mr. Baldone points to the fact that Mr. Ricci did not submit the bills for this representation to GCBT and, thus, should not be submitted to him for payment. He further asserts that the regulatory oversight of GCBT by the FDIC and the OFI are unrelated to the collection of the indebtedness or the protection of RPA collateral. None of these actions are covered by the attorney fee provision contained in the contracts at issue in this matter.

We find that Mr. Baldone’s arguments regarding the prebills are not germane to the district court’s review of this matter where the fee due to the Appellee was based upon a contingency fee agreement. Both parties agree that the prebills were not submitted to the GCBT. The Appellee relates that the existence of the contingency fee agreement eliminated the need to bill. GCBT. Mr. Ricci testified that the prebills submitted, to Mr. Baldone were unredacted and were generated as an internal document for the attorneys working on the GCBT matter to keep a record of their time.

Mr. Ricci further testified during his deposition and before the district court that the prebills contained time-entry errors and'that GCBT was erroneously billed for time, by the Appelleé’s former accountant, after the contingency fee agreement | inwas executed by the parties. Mr. Ricci also explained that while Mr. Baldone discovered some erroneous prebill entries, such mistakes were minimal:

... If you recall at my deposition, as I said on the record, I fell on my sword. We made mistakes. I don’t know what else to tell you. Out of 2,006 time entries, you found fifty-six that are potentially .wrong... But I’m telling you we made mistakes. How much of those mistakes did we make out of $906,000, let’s say it’s $50,000, you want to make it $100,000, we can still make it $100,000, numbers are fungible. You make them do what you want them to do. You asked me for all my numbers, I gave you all my numbers, unredacted.

The district court heard Mr. Ricci’s testimony first-hand and reviewed the prebills at issue. We cannot say that the district court abused its discretion if it did rely upon Mr. Ricci’s explanation of the errors included in the prebills and the occasional payments the Appellee received from GCBT following the execution of the contingency fee agreement.

Furthermore, if the district court did consider Mr. Ricci’s testimony regarding Mr. Baldone’s levying of FDIC and OFI complaints against GCBT, and filing disciplinary complaints against himself and Michael Ricci were inextricably connected to the underlying lawsuit such that the Appellee should be compensated, we find no error in that judicial determination based on record. As the Appellee argues, the issues that Mr. Baldone alleges exist with the prebills were discussed at the reasonableness hearing, and thus, were considered, by the district court before it awarded $800,000 in attorneys’ fees to the Appellee. We find that this assignment of error lacks merit.

Mr. Ricci’s Affidavit Contained Material Misrepresentations and His Fees Should be Disallowed

Mr. Baldone argues that the district court relied upon the affidavits of Mr. Ricci and GCBT in granting the Appellee’s attorneys’ fees; however, both Inaffidavits, he claims, contain material misrepresentations in .order to persuade the district court to award a larger attorney fee award against him. He argues that the doctrine of unclean hands should be applied against the Appellee to-deny any award of attorneys’ fees to GCBT.

Mr. Baldone avers that the following are material misrepresentations in Mr. Ricci’s post-trial affidavit:

1. the Ricci firm did not bill GCBT after the contingency fee agreement was executed and the firm absorbed all the costs of the litigation thereafter; and,
2. the Appellee performed approxi- ' mately 1800 hours of work from the time the contingency fee agreement was executed up until the post-trial memo was drafted.

Mr, Baldone contends that bills produced by the Appellee reflect that it continued to bill GCBT and receive payments from GCBT after the contingency fee agreement was executed. According to Mr. Baldone, Mr. Ricci testified that the Appel-lee received six (6). payments totaling $42,652.30 from GCBT. This contradicts what Mr. Ricci attested to in his affidavit. Regarding the hours of work performed by the Appellee, Mr. Baldone avers that bills of the Appellee actually reflect that the firm performed 684.7 hours of work, not 1800 hours, from the time the contingency fee agreement was executed to the filing of the post-trial memo.

Based upon these misrepresentations, Mr. Baldone avers that the district court should have exercised its discretion to deny an award of attorneys’ fees pursuant to the contingency fee agreement. Additionally, Mr. Baldone asserts that pursuant to the doctrine of unclean hands, the district court should have refused to award attorneys’ fees. The doctrine is applicable, according to Mr. Baldone, because the district court had the discretion to refuse awarding the Appellee any | ^attorneys’ fees as a result of having unclean hands. Precision Instrument Mfg. Co. v. Auto. Maint. Co., 324 U.S. 806, 815, 65 S.Ct. 993, 998, 89 L.Ed. 1381 (1945).

In the instant matter, the district court twice considered the amount of attorneys’ fees due to the Appellee. On remand, the district court observed and heard Mr. Ric-ci testify and reviewed his affidavit. The discrepancies that Mr. Baldone argues exist . with Mr. Ricci’s affidavit were discussed at the reasonableness hearing, and thus, were taken into account by the district court before it made its award. Indeed, Mr. Ricci testified at the reasonableness hearing that he stood by his affidavit because he had instructed his former accountant, Mike West, not to bill GCBT after the contingency fee agreement was executed; nevertheless, Mr. West did not follow his instructions. He also explained that Mr. West did not accurately record in the invoices his [Mr. Ricci’s]' hourly rate increases from $250 up to $350. Mr. Ricci tether testified that Mr. West erroneously entered the billing rate for an associate at the firm.

With regard to the payment of attorneys’ fees during the course of the underlying litigation by GCBT, Mr! Ricci testified that payments were received from GCBT prior to the parties executing the contingency fee agreement: He further explained that GCBT paid the Appellee for its services in Terrebonne Parish "case before that-case was consolidated with the underlying matter. Lastly, he also explained that GCBT was also billed monthly by the Appellee for other cases in which it was- representing GCBT.

“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Additionally, the district court seems to have found the testimony of Mr. Ricci credible. “When' findings are based on | ^determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Id. We cannot say that the district court’s credibility determination was manifestly erroneous or clearly wrong.

Furthermore, the Louisiana Supreme Court has identified 10 factors to be considered when determining the reasonableness of attorneys’ fees: (1) ultimate result obtained; (2) responsibility incurred; (3) importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; -(8) intricacies of the facts involved; (9) diligence-and skill of counsel; and (10) court’s own knowledge. State, Dep’t of Transp. and Development v. Williamson, 597 So.2d 439, 442 (La. 1992).

Mr. Ricci testified that over the course of approximately seven (7) years that this matter was pending, the attorneys at the Appellee firm performed the following acts: prepared for the case; tried the case for a five-day period; filed two Motions for Summary Judgment; defended two Motions for Summary Judgment; defended GCBT against an FDIC claim; defended Mr. Ricci and his son, Michael Ricci, against bar complaints brought by Mr. Baldone; and handled the litigation Mr. Baldone filed in Terrebonne Parish until it was dismissed and consolidated with the underlying matter.

He further testified that he is a diligent worker and often works 14-hour days arriving at his office at 4:30 a.m., eating at his desk and not leaving work until 6:00 p.m. He related that he has represented GCBT for approximately 25 years in | uvarious matters. The record reflects that Mr. Ricci initially billed GCBT at a rate of $250 per hour in 2010, but later increased to $350 per hour in 2014. Mr. Ricci also testified that there-were two other attorneys at the firm who also worked on the .underlying litigation, Michael Ricci and Jason Schultis, and their hourly rates during the course of the underlying, litigation ranged from $150-$250 per hour. Considering Mr. Ricci’s deposition and hearing testimony wherein 'he attests to the pre-billing and invoice errors, as discussed above, we find that the district court did not err in considering Mr. Ricci’s affidavit, which Mr. Ricci, explained truthfully recounted how billing in the underlying litigation was handled at the Appellee firm based upon his understanding.

Based upon bur review of the record and the factors enumerated & State, Dep’t of Transp. and Development, supra., the Ap-pellee prevailed on behalf of GCBT after five years of litigation and an appeal, and facing FDIC and bar complaints on the licenses of GCBT and its attorneys, respectively, during that time period as well. The litigation was of great importance as GCBT sought to recover monies from a corporation, which Mr. Baldone- was a member of, that defaulted on a receivables purchase agreement. Mr. Baldone was a personal guarantor of the receivables purchase agreement. In the instant matter, the Appellee recovered a total of $2,236,252.54, plus interest, for GCBT. Additionally, the Appellee has represented GCBT for 25 years in various matters. Mr. Ricci testified as to his skill and diligence as well as that his fellow attorneys. Throughout the course of the lengthy litigation, numerous appearances were made by the attorneys with the Appellee’s firm for motion hearings, exceptions and trial in both the district court and the 32nd Judicial District Court.

|1sFinally, we find, that the' doctrine of unclean hands in inapplicable in this matter as the-record, does not reflect that the Appellee engaged in any reprehensible conduct in this matter. See Bossier Par. Sch. Bd. v. Pioneer Credit Recovery, Inc., 49,525, p. 4 (La. App. 2 Cir. 1/14/15), 161 So.3d 1007, 1009. Based upon the foregoing, we find no error in the judgment of •the district court awarding the Appellee $800,000,in attorneys’ fees. This assignment of error is without merit. -

Fees Are Not Yet Due Under the Contingency Fee Agreement

In its final assignment of error, Mr. Baldone maintains that the Appellee is not yet' entitled to a fee under the terms of the contingency fee agreement because ho amounts have been collected. Mr. Baldone relies upon the following language in the contingency fee agreement: “Client agrees to pay to its Attorney a contingent fee of Forty (40%) percent of the proceeds of any judgment collected after the filing of suit.” Mr. Baldone avers that the entry of judgment in itself does not entitle the attorney to collect fees from the client. The proceeds of the judgment must actually be collected. According to Mr. Baldone, Mr. Ricci admitted at his deposition that no proceeds of the judgment have actually been collected by GCBT. Therefore, he maintains that no fees are. due, and any fee award under that formulation would be improper.

Mr. Baldone further asserts that despite there being a contingency fee agreement, GCBT paid the Appellee substantial amounts of money in attorneys’ fees at various times. Thus, Mr. Baldone asserts that the contract may have been a simulation under La. Code Civ. Proc. art. 2025. Mr. Baldone argues that in the alternative, GCBT’s continual payment of monthly invoices, together with "the fact that it was executed shortly before trial, goes to the weight of the contingent fee agreement.

ImWe also find that these arguments are without merit. First, Mr. Bal-done is not a party, to the contingency fee agreement and, thus, has not established a right to enforce its terms against the Ap-pellee. Furthermore, an “attorney’s right to a contingency fee is not acquired until the claim in the underlying case is reduced to judgment or settlement.” Cox v. Boggs, 39,566, pp. 4-5 (La.App. 2 Cir. 4/6/05), 899 So.2d 770, 773 [citations omitted]. In the matter sub judice, the underlying case has been reduced to judgment and affirmed on appeal. Therefore, the Appellee has a right to collect its fee. It is fortuitous for Mr. Baldone to raise this argument as he is the party responsible for paying the underlying judgment, which he appealed thereby causing this matter to be in its current procedural posture. It would be untenable for this Court to hold that the Appellee cannot recover its fees under the facts presented. Lastly, Mr., Baldone offers no legal' or factual support for his assertion that the contingency fee agreement is a simulation. For these reasons, we find that this assignment of error is without merit.

DECREE

For the foregoing reasons, the January 10, 2017 judgment of the district court awarding $800,000 in attorneys’ fees to the Ricci Partners, LLC, is affirmed.

AFFIRMED

      . Mr. Baldone thrice attempted to re-open the bar complaint against Mr. Ricci, after the district court rendered judgment in favor of GCBT. The dismissal of the bar complaint was re-affirmed on June 8, 2015, and August 24, 2015, respectively, and permanently closed in December 2015. In February 2015, Mr. Baldone filed a bar complaint against another of GCBT’s attorneys, Michael S. Ric-ci, who is also a member of the Appellee's firm. That complaint was also dismissed by the ODC,

      . The Appellee explains that Mr. Baldone notified the 32nd Judicial District Court of his intent to seek a writ application, which he never filed. The Appellee further’ avers that there were issues with the transfer - of the Terrebonne lawsuit to the district court, which resulted in the Appellee filing a motion to enforce judgment on behalf of GCBT.

      . Gulf Coast Bank & Tr. Co. v. Casse, 15-0657, 15-0658 (La.App. 4 Cir. 4/27/16), 192 So.3d 845, writ denied, 16-1000 (La. 9/16/16), 206 So.3d 211.

      . Mr, Ricci further testified that another attorney, Joe Pappalardo, Jr., also worked on the underlying matter and that his billable rate was comparable to that of Mr. Schultis,


author: Judge Roland L. Belsome

text:
    LAKEWOOD PROPERTY OWNERS’ ASSOCIATION and Mark Harris Samuels v. Kyle SMITH and Christine Smith
    NO. 2017-CA-0382
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 22, 2017

      Jennifer L. Thornton, STANLEY, REUTER, ROSS, THORNTON & ALFORD, L.L.C., 909 Poydras Street, Suite 2500, New Orleans, LA 70112, COUNSEL FOR PLAINTIFFS/APPELLEES .
    Henry W. Kinney, III, Michael L. De-Shazo, Aaron N. Maples, KINNEY, EL-' LINGHÁUSEN, RICHARD & DESHA-ZO, 1250 Poydras Street, Suite 2450, New Orleans, LA 70113-1806, COUNSEL FOR DEFENDANTS/APPELLANTS
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore)’
   Judge Roland L. Belsome

_JjThe Appellants, Kyle and Christine Smith, seek review of the trial court’s judgment granting injunctive relief in favor of the Appellees, the Lakewood Property Owners’ Association (LPOA) and Mark Samuels. In particular, the trial court ordered the removal of their carport after finding that Appellant’s proposed remodel did not comply with the Building Restrictions of the Lakewood Property Owners’ Association (LPOA). For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

This case comes before us after extensive litigation and for the second time on appeal. The record from the first appeal reveals that the Appellants’ submitted their plans to build their carport to the LPOA Architectural Review Committee (ARC), who rejected the plans for failure to comply with the LPOA building restrictions. Specifically, the Building Restrictions required a five-foot setback from side interior yard lines. Later, Appellant, Christine Smith, sent a letter to the|2chair of the ARC indicating the Appellants’ intentions to'move forward with constructing the carport despite the ARC’S denial. The ARC chair responded, stating they would take appropriate action if .the Appellants’ structure did not comply with the Building Restrictions. While aware of the potential consequences of. their choice, the Appellants went forward with construction of the carport without the approval of the ARC. The Appellants began construction, placing the structure only two-and-one-half feet from the property line. .After a trial, the court granted injunctive relief in favor., of the Appellees and ordered the removal of the illegally constructed carport.

In the first appeal, this Court affirmed the trial court’s judgment.,: However, the matter was remanded for a determination as to. whether the carport could be made compliant with the LPOA’s Building Restrictions for Lakewood South, Section Two, Restriction Four, without being completely demolished. Following a trial on remand, the court again ordered the removal of the carport, specifically, finding that the Appellant’s proposed remodel did not comply with the Building Restrictions. Therefore, it held that the only remedy was to demolish the carport. This timely suspensive appeal followed.

STANDARD OF REVIEW

When reviewing questions of fact as determined by the factfinder, be it a jury or a judge, appellate courts utilize the manifest error or clearly wrong standard of review. Sassone v. Doe, 11-1821, pp. 2-3 (La. App. 4 Cir. 5/23/12), 96 So.3d 1243, 1245. “[A]n appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where 'two permissible views of the evidence exist, the fact find er’s choice between them cannot be manifestly erroneous or clearly wrong,” Sassone, 11-1821, p. 3, 96 So.3d at 1245. In order to reverse findings of the factfinder, “an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong.” S.J. v. Lafayette Parish Sch. Bd., 09-2195, p. 12 (La. 7/6/10), 41 So.3d 1119, 1127. The Louisiana Supreme Court explained this Court’s role as follows:

[ujltimately, the issue to be resolved by the reviewing court is not-whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. [Stobart v. State, Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993) ] Id: 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. Accordingly, where there are two permissible views of the evidence, the factfinr der’s choice between them cannot be manifestly erroneous. Id. at 883.

S.J., 09-2195, pp. 12-13, 41 So.3d at 1127.

The manifest error standard of review is also used for reviewing “mixed questions of law and fact.” Harold A. Asher, CPA, LLC v. Haik, 12-0771, p. 5 (La. App. 4 Cir. 4/10/13), 116 So.3d 720, 724 (citation omitted). Conversely, appellate courts review questions of law using the de novo standard. Id.

LAW AND ANALYSIS

Although the Appellants raise numerous assignments of error, the narrow issue currently before this Court is whether the trial court was manifestly erroneous Lin finding that the carport could not be made compliant with Restriction Four, without being completely demolished. In its principal assignment of error, the Appellants claim that the trial -court erred when it ordered them to demolish the carport, because moving the Columns inward by two- and-one-half feet would bring the carport into compliance with the building restrictions.

Lakewood South, Section Two, Restriction 4 states:

No building shall be located on any lot nearer to the front loit line or nearer to the side street line than the minimum building set back lines shown on the recorded plat. In any event, no building shall be located on any lot nearer than 20 feet to the front lot line or nearer than 12 ½ feet to any side street line. No building shall be located ' nearer than five (5) feet to an interior lot line or twenty (20) feet to the rear lot line, except that the sideline restriction'shall not apply to a detached garage, carport or other outbuilding located sixty-five (65) feet or more from the front lot line, which detached garage, carport or other outbuilding shall not be nearer to an interior lot line than three (3) feet' unless the same is constructed on the rear and side line of the ■ property. If such detached garage, carport or other outbuilding is not constructed in the rear corner of the lot on both property íines, then same shall not be nearer to an interior lot line than three (3) feet. For the purposes of this covenant, eaves shall not be considered as a part of a building, provided, however, that this will not be construed to permit any'portion of the building on a lot to encroach upon another lot: and further, a garage or carport shall be considered detached even if connected with the main building by a walkway, runway, or breezeway.

It is undisputed that the Smith’s carport was built within five feet of the adjacent interior line of the property, in violation of .Restriction Four, which requires a fivé foot setback. At trial, the Appellants offered only one alternative to bring the carport into compliance: moving the columns inward by two-and-one-half feet.

hThe Appellants’ expert architect, El-more . Tregre, III, testified that the attached carport could be brought into compliance tiy moving the columns inward thirty inches, an additional two-and-one-half feet. He reasoned that moving the columns inward would create an eave; and, since eaves are allowed to extend to the property line, the structure would be in complete 'compliance with the building restrictions. However, on cross-examination, Mr. Tregre admitted that the Building Restrictions did not providé a definition for an eave; therefore one would apply the definition provided in the New Orleans Comprehensive Zoning Ordinance (CZO).

In addition, the Appellees’ expert architect, Mr. Richard Albert, explained, that the CZO specifically defined “eave” as: “ ‘the projecting edges of a roof overhanging the wall of a structure.’ ” He confirmed that under the CZO the definition of eave cannot apply to a carport roof overhang, thus the five-foot setback requirements must be met for the entire structure of the carport, including the overhang. He explained: “the purpose of an eave would be to assist in keeping the exterior wall dry.” He .further explained that the CZO does not allow attached carports to contain a wall. Thus, he concluded tlqat a carport could not contain an eave.

On rebuttal, .Mr. Tregre admitted that under the CZO an eave can only extend from a wall. Therefore, he agreed that the roof extension from the columns of the carport was not an eave; rather, it was an overhang.

|Jn its reasons for judgment, the trial court found that moving the columns inward did not comply with the building restrictions. Since this was the only alternative offered at trial, the court concluded that demolition was the only option.

The Appellants argue that Mr. Albert’s testimony was inconsistent with the Building Restrictions in that he opined that Building Restriction Four prohibited attached carports. The Appellants misstate Mr. Albert’s testimony. However, assuming arguendo, that the testimony was inconsistent, the trial court was free to reject the inconsistent parts. See Temple v. Schwegmann Giant Super Markets, 95-2491, pp. 4-5 (La. App. 4 Cir. 7/10/96), 677 So.2d 1103, 1105-1106 (the trier of fact may also choose to reject all of the testimony of any witness or may believe and accept any part or parts of a witness’ testimony and refuse to accept any other part or parts thereof).

Nevertheless, the record reflects that Mr. Albert testified that an attached carport would be in compliance with Restriction Four jf the entire structure met the five-foot setback requirement. Likewise, Appellants’ expert testified that the setback requirement applies because the carport was attached (to the main building) and fell “within the requirements for the building itself.” The chief disagreement between the two experts’ testimonies related to whether moving the columns inward, without moving the roof, would bring the structure into compliance.

Though their own expert acknowledged that the roof projection was not an eave, the Appellants attempt to characterize the roof projection as an eave, using this word interchangeably with “overhang.” However, the trial court clearly rejected this contention and the record supports this finding. Concluding the CZO defined an eave as a projection from a wall, the trial court resolved this dispute in|7favor of Mr. Albert, finding that the carport did not have a wall, thus moving the columns inward would not create an eave as defined by the Building Restrictions, In support of its conclusion, the trial court also cited to an electronic mail written by Tommy Meric and submitted into evidence. Mr. Meric, who was on the architectural review committee for the LPOA and was also an architect, opined that “any structural elements such as columns or supporting walls related to the building and or proposed roof structure related to a carport should be no closer than 5 feet from the side yard property line.” Based on the evidence admitted at trial, there was a reasonable basis for the trial court’s conclusion.

Notably, Appellants raise several other assignments of error outside of the narrow issue currently before this Court. Particularly, among other arguments, Appellants complain of the trial court’s refusal to hear equity arguments and question whether Restriction Four even applies to their carport. These issues were raised and addressed in the first appeal, and the Louisiana Supreme Court denied Appellants’ application for supervisory writs. We will not consider these issues again, as they were previously reviewed and are now final.

Considering the foregoing, there was a reasonable basis for the trial court to conclude that the only proposed remodel would not comply with Restriction Four. Accordingly, we cannot find that the trial court was manifestly erroneous in finding that demolition of the carport was the only feasible option. For these ^reasons, the judgment of the trial court ordering the demolition of the Appellants’ carport is affirmed.

AFFIRMED

      . The ARC was formerly named the Architectural Control Committee. See Lakewood Prop. Owners' Ass’n v. Smith, 14-1376, p. 3 (La. App. 4 Cir. 12/23/15), 183 So.3d 780, 783, writ denied, 16-0138 (La. 2/26/16), 187 So.3d 469.

      . Id., 14-1376, pp. 2-3, 183 So.3d at 783.

      , Lakewood Prop. Owners' Ass'n v. Smith, 14-1376, pp. 2-3, 183 So.3d at 783.

      . Id., 14-1376, p. 26, 183 So.3d at 795.

      . See Lakewood Prop. Owners’ Ass’n, 14-1376, p. 3, 183 So.3d at 783 n. 3.

      . See Lakewood Prop. Owners’ Ass'n, 14-1376, pp. 11-12, 26 183 So.3d at 788, 795 (where this Court specifically found the structure was in violation of Restriction 4).

      .The CZO specifically defines eave as thé following: "The projecting' edges of a roof overhanging the wall of a structure.

      . See Lakewood Prop. Owners’ Ass’n, 14-1376, pp. 11-12, 26 183 So.3d at 788, 795 (where this Court specifically found the structure was in violation of Restriction 4). Additionally, on remand, when refusing to admit evidence on equitable considerations outside of the narrow issue set forth by this Court, the trial court correctly acknowledged that it already heard such evidence and was bound by this Court's directive on remand, which was only to decide whether the carport could be remodeled to comply with Restriction Four.


author: PICKETT, Judge.

text:
    Kevin COOLIDGE v. Austin BUTLER, dba Austin’s Auto Salvage
    16-937
    Court of Appeal of Louisiana, Third Circuit.
    11/22/2017
    Rehearing Denied January 24, 2018
    Paul H. Benoist, BENOIST LAW OFFICES, 329 Market Street, Natchez, Mississippi 39120, (601) 445-4148, Counsel for Plaintiff/Appellee: Kevin Coolidge
    Craig S. Watson, Attorney at Law, 3909 Plaza Tower Drive, Baton Rouge, Louisiana, 70816, (225) 292-800, Counsel for Defendant/Appellant: Austin Butler, DBA Austin’s Auto Salvage-
    Court composed of John D. Saunders, Elizabeth A; Pickett, and Shannon J. • Grémillion, Judges,
   PICKETT, Judge.

|, Kevin Coolidge (Coolidge) filed a motion to dismiss the appeal of Austin Butler, dba Austin’s Auto Salvage (Austin’s Auto), alleging that the appeal is untimely" because Austin’s Auto did not post a bond in compliance with La.R.S. 23:1310.5(C). For the reasons that follow, we dismiss the appeal and remand the matter to the Office of Workers’ Compensation (OWC) for the setting of a bond in compliance with the applicable law.

This appeal arises out of an alleged on-the-job injury that occurred on April 29, 2014. Coolidge was employed by Austin’s Auto as a mechanic. Coolidge alleged that he was working on a motor when it fell on his" hand, causing a screw to. go through his hand. He filed a 1008 on July, 7, 2007. The matter proceeded to trial on September 4, 2015. The Workers’ Compensation Judge (WCJ) took the matter under advisement and issued written reasons for "ruling on January 11, 2016. The WCJ ruled in favor of Coolidge and against Austin’s Auto. The WCJ found that the accident occurred within the course of scope of Coolidge’s employment; hat Coolidge was entitled to medical treatment and payment of all related, reasonable, and necessary medical expenses; that Coolidge was entitled to temporary total disability (TTD), supplemental earnings benefits (SEB), and indemnity benefits;' and that Austin’s Auto was arbitrary and capricious in failing to provide workers’ compensation benefit's. The WCJ further awarded sanctions and attorney’s fees to Coolidge.

A judgment in accordance with the written reasons was signed on June . 29, 2016, and notice of judgment issued that same day. Austin’s Auto filed, a motion for appeal on August 29, 2016, and the WCJ signed an order" of appeal on September 1, 2016. Neither the notice of appeal nor the order specified whether The appeal was suspensive or devolutive. On September 2, 2016, the OWC issued |2a notice of appeal indicating that the appeal was devolutive. A notice of estimated appeal costs issued on September 9, 2016, and the amount was due twenty days after receipt of the notice. Austin’s Auto received the notice on September 14, 2016, and timely paid the estimated costs of appeal on October 3, 2016. Notice of a November 17, 2016 return date was issued.

. The record was lodged in this court on November 21, - 2016. On November 28, 2016, Coolidge filed the instant motion to dismiss appeal based on Austin’s Auto failing to post an appeal bond in accordance with La.R,S. 23:1310.5(C). Austin’s Auto opposed the motion to dismiss, alleging that since the WCJ failed to assess an appeal bond, the case should be remanded to the OWC for compliance with La.R.S. 23:1310.5.

Louisiana Revised Statutes 23:1310.5(C) (emphasis added) provides as follows:

When there has been an award of benefits by the workers’ compensation judge, no appeal by an employer shall be entertained by the appellate court unless the employer secures a bond with one or more sureties to be approved by the workers’ compensation judge, guaranteeing that the employer will pay the amount of the. award rendered therein together with interest thereon as otherwise provided by law, and all costs 'of the 'proceeding. The time limits for perfectiny. the bond shall be as provided in the Code of Civil Procedure, but shall not commence to run ayainst the appellant until the appellant is notified by the workers’ compensation judge as to the amount of the bond fixed in accordance with law.

Thus, in workers’ compensation matters, appeal bonds are required in both suspen-sive and devolutive appeals where the claimant has been awarded benefits and the employer seeks an appeal. However, the delay for posting the bond does not begin to run until the appellant gets, notification of the amount of the bond.

Coolidge seeks to have the appeal dismissed since it is undisputed that Austin’s Auto did not post an appéal bond in this case. It is also undisputed that no bond was set by the WCJ or the OWC. Thus, Austin’s Auto, on the other hand, | ¡¡asserts that the matter should be remanded to the OWC so that the amount of the appeal bond can be fixed in compliance with La. R.S. 23:1310.5(0.

Austin’s Auto cites Hurst v. Arabi Taxi and Delivery Service, 96-108 (La.App. 5 Cir. 5/28/96), 675 So.2d 1210, in support of this proposition. In Hurst, a cabdriver was murdered in his taxi while employed by Arabi Taxi and Delivery Service. His mother was awarded death benefits, and the taxi service took a suspensive appeal. The hearing officer did not set a bond, and none was filed. The Fifth Circuit, on its own motion, dismissed the appeal as premature and remanded the case to. the OWC, ordering the OWC to comply with the requirements of La.R.S. 23:1310.5.

Austin’s Auto also cites Agilus Health v. Dresser, Inc., 10-313 (La.App. 3 Cir. 4/14/10), 36 So.3d 385.

The facts of this case are nearly identical to Hurst, 675 So.2d 1210. No bond Was set in this case. Therefore, since the delay for the posting the bond did not begin to run and since the motion for appeal was timely filed after the notice of judgment, this appeal cannot be dismissed as untimely. See Agilus Health, 36 So.3d 385.

LWe hereby dismiss the appeal of Austin’s Auto as premature.. The matter is remanded to the OWC- for the setting of a bond in compliance with La.R.S. 23:1310.5(0).

MOTION TO DISMISS GRANTED. REMANDED TO THE OFFICE OF WORKERS’ COMPENSATION FOR THE SETTING OF AN APPEAL BOND IN COMPLIANCE WITH LA.R.S. 23:1310.5(0.

      . Hurst, 675 So.2d 1210, was decided under a prior version of La.R.S. 23:1310.5(C); however, that version required that a bond be secured with a surety approved by a hearing officer before an employer could appeal a case where an award of benefits had been made. The version of La.R.S. 23:1301.5 applicable in Hurst read:
      ■ When there has been an award of benefits by the hearing officer, no appeal by an employer shall be entertained by the appellate' court unless the employer secures a bond with one or more sureties to be approved by the hearing officer, guaranteeing that the employer will pay the amount of the award rendered therein together with interest thereon as otherwise provided by law, and all costs of the proceeding. The time limits for perfecting the bond shall be as provided in the Code of Civil Procedure, but shall not commence to run against the appellant until the appellant is notified by the hearing officer as to the amount of the bond fixed in accordance with law.

      . Agilus Health, 36 So.3d 385, was decided under the current version. of La.R.S. 23:1310.5(0.


text:
    STATE of Louisiana IN the INTEREST OF D.P.
    NO. 2017-CA-0194
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 29, 2017

      Leon A. Cannizzaro, Jr.', DISTRICT ATTORNEY, Donna Andrieu, Chief of Appeals, ASSISTANT DISTRICT ATTORNEY, Mithun Kamath, ASSISTANT DISTRICT ATTORNEY PARISH OF ORLEANS, 619 South White Street, New Orleans, LA 70119 COUNSEL FOR AP-PELLEE/STATE OF LOUISIANA
    Tenee Felix, LOUISIANA CENTER FOR CHILDREN’S RIGHTS, 1100-B Milton Street, New Orleans, LA 70122 COUNSEL FOR PLAINTIFF/APPELLANT
    (Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew Woods, Judge Tiffany G. Chase)
   Judge Daniel L. Dysart

I,As a result of a traffic stop of his mother on March 11, 2016, D.P., who was fifteen at the time of his arrest, was charged with violation of La. R.S. 40:966 E(l)(i), possession of marijuana. On November 17, 2016, the trial court held a hearing on the defendant’s motion to suppress evidence, and an adjudication of the charges against him. The trial court denied his motion to suppress and found D.P. guilty as charged. On January 19, 2017, the trial court sentenced D.P. to fifteen days in custody, but suspended the sentence and placed him on six months of probation.

D.P. appeals the adjudication arguing that the trial court erred in denying his motion to suppress the evidence.

BACKGROUND:

On March 11, 2016, Detective Lawrence Weathersby, Jr., and Sergeant Joseph Davis conducted a traffic stop at N. Rampart and Flood Streets in New Orleans. While on patrol, the officers observed a vehicle abruptly swerve to avoid pedestrians in the street. The officers stopped the vehicle, and Det. Weathersby ^approached the driver side and Sgt. Davis approached the passenger side of the vehicle. Both, officers testified that as they approached, they smelled marijuana coming from the vehicle. Det. Weathersby testified that at that point what was initially a traffic stop became a narcotics investigation. He advised the driver of her Miranda rights, explaining that as her passenger was her juvenile son, the rights extended to him. He asked D.P.’s mother to produce her license, registration and proof of insurance, at which time he noticed clear plastic baggies in the glove box. Based on his experience, he asked the driver if she had narcotics in the vehicle, to which she responded by handing the detective a bag of marijuana that was in her purse.

Det. Weathersby stated that he initially told D.P.’s mother that she would likely be issued a summons for possession of a small amount of marijuana. However, after seeing the baggies, Det. Weathersby suspected that there were more narcotics in the vehicle. He ordered both the mother and son out of the vehicle. Sgt. Davis handcuffed D.P.

A further search of the vehicle revealed more narcotics. Sgt. Davis testified that he could smell marijuana on D.P. As narcotics and drug paraphernalia had been discovered in the vehicle, Sgt. Davis patted D.P. down for weapons and narcotics. He felt a small bulge in D.P.’s pocket and heard the sound of cellophane or plastic. A search of D.P.’s pocket revealed a bag of marijuana.

laD.P.’s mother was placed under arrest for possession with intent, to distribute marijuana, and was transported to central lock-up. D.P. was placed under arrest for possession of marijuana, and was transported to juvenile lock-up.

DISCUSSION:

In his sole assignment of error, D.P. argues that the trial court erred in denying his motion to suppress. Applied to the facts of the case, the issue is whether the police officers had reasonable suspicion to justify the pat-down of D.P., and whether that pat-down legally resulted in the discovery of marijuana in his pocket,

D.P. argues that his rights under both the U.S. and Louisiana, constitutions were violated when Sgt. Davis conducted an investigatory stop without specific knowledge or reasonable suspicion that D.P. had committed a crime. He contends that neither officer had specific knowledge that he was engaged in criminal activity, especially in light of the fact that the officers knew' he was the driver’s minor son and that he was sitting quietly in the passenger seat. D.P. also argues that neither officer saw him in possession of marijuana or plastic baggies, and that Sgt. Davis was not justified in patting him down. D.P. posits that should this Court find that Sgt. Davis did have reasonable suspicion sufficient to justify a pat-down, the search of D.P.’s pockets elevated the stop to an arrest, which, in the absence of probable cause, is illegal.

A trial court’s rulings on motions to suppress are afforded great weight and , will not be set aside absent an abuse of discretion. State v. Gates, 13-1422, p. 9 (La. 5/7/14), 145 So.3d 288, 294; State v. Lewis, 15-0773, p. 11 (La.App. 4 Cir. 2/3/16), 187 So.3d 24, 30. A trial court’s legal findings are subject to a de novó review. Lewis, 15-0773, p. 11, 187 So.3d at 30.

Reviewing courts must look to the totality of the circumstances on a case-by-case basis to determine if police officers had an objectively reasonable basis for their actions. State v. Cure, 11-2238, p. 4 (La. 7/2/12), 93 So.3d 1268, 1270. The court must balance the need for the stop against the invasion of privacy it entails. State v. Williams, 07-0700, p. 11 (La.App. 4 Cir. 2/13/08), 977 So.2d 1101, 1111. The requisite “minimal objective, basis” for an investigatory stop is an officer needing to “maintain the status quo momentarily while obtaining more information.” State v. Lampton, 12-1547 (La. 4/5/13), 110 So.3d 557, 561, citing State v. Fauria, 393 So.2d 688, 690 (La. 1981). It is also well-settled that once officers make a valid traffic stop, they are justified in ordering the driver and passengers out of the vehicle for safety reasons. See Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); Cure, supra.

The officers testified that they observed D.P.’s mother swerve to avoid hitting pedestrians. She was cited for careless operation of a motor vehicle, as well as driving with a suspended driver’s license, an- expired plate, and illegally tinted windows. Clearly, the officers made a valid traffic stop based on the mother’s erratic driving, the expired plate and the windows.

Initially, Det. Weathersby testified that as he approached the vehicle, he could smell marijuana coming from the vehicle. His partner, Sgt. Davis, signaled I ¿that he also smelled marijuana. At that point, what was initially a traffic stop escalated to a narcotics investigation. Det. Weathersby first asked the driver for her registration and proof of insurance. Whén the glove box was opened, the detective saw multiple plastic baggies, which based upon his experience, indicated distribution -of drugs. He asked the mother if she had narcotics in the vehicle, at which time she retrieved a bag of marijuana • from her purse and handed it to the detective. Det. Weathers-by stated that initially he was inclined to issue the mother a municipal citation; however, upon seeing the plastic baggies, he knew he would have to place the mother under arrest.

Based on the jurisprudence and the facts of the case, we find the officers were justified in making the traffic stop, and in asking both the driver and passenger to exit the vehicle.

Furthermore, we find that D.P. was properly detained by handcuffing him after he exited the vehicle. Officers are “authorized to take reasonable steps to protect their personal safety and to maintain the status quo” during the course of an investigatory stop. United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 683-84, 83 L.Ed.2d 604 (1985) ; State v. Duhe, 12-2677, p. 9 (La. 12/10/13), 130 So.3d 880, 886.

D.P. argues that having him exit the vehiclé, handcuffing him, and searching his pockets was tantamount to an arrest, not a detention. His argument centers on the facts that he was with his mother, that they knew he was a minor, that he was quiet and calm during the encounter, and that the officers had no reasonable suspicion to believe he had committed a crime.

| fiThis argument must fail. At the point that Sgt. Davis asked D.P. to exit the vehicle and handcuffed him, it was already established that his mother was in possession of marijuana and that there were plastic baggies (which the officers knew from their experience were linked to distribution of narcotics) in a common area of the vehicle. Further, Sgt. Davis testified that he noted a strong smell of marijuana on D.P. once he exited the vehicle. The fact that he was with his mother is irrelevant, as she was at that time under arrest for distribution of narcotics. Likewise, the fact that he was a minor and was quiet and calm has no bearing on whether he was legally detained.

The Louisiana Supreme Court has consistently held that pat-down searches following valid investigatory stops were properly based on reasonable suspicion, and thus justified, based on officers’ discovery of narcotics during the stop and the close association between firearms and narcotics. See, e.g., Duhe, 12-2677, p. 9, 130 So.3d at 886, citing United States v. McGehee, 672 F.3d 860, 870 (10th Cir. 2012); State v. James, 99-3304, p. 7 (La. 12/8/00), 795 So.2d 1146, 1150, citing United States v. Trullo, 809 F.2d 108, 113-14 (1st Cir. 1987).

Sgt. Davis testified that he initiated a pat-down search of D.P. for the purpose of discovering any possible weapons. D.P. claims that Sgt. Davis did not testify that he knew what was in D.P.’s pocket prior to emptying his pocket. This is a mischarac-terization of the actual testimony. On cross-examination, Sgt. Davis testified that he frisked D.P. for weapons, but did not find any. However, Sgt. Davis also stated that he felt a small bulge in D.P.’s pocket and heard “cellophane 1 /crinkle a bit.’ ” On re-direct, he explained that based on the totality of the circumstances, i.e., the discovery of narcotics and plastic baggies in the vehicle, he was also looking for evidence of narcotics on D.P.

In State v. Guillory, 09-1350 (La. 11/20/09), 21 So.3d 945, the Supreme Court addressed the necessity of a,protective frisk. In Guillory, an officer felt a plastic bag hanging out of the defendant’s waistband,, and seized it. The Supreme Court, citing to recent cases, .held that the plain feel of the bag, combined with the circumstances that led up to the frisk, were -sufficient to allow the seizure of the bag. See, State v. Broussard, 00-3230 (La. 5/24/02), 816 So.2d 1284; State v. Adams, 01-3231 (La. 1/14/03), 836 So.2d 9.

In conclusion, we find that the officers were justified in making the traffic stop, in detaining D.P., and in searching him for weapons. Looking at the totality of the circumstances, we also find that Sgt. Davis was justified in frisking D.P. for possible narcotics. D.P.’s age or the fact that he was with his mother at the time of this encounter does not negate the reality of the dangers encountered by law enforcement when making traffic stops.

Accordingly, we affirm the ruling of the trial court.

AFFIRMED