author: STEWART, J.

text:
    Shonna Caldwell LANG, Plaintiff-Appellant v. Dawn SPROULL d/b/a Ark-La-Tex Shop Builders and Howard “Rowdy” Prince d/b/a Ark-La-Tex Shop Builders, Defendants-Appellees.
    No. 45,208-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 28, 2010.

      Bodenheimer, Jones & Szwak, by David A. Szwak, for Appellant Shonna Caldwell Lang, Third Party-Appellee Matt Lang.
    David L. White, for Appellees Dawn Sproull, Howard “Rowdy” Prince and Ark-La-Tex Shop Builders.
    Before STEWART, PEATROSS, and DREW, JJ.
   STEWART, J.

|, The plaintiff, Shonna Caldwell Lang (“Shonna”), sued the defendants, Dawn Sproull (“Dawn”) d/b/a Ark-La-Tex Shop Builders (“ALT”) and Howard “Rowdy” Prince (“Rowdy”) d/b/a ALT, for damages due to breach of a contract to build a metal shop next to her home and unfair trade practices. Dawn reconvened for the balance due under the contract.

Finding that Rowdy was not an owner of ALT, the trial court denied all claims against him. However, the trial court rendered judgment against Dawn as owner of ALT in the amount of $36,800 for damages due to breach of the contract to build and $3,004.50 for deposition costs and expert witness fees, plus additional court costs. Shonna’s remaining claims were denied. The trial court granted Dawn’s reconven-tional demand, awarding her $6,747.

Shonna now appeals the award of $6,747, the finding that Rowdy was not an owner of ALT, and the denial of her other claims. Answering the appeal, Dawn asserts that the damages awarded to Shonna were excessive. For the reasons that follow, we find that the trial court erred in granting the reconventional demand, in finding that Rowdy was not a partner in ALT, and in awarding certain damages for breach of the contract to build.

FACTS

On September 13, 2005, Shonna contracted with ALT for the construction of a metal building measuring 30 feet by 50 feet to be used as a boat storage area, a workshop for her husband, and a play area for her children. The contract provided that ALT would furnish dirt for the pad totaling 10 loads. No other specifications regarding elevation or preparing |2the site for construction were included in the contract. The contract also provided for a slab inside the building and a porch. The contract price was $23,147, but this amount was reduced to $21,747 when the parties agreed to shorten the height of the walls from 12 feet to 10 feet.

ALT constructed the building and completed the porch in about a week in October of 2005. Shortly after completion, Shonna met with Rowdy and Derek Gore, an ALT employee who had previously met with Shonna and had prepared ALT’s proposal for the job, to address issues concerning the poor appearance of the porch and problems with drainage. Thereafter, ALT poured additional concrete over the porch area and then applied a finish after the concrete hardened. To address problems with drainage, ALT dug a swell or ditch along the side of the building to direct the flow of rainwater around the building. ALT also sent someone to move dirt that had been piled against Shonna’s trees.

Despite ALT’s efforts to address the drainage issues, problems persisted. Water entered the front of the building flooding the floor area. Water also settled in the swell creating a muddy mess. Though there is much dispute in the record regarding the communications between ALT and Shonna about the drainage problems and attempts by ALT to collect payment, Shonna ultimately tendered payment in the amount of $15,000 to ALT on November 21, 2005. Because the amount tendered was less than the contract price, ALT placed a lien on the property on November 23, 2005. Thereafter, Shonna sought the advice of other contractors who offered proposals for addressing the drainage problems and who revealed other problem areas with the construction.

| ¡¡Asserting that the building was not constructed in a workmanlike manner and seeking damages for numerous alleged defects and unfair trade practices, Shonna filed suit for breach of contract on August 17, 2006, against Rowdy and Dawn as the owners of ALT. In their answers, both Rowdy and Dawn asserted that ALT was a sole proprietorship owned by Dawn and that Rowdy was merely an independent contractor. Dawn also reconvened against Shonna for the balance due on the contract.

At the close of the bench trial, the trial court found that ALT was owned by Dawn and that Rowdy was merely an employee of the business. Upon finding that the workmanship by ALT was substandard and considering the expert testimony offered by Shonna, the trial court awarded her the following damages:

• $13,000 to remedy elevation and drainage problems.
• $5,000 to remove and repour concrete that ALT had poured directly against the vinyl skirting on the mobile home when constructing the porch.
• $400 for new skirting on the mobile home.
• $800 to repair gaps in a doorway area of the building.
• $15,000 to remove and repour the concrete slab inside the building.
• $8,100 to remove and replace metal siding that had corroded along part of the building where dirt was piled against it.

The trial court also ordered Dawn as owner of ALT to pay expert fees, deposition costs, and court costs. All other claims by Shonna were denied. Though the trial court said it was rejecting the reconven-tional demand by Dawn for the contractual balance due, it entered an order by minute entry the next day to allow Dawn the credit for the balance due on the contract.

| Judgment was rendered on April 16, 2009, against Dawn d/b/a ALT in the amount of $36,800 in damages, $3,004.50 in expert fees and deposition costs, plus additional court costs, and against Shonna in the amount of $6,747 on the reconventional demand. The judgment also provided for cancellation of the lien. All claims against Rowdy were denied and all other claims asserted by Shonna were denied.

Following the denial of her motion for a new trial, Shonna appealed. Dawn answered the appeal to assert that the award of damages was excessive. We will now address the issues raised in the appeal and answer.

DISCUSSION

Because the issues on appeal are factual, our review is limited to a determination of whether the trial court’s findings of fact are manifestly erroneous or clearly wrong. We do not determine whether the factfinder was right or wrong but whether its conclusions were reasonable. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). Reasonable evaluations of credibility and inferences of fact should not be disturbed on review where there is conflicting testimony. Id. Where documentary or objective evidence contradicts a witness’s story or the story itself is internally inconsistent or implausible such that no reasonable trier of fact would credit it, then we may find manifest error even in a finding purportedly based on a credibility determination. Id. But in general, where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

\ friability of Howard “Rowdy” Prince

Dawn argues that the trial court erred in failing to find that Rowdy was a partner in ALT. We agree.

Our law defines a partnership as a “juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit.” La. C.C. art. 2801. Where there is no written agreement, the existence of a partnership may be established by proof that the alleged partners agreed (1) to form a partnership and participate in the profits to accrue from the business in determined proportions; (2) to share in the losses as well as the profits of the partnership; and (3) to have the property or stock of the partnership form a community of goods in which each party has a proprietary interest. Porter v. Porter, 36,007, p. 14 (La.App.2d Cir.6/12/02), 821 So.2d 663, 671, and cases cited therein; Harris v. Wallette, 538 So.2d 728 (La.App. 2d Cir.1989). Essentially, the parties must intend to have a business relationship between them and that relationship must have all the major characteristics of a partnership. Porter, supra.

Dawn and Rowdy asserted in their answers and testified that she is the owner of ALT and that he is employed as its general manager. However, the totality of the testimony shows this to be a fiction.

Rowdy testified that he came up with the idea to begin building “pole barns,” or post-frame constructed buildings, in Louisiana after moving back to the state from Mississippi and needing to do something to earn a living. RHe approached Dawn, a casino waitress/hostess with no construction experience and with whom he had fallen in love, about his idea.

Dawn testified that she was “somewhat” involved in planning the business. The only involvement by Dawn in the business as shown by the record is that she obtained a “Home Improvement Contractor” license under which ALT operated, she worked in the office a couple of days a week, and she filed the lien under the name Dawn Sproull d/b/a ALT. Primarily, Dawn is a housewife and Rowdy runs the business. She candidly admitted that ALT was started in her name, meaning that she obtained the license, because Rowdy was going through a divorce in Mississippi and did not want to “complicate” his divorce proceedings. Dawn’s testimony established that she knows nothing about the business and knew nothing about ALT’S contract with Shonna.

Rowdy’s testimony established that ALT was his idea. He also candidly admitted that the home improvement license was obtained in Dawn’s name rather than his due to his divorce proceedings in Mississippi. He testified that he had all the tools and materials needed to operate the business, including a tractor and a truck. Dawn was going to do the paperwork while he did the physical work. He put out signs, and the business just took off. He hired Derek Gore to design a website for ALT and then to work as a salesman. Rowdy testified that he paid the hosting fee for the website with his credit card. The website makes no mention of Dawn. When asked whether he and Dawn were partners in ALT from its inception, he replied, “You could pretty much say that, that’s correct.” He |7further explained that on paper they were not partners, but in reality they were.

Considering the testimony in light of the factors for finding that a partnership exists, it was clearly wrong for the trial court to find that Rowdy had no ownership interest in ALT. Rowdy initiated the formation of the business. He and Dawn reached an agreement whereby she would obtain the licensing from the state to operate ALT, and he would run the business. Thus, ALT was started by mutual consent of Rowdy and Dawn.

There can be no conclusion but that Rowdy and Dawn, who live together and have a family, share in the profits and losses of ALT. Though Dawn testified that Rowdy was paid a salary and that he did not then have access to the business bank accounts, she could not say what his salary was. The testimony suggesting that Rowdy was merely a paid general manager or employee with no share in the profits or losses of ALT was largely self-serving and uncorroborated by any documentary evidence.

Finally, each was shown to have a proprietary interest in ALT. Rowdy formulated the idea for ALT and contributed the tools, material, and know-how required to operate the business. Dawn apparently contributed some minimal amount of office work, as well as her name and status as a Louisiana resident to obtain the home improvement license under which ALT operated.

The trial court’s finding that Rowdy was merely an employee is manifestly erroneous. The only basis for finding Dawn to be the sole owner is the fact that the home improvement license was in her name and that she filed the lien. These facts do not establish that she is ALT’s sole proprietor |sor that no partnership exists. At most, they evidence Dawn’s limited involvement in ALT. Dawn did not obtain the license because she was the sole owner of ALT. The record established that Dawn obtained the license because Rowdy wanted to avoid complicating his Mississippi divorce proceedings. Thus, the licensing does not prove sole ownership by Dawn but rather is evidence of a mutual agreement between her and Rowdy. Therefore, we find that Dawn and Rowdy are partners in ALT and that Rowdy is liable for his virile share of the partnership debts as provided in La. C.C. art. 2817.

Damages and Credit for the Balance Due

In an answer to the appeal, Dawn argues that the trial court erred in awarding excessive damages. She specifically challenges the awards of $18,000 to remedy the elevation and drainage problems and $15,000 remove and repour the slab inside the building. In her appeal, Shonna argues that the trial court erred in ordering her to pay the balance due under the contract.

La. C.C. art. 2769 governs a contractor’s liability of non-compliance with a contract and states:

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.

A contractor must construct the work in a good and workmanlike manner so that it is suitable for its intended purpose and free of defects in workmanship and materials. Mount Mariah Baptist Church, Inc. v. Pannell's Associated Electric, Inc., 36,361 (La.App.2d Cir.12/20/02), 835 So.2d 880, writ denied, 2003-0555 (La.5/2/03), 842 So.2d 1101. An owner who seeks to recover damages from a contractor has the burden of proving: (1) the existence and nature of the defects; (2) that the defects were due to faulty materials and workmanship; and (3) the cost of repairing the defects. Id. The cost of repairing the defects or completing the work is the appropriate measure of damages under La. C.C. art. 2769. Id.

The trial court awarded $13,000 to remedy the elevation and drainage problems. Dawn complains that the award is excessive because these problems can be remedied at a much lower cost and are largely due to the site choice made by Shonna. Dawn also claims that Shonna did not give ALT adequate opportunity to correct the drainage problem.

The record shows that the drainage problem was the primary complaint by Shonna and was related to the improper elevation of the site for the building. The building is situated on a slope behind the mobile home. There is dispute in the record as to whether Shonna chose the location or whether she was talked into that specific location. Nevertheless, the fact remains that ALT contracted to construct the building in that location and agreed to furnish the pad for the building by performing the dirt work necessary to prepare the site. ALT was obligated to perform this work in a good and workmanlike manner. Though the contract called for 10 loads of dirt, ALT brought in an additional six loads at its own cost. Still, Shonna noticed that the elevation of the building appeared rather low and that water ran into the front of the building when it rained. To remedy the problem, ALT dug a swell or ditch along the side of the building to allow 110rainwater to drain around and to the back of the building. However, water puddled in the swell. Shonna testified that when she complained about the swell, Rowdy said that elevation was not ALT’s problem. However, Rowdy testified that ALT was not given the opportunity to complete the swell and the “finish grade” on the property, which would have remedied the drainage problem. Considering the conflicting testimony, we cannot say that the trial court erred in crediting Shonna’s version over Rowdy’s version and in finding Shonna entitled to damages to correct the elevation and drainage problems.

Shonna presented the testimony and estimates of two experts. James Burford, the owner of a dirt and site planning business with 17 years of experience in that area of work, attributed the drainage problems to the elevation of the building. He said this is a problem that should have been addressed prior to construction. His proposed remedy included removing a substantial amount of dirt from the front area of the braiding at a cost of $5,200, and replacing the dirt with 4,000 square feet of crushed rock to make the front of the building accessible at a cost of $2,330. The cost of the work related to elevation came to $7,530. However, Burford’s total estimate of $12,210 also included $1,780 to remove the concrete porch, $2,200 to redo the porch, and $500 to replace vinyl siding which had been splashed with concrete when the porch was poured.

Another expert with 20 years in business dealing with dirt and elevations was David Strong. He believed that the building should have been elevated at least a foot higher and that this would have required]^ substantially more dirt than was used by ALT. Though some things could be done to make the drainage issue better, Strong believed that problems would persist due to the building being too low. His proposal to improve drainage included removing 300 yards of dirt around the building at a cost of $3,000, removing four trees at a cost of $1,200, building a retaining wall at a cost of $3,062.50, reinstalling 4,000 square feet of gravel at a cost of $3,375, and reseeding the area around the back and side of the building at a cost of $800. The cost to address drainage and elevation issues came to $11,437.50. Strong’s total estimate was $14,437.50, and included $3,000 to remove and replace the back porch.

No expert testimony was presented by Dawn or Rowdy. Instead, Rowdy testified that the drainage issue could be remedied at a much lower cost by completing the swell and that this would require only a few hours of moving dirt around. We find no error in the trial court’s rejection of Rowdy’s proposed solution and acceptance of the opinions of Burford and Strong.

It is clear that the elevation work by ALT was substandard and that Shonna is entitled to damages. However, in awarding Shonna $13,000 for the elevation problems, the trial court considered the total estimates given by Burford and Strong to reach a midpoint. As noted above, their total estimates also included amounts for removing and repouring the porch. The trial court granted a separate award of $5,000 for the porch. Therefore, we must recalculate the award. The total of Bur-ford’s estimate related to elevation work was $7,530, and the total of Strong’s estimate for the same |12was $11,437.50. Meeting midway between these two estimates, we will reduce the damages awarded for the elevation repairs to $9,500.

Dawn also argues that the award of $15,000 for removing and replacing the slab inside the building is excessive. Rowdy testified that he ordered enough concrete to pour a slab of four inches in thickness as required by the contract. The testimony of Rowdy and Derek Gore was that the slab did not bear the weight of the building or provide structural integrity. Its purpose was strictly aesthetic. The building, which is made by post frame construction, is supported by poles set in concrete outside the slab.

Shonna did not have specific complaints about the floor other than learning from one of the experts she consulted that it was not four inches thick as required by the contract. Shonna’s husband Matt Lang testified that the concrete floor in the budding began to show some cracking about six to eight months after construction, but they never brought the issue to ALT’S attention. None of the photographs offered into evidence showed cracks on the concrete slab.

The trial court’s award was based on the testimony of Shonna’s construction expert, George “Geep” Moore. Moore’s opinion was that the fiber reinforced slab poured by ALT does not provide adequate reinforcement and would be more prone to cracking than a steel or tendon reinforced slab. Moreover, by drilling holes, he found that the slab averaged only three inches rather than the four inches called for in the contract. Also, he opined that most slabs would have a beam around the | isperimeter, but the slab in the shop did not. Moore testified that these problems could only be remedied by removing and replacing the slab at a cost of $15,000 to $20,000. He said that because the building is “pole-constructed,” the slab could be removed while the building remains standing.

Having reviewed the testimony relating to the slab issue, we find that the trial court was clearly wrong to award $15,000 to remove and replace the slab. Though Moore believed that a fiber reinforced slab should not have been used, ALT installed the type of slab called for in the contract. Moore’s opinion as to what type of slab should have been installed does not show that ALT’s installation of a fiber reinforced slab as agreed to in the contract was poor workmanship or rendered the slab unsuitable for its intended purpose as a floor for the building. We do not find that the thickness of a slab which serves no structural function necessitates an award of damages to pay for its removal and replacement. However, evidence shows that the slab is not four inches thick as called for by the contract. As shown by tickets introduced into evidence in support of Rowdy’s testimony that ALT used enough concrete for a four-inch slab, the total cost of concrete delivered on October 6, 2005, was $2,241.64. Some of the concrete was also used for the porch and sidewalk. We will award Shonna $1500 off the price of the concrete delivered for the job as compensation for ALT’S failure to fully perform the work it contracted to do.

Asserting there was no substantial performance by ALT, Shonna claims that the trial court erred in ordering her to pay $6,747 to satisfy the Imbalance due on the contract. However, Dawn asserts that there was substantial performance despite the finding of some defects. Dawn notes that Shonna held a Halloween party in the building for her children and used it both as a playroom and for storage. Shonna’s husband was also able to store a boat in the building.

Even when defects exist, a contractor may still recover the contract price when there has been substantial performance of the contract. Cascio v. Henry Hays Carpet, 42,653 (La.App.2d Cir.10/24/07), 968 So.2d 844; Mount Mariah, supra. Whether there has been substantial performance is a factual determination about whether the construction is fit for its intended purpose despite the deficiencies. Cascio, supra; Mount Mariah, supra. The extent of the defects or nonperformance, the degree to which the purpose of the contract has been impaired, the ease of correction, and the use or benefit to the owner of the work performed are all factors that may be considered in determining whether there was substantial performance by the contractor. Cascio, supra; Mount Mariah, supra.

Though this is a factual determination, we cannot conclude that there has been substantial performance of the contract so as to justify ordering Shonna to pay the balance due. Although Shonna and her family were able to make some use of the building, the evidence shows that there are substantial defects that render the building unfit for its intended purposes. This is primarily due to the elevation problems and related drainage issues which result in water flowing into the front of the building. This limits the use of the building as a storage area and playroom. There was expert [ 1fitestimony that problems will persist due to the inadequate elevation even when the recommended steps are taken to improve the drainage problem. Also, the building is not secure from pests and the construction is unfit for a termite treatment warranty. The trial court awarded $36,800 in damages due to the poor workmanship. Even though our adjustments have lowered the damages to $19,800, the damages remain almost as much as the contract price. The defects touch upon almost every aspect of the construction project, and the repair of the defects will likely result in significant inconvenience to Shonna and her family. We cannot find substantial performance on these facts and are constrained to reverse the award ordering Shonna to pay the balance due on the contract price.

Other Claims

Lastly, Shonna argues that the trial court erred in denying her claims under the Louisiana Unfair Trade Practices and Consumer Protection Law, La. R.S. 51:1401 et seq., and the New Home Warranty Act (“NHWA”), La. R.S. 9:3141 et seq. We find no error in the trial court’s denial of these claims.

The Unfair Trade Practices Law prohibits unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. La. R.S. 51:1405(A). Any person who suffers an ascertainable loss of money or property as a result of the use by another of an unfair or deceptive method, act or practice declared unlawful under R.S. 51:1405 may bring an action to recover damages, attorney fees, and costs. La. R.S. 51:1409(A). What constitutes unfair or deceptive practices is not 11Bdefined and must be decided on a case by case basis. United Group of Nat. Paper Distributors, Inc. v. Vinson, 27,739 (La.App.2d Cir.1/25/96), 666 So.2d 1338, writ denied, 96-0714 (La.9/27/96), 679 So.2d 1358. Unfair conduct is something that offends established public policy, while deceptive practices typically involve fraud, deceit, or misrepresentation. Id. The mere breach of a contract is not actionable under the Unfair Trade Practices Law. Schenck v. Living Centers-East, Inc., 917 F.Supp. 432 (E.D.La.1996).

This is a breach of contract case. Our review of the record finds no merit to any claim under the Unfair Trade Practices Law. Shonna asserts that the claim that Rowdy was not an owner of ALT and the fact that the Home Improvement License was in Dawn’s name show unfair and deceptive trade practices. Shonna claims that the Home Improvement License did not allow for construction and that the contract did not comply with certain requirements under La. R.S. 37:2175.1, which sets forth requirements for written contracts for home improvements over $7,500. None of these complaints support an unfair trade practices claim.

Both Shonna and her husband Matt testified that they contacted with ALT based on the recommendation of an acquaintance. There was no testimony that they inquired about ALT’S ownership, licensing, or insurance, or that they relied on such information in contracting with ALT. Shonna’s complaints that the contact did not satisfy the requirements of R.S. 87:2175.1 is of no merit and does not support an unfair trade practices claim. Failure of a home improvement contract to comply with the statutory requirements does not invalidate the contract. La. R.S. 37:2175.1(0). For 117these reasons, we find no error in the trial court’s denial of Shon-na’s unfair trade practices claim.

Shonna also claims entitlement to attorney’s fees under the NHWA. She refers to the NHWA’s definition of “Home” as including “any new structure designed and used only for residential use, together with all attached and unattached structures, constructed by the builder.” La. R.S. 9:3143(3). However, Shonna did not contract with ALT for construction of a home as defined by the NHWA. Jurisprudence interprets the NHWA as applying exclusively to claims between a builder and an owner involving construction defects in a new residence. Carter v. Duhe, 2005-0390 (La.01/19/06), 921 So.2d 963; Robert Angel Builders, Inc. v. Gilbert, 42,340 (La.App.2d Cir.8/15/07), 962 So.2d 1162. This matter does not involve the construction of a new residence and is not covered by the NHWA. The claim for attorney’s fees under the NHWA has no merit and was properly denied.

CONCLUSION

For the reasons explained, we reverse that part of the judgment finding Howard “Rowdy” Prince free from liability and now find him liable as a partner in ALT along with Dawn Sproull for damages due to breach of contract under La. C.C. art. 2769, along with other costs as ordered by the trial court. We amend the award of damages to Shonna Lang from $36,800 to $19,800. Lastly, we reverse and set aside that part of the judgment granting the reconventional demand by Dawn Sproull and ordering Shonna Lang to pay the balance due on the contract.

| jsThus, it is hereby ordered, adjudged and decreed that Dawn Sproull d/b/a Ark-La-Tex Shop Builders and Howard “Rowdy” Prince d/b/a Ark-La-Tex Shop Builders are liable unto Shonna Caldwell Lang for damages totaling $19,800 with judicial interest until paid, along with deposition charges and expert witness fees totaling $3,004.50, plus court costs.

Costs of this appeal are assessed against the parties with Shonna Caldwell Lang bearing half and Dawn Sproull along with Howard “Rowdy” Prince bearing the other half.

REVERSED IN PART, AMENDED IN PART, AND AFFIRMED IN PART.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Latisha HALL, Plaintiff-Appellant v. CITY OF SHREVEPORT, Shreveport Police Department, Chief Mike Campbell, and Other Unnamed Officers, Defendants-Appellees.
    No. 45,205-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 28, 2010.

      Sheva M. Sims, for Appellant.
    Tutt, Stroud & McKay, LLC, by A.M. Stroud, III, Jennifer P. McKay, for Appel-lees.
    Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   CARAWAY, J.

|, The plaintiff instituted a suit against the City of Shreveport and a police officer which included claims that the officer utilized excessive force in effecting an arrest of plaintiff and injured her. Plaintiff did not respond to a routine traffic stop and continued driving in flight from the officer to her place of employment before stopping. The trial court denied plaintiffs claims and she appeals. Finding no manifest error in the ruling, we affirm.

Facts

On the morning of August 4, 2005, while traveling north on a Shreveport street, Shreveport Police Officer Brad Sotak observed through an open car window that Latisha Hall, the driver of a southbound vehicle, was not wearing a seatbelt. Officer Sotak had been with the Shreveport police department for five years. He turned his vehicle around and got behind Hall’s vehicle which turned west on a major Shreveport thoroughfare. It was then that Officer Sotak activated his lights. When Hall failed to stop her vehicle, Officer Sotak activated his siren and horn. Hall maintained normal speed for approximately one mile until she pulled into the parking lot of her place of employment and stopped there. During the pursuit, Hall activated her right turn signal. Three co-employees of Hall who witnessed the events testified at trial.

Officer Sotak testified that at the time of the eventual stop of the vehicle he feared for his safety because of Hall’s actions in disregarding his pursuit. He drew his weapon for officer safety reasons. Hall remained in |2her vehicle until Officer So-tak asked her to step out. She got out of the car with her hands above her head as shown by the videotape of the incident. Officer Sotak asked Hall to turn and not face him as he exited his vehicle with his weapon drawn. Hall acted inconsistently in complying with Officer Sotak’s command; she turned away from him but twice turned around to face him.. Hall claimed that she was confused over Officer Sotak’s instruction to her.

Officer Sotak testified that he intended to arrest Hall for flight from an officer and the seat belt violation. The video reveals that after Hall exited the vehicle and stood beside it, Officer Sotak repeatedly gave the command: “Get down on the ground.” Each such command was loud but did not reflect anger or any lack of self control on the officer’s part. In fact, he concluded the command with “Ma'am” at times. Officer Sotak remembered Hall saying something in response that he could not understand.

In his police report, Officer Sotak noted as follows:

The reason I wanted the suspect to go to the ground and not face me was for many reasons. The suspect was a large woman and out weighed me by quite a bit; I had to follow the suspect for approximately 1-1.5 miles; I did not know if the car was stolen, I did not know if there were guns or drugs in the car; I could not tell if she was alone in the car; When she exited the car I actually thought she was a male; Her repeated refusal to comply with my requests; Her resisting handcuffing. All these unknowns along with her refusal of requests and length of flight caused me to be very concerned for my safety. Also at the time of my approaching her I did not know and could not tell if her person was armed. My actions of helping her to the ground was as much for her safety as it was for mine.

After several more commands for Hall to get to the ground, Officer Sotak threatened to tase her. When she persisted in resisting his command, |8Officer Sotak, who was 6'2" and weighed 215 pounds, holstered his gun and approached Hall, a 5'9", 300-pound woman. Officer Sotak performed a straight arm lock takedown which caused Hall to lose her balance. At trial, Officer Sotak testified that at the police academy, he was trained regarding the types of force which include presence, verbal use of force, soft empty hand, hard empty hand, impact, less lethal and deadly force. Officer Sotak testified that he received annual training on each type of force. He stated that when Hall did not respond to presence and verbal force, he utilized the next level of force, open empty hand, which includes that straight arm lock takedown. Officer Sotak testified that he utilized the minimal amount of force necessary to control the situation in accordance with the training that he had received.

After Hall was on the ground, Officer Sotak placed his right knee on her left back. He had difficulty handcuffing Hall because her right hand was under her body. After he “let up slightly” Hall pulled her right arm out and Officer Sotak handcuffed her and helped her to her feet. Officer Sotak recovered a pocket knife from Hall. He placed Hall in the patrol car where she complained of arm pain. Officer Sotak called the fire department to treat Hall’s injuries. The following day, Hall received treatment at a local hospital for a shoulder contusion, backache and joint pain. On August 26, she saw a chiropractor with complaints of low back and neck pain and numbness in the right hand.

Hall filed a complaint with the Shreveport Police Department against Officer So-tak. The findings and recommendations of the internal ^investigation by the Internal Affairs Bureau, which were introduced into evidence, determined Hall’s claim to be unfounded. Two of the three officers who comprised the Internal Affairs Bureau concurred in the unfounded finding with the following comments:

Captain Cheryl Jeter concurred with the findings of Lieutenant Joey Hester. Captain Jeter wrote “Officer Sotak needs experience as his guide. He needs to learn when to ‘disengage’ and shift tactics based upon his experience in such situations.”
Captain [Steven] Floyd concurred with the findings of Captain Cheryl Jeter. Captain Floyd wrote “I believe that this is a situation where teaching, coaching, and counseling would be in order to ensure that the officer understands the different levels of tactics that need to be used in situations. While conducting himself strictly by the training he received at the academy, he is a young officer and had not yet learned to adjust himself to the circumstances of the situation. I believe that with some coaching and teaching, the officer will improve his performance in the future.”

On February 17, 2006, Hall instituted suit against Officer Sotak, the City of Shreveport and the Shreveport Chief of Police (hereinafter “defendants”) seeking in part damages for injuries she received from Officer Sotak’s alleged use of excessive force. After a trial in which Officer Sotak, Hall and numerous eyewitnesses testified, the trial court took the matter under advisement and ultimately rejected Hall’s claims. Hall has appealed the dismissal of her claim regarding Officer So-tak’s use of excessive force. She argues that the evidence shows that Officer So-tak’s “over aggressive adherence” to his training techniques amounted to excessive force. Hall |fialso argues that the trial court erred in failing to assess any fault to Officer Sotak.

Discussion

The Louisiana Supreme Court has analyzed excessive force claims under the aegis of the general negligence law of Louisiana which employs a duty-risk analysis. Stroik v. Ponseti, 96-2897 (La.9/9/97), 699 So.2d 1072. Under this analysis, the plaintiff must prove: (1) the conduct in question was a cause-in-fact of the resulting harm; (2) defendant owed a duty of care to plaintiff; (3) the requisite duty was breached by the defendant; and (4) the risk of harm was within the scope of the protection afforded by the duty breached. Stroik, supra; Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94), 646 So.2d 318.

The duty of reasonableness is owed by a police officer whether making an arrest or approaching a subject prior to disarming him or her. In effectuating an arrest, an officer is required to approach and take into custody an individual whom the officer has probable cause to believe has committed or is committing a crime. Mathieu supra; Kyle v. City of New Orleans, 353 So.2d 969 (La.1977). Police officers have a duty to act reasonably in effecting an arrest, and the force used must be limited to that required under the totality of the circumstances. Id. The reasonableness of an officer’s use of force depends upon the totality of the facts and circumstances in each case. A court evaluates the officer’s actions against those of ordinary, prudent, and reasonable persons placed in the same |f,position as that possessed by officers, with the same knowledge as that possessed by the officer at the time of the incident. Id.

One of the factors taken into consideration when determining whether a police officer used reasonable or unreasonable force is whether the plaintiff was intoxicated, belligerent, offensive, or uncooperative. Evans v. Hawley, 559 So.2d 500 (La.App. 2d Cir.1990), writ denied, 563 So.2d 1156 (La.1990). In determining whether the officer acted reasonably under the circumstances, the following factors should be considered: (1) the known character of the arrestee; (2) the risks and dangers faced by the officer; (3) the nature of the offense involved; (4) the chance of the arrestee’s escape if the particular means are not employed; (5) the existence of alternative methods of arrest; (6) the physical size, strength, and weaponry of the officer compared to the arrestee; and (7) the exigency of the moment. Stroik, supra. The existence of other available alternative methods does not, in and of itself, render the method chosen unreasonable. Mathieu, supra. This reasonableness test is based upon the Fourth Amendment to the United States Constitution as well as La.C.Cr.P. art. 220 which provides:

A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.

This reasonableness test answers the question of whether or not the officer breached the duty he owed to the plaintiff. The degree of force employed is a factual question. Thus, the trial court’s finding is entitled to great weight. Kyle, supra.

|7The crime of flight from an officer is defined in La. R.S. 14:108.1 in relevant part as follows:

A. No driver of a motor vehicle or operator of a watercraft shall intentionally refuse to bring a vehicle or watercraft to a stop knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle or marked police watercraft.
B. Whoever commits the crime of flight from an officer shall be fined not less than one hundred fifty dollars, nor more than five hundred dollars, or imprisoned for not more than six months, or both.

If an officer makes a lawful arrest of an individual, that officer is authorized, without more, to search the arrestee and his wingspan, or lunge space for weapons and evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In Louisiana, some Title 32 traffic offenses require the issuance of citations, some allow arrests. State v. Stoutes, 43,181 (La.App.2d Cir.4/2/08), 980 So.2d 230.

In Nelson v. City of Shreveport, 40,494 (La.App.2d Cir.1/27/06), 921 So.2d 1111, writs denied, 06-0453 (La.5/5/06), 927 So.2d 313, 06-0600 (La.5/5/06), 927 So.2d 317, a retired police officer filed suit for excessive force arising from his arrest by a Shreveport police officer. The plaintiff had stopped his car in a shopping center parking lot to talk on his cell phone at approximately 9:00 p.m. and was discourteous to the officer. The court found that the officer’s “delivery of multiple strikes with a PR24” to the back of the suspect’s thighs and the use of a “pain compliance technique” to get the suspect into the police car amounted to excessive force | swhen the officer had no reason to arrest the retired officer and was only justified initially in making an investigatory stop.

In Patton v. Self, 06-1029 (La.App. 3d Cir.3/7/07), 952 So.2d 874, police officers observed the driver of a vehicle driving off of the right edge of the roadway and crossing the center line. The officers pursued the vehicle with lights activated. The driver of the vehicle pulled over but did not exit the vehicle. The officers approached the vehicle and detected the smell of alcohol coming from the driver who had slurred speech and bloodshot eyes and continually asked why she had been stopped. The officers continued to verbally instruct the driver to exit the vehicle but she rolled her window back up to a gap of three inches, locked the doors and remained inside. The officers became more aggressive in their demands for plaintiff to exit the vehicle. One of the officers sprayed pepper spray through the gap of the window. The driver eventually unlocked the door and was grabbed by the officers, forced to the ground face down and arrested for driving while intoxicated, failure to drive on the right side of the road, resisting an officer and running a red light. The driver filed suit alleging excessive force which caused her injuries to her neck, back, hip, thigh, knee and eye. The court found that the officers used excessive force based upon the video depiction of the events which failed to show erratic driving by the driver, that she crossed the center line or that the driver ran a red light. The video also showed that the driver immediately pulled over when the police activated their lights. Thus, the court concluded that the officers had no known reason to believe the driver was dangerous. Further, |flthe court determined that the officers gave the driver no time to exit the vehicle, but forcibly removed her and took her to the ground even when the driver presented little danger of harm or escape.

In Labauve v. State of Louisiana, 618 So.2d 1187 (La.App. 3d Cir.1993), writ denied, 624 So.2d 1235 (La.1993), the court found that state troopers used excessive force in arresting a 76-year-old man by forcing him down on to the ground to handcuff him for drunk driving. The court concluded that the officer was stronger than the 76-year-old man and could have avoided putting him on the ground to effectuate the arrest for a nonviolent offense. The driver claimed that as he reached into his wallet to produce his driver’s license, the officer grabbed him by the arm and forcibly pushed him against the hood of the police vehicle. When the driver uttered an obscenity at the officer, he spun the driver around, picked him up and slammed him head first onto the concrete pavement causing extensive damage to the driver’s nose and face. The officer countered claiming that the driver refused to give him his license and tried to walk away when he was told he was going to be placed under arrest. In the absence of a videotape of the incident, the trier-of-fact accepted the plaintiffs version of the arrest and awarded damages.

In Corkern v. Smith, 06-1569 (La.App. 3d Cir.6/6/07), 960 So.2d 1152, writ denied, 07-1803 (La.1/25/08), 973 So.2d 754, the court determined that a state trooper utilized excessive force in arresting an individual for failure to stop. The driver of the vehicle, who had been released three days earlier from the hospital, received a frantic phone call | ulfrom his girlfriend who was injured when she attempted to separate fighting dogs. The driver traveled at an excessive speed to assist his girlfriend and was pursued by a state trooper. When the driver pulled into his girlfriend’s driveway, the state trooper approached him with a drawn gun. The driver attempted to explain the situation, but the trooper walked up to him, grabbed his left arm at the site of his injury, threw him to the ground and handcuffed him. The driver was booked and released, but by the following morning, the surgical site on his left arm was irreparably damaged. The video showed that when the driver exited the vehicle, his hands were in clear view of the officer; the young slightly built man made no threatening moves and tried to explain the situation to the officer who did not speak to the driver, but instead threw him to the ground.

Notably, in this appeal, Hall does not assert that Officer Sotak lacked probable cause to arrest her for her flight from the officer or that under the circumstances he did not have the right to physically restrain her in effectuating the arrest and to take her into custody. She argues, however, that the escalation of the officer’s actions from his initial verbal commands to his directive for Hall to go to the ground was unreasonable. Her argument thus questions Officer Sotak’s decision to order her to the ground which led to the force used against her and to her alleged injuries. Additionally, the actual physical force with which Officer Sotak got Hall to the ground is questioned in Hall’s assignment of error. Officer Sotak claims that he “walked” Hall “down to the ground so she wouldn’t slam down on the ground.” Hall testified that Officer Sotak “pushed [her] to the ground” |nand that she “fell to the ground” injuring her lower back, upper shoulders and neck.

Under La.C.Cr.P. art. 220 and the factors enumerated in Stroik, supra, we will first review the reasonableness of Officer Sotak’s manner of detention of Hall by ordering her to the ground. Because of Hall’s lengthy flight from the officer’s traffic pursuit, the nature of the offense had become more serious than a mere routine traffic stop. This was not a citation-only traffic offense, as the flight from the officer which is proscribed in the Louisiana Criminal Code allowed for an arrest and the taking of Hall into custody. Additionally, given the exigency of the moment, the officer had not yet determined whether other more dangerous crimes were involved and had served as the reason for the flight from the officer. Hall’s vehicle had heavily tinted glass, and Officer So-tak’s suspicion and fear of another party or a weapon being in the vehicle were warranted. From the video, the officer’s manner of addressing Hall as she exited the car reflected this uncertainty of the situation and his fear; and to the contrary, it did not reflect maliciousness or hostility toward an unruly driver by an angry officer. This uncertainty of the extent of the criminal activity was made more confusing by Hall’s erratic actions and speech as she exited the automobile. Her physical size and strength also were significant considerations for the officer. While there may have been an alternative method of arrest and detention, short of ordering her to the ground, .the officer’s chosen method under the facts to secure the situation and ensure the officer’s safety cannot be said to be unreasonable.

112Concerning the force with which Hall fell to the ground, the videotape of the incident shows the parties’ actions outside their vehicles after Hall’s automobile was stopped. The view from the dash camera nevertheless was partially blocked by the back half of Hall’s automobile as she stood beside it after exiting. As Officer Sotak began the takedown maneuver grabbing Hall’s arm from behind, the back panel of the automobile and its roof prevented the view of what happened as the parties’ downward movement began. The recorded tape to that point, however, shows Officer Sotak’s repeated instruction to Hall and the force of his action at the beginning of the maneuver. The video to that point does not indicate that Hall was thrown to the ground or that Officer Sotak’s actions were otherwise unreasonable. The audio of the parties’ struggle on the ground does not reveal any scream of pain from Hall or inappropriate language from Officer Sotak giving any indication of excessive force used in the maneuver. After the handcuffs were applied, the video shows that Hall immediately was helped up to her feet. She was not then complaining of pain.

The trial court as the trier-of-fact heard the testimony of the parties and eyewitnesses of the force Hall received as she went to the ground and out of view of the camera. From the perspective of Hall’s fellow employee eyewitnesses, they did not understand the necessity for the takedown and handcuffing of their friend. Officer Sotak did not have that understanding of the situation as reviewed above. Accordingly, from our review of all the testimony and the videotape, we find that the trial court could conclude that 11sonly a reasonable amount of force was applied by the officer as he attempted to arrest Hall and secure the situation for his further investigation. In comparison to the other rulings of officer misconduct reviewed above, the circumstances of this case and Officer So-tak’s actions throughout the entire incident allow for the trial court’s determination that excessive force was not used in the arrest.

Conclusion

For the foregoing reasons, we affirm the trial court. Costs of this appeal are assessed to plaintiff.

AFFIRMED.

      . All three witnesses testified that they thought Officer Sotak aggressively took Hall to the ground.

      . Hall raised various other claims including claims of negligent hiring and training and a 42 U.S.C. § 1983 claim. Cross motions for summary judgment were filed by Hall and the defendants. The trial court denied Hall's and partly granted defendants’ summary judgment. As a result, the Shreveport Chief of Police was dismissed from the suit. The court also dismissed all of Hall's claims except the state law tort claims of battery, excessive force and intentional infliction of emotional harm.


author: COOKS, Judge.

text:
    William E. TROTTER, II v. CHARLES M. FIFE, JR. & ASSOCIATES, LLC and Charles M. Fife, Jr.
    No. 09-860.
    Court of Appeal of Louisiana, Third Circuit.
    April 28, 2010.

      Simon Law Offices, Barry L. Domingue, Lafayette, LA, for Defendant/Appellants Charles M. Fife, Jr. and Charles M. Fife, Jr. & Assoc., LLC.
    Breaud & Meyers, Alan K. Breaud, Timothy W. Basden, Lafayette, LA, for Plaintiff/Appellee William E. Trotter, II.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   COOKS, Judge.

|, FACTS

On December 31, 2003, Mr. William E. Trotter, II (Trotter) issued a check made payable to Charles M. Fife, Jr. & Associates, L.L.C. (Fife, LLC) in the amount of $350,000.00. Mr. Charles M. Fife, Jr. (Fife) negotiated the check for Fife, LLC, which is wholly owned by Fife. Trotter believed and understood that he was purchasing five royalty acres in a tract of land known as the “Ramos Field,” a highly productive gas field with a strong production record preceding that date. Trotter was informed by his long-time, trusted friend, Mr. Albert Stall (Stall), that Fife had a great royalty deal in a very highly productive field with a deep well, a good track record, and good longevity in a particular sand. Stall told Trotter that Fife needed the money right away because there were other buyers interested in the deal. Stall did not tell Trotter there was serious question about Fife’s title to these royalty acres. Relying upon his many previous dealings with Stall and Fife, Trotter agreed to purchase the five royalty acres for the sum of $350,000.00 based upon his CPA’s examination of production reports provided to her by Fife’s employee, Mr. Kim Melancon. (Melancon). No one revealed to Trotter, nor to his CPA, Mrs. Lucinda Fage (Fage) one very important fact — there was serious doubt that any such royalty acres existed. In fact, although Fife, Mr. Kevin Moody (Moody), Stall, Mr. Frenchie Thibodeaux (Thibo-deaux) and Mr. Kim Miller (Miller) knew about the highly questionable title to any such purported royalty acres, that information was kept from Trotter. Not only did Stall fail to mention to Trotter the highly questionable nature of Fife’s title to these royalty acres, but Fife directed an employee of one of his companies, Melan-con, to make the only contact with Fage regarding information she requested on behalf of Trotter. Melancon testified he had no idea there was any question as to whether these ^royalty acres actually existed nor anything about any issue of good title to these royalty acres at the time he was instructed to contact Fage. When Fife assigned Melancon as his contact with Trotter’s representative he, however, knew Melancon had no idea about the speculative title.

The deal put to Trotter was actually put in motion earlier in a meeting attended by Fife, Moody, Thibodeaux, and Miller. In that meeting, sometime before Christmas 2003, Miller, owner of Hector Operating Company (Hector), told the group he believed there were ten available royalty acres in the Ramos Field which could be purchased from Mr. Carl Bauer (Bauer), a record title owner of a tract of land in the Ramos Field. Bauer, a lawyer, banker, businessman and large land owner, previously sold what he believed to be all of his interest in the Ramos Field to Empire Energy Corporation (Empire). He believed he had conveyed all of his interest amounting to twenty-five royalty acres in a royalty deed assigning his interests to Empire.

According to Miller, the land in question was part of a piece of property donated to free slaves right after the Civil War. Miller suggested to the group he thought Bauer might own more royalty acres in the tract than he sold to Empire, but candidly stated that Bauer did not believe he owned anything more than he sold to Empire. Neither Miller nor anyone else at the meeting attempted to determine the validity of Miller’s assertion. Instead, they developed a “deal” wherein these alleged ten royalty acres in the Ramos Field would be purchased from Bauer by Hector for the sum of $200,000.00. The purchase would be financed by a thirty-day loan from B.T. Ventures (a joint venture between Moody and Thibodeaux’s family-owned companies) as allegedly, neither Hector nor Fife, LLC had the funds necessary to make the purchase from Bauer. Hector would then sell eight royalty acres to B.T. Ventures, which would then sell those eight royalty acres to Fife, LLC. Fife, LLC |swould immediately sell all eight royalty acres to other parties for a total sum of $525,000.00, including the five royalty acres sold to Trotter for $350,000.00. Hector retained two of the purported ten royalty acres

The Royalty Deed from Bauer to Hector states Bauer “intends” to convey ten royalty acres to Hector, which royalty acres are calculated on the basis of there being 127.65 acres of land in the tract located within the Ramos Field. This deed clearly states that the sale to Hector is “without warranty of title or otherwise whatsoever, even as to return of the purchase price.” The deed is dated November 17, 2003, but was not filed of record until December 26, 2003. The joint exhibit entitled “History of Sale,” entered into evidence at trial, states this transaction took place on December 26, 2003. Hector transferred eight of the purported ten royalty acres to B.T. Ventures. The deed for this assignment of royalty is dated December 24, 2003, however, the joint exhibit lists the date of the transaction as December 30, 2003. This royalty deed bears a recordation date of December 30, 2003.

According to Moody’s testimony, B.T. Ventures then sold its eight royalty acres to Fife, LLC by royalty deed dated January 7, 2004. This deed is not in evidence but the joint exhibit in evidence likewise shows the transaction date as January 7, 2004. Fife, LLC purportedly sold five royalty acres to Trotter as evidenced by a royalty deed signed by Fife on behalf of his LLC, dated December 31, 2003 and filed of record January 7, 2004. The joint exhibit indicates a different transaction date for this assignment of royalty interest as January 7, 2004. This deed, which purports to transfer five royalty acres to Trotter, was not delivered to Trotter’s CPA, Fage, until January 7, 2004. Fife admits that neither Trotter nor anyone on his behalf was shown the royalty deed nor told anything about any language in the deed until after it was delivered to Trotter’s CPA, Fage, more than a week after Fife | negotiated the payment from Trotter. The deed contained a clause stating “Assignor does not warrant title to the Subject Deed either express or implied, even as to the return of the purchase price.”

Fage sent a request to Meridian Resource Corporation (Meridian) for a division order reflecting Trotter’s newly acquired five royalty acre interest in the Ramos Field. Although Meridian at first sent in a division order affecting the royalty acres purportedly purchased by Trotter, it subsequently sent a letter to Trotter stating the order was sent in error and further stating that in fact he did not own any royalty acres in the Ramos Field because Bauer had previously conveyed all of his acres to Empire. Meridian later informed Trotter that although Bauer had intended to convey twenty-five royalty acres to Empire he actually only had no more than 22.345 royalty acres to convey, therefore he certainly had no royalty acres left to convey to Hector. Fage, on behalf of Trotter, immediately contacted Melan-con who assured Fage the problem would be corrected. The title problem was never corrected; and, in fact, the attorney hired by Fife to render a title opinion on the alleged royalty acres, Mr. John W. Grant, rendered an opinion that indicates serious doubt that Bauer could have owned any remaining royalty acres to sell to Hector. Grant further observed that, using Miller’s own theory as to how he determined Bauer might own ten royalty acres after his sale to Empire, it is clear Bauer could at best only have possibly owned 3.96 such acres, but even that was doubtful. Despite Meridian’s position, no one involved in the matter ordered a formal title opinion and no one took Meridian to task demanding assignment to Trotter of five royalty acres in the ongoing production in the Ramos Field. Trotter has never received any revenue from the Ramos Field production.

Upon learning of the title problem with the royalty acres purportedly transferred to Trotter, Moody and Stall returned a total of $142,500.00 to Trotter. L They also returned money to another individual who purchased a smaller royalty interest from Fife, LLC. Although Fife repeatedly promised to return the balance of Trotter’s $350,000.00, he never returned any money to Trotter. After Fife’s multiple failed promises to fix the title problem and his failure to repay Trotter, suit was filed.

The trial court rendered judgment from the bench finding in favor of Trotter awarding him damages of $207,500.00 plus attorney fees, interest, and court costs. The trial judge found Fife, LLC committed fraud upon Trotter and orally stated he dismissed the claims against Fife individually. The court instructed plaintiffs counsel to prepare a judgment and submit it to opposing counsel for approval. Although the transcript of the proceedings and the court minutes reflect that the court orally stated Fife, LLC committed fraud upon Trotter and specifically dismissed Fife individually, the 'written judgment signed on December 19, 2008, recites: “there be judgment in favor of Plaintiff, William E. Trotter, II, and against Defendants, Charles M. Fife, Jr. & Associates, LLC, and Charles M. Fife, Jr., individually” and further recites “The court specifically finds that fraud has been committed by Charles M. Fife, Jr., through Charles M. Fife, Jr. and Associates, LLC, in the underlying transaction and the amount awarded herein is for damages arising from fraud.” Fife, LLC and Fife individually appeal the final judgment alleging the trial court manifestly erred (1) in failing to enforce the language in the royalty deed which provided the assignment was without warranty of title; (2) in finding Fife personally liable; and (3) in finding fraud was committed. We find there was no manifest error in the trial court’s ruling and find there is no merit to Appellants’ assignments of error.

ANALYSIS

We first note that the signed written judgment is the final judgment of the 1 court. La.Code Civ. P. art. 1911. In Hebert v. Hebert, 351 So.2d 1199, p. 1200 (La.1977) the Louisiana Supreme Court stated:

[W]e think that the legislature intended to prohibit alterations in the substance of the written judgment after it has been signed by the judge and not alterations in the judge’s oral statements from the bench. Otherwise, inadvertent but substantive misstatements once uttered by the trial judge could not be changed except for their phraseology or for corrections of errors in calculation. This result would be unreasonable. It is much more likely that the lawmakers considered the written judgment to be the final judgment which is unalterable in substance. In the event a substantive error nevertheless creeps into the written judgment the aggrieved party has recourse to a timely application for new trial or a timely appeal.
(Footnotes omitted.)

Thus, we review the December 19, 2008 judgment that entered a judgment against Fife individually and Fife, LLC.

The standard of review on appeal is set forth in Stobart v. State of La., D.O.T.D., 617 So.2d 880, p. 882 (La.1993) (some citations omitted):

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.’ Rosell v. ESCO, 549 So.2d 840 (La.1989). This court has announced a two-part test for the reversal of a factfinder’s determinations:
1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).
This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. Id. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.
Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.

7 The trial court made determinations of credibility of witnesses and chose between competing views of what transpired. “[W]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). See also Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The record supports the trial court’s finding Fife engaged in actions which demonstrate he committed fraud against Trotter. He cannot escape liability for those actions by attempting to invoke the ordinary protection from personal liability afforded by an LLC where his actions constitute fraud. See Palma v. Crane Services, Inc. 03-614 (La. 3 Cir. 11/5/03), 858 So.2d 772. Nor can he escape liability for his fraudulent activity by inserting non-warranty language into a royalty deed when such language was never disclosed to the buyer. Moreover, Fife purports to convey title to royalty acres before he acquired title and is unable to show they actually existed.

The evidence shows Trotter, Moody, Thibodeaux, and Stall have known each other for many years and have engaged in many business transactions. Fife and Trotter have also engaged in many business transactions for at least five years prior to this debacle, many of which involve Stall. Because of his past experience and multiple dealings with these individuals, Trotter believed he could trust in honest fair dealing from Fife. He had no reason to imagine that Fife would try to sell him a phantom royalty interest in a producing gas field for a large sum of money. Trotter checked the normal information critical to determining the price he should pay for the five royalty acres being offered to him and presented to him as a “great deal.” He had no reason to inquire as to whether Fife’s ownership of the royalty acres he wanted to sell was highly suspect. Not only did Fife and his associate Stall conceal this highly relevant information from Trotter, but Fife directed Me-lancon (an employee of a |sdifferent oil company owned by Fife) to deal with Trotter’s CPA, Fage, knowing that Melancon had been kept in the dark about the highly suspect title to the royalty acres being sold to Trotter. Fife cannot escape liability for his actions by simply claiming that he personally did not engage in direct contact with Trotter. It is Fife personally who assigned his employee Melancon .to be the contact with Trotter’s agent and to provide her with requested information.

We are unpersuaded by Fife’s argument that the non-warranty language contained in the royalty deed purporting to transfer ownership to Trotter protects Fife from liability.

Louisiana Civil Code Article 2548 provides in pertinent part:

The parties may agree to an exclusion or limitation of the warranty against redhibitory defects. The terms of the exclusion or limitation must be clear and unambiguous and must be brought to the attention of the buyer.
(Emphasis added.)

As the Louisiana Fourth Circuit Court of Appeal stated in Royal v. Cook, 07-1465, p. 12, (La.App. 4 Cir. 4/23/08), 984 So.2d 156, 165-166, writ denied 08-1133 (La.9/19/08), 992 So.2d 941:

[I]n redhibition, a seller is in bad faith when he knows of the defect in the property that is the subject of the sale but fails to advise the purchaser of the problem. La. C.C. art. 2545. Louisiana law requires that a contract must be formed in good faith. La. C.C. art. 1983. Fraud can result from silence and inaction. La.C.C. art. 1953. (Footnotes omitted).

And, as the Fourth Circuit noted in Helwick v. Montgomery Ventures, Ltd., 95-0765, p. 6 (La.App. 4 Cir. 12/14/95), 665 So.2d 1303, 1306:

A seller with knowledge of a redhibitory defect who, rather than informing the buyer of the defect, opts to obtain a waiver of the warranty implied by law, commits fraud, which vitiates the waiver because it is not made in good faith. (Citation omitted)

Louisiana Civil Code Article 2545 provides in pertinent part:

19A seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for the return of the purchase price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees. If the use made of the thing, or the fruits it might have yielded, were of some value to the buyer, such a seller may be allowed credit for such use or fruits.

The Louisiana Civil Code also provides in article 1953:

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.

The defendants argue that just as the language stating there was no warranty of title in the royalty deed from Bauer to Hector protects Bauer, the same language should protect Fife in his royalty deed to Trotter. There is one major difference between the two situations. Bauer was completely candid with Miller regarding the fact that Bauer did not believe, nor did he in any way represent, that he had any royalty acres left to sell in the Ramos Field. His royalty deed to Hector conveys more of what is described in that deed as an “intent” to sell any royalty acres he might own. Miller clearly conveyed that fact to Fife, Moody, Stall, and Thibodeaux before any of them agreed to finance the purchase from Bauer and ultimately sell some of the royalty acres to Trotter. Unlike the above-board dealings with Bauer, the dealings with Trotter did not involve full disclosure of known facts which Fife and the others knew would be extremely important to Trotter. Instead, crucial information was intentionally concealed from Trotter. Additionally, Fife did not advise Trotter of the non-warranty language included in his deed and admits such language was not used in previous conveyances to Trotter. Defendants’ assignment of error alleging the court erred in failing to enforce the non-warranty language contained in the assignment to Trotter is without merit. As the Louisiana State Supreme Court held in Shelton v. Standard/700 Associates, 01-587 (La.11/16/01), 798 So.2d 60, 64:

While an exclusion or limitation of the warranty against redhibitory defects is usually effective, LSA-C.C. art. 2548 further provides that “[a] buyer is not bound by an otherwise effective exclusion or limitation of the warranty when the seller has declared that the thing has a quality that he knew it did not have.” Under this article, an otherwise effective exclusion or limitation of the warranty against redhibitory defects is not effective if the seller commits fraud, as defined in the civil code, upon the buyer. Thus, although the warranty against redhibitory defects may be excluded or limited, a seller cannot contract against his own fraud and relieve himself of liability to fraudulently induced buyers. See Roby Motors Co. v. Price, 173 So. 793, 796 (La.App. 2nd Cir.1937). Indeed, such a contract would be contra bonos mores and unenforceable.
A contract is formed by the consent of the parties. LSA — C.C. art. 1927. However, consent may be vitiated by error, fraud, or duress. LSA — C.C. art. 1948. “Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause loss or inconvenience to the other. Fraud may also result from silence or inaction.” LSA — C.C. art. 1953. “Error induced by fraud need not concern the cause of the obligation to vitiate consent, but it must concern a circumstance that has substantially influenced that consent.” LSA — C.C. art. 1955.
Nevertheless, fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill. However, this exception does not apply when a relation of confidence has reasonably induced a party to rely on the other’s assertions of representations. LSA — C.C. art. 1954.

The Supreme Court further stated in Shelton, Id.:

In sum, there are three basic elements to an action for fraud against a party to a contract: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (3) the error induced by a fraudulent act must relate to a circumstance substantially influencing the victim’s consent to (a cause of) the contract.

See also, Palma v. Crane Services, Inc. 858 So.2d at 774-75.

Common sense alone illuminates Fife’s motivation for keeping the crucial information from Trotter. There can be no doubt that an experienced businessman as well-seasoned as Trotter in these types of purchases would not have bought ^supposed royalty acres from Fife, or anyone, if he knew that Bauer did not believe he owned any royalty acres when he sold his “intention” to convey any such acres he might own to Hector, who in turn sold to B.T. Ventures, who then sold the same to Fife. There is no other word for what was perpetrated on Trotter than “fraud.” The fraud was not perpetrated by some fictional entity known as an LLC, it was perpetrated by the individual known as Charles M. Fife, Jr., and the trial court was entirely correct in assigning personal responsibility for the fraud to Fife.

Our law does not allow an individual guilty of fraud to hide behind any mantle of protection from personal liability ordinarily accorded LLCs and corporations. Louisiana Revised Statutes 12:1320(D) specifically provides:

Nothing in this Chapter shall be construed as being in derogation of any rights which any person may by law have against a member, manager, employee, or agent of a limited liability company because of any fraud practiced upon him, because of any breach of professional duty or other negligent or wrongful act by such person, or in derogation of any right which the limited liability company may have against any such person because of any fraud practiced upon it by him.

In Watson v. Big T Timber Co., Inc., 382 So.2d 258, 263 (La.App. 3 Cir.1980) we found the defendant personally liable, in solido, with his corporate entities and found he enjoyed no protection from personal liability when he intentionally concealed information from the plaintiff to secure an unjust advantage:

The record reflects that Thigpen concealed facts known to him, which if known to Vancouver would have prevented the sale, with the intent to take unjust advantage of Vancouver by insulating himself from personal liability for return of the purchase price. The assets of the two corporations used were clearly not substantial. Thigpen, the sole stockholder of the two corporations, used both corporate structures to avoid personal liability, having concealed information (that he should have revealed) to the detriment of Vancouver.
Since Thigpen intentionally concealed information that would reveal that Vancouver would not enjoy peaceable possession, to Vancouver’s detriment, while revealing other title information, and he unjustly used the corporate entities to absolve himself from personal liability on the warranty, this court will disregard the corporate fictions. |1⅞ We hold Thigpen is personally liable, in solido, with Big T Timber and Florida Investments for breach of warranty.

Likewise, Fife, as set forth above, concealed from Trotter information he fully knew and understood which he knew was critically important for Trotter to assess whether he would make the purchase at all, and if so, for what price. Then, Fife included language intended to shield himself from liability in the royalty deed he drafted and signed without bringing such language to Trotter’s attention. Additionally, Fife chose to assign the task of communicating with Trotter’s representative to one of his employees working for a sister company owned by Fife who Fife knew did not know anything about the speculative nature of the existence of the purported royalty acres. For these reasons we find defendants’ assignments of error asserting Fife is not personally liable and asserting no fraud was committed are without merit.

DECREE

For the reasons stated above, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Defendants-Appellants.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    SUCCESSION OF Jim HERNDON.
    No. 45,146-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 28, 2010.

      Robert E. Piper, Jr., for Appellants, Joann Green Howard, Charles Edward Green, Lee Ernest Green and Rodney James Green.
    Bernard Slattery Johnson, for Appellee, Lee Ernest Herndon.
    Before BROWN, PEATROSS, and LOLLEY, JJ.
   BROWN, Chief Judge.

|,Plaintiffs, Charles Edward Green, Lee Ernest Green, Joann Green Howard and Rodney James Green, are the children of Jim Herndon and Pastoría Green. Plaintiffs were born during an 11-year-period, 1950 to 1961, in which Jim Herndon and Pastoría Green resided together in Vivian, Louisiana. Jim Herndon died intestate on November 14,1977.

Jim Herndon’s siblings, Maggie Hern-don Payne, Lou Patsy Herndon Harris, Joe Herndon, Harold Herndon, and Lee Ernest Herndon, filed a petition for possession on November 26, 1978, and obtained a judgment on November 29, 1978, which placed them into possession of Jim Herndon’s estate. Defendants’ petition for possession did not mention that Jim Hern-don had any children.

On November 16, 2008, plaintiffs filed a petition to annul and vacate the judgment of possession. In response, defendants, Jim Herndon’s surviving sibling and the estates of his now deceased siblings, filed a peremptory exception of prescription, which the trial court, citing La. C.C. art. 197 and Dennis v. Stewart, 04-405 (La.App. 5th Cir.10/12/04), 887 So.2d 539, granted on July 13, 2009. As a result of the trial court’s ruling, plaintiffs have appealed. For the reasons stated herein, we affirm.

|⅞Discussion

Plaintiffs, the children of decedent, were born out-of-marriage and were not formally acknowledged. Over the past 30 years the law, both statutory and case law, has significantly evolved in respect to an out-of-marriage child’s right to inherit from his parents. In 1977, children born outside of marriage, even if acknowledged, could not inherit from the intestate estate of an alleged father if there was a legitimate relative. Thus, at the time of Jim Herndon’s death, defendants, as legitimate collaterals, would have rightfully inherited Jim Hern-don’s estate to the exclusion of his out-of-marriage children. On September 3, 1980, however, the Louisiana Supreme Court’s opinion in Succession of Brown, 388 So.2d 1151 (La.1980), was rendered. In that case the supreme court held that civil code article 919 unconstitutionally denied children born outside of marriage equal protection under the law. The supreme court later determined that its holding in Succession of Brown was to be applied retroactively to the effective date of the 1974 Louisiana Constitution, January 1, 1975. See Succession of Clivens, 426 So.2d 585 (La.1982).

This retroactive application created an opening for children born outside of marriage, such as plaintiffs, to inherit from their father in either equal parts to children born of his marriage or to the exclusion of legitimate ^collaterals, such as defendants, when a father died intestate. In anticipation of Succession of Brown, the Louisiana Legislature began reworking the civil code articles pertaining to children born outside of marriage. The revised set of articles set forth two scenarios in which children born outside of marriage, but who had not been legitimated, could inherit from their alleged father’s intestate estate. The first scenario was when a child had been formally acknowledged by the father in accordance with article 203. And the second scenario was when the child or someone on his behalf proved filiation in a civil proceeding. The peremp-tive period in which to bring this action to prove filiation was either before the child reached the age of 19 or within 1 year of the death of the alleged parent, whichever occurred first. Taking into account the retroactive application of Succession of Brown, supra, and the state’s interest in the stability of land titles, the legislature created a grace period in which unacknowledged or informally acknowledged children born outside of marriage who had already attained the age of 19, or whose alleged parent was already deceased, could bring a |4civil proceeding to prove their filiation. Children who failed to bring their action during this time could not thereafter establish filiation. The grace period ended September 12,1982.

Plaintiffs put forth no evidence to show that they were formally acknowledged by Jim Herndon, nor did they show that they instituted a civil proceeding to prove filiation prior to September 12, 1982. Instead plaintiffs argued at the trial court and now on appeal that because their father died prior to the revisions to article 209, the law as it was then written should be applied to prove their filiation; specifically that a method of proving paternity was to show that the mother lived in a state of concubinage with the father during the period of time that the child was conceived, and further the law at that time did not set forth a one-year peremptive period to establish filiation. The trial court, citing Dennis, supra, determined otherwise.

|Jn Dennis, supra, Todd Dennis, a child born during his father’s marriage, sought a declaratory judgment to establish himself as the sole heir to the estate of his late father, who had died on October 81, 1994. Contesting the declaratory judgment were the out-of-marriage descendants of the decedent. Although the facts of the case showed that the decedent informally acknowledged the children born outside of his marriage, the appellate court noted that the record was devoid of any evidence that he formally acknowledged them or that they filed an action to prove paternity within the grace period afforded them under art. 209 as amended by Act 720.

Plaintiffs contend that the facts of Dennis, supra, are so distinguishable from the present set of facts that the trial court’s reliance on Dennis was erroneous. Plaintiffs’ primary point of distinguishment is that the decedent in Dennis died in 1994, making the post-1980 revisions to art. 209 applicable, whereas their father died in 1977 when art. 209 provided alternative methods to prove filiation and did not contain a one-year peremptive period in which to institute such an action. Moreover, due to the absence of any peremptive period to prove filiation at the time of their father’s death, plaintiffs posit that La. C.C. art. 3502, which provides a 30 year liberative prescriptive period from the opening of a succession in which an heir may file an action for the recognition of a right of inheritance, should have been applied by the trial court.

Our review of the case law, statutory law, and the legislative intent behind the statutory law leads us to conclude that the trial court’s granting |fiof defendants’ peremptory exception of prescription was not erroneous. Professor Katherine Spaht of the Louisiana State University Law Center discussed both Act 549 of 1980 and Act 720 of 1981, both of which amended art. 209, in Developments in the Law, 1979-1980-Persons, 41 La. L.Rev. 372 (1981) and Developments in the Law, 1980-1981-Persons, 42 La. L.Rev. 403 (1982). In the former article, Professor Spaht stated:

The purpose of the [grace period] section is similar to a statute of repose because the legislature anticipated that Succession of Brown might be retroactive. If the decision declaring article 919 unconstitutional were applied retroactively, an illegitimate could seek to annul a judgment of possession in a succession in which he was not recognized as an heir... .By including a [grace] period ending [September 12, 1982], within which illegitimates may bring a civil proceeding to establish filiation, the retroactive application of Brown would create fewer problems. An illegitimate child who has been formally acknowledged ... is not affected, however, by the [grace] period. (Footnotes omitted).

41 La. L.Rev. 372, 387. Furthermore, in discussing the hardship that the grace period placed on a 19-year-old or older child born outside of marriage, Professor Spaht stated:

[T]he illegitimate child affected by [the grace period section] did not have the possibility of inheriting as a legitimate child until September 3, 1980. The illegitimate child, thereafter, had [the grace period] within which to file the action to establish filiation and, if successful, the possibility of inheriting property of the deceased parent. Of course, the purpose of the legislature in enacting [the grace period] was to avoid subjecting the other heirs to the possibility of such suits indefinitely in the interest of stability of land titles. (Footnotes omitted).

42 La. L.Rev. 403, 412.

Clearly the legislature’s inclusion of the grace period during which a child born outside of marriage, who was not formally acknowledged and who had already attained the age of 19 or whose parent was already |7deceased, must bring their legal proceeding to establish filiation, signified its intent to apply to situations such as the one presently before us. The evidence and arguments put forth by plaintiffs establish that they were, at best, informally acknowledged. An informal acknowledgment, and more specifically proof that the mother and father lived together at the time of conception, were and are considered relevant evidence to aid an out-of-marriage child establish filiation. See La. C.C. art. 197, Comment (c); former Civil Code art. 209, Comment (b) (rev.1981). That evidence, however, would have had to have been presented during a civil proceeding instituted during the grace period accorded to plaintiffs by the legislature. Since plaintiffs failed to timely bring such an action, we are constrained to affirm the trial court’s granting of defendants’ peremptory exception of prescription.

Conclusion

For the aforementioned reasons, the judgment of the trial court granting defendants’ peremptory exception of prescription is affirmed. Costs of this appeal are assessed to plaintiffs.

AFFIRMED.

      . The children's respective birthdates are October 27, 1954; January 9, 1957; February 17, 1959; and September 16, 1961.

      . La. C.C. art. 197 is the current article governing a child's action to establish paternity and the peremptive period thereto. Article 197, however, is not applicable in the present case since, as we discuss more fully infra, plaintiffs’ claim had prescribed prior to its enactment. See In re Succession of McKay, 05-603 (La.App. 3d Cir.02/01/06), 921 So.2d 1219, writs denied, 06-0504, 06-0631 (La.06/02/06), 929 So.2d 1252, 1253.

      .The evolution of the statutory law has led over time to the repeal, replacement and/or revision of many of the civil code articles applicable to the facts herein. While we will be referring to and utilizing some of these former articles, we note that many of the current civil code articles pertaining to children born outside of marriage, establishment of paternity, and acknowledgment have evolved out of these former articles.

      . Former La C.C. art. 919, enacted in 1908 and repealed in 1981, barred acknowledged illegitimate children from inheriting from their natural fathers in the same manner as legitimate descendants, ascendants, collateral relatives and surviving spouses.

      . Former La. C.C. art. 198 provided that "[ill-legitimate children are legitimated by the subsequent marriage of their father and mother, whenever the latter have formally or informally acknowledged them as their children, either before or after the marriage.”

      . Former La. C.C. art. 203: "The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in the presence of two witnesses, by the father and mother or either of them, or it may be made in the registering of the birth or baptism of such child.”
      See La. C.C. art. 196 for the current law pertaining to formal acknowledgment.

      . In 1980, the legislature passed Act 549, which amended civil code articles 208 and 209, to establish a procedure for a child born outside of marriage who was neither formally acknowledged nor legitimated to prove his filiation to an alleged parent. The civil code articles as amended, however, created problems in their interpretation and application. Thus, in 1981 the legislature passed Act 720, once again amending civil code articles 208 and 209.

      . Act 549 stated that "[a] civil proceeding to establish filiation must be brought within six months after the death of the alleged parent, or within nineteen years of the illegitimate child's birth, whichever occurs first.” Act 720, however, changed the peremptive period to initiate a proceeding after the death of an alleged parent to one year.

      . Section 4 of Act 549 provided that "[a]ny illegitimate child nineteen years of age or older shall have one year from the effective date of this Act to bring a civil proceeding to establish filiation under the provisions of this Act and if no such proceeding is instituted within such time, the claim of such an illegitimate shall be forever barred.” The effective date of Act 549 was July 23, 1980. The wording of Section 4 of Act 549, however, seemed to prevent an out-of-marriage child under 19 years old whose alleged parent had died more than six months before July 23, 1980, from establishing filiation. Thus, Section 2 of Act 720 provided that "any person against whom the time period in this Act would otherwise have accrued except for the provisions of this Section shall have one year from its effective date to bring a proceeding to establish filiation of a child.” The effective date of Act 720 was September 11, 1981.
      In order to minimize the confusion of there being two one-year peremptive periods, we refer to the period starting July 23, 1980 and ending September 12, 1982, as the "grace period.”

      . Prior to its revision, La. C.C. art. 209 provided:
      In the case where the proof of paternal descent is authorized by the preceding article, the proof may be made in either of the following ways:
      1. By all kinds of private writings, in which the father may have acknowledged the bastard child as his child, or may have called him so;
      2. When the father, either in public or in private, has acknowledged him as his child, or has called him so in conversation, or has caused him to be educated as such;
      3. When the mother of the child was known as living in a state of concubinage with the father, and resided as such in his house at the time when the child was conceived.