text:
    Bridgett THOMAS and Gregory Booker, Plaintiffs-Appellees v. Donald THOMAS and Go Auto Insurance Company, Defendants-Appellants
    No. 51,894-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018 Rehearing Denied March 15, 2018
    NEAL LAW FIRM, By: Mark J. Neal, Monroe, Counsel for Appellants
    THE LAW FIRM OF EDDIE CLARK & ASSOCIATES, L.L.C., By: Eddie M. Clark, Counsel for Appellees
    Before GARRETT, STONE, and COX, JJ.
   GARRETT, J.

The defendants, Donald Thomas and Go Auto Insurance Company ("Go Auto"), appeal from a city court judgment in favor of the plaintiffs, Bridgett Thomas and Gregory Booker, arising from an auto accident. The defendants contend that the trial court erred in reopening the case, which allowed the plaintiffs to remedy perceived deficiencies. They assert that the plaintiffs' claims should have been dismissed in their entirety. For the following reasons, we affirm the trial court judgment.

FACTS

On April 16, 2015, Donald Thomas was traveling west on Hampton Avenue in Monroe, Louisiana. He ran a stop sign and collided with a vehicle driven by Bridgett Thomas, traveling north on Gordon Avenue. Gregory Booker was a passenger in Ms. Thomas's car. Ms. Thomas and Mr. Booker were injured in the accident and Ms. Thomas's vehicle was damaged. In accordance with La. R.S. 32:862 and 863.1, Mr. Thomas furnished his insurance information to the police officer who responded to the accident, showing that he was insured by Go Auto.

On September 2, 2015, Ms. Thomas and Mr. Booker filed suit against Mr. Thomas and Go Auto, claiming that Mr. Thomas was completely at fault in causing the accident. The plaintiffs sought general and special damages. Mr. Thomas was not served with the petition. On October 15, 2015, a general denial answer was filed on behalf of Go Auto only.

Trial was held on April 6, 2016. Mr. Thomas, who had not been served or subpoenaed, did not appear at the trial. The medical records for Ms. Thomas and Mr. Booker were introduced into evidence without any objection by the defense. Mr. Booker testified regarding the accident, his injuries, his medical treatment, and the limitations on his activities caused by the accident. Mr. Booker was asked about statements made by Mr. Thomas at the scene of the accident. Go Auto made a hearsay objection, arguing that, because Mr. Thomas was not served, he was a not a party to the suit. The objection was overruled. According to Mr. Booker, Mr. Thomas asked if they were alright, apologized, and admitted that he did not see Ms. Thomas's vehicle.

Go Auto stipulated that, if Ms. Thomas testified, her testimony would be the same as that of Mr. Booker and that the chiropractor who treated her would testify that all her injuries were caused by the accident and the medical bills were reasonable and necessary. In spite of the stipulation, Ms. Thomas testified. She recounted how the accident occurred and outlined her injuries, medical treatment, and limitations on her activities caused by the accident.

Officer Trey Guillory of the Monroe Police Department responded to the scene and prepared the accident report. Although subpoenaed, he did not appear to testify at trial. Although counsel for Go Auto argued that the police report was hearsay, he agreed to allow it to be filed into evidence, subject to an objection to page two of the report. Information on that page named Mr. Thomas as the driver at fault, specified the year, make, and model of his vehicle, along with the VIN and license plate number. It also listed the number and expiration date of Mr. Thomas's insurance policy with Go Auto.

The plaintiffs asked to leave the record open to bring Officer Guillory into court to testify, claiming he would state that, at the scene of the accident, Mr. Thomas presented an insurance card showing that he had auto insurance coverage with Go Auto that was in effect on that date. Go Auto said it would only stipulate that the driver listed on the police report as "vehicle number one driver" presented the insurance card to the officer. The police report was filed into evidence, subject to Go Auto's objection to page two. The plaintiffs also filed into evidence Go Auto's answer to the petition stating that it provided insurance to Mr. Thomas. Paragraph eight of the answer reads as follows:

Defendant Go Auto admits that it provided a liability insurance policy in favor of Donald Thomas and shows that said policy is the best evidence of the contents, coverages, exclusions and provisions contained therein and pleads same as if copied herein in extenso . Except as thus admitted, the remaining allegations are denied for lack of sufficient information to justify a belief therein.

Go Auto did not cross-examine Mr. Booker or Ms. Thomas and did not call any witnesses to testify at trial. Pursuant to Go Auto's request, the court allowed the parties time to supply post-trial briefs. The plaintiffs addressed quantum in their post-trial brief.

In its post-trial brief, Go Auto did not address quantum and instead urged that the plaintiffs' claims should be dismissed for several reasons. First, no judgment could be entered against Donald Thomas, who was not served and was not a party to the suit. Second, Go Auto argued that the terms of the Direct Action Statute were not satisfied. Go Auto contended that no action can be brought against the insurer alone where the plaintiffs did not show that the insurer provided insurance to Donald Thomas and that he could not be located for service of process. Third, Go Auto claimed that the plaintiffs did not prove the existence of insurance coverage. The company argued that its answer to the plaintiffs' petition did not provide proof of coverage, but only admitted that "a liability policy of some sort was issued at some point with certain provisions, coverages, and exclusions that speak for themselves." Go Auto claimed it pled the four corners rule of a document that was not introduced into evidence. Finally, Go Auto asserted that the plaintiffs did not establish that Mr. Thomas was involved in the accident. Based upon these arguments, Go Auto maintained that the plaintiffs failed to prove their case.

The plaintiffs filed a reply brief terming Go Auto's arguments "disingenuous." The plaintiffs' attorney said he knew at trial "that opposing counsel was up to some kind of trick" and he was "very mindful and extremely concerned that opposing counsel was looking to pull a rabbit out of his hat and pull a fast move, which appears to be the case here." The plaintiffs urged that Go Auto's answer concerning insurance coverage was a judicial confession. They also pointed out that Go Auto never filed a peremptory exception under La. C.C.P. art. 641, raising the nonjoinder of a party. The plaintiffs urged the trial court to reopen the case for joinder of Mr. Thomas and for evidence regarding his participation in the accident and existence of insurance coverage. The plaintiffs' attorney noted that the case had already been left open to obtain the testimony of Officer Guillory.

On July 9, 2016, the trial court signed an order exercising its discretion to reopen the case for the receipt of further testimony. Go Auto took a writ from the order, which was denied by this court on October 13, 2016.

A curator was appointed to obtain service on Mr. Thomas and he was served in August 2016. On August 18, 2016, Go Auto's attorney filed an answer on behalf of Mr. Thomas, admitting that he was insured at the time of the accident, but denying all other allegations. The plaintiffs and Go Auto appeared in court in December 2016. Mr. Thomas had been served and Officer Guillory had been subpoenaed, but they did not appear. Over the defendants' objections, the trial court recessed the matter to permit the plaintiffs an opportunity to secure the sworn testimony of Officer Guillory and Mr. Thomas. A ruling to that effect was signed by the trial court on January 4, 2017. The defendants filed a notice of intent to seek supervisory writs, but never filed the writ application with this court.

The trial was resumed on January 24, 2017. Once again, neither Mr. Thomas nor Officer Guillory appeared. According to the plaintiffs, they intended to call Mr. Thomas and Officer Guillory, but the parties agreed to several stipulations which "short circuited" the need for a trial. They stipulated that, if called, Mr. Thomas would testify that he was involved in the accident, he had no defense to the claims of negligence against him, he had a Go Auto insurance policy which provided 15/30/25 coverage for this accident, and he was served on August 1, 2016. The defendants reserved all objections otherwise available to them at trial.

The parties also stipulated that Officer Guillory would testify that the contents of his accident report were authentic and he would be permitted to read those contents verbatim without objection from the defendants. The defendants reserved and preserved the objection to page two of the police report made at the first trial, but specified that, since Mr. Thomas had now been served, they would not now make the objection. The matter was submitted to the trial court for decision based on the stipulation.

The trial court issued a judgment on April 20, 2017, finding that the defendants were liable to the plaintiffs and awarding damages to both plaintiffs. On May 2, 2017, the trial court signed a revised and supplemental judgment finding Mr. Thomas and Go Auto jointly and solidarily liable to Ms. Thomas and Mr. Booker and revising the damage awards. Ms. Thomas was awarded special damages of $6,196.14, and general damages of $15,000. Mr. Booker was awarded special damages of $7,233.64, and general damages of $15,000. All costs were assessed to Go Auto. Mr. Thomas and Go Auto appealed.

REOPENING THE CASE

On appeal, the defendants argue that the trial court was manifestly erroneous in reopening the case for the receipt of further testimony and erred in not dismissing the plaintiffs' claims. These arguments are without merit.

Discussion

The defendants argue that, in the first hearing, the plaintiffs failed to propound any discovery requests to obtain the insurance policy, took no depositions, did not serve Mr. Thomas with the lawsuit, and did not subpoena him to testify at trial. Other than Go Auto's answer, the record was not admitted into evidence. Based on these deficiencies, the defendants maintain that the plaintiffs failed to prove the existence of insurance coverage and the liability of Mr. Thomas. They claim that the plaintiffs' case should have been dismissed for failure to carry their burden of proof and that the trial court abused its discretion in reopening the case and allowing the plaintiffs a "second bite at the apple." Because the case should not have been reopened, according to the defendants, the evidence presented at the second hearing should not have been considered.

The defendants argue that, once a trial is concluded, the trial court may not reopen a case to receive further evidence.

However, they also acknowledge that the reopening of a case for the receipt of additional testimony is reviewable for abuse of the trial court's discretion.

La. C.C.P. art. 1631(A) provides that the court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done. La. C.C.P. art. 1632 sets forth the order of trial:

The normal order of trial shall be as follows:

(1) The opening statements by the plaintiff and the defendant, in that order;
(2) The presentation of the evidence of the plaintiff and of the defendant, in that order;
(3) The presentation of the evidence of the plaintiff in rebuttal; and
(4) The argument of the plaintiff, of the defendant, and of the plaintiff in rebuttal, in that order.
This order may be varied by the court when circumstances so justify.
When an action involves parties in addition to the plaintiff and the defendant, the court shall determine the order of trial as to them and the plaintiff and the defendant.

These articles have been construed to provide that a trial judge has a right, if the ends of justice so require, to reopen a case to permit the further production of evidence by either party. The decision to hold open or reopen a case for the production of additional evidence is within the sound discretion of the trial court and will not be disturbed on appeal unless manifestly erroneous. In order to prevent a miscarriage of justice, a trial court should not hesitate to reopen a case for the taking of additional evidence when properly requested, and an appellate court should not hesitate to set aside the ruling of a trial court on such matters in a case of manifest abuse of discretion. See Antley v. Brantly , 28,049 (La. App. 2 Cir. 2/28/96), 669 So.2d 685 ; Harris v. West Carroll Par. Sch. Bd. , 605 So.2d 610 (La. App. 2 Cir. 1992), writ denied , 609 So.2d 255 (La. 1992) ; American Bank & Tr. Co. of Coushatta v. McDowell , 545 So.2d 1211 (La. App. 2 Cir. 1989) ; Yeutter v. Lewis , 334 So.2d 728 (La. App. 3 Cir. 1976).

Under the facts presented here, we do not find that the trial court abused its discretion in reopening the case. Clearly the plaintiffs proceeded in an inartful manner, failing to serve Mr. Thomas, schedule depositions, or conduct discovery to obtain the insurance policy in question and other pertinent information regarding their claims. However, the record shows that the defendants were equally inartful in failing to utilize procedures available to them under the law to raise the perceived deficiencies in the plaintiffs' case.

The defendants complain that Mr. Thomas was not served with the lawsuit and was not a party to the proceedings at the initial hearing. They claim that, under the Direct Action Statute, the plaintiffs were not entitled to proceed or obtain a judgment against Go Auto alone.

In connection with the failure to serve Mr. Thomas and the alleged inability to proceed properly under the Direct Action Statute, the appropriate procedure for questioning the plaintiffs' right to proceed only against the insurance company would have been to file an exception of no right of action. See La. C.C.P. art. 927 ;

Hubbard v. Carroll , 49,879 (La. App. 2 Cir. 8/19/15), 174 So.3d 773 ; Perkins v. Carter , 09-673 (La. App. 5 Cir. 12/29/09), 30 So.3d 862. This exception was not filed by the defendants.

Further, at the close of the initial hearing, the defendants could have filed a motion for involuntary dismissal under La. C.C.P. art. 1672, which provides in pertinent part:

B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.
C. A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 3955 upon the sustaining of a declinatory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

A motion for involuntary dismissal requires the trial court to evaluate the evidence and render a decision based on a preponderance of the evidence, without any special inference in favor of the party opposing the motion. Wolfe v. Town of Homer , 44,086 (La. App. 2 Cir. 4/15/09), 11 So.3d 39, writ denied , 2009-1115 (La. 9/4/09), 17 So.3d 966. The defendants did not choose to utilize this procedure.

Under the factual and procedural posture of this matter, we do not find that the trial court abused its discretion in reopening the case. The record had already been held open to obtain the testimony of Officer Guillory. The defendants failed to use the proper procedural vehicles available to them to object to the perceived deficiencies in the plaintiffs' case. Because the trial court properly reopened the case, the stipulations and evidence admitted in the subsequent hearing were properly before the court and were sufficient to prove the plaintiffs' claims.

It is clear from the record that Mr. Thomas was totally at fault in causing the accident and was liable for the injuries to Ms. Thomas and Mr. Booker, as well as the damage to Ms. Thomas's vehicle. The record also shows that Mr. Thomas was insured by Go Auto. There is no dispute as to the amount of damages sustained by Ms. Thomas and Mr. Booker.

Lawsuits are not games in which courts are the mere referees or umpires, and in which technicalities must be allowed to triumph over actual justice. It is our duty to permit litigants all reasonable opportunity to place before us all facts bearing on the issues involved. See Burthe v. Lee , 152 So. 100 (La. App. Orl. 1934) ; Antley v. Brantly , supra ; Simpson v. Baker , 29,090 (La. App. 2 Cir. 1/22/97), 687 So.2d 1079, writ denied , 97-0484 (La. 4/4/97), 692 So.2d 420 ; Oswalt v. State, Dep't of Transp. & Dev. , 640 So.2d 388 (La. App. 3 Cir. 3/30/94), writ denied , 641 So.2d 207 (La. 6/24/94) ; State Through Dep't of Soc. Servs. Support Enf't Servs. in Int. of Bordelon v. Guichard , 94-1795 (La. App. 1 Cir. 5/5/95), 655 So.2d 1371, writ denied , 95-1405 (La. 9/15/95), 660 So.2d 454. The objective of our judicial system is to render justice between litigants based on the merits of the controversy.

Bankston v. Bankston , 97-2509 (La. App. 1 Cir. 11/6/98), 722 So.2d 46. To allow the defendants in this case to defeat recovery to the injured plaintiffs, who were entitled to relief, would constitute a denial of justice. Accordingly, we find that the trial court did not abuse its discretion in reopening the case. The trial court's decision rendered justice between the litigants based upon the merits of the controversy.

CONCLUSION

For the reasons stated above, the decision of the trial court in this matter is affirmed in all respects. Costs in this court are assessed against Go Auto Insurance Company.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, GARRETT, STONE, COX and MCCALLUM.

Rehearing denied.

      There is no indication that Ms. Thomas and Mr. Thomas are related.

      The defendants incorrectly cite the Direct Action Statute as La. R.S. 22:655. Effective January 1, 2009, the statute was renumbered as La. R.S. 22:1269, which provides in pertinent part:
      B. (1) The injured person or his survivors or heirs mentioned in Subsection A of this Section, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only; however, such action may be brought against the insurer alone only when at least one of the following applies:
      ....
      (c) Service of citation or other process cannot be made on the insured.

      In support of this argument, the defendants cite Art. 484 of the 1870 Code of Practice, which provided:
      After all incidental questions have been decided, and both parties have produced their respective evidence, the argument commences; no witness can be heard, nor proof introduced except with the consent of all the parties.
      In Nalty v. Nalty , 222 La. 911, 64 So.2d 216 (1953), the Louisiana Supreme Court considered an argument that a case should not have been reopened based upon Art. 484, and stated, "The decisions of our courts have been written into this article, and now the reopening of a case is left to the discretion of the trial judge." The entire Code of Practice was repealed by La. Acts of 1960, No. 15, effective January 1, 1961, when the Louisiana Code of Civil Procedure was enacted. Art. 484 was replaced by La. C.C.P. art. 1632, which sets forth the order of trial. Comments to the new article quoted Code of Practice art. 484 and then stated, "It has been held that it is within the sound discretion of the court to allow testimony after both parties have closed their cases."
      In addition, the defendants cite criminal cases based on provisions in the Louisiana Code of Criminal Procedure which are not applicable to this civil case.


source: Caselaw Access Project

author: BROWN, C.J.

license: Public Domain

text:
    Kenneth JACKSON, Plaintiff-Appellee v. EUROPEAN SERVICE, INC., Defendant-Appellant
    No. 51,844-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018.
    THE PARHMS LAW FIRM, LLC, By: Carlton L. Parhms, Monroe, Counsel for Appellant
    ROUNTREE LAW OFFICES, By: James A. Rountree, Monroe, Counsel for Appellee
    Before BROWN, COX, and GASKINS (Ad Hoc ), JJ.
   BROWN, C.J.

Plaintiff, Kenneth Jackson, purchased a truck from defendant, European Service, Inc. As plaintiff was driving the truck home from defendant's lot, the vehicle stopped working. Defendant refused to refund the purchase price or replace the truck upon plaintiff's request, which was made one day after the sale. Plaintiff asserted a claim for fraud in the Monroe City Court. The trial court rendered a judgment in favor of plaintiff and ordered defendant to refund the purchase price, pay damages, attorney fees, and costs. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 29, 2016, plaintiff purchased a used 2010 Ford F-150 truck from defendant to use in Pennsylvania for work on a pipeline; plaintiff told defendant of his intended use for the truck. The truck's mileage was 195,285 miles at the time of sale. Plaintiff testified that the salesman who sold him the truck said of the vehicle, "It's a good truck, you know. It [will] do the job." During the test drive, the salesman asked as plaintiff drove the truck, "Is anything wrong? Do you feel anything up under the truck? Do you feel anything by your feet? Is it making any kind of noises?" Plaintiff testified that the test drive occurred in heavy traffic, so he was not able to drive the truck at a higher speed. Therefore, he told the salesman that he did not feel any shaking or hear any unusual noises during the test drive. Plaintiff testified that the "check engine" light was illuminated in the truck, and he asked the salesman why. The salesman responded, "Well, it's just probably a little sensitive. But it ain't nothing wrong with the truck." Toshano Nash corroborated her husband's testimony as to the questions the salesman asked as plaintiff drove the truck and what the salesman said regarding the truck's condition.

Defendant and plaintiff decided on a sales price of $13,500 for the truck, with an additional $199 for an inspection, a temporary tag, and notary work, for a total price of $13,699. Defendant's initial asking price for the truck was $16,000. No warranty appears on the invoice of sale. Plaintiff paid $13,200 in cash for the truck that day, and he planned to return the next day to pay the balance and get the title to the vehicle. Plaintiff then attempted to drive the truck home.

The truck stopped working while plaintiff was driving from Monroe to his home in Oak Grove. Plaintiff heard unusual noises and felt the truck shake. Plaintiff called defendant and was told that the truck probably needed a new battery. Plaintiff purchased a new battery for $200 and installed it in the vehicle; however, the truck still did not work. Plaintiff testified that he called defendant's salesman again and was told to return to defendant's lot the next day to have the truck repaired. The next day, August 30, 2016, plaintiff took the truck to Firestone, the repair shop defendant told him would check out the truck. Plaintiff testified that a Firestone mechanic told him the motor was no good.

That same day, plaintiff returned to defendant's car lot to demand a refund of the purchase price or get a replacement vehicle for the truck. Plaintiff testified that defendant's representative, Ali Moghimi, stated, "[H]e can't get no money back or no vehicle. No nothing.... This is an as-is-car." Plaintiff then told Moghimi that the sale of the truck was a warranty sale, and that he had papers in the truck to prove there was a warranty.

Plaintiff gave the warranty papers to Moghimi, who then told plaintiff to "Get out." Plaintiff refused. Both Moghimi and plaintiff called the police. Plaintiff informed the police that Moghimi had taken his warranty papers. Moghimi's reply was, "What warranty papers?" Ms. Nash corroborated her husband's testimony that he and Moghimi argued over the warranty. Plaintiff testified that he then had to pay another $600 to Moghimi to get the title to the truck, and that a police officer had to make Moghimi turn over the title to plaintiff. Plaintiff had to get a ride to Pennsylvania with a coworker and share the expenses of the trip; plaintiff's share amounted to approximately $300.

Plaintiff filed a petition claiming fraud on September 1, 2016. Plaintiff sought damages "to pay all costs of this proceeding, refund the purchase price, and pay plaintiff's attorney's fees." Plaintiff averred in the petition that "defendant knew the truck was defective when defendant sold it to plaintiff."

On September 7, 2016, defendant filed a dilatory exception of prematurity on the grounds that plaintiff had signed an arbitration agreement when he bought the truck from defendant. Defendant was represented by Moghimi, who was not licensed to practice law in Louisiana. In the exception of prematurity, Moghimi sought dismissal of the suit because plaintiff did not first seek arbitration before filing his petition. Moghimi did not attach a copy of the arbitration agreement to the exception. A hearing on the exception was set for November 17, 2016.

On October 7, 2016, plaintiff filed a motion to stay the proceeding pending arbitration and a motion to strike the exception filed by Moghimi, urging that Moghimi was unauthorized to practice law in Louisiana. Plaintiff argued that a stay in the proceeding is appropriate when arbitration is demanded and there is an agreement for it. Plaintiff further argued that the exception should be stricken from the record because Moghimi, as a non-lawyer, cannot represent defendant, a legal entity.

On October 25, 2016, plaintiff filed into the record a letter he received from the American Arbitration Association ("AAA") dated October 25, 2016. The letter was addressed to "Ali Moghimi, European Service, Inc." AAA declined to administer the arbitration demanded by plaintiff because defendant, in the past, "failed to comply with the AAA's policies regarding customer claims," failed to timely submit arbitration fees, and/or did not waive certain provisions in its consumer contract that AAA deemed necessary. AAA had previously requested that defendant remove AAA from its consumer arbitration agreements so there would be no confusion for defendant's customers. AAA stated, "[W]e have administratively closed [plaintiff's] file and will refund any payment received by the filing party. According to R-1(d) of the Consumer Arbitration Rules, should the AAA decline to administer an arbitration, either party may choose to submit its dispute to the appropriate court for resolution."

A hearing on the exception and plaintiff's motions was held on December 2, 2016. Plaintiff's counsel withdrew the motion to stay in light of the October 23, 2016, letter from AAA. On the motion to strike, Moghimi argued that he could represent defendant because the law allowed such legal representation when the claim was for less than $5,000, and the cost of repairing the truck's engine was less than that amount. Plaintiff's lawyer countered that the claim was for more than $5,000 because plaintiff sought a refund of the purchase price, $13,699, plus payment of costs and attorney fees.

Moghimi argued that the arbitration agreement between plaintiff and defendant allowed defendant to choose who would arbitrate the claim. Exhibit P-2, the invoice for the truck's sale, was discussed at the hearing and shown to the judge, but not admitted into evidence at that time. The invoice was admitted at trial. The last sentence of the invoice states in bold print, "THE PUCHASER AGGRESS [sic] TO AN ARBITRATION." Plaintiff's signature appears after the statement. The invoice does not state a particular arbitrator or specify what was to be arbitrated.

The trial court denied the exception, because arbitration had been attempted and rejected. The court did not rule on the motion to strike at that time. The order denying the exception was signed on December 8, 2016. Defendant, through Moghimi, filed a supervisory writ with this Court on January 19, 2017, seeking review of the trial court's ruling on the exception. The writ was not considered for noncompliance with court rules regarding sufficient documentation to allow adequate review of the trial court's ruling.

On April 3, 2017, the matter was set for trial and the trial court considered plaintiff's motion to strike at that time. Plaintiff's counsel reiterated his previous argument that Moghimi, who was not a lawyer, could not represent defendant, a legal entity. Also, the claim at issue was for more than $5,000. The court granted the motion to strike. The court ordered plaintiff's counsel to prepare a judgment for the court to sign. Moghimi asked the court for more time to obtain legal counsel for defendant before proceeding to trial. Plaintiff's counsel stated that his client was leaving the area for work on April 13, 2017, and would not return for five months. The court set the trial date for April 10, 2017, and told Moghimi that he needed to secure legal representation for defendant.

The trial was held on April 10, 2017. Moghimi stated that he was not able to obtain legal representation in the time allowed and had filed a motion for a continuance on April 7, 2017. Moghimi argued that he was "served with the paperwork Thursday afternoon [April 6, 2017] by Marshal's office," and that he was not defendant's agent for service of process, so there was improper service. Defendant had his business paperwork filed into the record. This paperwork does not appear in the record and is not included in the exhibits. The record does note that the paperwork was entered into the record.

The trial court denied the motion for a continuance and proceeded with the trial. The court heard the above testimony from plaintiff and his wife and ruled in favor of plaintiff. The judgment, signed on April 10, 2017, awarded plaintiff "the return of the purchase price, $13,699, damages in the amount of $2,900, reasonable [attorney] fees of $3,500, legal interest from judicial demand, and all costs of this proceeding." Defendant obtained legal counsel and lodged the instant appeal.

Defendant attached to his brief an arbitration agreement and a warranty agreement. Neither document appears in the record.

DISCUSSION

Defendant has urged four assignments of error: 1) the trial court erred in denying defendant's exception of prematurity based upon the arbitration agreement; 2) the trial court erred in rendering judgment in favor of plaintiff for return of the purchase price because the actual purchase price was less than the price awarded, plaintiff never tendered the vehicle to defendant for repairs, plaintiff refused to abide by the executed limited warranty, there was no proof any defect existed at the time of the sale, and plaintiff knew the vehicle might soon need repairs; 3) the trial court erred in rendering judgment in favor of plaintiff for the cost of repairs; and 4) the trial court erred in rendering judgment in favor of plaintiff for damages and attorney fees.

First, we consider the documents defendant attached to its appellate brief. Evidence not properly and officially offered and introduced cannot be considered. Swaggart v. Doe , 50,739 (La. App. 2 Cir. 04/05/17), 216 So.3d 1118, writ denied , 17-0758 (La. 09/22/17), 227 So.3d 822. Documents attached to memoranda do not constitute evidence and cannot be considered on appeal. Id. Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. Id. The documents attached to defendant's appellate brief will not be considered since they were not entered into the record at the hearing on the exception of prematurity or at the trial.

Exception of Prematurity Based on an Arbitration Agreement

The failure of a party to arbitrate in accordance with the terms of an agreement may be raised either through a dilatory exception of prematurity demanding dismissal of the suit or by a motion to stay proceedings pending arbitration. Town of Homer, Inc. v. General Design, Inc. , 42,027 (La. App. 2 Cir. 05/30/07), 960 So.2d 310, writ denied , 07-1820 (La. 11/09/07), 967 So.2d 510. When the issue is raised by the exception pleading prematurity, the defendant pleading the exception has the burden of showing the existence of a valid contract to arbitrate. Id. Once the court finds a valid and enforceable arbitration agreement, and a failure to comply therewith, the court shall order arbitration. Id.

Here, defendant filed an exception of prematurity pending arbitration. Plaintiff filed a motion to stay pending arbitration. On October 25, 2016, plaintiff filed the letter from AAA with the trial court. The letter indicated the organization's refusal to administer plaintiff's claim due to AAA's past dealings with defendant. The letter states that since AAA had declined arbitration, either party could seek relief through the courts. The trial court did not consider whether the phrase found in the sales invoice, "THE PUCHASER AGGRESS [sic] TO AN ARBITRATION," is an enforceable arbitration agreement, and this Court declines to do so now. The trial court did find that plaintiff's effort to arbitrate the claim through AAA was a valid attempt at arbitration and denied the exception. This assignment of error lacks merit.

Return of the Purchase Price

Defendant argues that the trial court erred in awarding plaintiff the return of the purchase price, because plaintiff did not tender the vehicle for repairs, plaintiff refused to abide by the executed limited warranty, there was no proof any defect existed at the time of the sale and plaintiff knew the vehicle might soon need repairs. To maintain an action in redhibition to rescind a sale, the buyer must prove that a defect in the thing renders its use so inconvenient that he would not have bought it had he known of the defect; that the defect existed at the time of the sale, but was not apparent; and that the seller had the opportunity to repair the defect. La. C.C. art. 2520. A defect is presumed to have existed at the time of delivery of the thing sold if it appears within three days from that time. La. C.C. art. 2530.

In the present case, the truck that plaintiff purchased from defendant stopped working as plaintiff drove it home from defendant's place of business. Plaintiff had asked defendant about the "check engine" light on the truck, and defendant's agent said that the light was sensitive, but there was nothing wrong with the truck. Plaintiff testified that he told defendant he intended to drive the truck while performing pipeline work, and defendant's agent told him the truck would do the job. Plaintiff later informed defendant that the truck was not working, and defendant told plaintiff to replace the battery. Plaintiff did so and the truck still did not work. Plaintiff took the truck to Firestone for repairs at the request of defendant. It was there plaintiff learned that the engine was no good.

It is clear from plaintiff's testimony, corroborated by that of his spouse, that the truck had a redhibitory defect at the time of purchase. The only thing that might have been apparent to plaintiff about the defect was the lit "check engine" light. Plaintiff inquired about the light and was told that there was no problem with the truck. The truck stopped working within three days of the sale, and plaintiff attempted to have the truck repaired after notifying defendant that the truck was not running. Plaintiff is entitled to a return of the full purchase price, $13,699. See Watkins v. Freeway Motors , 29,385 (La. App. 2 Cir. 04/02/97), 691 So.2d 854.

Defendant argues that there was a limited warranty on the truck. The parties to a sale 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. La. C.C. art. 2548. There is nothing on the record which meets those qualifications. As noted previously, documents provided which are not on the record will not be considered on appeal. Defendant's second assignment of error is without merit.

Damages for Repairs and Attorney Fees

Louisiana Civil Code article 2545 states in pertinent part:

A 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 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.

It is abundantly clear in the present case that defendant was aware of the defect in the truck at the time of sale and attempted to hide the defect from plaintiff. Defendant's agent asked plaintiff on the test drive if he felt any shaking under the truck or if he heard noises coming from under the truck. Also, the "check engine" light on the truck was lit, and when plaintiff inquired about the light, defendant's agent said that there was nothing wrong with the truck. When plaintiff returned to defendant's business, Moghimi refused to return the purchase price, called the police on plaintiff, and lied to the police about plaintiff's paperwork. Plaintiff was forced to get a ride to his work in Pennsylvania and share expenses with a coworker.

Defendant's behavior and the inconvenience and loss of time and money to the plaintiff warrant the trial court's award of the return of the purchase price, damages, and attorney fees. Defendant's third and fourth assignments of error lack merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court's judgment. Costs of this appeal are assessed to defendant, European Service, Inc.

      No judgment appears in the record. At the April 10, 2016, trial, Moghimi complained to the court that he had not been served with the judgment and neither had defendant's agent for service. Plaintiff's counsel said that there weren't any pleadings to strike, only defendant's exception which had been denied.

      The motion for a continuance does not appear in the record.

      Service notifying the parties of the trial was issued on April 6, 2017. Service was issued to European Service, Inc., 2111 Louisville Avenue, Monroe, LA 71201.


author: STEPHENS, J.

text:
    Kara Lynn Salter MCGATLIN, Plaintiff-Appellant v. Michael Paul SALTER, Defendant-Appellee
    No. 51,892-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018
    SOCKRIDER, BOLIN, ANGLIN, BATTE & HATHAWAY, By: D. Rex Anglin, Shreveport, Counsel for Appellant
    RONALD J. MICIOTTO, MARK JOSEPH MICIOTTO, Shreveport, Counsel for Appellee
    Before WILLIAMS, STONE, and STEPHENS, JJ.
   STEPHENS, J.

Kara Lynn Salter McGatlin Milton ("Kara") appeals a judgment by the 26th Judicial District Court, Parish of Bossier, State of Louisiana that set the child support obligation for Michael Paul Salter ("Michael"). Kara's three assignments of error all concern the trial court's determination of Michael's gross income. For the following reasons, we affirm.

FACTS

Kara and Michael have two daughters together and have been involved in abundant litigation regarding child custody, visitation, and support since their divorce in 2010. On March 7, 2014, Kara filed a petition for modification of child support. Prior to trial, the trial court appointed as an expert certified public accountant Susan Whitelaw ("Whitelaw") for the purpose of analyzing any and all documents or other information she deemed appropriate and necessary to give an opinion to the trial court as to the income of both parties and any benefit, if any, that either party receives from expense sharing as provided in La. R.S. 9:315(C)(5)(c) for the period January 1, 2014 to date of her opinion. Whitelaw submitted her findings in writing and also testified at the trial.

In her initial report, Whitelaw recommended that Michael's 2014 income was $169,183.11 and his 2015 income was $209,113.60 but declared she was unable to give a definitive opinion regarding Michael's 2016 income; she did not believe that Michael had provided her with complete information, and it was her observation that Michael had used various strategies to obfuscate his income. At Michael's request, Whitelaw analyzed the information she had been provided and issued a subsequent report indicating his 2016 income was at least $92,251.00. Whitelaw determined Kara's income for the years 2014, 2015, and 2016 to be $2,653.39, $2,979.37 and $2,979.37, respectively. Kara was not employed during these years, but income was assigned to her based on expense sharing.

Trial commenced on December 16, 2016. Whitelaw testified in accordance with her previously submitted reports and was the only witness. Following trial, the trial court issued a written opinion determining the gross income for the parties. With regard to Michael's 2014 income, the trial court subtracted $12,500.00 from Whitelaw's findings and set income at $156,683.11. The subtracted amount reflected the sum of attorney fees that was paid on Michael's behalf by his employer, Century 21, which is owned by his father, and later deducted from commissions earned by Michael. The trial court explained the deduction was made because Whitelaw's determination made no accounting for expense sharing on Kara's behalf for her attorney fees. With regard to Michael's 2015 income, the trial court subtracted $5,580.00 paid in attorney fees on behalf of Michael for the same reasons stated above. The trial court also subtracted an additional $24,412.95 from Whitelaw's 2015 recommended income for Michael, finding that there was uncontradicted evidence that this sum was loans or gifts and not income. With regard to Michael's 2016 income, the trial court acknowledged Whitelaw's belief that Michael had not submitted complete income information for that year. However, because no evidence was admitted verifying additional sums, the trial court set Michael's income for 2016 at $92,251.00, in accordance with Whitelaw's findings.

Upon issuing the opinion, the trial court ordered the parties to prepare worksheets consistent with his income determinations for the purpose of calculating the child support obligations. Judgment setting the obligation was rendered, and that judgment is the subject of this appeal.

DISCUSSION

The trial court is given great discretion in either granting or modifying child support awards and its decision will not be set aside or amended on appeal absent a clear abuse of that discretion. Armstrong v. Rayford , 39,653 (La. App. 2 Cir. 5/11/05), 902 So.2d 1214, 1219. Furthermore, the trial court has wide discretion in determining the credibility of witnesses; its conclusions of fact regarding financial matters underlying an award of child support will not be disturbed in the absence of manifest error. Curtis v. Curtis , 34,317 (La. App. 2 Cir. 11/1/00), 773 So.2d 185, 192.

Kara's first assignment of error is that the trial court erred in deducting from Michael's gross income the sum of attorney fees paid on his behalf. Whitelaw's report was devoid of any reference to attorney fees incurred by, paid by, or on behalf of Kara. Whitelaw testified that she was provided no information from Kara regarding those fees and that her report only included reference to Michael's fees because they were paid on his behalf by his employer and subsequently deducted from his earned commission. Whitelaw included the sum of Michael's attorney fees in her calculation of Michael's income. The trial court chose not to and explained in written reasons that its decision was due to Kara's failure to provide attorney fees information. This court recognizes that the trial court could have simply categorized these sums as commission and included them in the calculation of Michael's gross income. However, it is within the trial court's discretion to decide what amount is appropriate for inclusion in gross income, and the trial court's credibility determinations regarding a party's sources of income are entitled to great weight. Brossett v. Brossett , 49,883 (La. App. 2 Cir. 6/24/15), 195 So.3d 471, 475. In its pursuit of equity, the trial court did not abuse its discretion by deducting Michael's attorney fees from his gross income when no sums for attorney fees were assigned to Kara as income. Kara's first assignment of error is without merit.

Kara's second assignment of error is that the trial court erred in determining that the unknown funds Whitelaw attributed to Michael's income, $24,412.95, were loans or gifts and not income. Whitelaw reviewed a multitude of documents in order to give an opinion as to Michael's income, including, but not limited to tax returns, bank statements, and earning reports and expense statements associated with his employment as a real estate agent with Century 21. For the year 2015, Whitelaw categorized a total of $24,412.99 as "unknown source deposits." In previous reports, Whitelaw had assigned a total of $61,542.69 to this category, but Michael subsequently identified and explained all of those funds except the $24,412.99, which remained "unknown" at the time of trial. Sometime after Whitelaw had already reduced the amount to $24,412.99, she received a signed affidavit from Michael's father attesting that he had loaned Michael in excess of $59,000.00. The trial court held that this affidavit was the sole evidence provided to it in an attempt to identify the source of the $24,412.99. Accordingly, the trial court did not abuse its discretion by determining the source of the $24,412.99 was a loan and thus deducting it from Michael's gross income. Kara's second assignment of error is without merit.

Kara's third assignment of error is that the trial court erred in setting Michael's average monthly gross income for 2016 at $7,687.61. The trial court noted that while Whitelaw indicated she did not believe she had been provided all of Michael's income information for 2016, no other evidence was admitted verifying additional sums. In fact, Whitelaw testified at trial that the sales reflected under Michael's name on the Century 21 reports are less than what they were in 2014 and 2015. Furthermore, at no point during the proceedings had Kara alleged that Michael was intentionally underemployed, so there was no duty on the court to determine Michael's earning potential or impute additional income to him. The trial court appropriately based its decision on all of the information that it had at the time of ruling and did not abuse its discretion by setting Michael's average monthly gross income for 2016 at $7,687.61. Kara's third assignment of error is without merit. It is clear from the record that the trial court not only reviewed all of the information provided by Whitelaw, but also took the opportunity to question Whitelaw during the trial regarding her findings and had sufficient understanding of the facts and circumstances presented.

CONCLUSION

Accordingly, for the foregoing reasons, the trial court's judgment is affirmed and costs are accessed to Kara Lynn Salter McGatlin Milton.

AFFIRMED.

      Also known as Kara Lynn Salter McGatlin

      While the judgment does not restate the court-determined income, it states that the child support obligations are ordered pursuant to the trial court's written opinion.

      Whitelaw also examined documents from Realty Executive by whom Michael was employed for part of 2014.

      This information is contained in a spreadsheet prepared, by Whitelaw entitled Salter v. Salter, Michael Salter Summary Income Analysis 2014 and 2015 that was attached to her December 2, 2016 letter to the trial court and both parties.

      Kara argues on appeal that the affidavit was not introduced into evidence and should be excluded as hearsay, but the record indicates the affidavit was attached to Whitelaw's December 2, 2017, letter and report, which was offered in globo at trial by Kara as Exhibit P-4.


author: STONE, J.

text:
    G.L. EDWARDS, Lisa Edwards, Randy L. Ewing, Robert B. Greer, Billy Hakes, Steven W. Kelly, Stanley Knight, Jeffrey Scott Mckaskle, Suzanne Mckaskle, William James Slusher, Tonya Slusher, Hershel R. Sullivan, and Meseret Haile Sullivan, Plaintiffs-Appellees v. LANDRY CHALET RENTALS, LLC, Defendant-Appellant
    No. 51,883-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018.
    PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, By: Robert A. Dunkelman, Shreveport, Counsel for Appellant
    WATSON, MCMILLIN & STREET, By: David Carlton McMillin, Counsel for Appellees
    Before GARRETT, STONE, and COX, JJ.
   STONE, J.

The trial court rendered a judgment permanently enjoining Landry Chalet Rentals, LLC, from operating a business on its property because it violated the subdivision's restrictive covenants prohibiting use of the property for commercial purposes. Landry Chalet Rentals, LLC, appeals. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On March 12, 2015, Landry Chalet Rentals, LLC ("Landry Rentals"), purchased Lot 10 of Timber Point Subdivision located on Caney Lake in Jackson Parish, Louisiana ("Timber Point"). On September 14, 2016, fourteen Timber Point property owners ("the property owners") filed suit seeking a preliminary and permanent injunction prohibiting Landry Rentals from operating a "commercial enterprise" on Lot 10, including using a single-family dwelling on the property as a vacation rental. The property owners asserted Landry Rentals' operations on Lot 10 violated a restrictive covenant governing Timber Point which provides that "[n]o lot shall be used for any commercial purposes[.]"

A hearing on the matter was held on April 6, 2017. The parties agreed to submit joint stipulations to be considered by the trial court in lieu of an evidentiary hearing. All parties stipulated to the introduction of the following exhibits:

1. The deed by which Landry Rentals acquired Lot 10 of Timber Point ("Exhibit 1");
2. The restrictive covenants of Timber Point, recorded on July 14, 1983, in the conveyance records of Jackson Parish ("Exhibit 2");
3. The plat for Timber Point ("Exhibit 3");
4. A vacation rental website advertisement for the rental of Landry Rentals' dwelling in Timber Point ("Exhibit 4"); and
5. The declaration page of the commercial insurance policy for Landry Rentals' property ("Exhibit 5").

The following verbal stipulations were introduced as well:

1. Landry Rentals "leases Lot 10 for not less than periods of two nights and has rented it on one, possibly two occasions, for a maximum period of one month since its ownership began in July of 2015."
2. During the time Landry Rentals began leasing the premises in July of 2015, "in that year it rented the property to approximately [23] different renters for approximately [104] days and received income of approximately $30,990.18 and during the 2016 calendar year [Landry Rentals] rented the property for approximately [59] nights to approximately [20] different renters for gross revenues of approximately $22,666.53...during the rest of the time the property was not rented during 2015 and 2016[,] it was occupied by either friends, family or vacant."
3. "If [the property owners] were called to testify in this matter regarding the allegations of nuisance and annoyance, they would testify jointly or individually that [Landry Rentals'] tenants have engaged in trespassing upon neighboring lots, use of piers adjacent to [Landry Rentals'] premises without permission of the owners and caused congested traffic conditions in the area." They would also testify that Landry Rentals' tenants "have caused an increase in dangerous boating activity near neighboring docks, created unnecessary litter and trash in the neighborhood, left boat trailers and vehicles unattended on lawns of property owners with adjacent premises."

After taking the matter under advisement, the trial court issued written reasons for judgment. The trial court concluded Landry Rentals was a commercial business entity operating a vacation rental business out of a dwelling on Lot 10 in violation of Timber Point's restrictive covenants. On June 13, 2017, the trial court rendered judgment permanently enjoining Landry Rentals from operating a business from the dwelling located on its property. Landry Rentals now appeals.

DISCUSSION

The restrictive covenants governing Timber Point are enumerated in "Restrictions for Timber Point Subdivision" ("the Timber Point Covenants"), which was filed in the conveyance records of Jackson Parish on July 14, 1983. The Timber Point Covenants provide in pertinent part:

Section 1. Land Use and Building Type. No lot shall be used except for residential purposes. No lot shall be used for any commercial purposes, including bait stands, sale of beverages, etc . No resident building shall be erected, altered, placed or permitted to remain on any lot other than one new detached single-family dwelling and a private garage. No lot shall be used for raising livestock. No old, used or second-hand house or other structure shall be moved or placed on any lot subject to these restrictions. No mobile home, modular homes, trailer houses, or travel homes will be utilized for residential purposes. [Emphasis added.]

The question presented to this court is whether the trial court erred in its factual finding that Landry Rentals used its dwelling on Lot 10 for commercial purposes in violation of the Timber Point Covenants. Landry Rentals contends using the dwelling as a vacation rental is not a commercial purpose because it is only leasing the dwelling for residential use. In support of its argument, Landry Rentals points to the illustrative examples of prohibited "commercial purposes" cited in the Timber Point Covenants, i.e. bait stands and sale of beverages. Landry Rentals contends the inclusion of these illustrative examples indicates the prohibition against using its property for "commercial purposes" means it may not engage in the buying, selling, or exchanging of products on the property.

Landry Rentals also relies upon Section 7 of the Timber Point Covenants which provides that "[n]o commercial signs of any kind shall be displayed to the public view on any lot except one professional sign...advertising the property for sale or rent, or signs used by a builder or realtor to advertise the property." According to Landry Rentals, prohibiting it to lease the dwelling for any duration would render Section 7's allowance of signs "advertising the property...for rent" meaningless.

Building restrictions are governed by Louisiana Civil Code articles 775 through 783. Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses and improvements. La. C.C. art. 775. Building restrictions are a means of insuring the lasting aesthetic and monetary value of property. Chambless v. Parker , 38,276 (La. App. 2 Cir. 03/03/04), 867 So.2d 974, 978 ; 4626 Corp. v. Merriam , 329 So.2d 885 (La. App. 1 Cir. 1976), writ ref'd , 332 So.2d 800 (La. 1976). Building restrictions are sui generis real rights which may be enforced by mandatory and prohibitory injunctions. La. C.C. art. 779 ; Honeycutt v. Brookings , 43,605 (La. App. 2 Cir. 10/01/08), 996 So.2d 553, 557. The standard of review for the issuance of a permanent injunction is the manifest error standard. Metro Ambulance Serv., Inc. v. Med Life Emergency Med. Servs., Inc., 39,440 (La. App. 2 Cir. 03/17/05), 900 So.2d 184, 188 ; Parish of Jefferson v. Lafreniere Park Found. , 98-146 (La. App. 5 Cir. 07/28/98), 716 So.2d 472, 478, writ denied , 1998-2598 (La. 1998), 723 So.2d 965.

Doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable. La. C.C. art 783. The words of a contract must be given their generally prevailing meaning. La. C.C. art. 2047. Words of art and technical terms must be given their technical meaning when the contract involves a technical matter. Id . Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. A trial court's factual finding that certain conduct violates building restrictions is subject to manifest error review. Flippo v. Mann , 50,269 (La. App. 2 Cir. 01/13/16), 185 So.3d 856, 861-62, writ denied , 2016-0293 (La. 04/22/16), 191 So.3d 1047 ; Jackson Square Towne House Home Ass'n, Inc. v. Hannigan , 38,239 (La. App. 2 Cir. 03/03/04), 867 So.2d 960.

Our review of this limited record reveals a reasonable factual basis for the trial court to conclude that Landry Rentals was a commercial business entity operating a vacation rental business on its property in violation of the Timber Point Covenants' express prohibition against using the property for commercial purposes. In Chambless v. Parker , supra, landowners sought an injunction prohibiting the defendant from using his land to lease mobile homes for residential occupancy in violation of a restrictive covenant requiring the land be used for a "residential purpose only." This court found the trial court properly enjoined the defendant's for-profit activity on the land because it constituted "commercial use" in violation of the restrictive covenant.

In the case sub judice , Landry Rentals, a limited liability company, purchased Lot 10 in Timber Point, which included a lakefront house with six bedrooms and five baths. Four months after purchasing the property, Landry Rentals began leasing the property for short-term durations of not less than two nights. Landry Rentals advertised the property on a vacation rental website and insured the property with a commercial insurance policy from State Farm Fire and Casualty Company. The declaration page shows coverage for both "loss of rents" and "business liability" in addition to insuring the improvements. The occupants are in the property on a transient basis only and are not utilizing the property for residential purposes. Since July 2015, Landry Rentals has leased the property to 43 different occupants for approximately 4 nights on average. In 2015, Landry Rentals derived approximately $30,990.18 in income from 23 different occupants, and in 2016, approximately $22,666.53 in gross revenues from 20 different occupants.

The trial court reasonably concluded from the joint stipulations that Landry Rentals was utilizing Lot 10 for commercial purposes to make a profit. Black's Law Dictionary (West, 10th ed. 2014) defines "commercial" as "put up for trade," "commercial use" as "[a] use that is connected with or furthers an ongoing profit-making activity," and "commercial activity" as "[a]n activity, such as operating a business, conducted to make a profit." The trial court's ruling was limited to the narrow set of facts presented to it, and the trial court's factual conclusions were not manifestly erroneous.

CONCLUSION

For the foregoing reasons, the trial court's judgment permanently enjoining Landry Rentals from operating a business on its property is affirmed. Costs of this appeal are assessed to Landry Rentals.

AFFIRMED.

      Landry Rentals has cited numerous cases arising in other jurisdiction wherein courts have ruled that vacation rentals by owners do not violate restrictive covenants prohibiting use of the property for commercial purposes. Notably, Landry Rentals maintains that a case out of the State of Washington is persuasive as it discusses the restriction pertaining to advertising one's property for rent. See Wilkinson v. Chiwawa Communities Ass'n , 180 Wash. 2d 241, 327 P.3d 614 (2014). We note that the Washington case arises in the context of a motion for summary judgment and the facts indicate there had been a pattern of property owners renting their property on a short-term basis for decades without controversy. Such is not the case in the instant matter.


author: PITMAN, J.

text:
    John David KNOWLES, Plaintiff-Appellee v. Lavern Bell KNOWLES, Defendant-Appellant
    La'Vern Knowles, Plaintiff-Appellant v. John David Knowles, Defendant-Appellee
    La'Vern Knowles, Plaintiff-Appellant v. John David Knowles, JR. Defendant-Appellee
    51,872-CA 51,873-CA 51,874-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018.
    MINIFIELD & HARPER, By: Pamela Harper Jacob, Counsel for Appellant
    THE LAW OFFICES OF WILLIAMS & WILLIAMS, P.L.C., By: Sandra M. Williams, Counsel for Appellee
    JOHN DAVID KNOWLES, JR., In Proper Person
    Before MOORE, PITMAN, and GARRETT, JJ.
   PITMAN, J.

Appellant La'Vern Knowles appeals the property partition judgment and the trial court's denial of her motion for new trial. For the following reasons, we affirm.

FACTS

Mrs. Knowles and Appellee John David Knowles married in 1971 in Michigan. They later established their matrimonial domicile in Minden, Louisiana. On June 21, 2011, Mr. Knowles filed a petition for divorce and incidental matters. He stated that the parties separated on or about May 18, 2011. On June 22, 2011, Mrs. Knowles filed a petition for divorce.

On January 20, 2012, Mr. Knowles filed a motion for judgment of divorce. His attorney for this motion was Charles Smith of Smith & Jacobs, APLC. On February 14, 2012, the trial court granted a judgment of divorce. The minutes show that Charles Jacobs stood in for his law partner Charles Smith as Mr. Knowles's attorney in court that day.

On January 27, 2014, Mr. Knowles filed a petition for partition of the former community of acquets and gains and attached a detailed descriptive list. On April 8, 2014, Mrs. Knowles filed an affidavit of traversal and/or concurrence of Mr. Knowles's detailed descriptive list.

Charles Jacobs took office as a district judge on January 1, 2015, for Division D, to which the consolidated matter at issue was previously assigned.

On July 8, 2016, Judge Jacobs presided over a bench trial on the community property partition. The parties stipulated that each would receive his/her General Motors pension plan. Regarding a piece of immovable property that includes a church (the "church property") that the parties owned with an unincorporated religious association, the trial court found that the religious association owns a one-half interest in the property, Mr. Knowles owns a one-fourth interest and Mrs. Knowles owns a one-fourth interest. The parties stipulated that Mrs. Knowles would purchase Mr. Knowles's interest in 6598 Highway 159 (the "matrimonial domicile"); that she would have 60 days to obtain financing; that if she did not obtain financing within 60 days, Jan Fry would be appointed as real estate agent to sell the property; and Charles Smith would conduct the closing. Judge Jacobs left the record open for 15 days so that Mrs. Knowles could submit documentation needed to calculate her reimbursement claims regarding the matrimonial domicile for homeowners' insurance premiums and increased equity. In addition, the parties stipulated that Mrs. Knowles would purchase Mr. Knowles's interest in four rental properties-300 N. Middle Landing, 302 N. Middle Landing, 304 N. Middle Landing and 907 Reynolds Street (the "four rental properties"). They agreed that if a closing did not occur within 60 days, Jan Fry would be appointed as real estate agent to sell the property and Charles Smith would conduct the closing. The parties further stipulated that all other rental properties would be sold by private sale. The trial court then conducted an auction as to the movable property. The parties did not have a unified detailed descriptive list, so they first bid on items on Mr. Knowles's list and then bid on non-duplicate items on Mrs. Knowles's list. Discussing their credit card bills, Mrs. Knowles stated that she had a Discover credit card with a balance of $3,221.76. Mr. Knowles stated that he had a Bank of America credit card with a balance between $2,000 and $3,000, but did not provide documentation as to an exact amount. Judge Jacobs found that both parties would receive reimbursement for one-half of the amount of the balances, using $2,000 as the balance on Mr. Knowles's credit card.

On August 16, 2016, Mrs. Knowles filed a motion for recusal and a motion for new trial. She stated that the law firm that represented Mr. Knowles during the divorce proceedings was Smith & Jacobs and that Judge Jacobs was a member of that firm. She also stated that Judge Jacobs appeared in court on February 14, 2012, with Mr. Knowles when he obtained his divorce. She noted that Charles Smith, the closing attorney the parties had been ordered to use, is Judge Jacobs's former law partner. She contended that the rulings of Judge Jacobs were biased or prejudicial toward her and, therefore, requested a new trial and that a stay be issued.

On August 29, 2016, Judge Parker Self granted a stay in the proceedings. On October 5, 2016, Judge Self presided over a hearing on the motion for recusal. He noted that he did not find that Judge Jacobs was biased or impartial, but did find that Judge Jacobs was an attorney who appeared in court on behalf of Mr. Knowles. He recused Judge Jacobs and ordered the clerk of court to reassign the consolidated matters to another division. He further found that the motion for new trial was premature because no judgment had been signed. On November 6, 2016, Judge Self filed a judgment granting Mrs. Knowles's motion for recusal and ordering that Division D is recused from all consolidated matters. He also ordered that the consolidated matters be reassigned to Division C and denied Mrs. Knowles's motion for new trial as premature.

On March 21, 2017, Judge John Robinson presided over a form and content hearing. Counsel for Mrs. Knowles agreed that the content in the judgment was an accurate representation of the judgment rendered orally by Judge Jacobs at the bench trial, but objected to the signing of the judgment due to the recusal of Judge Jacobs. Judge Robinson signed the judgment.

On March 27, 2017, Judge Robinson filed a property partition judgment. He ordered that Jan Fry be appointed the realtor for marketing and selling the immovable property and that Charles Smith be appointed the closing attorney for the immovable property. He further ordered that the church property remain as is, with the parties enjoying an undivided one-half interest therein. He also ordered that Mrs. Knowles purchase Mr. Knowles's one-half interest in the matrimonial domicile, which was appraised at $102,000, within 60 days or Mr. Knowles will take control of the property and market it via Jan Fry and Charles Smith. Judge Robinson noted that the purchase by Mrs. Knowles or the proceeds from the sale will be subject to a reimbursement claim by her for one-half of the equity and one-half of the property insurance paid by her from June 22, 2011, through July 8, 2016. He ordered that Mrs. Knowles purchase Mr. Knowles's one-half interest in the four rental properties, which were collectively appraised at $37,000, within 60 days or Mr. Knowles will take control of the properties and market them via Jan Fry and Charles Smith. He further ordered that the remaining immovable property be sold and the net proceeds be equally split between the parties. He detailed the division of the movable property and that the net reimbursement was $5,270 owed to Mrs. Knowles. He stated that the net community debt reimbursement was $610.88 owed to Mrs. Knowles and calculated that a total reimbursement of $30,666.68 was owed to Mrs. Knowles.

On May 2, 2017, Judge Robinson presided over a hearing on the motion for new trial. He stated that the partition judgment was not clearly contrary to the law and evidence, citing La. C.C.P. art. 1972. Citing La. C.C.P. art. 1973, he stated that he did not find a good ground sufficient to grant a new trial and noted that a majority of the rulings regarding partition were made by stipulation of the parties and/or by auction. Accordingly, he denied the motion for new trial. On May 5, 2017, Judge Robinson filed a judgment denying the motion for new trial.

Mrs. Knowles appeals.

DISCUSSION

New Trial

In her first assignment of error, Mrs. Knowles argues that the trial court erred when it denied her motion for new trial. She contends that the trial court's disposition of the immovable property is not consistent with the agreement of the parties. She states that the parties agreed she would receive the matrimonial domicile and four rental properties, but they did not agree that she would obtain financing within 60 days or to Charles Smith being designated as the closing attorney. She finds fault with Judge Jacobs's handling of the auction and alleges that he changed the rules midstream. She also contends that the trial court never ruled on her reimbursement claim even though the record was left open for 15 days so that she could provide the court with documentation. She states that she was owed reimbursement in the amount of $27,151.06 until July 8, 2016, and now she is owed additional reimbursement because she has continued to pay the mortgage, homeowners' insurance and property taxes. She further states that without an updated amount of reimbursement, a calculation of an equalization payment owed by her to Mr. Knowles would be unfair. Therefore, she argues that Judge Robinson erred in denying her motion for new trial. In the alternative, if this court does not grant her a new trial, she presents three additional assignments of error.

Mr. Knowles argues that the trial court did not err in denying Mrs. Knowles's motion for new trial. He states that Judge Jacobs's judgments as to the partition were not contrary to law and evidence and notes that the parties stipulated to the partition of immovable property and partitioned the movable property by auction. He contends that Mrs. Knowles did not object to the 60 days' requirement to purchase his interest in the matrimonial domicile and the four rental properties or to Charles Smith being the closing attorney. He further contends that Judge Jacobs did not change the auction rules during the auction, and the record does not reveal any unfairness in the bidding process. He argues that the trial court did rule on Mrs. Knowles's reimbursement claim in the May 6, 2016 judgment when it granted her reimbursement in the amount of $24,785.80 based on the documents she submitted and the partition judgment. He also notes that the trial court did not order that she is entitled to reimbursement for property taxes.

La. C.C.P. art. 1972 sets forth the peremptory grounds for granting a motion for new trial and states:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.

La. C.C.P. art. 1973 sets forth the discretionary grounds for granting a motion for new trial: "A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law." Although a trial judge has much discretion in determining if a new trial is warranted, an appellate court may set aside the ruling of the trial judge in a case of manifest abuse of that discretion. Hickman v. Wm. Wrigley, Jr. Co., Inc. , 33,896 (La. App. 2 Cir. 10/4/00), 768 So.2d 812.

It is well settled that a trial court has broad discretion in adjudicating issues raised by divorce and partition of the community. Politz v. Politz , 49,242 (La. App. 2 Cir. 9/10/14), 149 So.3d 805. A trial judge is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. Id. Factual findings and credibility determinations made by the trial court in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. Id. However, the trial court's allocation or assigning of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. Id. The trial court has great interest in controlling all aspects of a trial and has discretionary authority with regard to evidentiary matters. Id.

Mrs. Knowles's arguments do not meet the peremptory or the discretionary grounds for a new trial. Judge Self properly recused Judge Jacobs pursuant to La. C.C.P. art. 151 because Judge Jacobs did previously appear in court on behalf of Mr. Knowles. However, this recusal does not necessarily entitle Mrs. Knowles to a new trial. The partition judgment signed by Judge Robinson is not clearly contrary to the law and the evidence. Although this judgment reflects the judgment rendered orally by Judge Jacobs before he was recused, Judge Jacobs demonstrated no bias or impartiality when conducting the partition. The parties stipulated to the partition of the immovable property, and they partitioned the movable property by auction. Mrs. Knowles did not object to the requirement that she purchase Mr. Knowles's interest in the immovable property within 60 days or to Charles Smith being designated as the closing attorney. Judge Robinson did not err in signing the judgment after conducting a form and content hearing at which Mrs. Knowles did not object to the content of the judgment.

Although Mrs. Knowles finds fault with the procedures employed by Judge Jacobs during the partition hearing, this argument does not constitute a good ground for granting a new trial. The record does not suggest that Judge Jacobs changed the rules of the auction during the auction, as suggested by Mrs. Knowles. During the auction, the parties bid, line by line, on items on Mr. Knowles's detailed descriptive list, and whoever bid the highest amount received the item and owed the other party half of the amount bid. The same procedure was then used on non-duplicate items included on Mrs. Knowles's detailed descriptive list as the parties did not have a unified list. At times, the parties testified as to the value of certain items. Judge Jacobs acted within his authority when conducting the auction of movable property. Mrs. Knowles raised no objections to the procedure during the hearing.

Mrs. Knowles's arguments regarding her reimbursement claim also are not good grounds for granting a new trial. The record reveals that Judge Robinson did rule on her reimbursement claim in the March 27, 2017 partition judgment. Mrs. Knowles did not contest the amount of reimbursement set forth in the judgment. Further, in an interim order filed on August 25, 2014, the parties agreed to waive any reimbursement or rental claims regarding the matrimonial domicile.

Judge Robinson did not abuse his discretion in denying Mrs. Knowles's motion for new trial. Accordingly, this assignment of error lacks merit.

Immovable Properties

In her second assignment of error, Mrs. Knowles argues that the trial court erred when it ordered her to pay Mr. Knowles within 60 days for his one-half interest in the matrimonial domicile and four rental properties without considering her reimbursement claims, her portion of proceeds from the sale of the immovable and movable property or her interest in the church property. She contends that this ruling is harsh because she would have to pay Mr. Knowles $69,500 within 60 days; and, if she failed to do so, she would have to move out of the matrimonial domicile for it to be sold. She states that she should owe Mr. Knowles only an equalizing payment of $36,530.56 and that this payment could be made with her interest in the proceeds from the immovable and movable property the parties agreed to sell. She further states that she could donate her interest in the church property to Mr. Knowles to reduce the equalization payment.

Mr. Knowles argues that Mrs. Knowles did not object at trial to the requirement that she obtain financing and purchase his interest within 60 days. He notes that there is no evidence that she is unable to meet this requirement. He contends that the $69,500 amount asserted by Mrs. Knowles is incorrect in that this number does not include the deduction of $30,666.68 for her reimbursement. He states that the church property is not included in the property partition because they are not the only owners of this property-an unincorporated religious organization owns a one-half interest in the property. He also notes that he does not want to purchase Mrs. Knowles's one-fourth interest in the church property.

As discussed above, Mrs. Knowles did not object during the partition hearing or the form and content hearing to the requirement that she purchase Mr. Knowles's interest in the immovable property within 60 days. Thus, Mrs. Knowles did not properly raise this issue in the lower court. This court will not consider an issue raised for the first time on appeal. See Politz v. Politz , supra .

Accordingly, this assignment of error lacks merit.

Mrs. Knowles's Reimbursement Claims

In her third assignment of error, Mrs. Knowles argues that the trial court erred when it failed to address her reimbursement claims. She notes that the record was left open for her to submit her reimbursement claims as to the mortgage, homeowners' insurance and property taxes that she paid after the termination of the community property regime, but that Judge Robinson did not address her claim.

Mr. Knowles argues that the property partition judgment allows Mrs. Knowles a reimbursement in the amount of $24,785.80 for the matrimonial domicile, $5,270 for the movable property and $610.88 for the debt, for a total net reimbursement of $30,666.68 to her.

As discussed above, the trial court did address Mrs. Knowles's reimbursement claim in the March 27, 2017 partition judgment when it granted her a total net reimbursement in the amount of $30,666.68. She did not contest this amount with the trial court.

Accordingly, this assignment of error lacks merit.

Mr. Knowles's Reimbursement Claim

In her fourth assignment of error, Mrs. Knowles argues that the trial court erred when it allowed Mr. Knowles to claim reimbursement in the amount of $1,000 for a Bank of America credit card when he provided no documentation in support of this claim. She states that the burden of proof is on the party claiming reimbursement, but Mr. Knowles failed to provide documentation of the existence of the debt or that he paid it.

Mr. Knowles argues that the trial court was not clearly wrong when it found his testimony regarding the Bank of America credit card to be credible. He notes that Mrs. Knowles did not question him about the credit card or the amount owed and did not offer any evidence to refute the existence of the credit card or that he had paid the balance after the parties separated.

Mr. Knowles provided no documentation of the amount of his credit card bill or of proof that he paid it. Although Mrs. Knowles provided documentation of the amount of her credit card bill, she did not provide proof that she paid it. It was within Judge Jacobs's discretion to make credibility determinations, and his granting of reimbursement as to the credit card bills suggests that he believed both Mrs. Knowles's testimony and Mr. Knowles's testimony that they paid their respective credit card bills. Judge Jacobs did not abuse his discretion in allowing these reimbursement claims. See Politz v. Politz , supra .

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the judgments of the trial court in favor of Appellee John David Knowles and against Appellant La'Vern Knowles. Costs of appeal are assessed to Appellant La'Vern Knowles.

AFFIRMED.


text:
    STATE of Louisiana, Appellee v. James Henry TOWNSEND, III, Appellant
    No. 51,823-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018
    JAMES HENRY TOWNSEND, III, Pro Se
    LOUISIANA APPELLATE PROJECT, By: Edward Kelly Bauman, Lake Charles, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, Counsel for Appellee
    JASON WAYNE WALTMAN, Shreveport, REBECCA ARMAND EDWARDS, JOSHUA K. WILLIAMS, Assistant District Attorneys
    Before MOORE, COX, and STEPHENS, JJ.
   STEPHENS, J.

This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, James Henry Townsend, III, was charged with one count of possession of a firearm or carrying a concealed weapon by a convicted felon, in violation of La. R.S. 14:95.1. After a jury trial, Townsend was found guilty as charged and sentenced to 12 years at hard labor without the benefit of probation, parole, or suspension of sentence. Townsend was also ordered to pay a fine of $1,000.00 and to pay $250.00 to the Indigent Defenders Office. Townsend's motion for post-verdict judgment of acquittal and motion to reconsider sentence were denied. On appeal, Townsend challenges his sentence claiming it is excessive. For the following reasons, Townsend's conviction and sentence are affirmed.

FACTS

On July 9, 2016, Sergeant James Houston of the Caddo Parish Sheriff's Office observed a motorcycle, driven by Townsend, passing a car in a no-passing zone on Linwood Avenue in Shreveport, Louisiana. Sergeant Houston stopped Townsend and asked for his license, which Sgt. Houston determined was suspended. When asked, Townsend denied having any weapons; however, when Sgt. Houston conducted a pat-down of Townsend, he discovered a firearm on his person-a .22 caliber revolver loaded with six rounds.

Initially, Townsend was charged by bill of information with the following: passing in a no-passing zone; illegal carrying of weapons; operating a vehicle while under suspension for certain prior offenses; and, possession of a firearm or carrying a concealed weapon by a convicted felon. Townsend pled not guilty to all the charges and elected to have a jury trial. Subsequently, the state filed an amended bill of information charging Townsend with two counts: illegal carrying of weapons and possession of a firearm or carrying a concealed weapon by a convicted felon. Ultimately, the state filed a second amended bill of information, only charging Townsend with possession of a firearm or carrying a concealed weapon by a convicted felon, a violation of La. R.S. 14:95.1

Townsend's trial on this charge commenced, wherein three witnesses testified. The state called two witnesses. Sergeant Danny Duddy, an officer with the Shreveport Police Department and fingerprint expert, verified that Townsend was indeed the same person who had previously been convicted of illegal use of weapons on April 18, 2001. In addition to describing the incident leading to Townsend's arrest on July 9, 2016, Sgt. Houston established Townsend was a convicted felon when he was arrested. Additionally, Townsend testified on his own behalf. After deliberation, the jury returned a unanimous verdict of guilty as charged.

On March 13, 2017, Townsend filed a motion for a post-verdict judgment of acquittal, which was denied by the trial court on March 27, 2017. That same day, the trial court sentenced Townsend to 12 years at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court also ordered Townsend to pay a fine of $1,000.00 and to pay $250.00 to the Indigent Defender's Office. On March 30, 2017, Townsend filed a motion to reconsider sentence which was also denied by the trial court. This appeal by Townsend ensued.

DISCUSSION

Townsend's sole assignment of error challenges his sentence. Townsend argues that, as he was only charged with possession of a firearm or carrying of a concealed weapon by a convicted felon, the trial court erred in considering his passing of a vehicle in a no-passing zone prior to his arrest as an aggravating factor during his sentencing. Townsend adds that the trial court contradicted itself by also considering Townsend's illegal passing of a vehicle as a mitigating factor. Townsend also argues that the trial court mistakenly stated that he used his firearm, when the evidence shows that he did not remove his firearm from his person, and Sgt. Houston only discovered the weapon while conducting a pat-down search. Finally, Townsend argues that the trial court erred in not considering the mandates of La. C. Cr. P. art. 894.1 during his sentencing. We disagree.

The trial court is granted wide discretion when imposing a sentence within the minimum and maximum limits allowed by the statute; therefore, a sentence will not be set aside as excessive unless the defendant shows the district court abused its discretion. State v. Mosley , 51,168 (La. App. 2 Cir. 06/21/17), 223 So.3d 158 ; State v. Young , 46,575 (La. App. 2 Cir. 09/21/11), 73 So.3d 473, writ denied , 2011-2304 (La. 03/09/12), 84 So.3d 550. A trial court is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, consequently, is given broad discretion in sentencing. State v. Zeigler , 42,661 (La. App. 2 Cir. 10/24/07), 968 So.2d 875. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque , 46,515 (La. App. 2 Cir. 09/21/11), 73 So.3d 1021, writ denied , 2011-2347 (La. 03/09/12), 84 So.3d 551.

To determine whether a sentence is excessive, the reviewing court must apply a two-pronged test. State v. Johnson , 51,430 (La. App. 2 Cir. 07/05/17), 224 So.3d 505 ; State v. Bass , 51,411 (La. App. 2 Cir. 06/21/17), 223 So.3d 1242. First, the record must show that the trial court considered the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La. 1983) ; State v. Johnson, 48,320 (La. App. 2 Cir. 11/20/13), 127 So.3d 988. The goal of La. C. Cr. P. art. 894.1 is the articulation of the factual basis for a sentence, not rigid or mechanical compliance with its provisions. If the record clearly demonstrates an adequate factual basis for the sentence imposed, remand is unnecessary. This includes cases where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Jones, 398 So.2d 1049 (La. 1981) ; State v. Johnson, supra ; State v. Ates, 43,327 (La. App. 2 Cir. 08/13/08), 989 So.2d 259, writ denied, 2008-2341 (La. 05/15/09), 8 So.3d 581. The factors to be considered by the trial court are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. There is no requirement that specific matters be given any particular weight at sentencing. State v. Taves, 2003-0518 (La. 12/03/03), 861 So.2d 144 ; State v. Thompson , 50,392 (La. App. 2 Cir. 02/24/16), 189 So.3d 1139, writ denied , 2016-0535 (La. 03/31/17), 217 So.3d 358.

Second, a sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La. 01/14/03), 839 So.2d 1 ; State v. Bass, supra . A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 01/15/02), 805 So.2d 166 ; State v. Johnson, supra. To constitute an excessive sentence, a court must find that the sentence makes no reasonable contribution to acceptable penal goals. State v. Griffin , 2014-1214 (La. 10/14/15), 180 So.3d 1262.

At the time of the offense, pursuant to La. R.S. 14:95.1(B), possession of a firearm or carrying a concealed weapon by a convicted felon was punishable by a fine of not less than $1,000.00 and not more than $5,000.00 and imprisonment at hard labor for not less than 10 and not more than 20 years without the benefit of probation, parole, or suspension of sentence.

At sentencing, the trial court recited the facts of the case and informed Townsend of the maximum and minimum sentences, as well as his right to post-conviction relief. The trial court also noted that it had received and considered a letter from Townsend's mother when determining his sentence.

The trial court specifically addressed La. C. Cr. P. art. 894.1(A), stating that it believes there is an undue risk that Townsend would commit another crime if given a suspended sentence or probation, is in need of correctional treatment, and a lesser sentence would deprecate the seriousness of the offense. The trial court also noted that it considered all the factors enumerated in La. C. Cr. P. art. 894.1(B). Specifically, the trial court noted Townsend's illegal passing did indeed create a risk of great bodily harm to every single person on the road that day. When considering mitigating factors, the trial court looked at subsections (22) and (23) of the article and found that although Townsend's conduct, i.e. , possession of a firearm, created the great possibility of harm to others, it did not actually cause harm. Moreover, Townsend did not contemplate that his actions, namely possessing the firearm, would cause harm to others.

An adequate factual basis for the imposed sentence is evident in the record. Moreover, the sentence is not constitutionally excessive. Townsend faced a maximum sentence of 20 years at hard labor without benefits and a maximum fine of $5,000.00. The midrange sentence imposed by the trial court is lawful and does not shock the sense of justice. This assignment is without merit.

CONCLUSION

For the aforementioned reasons, the conviction and sentence of James Henry Townsend, III are affirmed.

AFFIRMED .

      Following the denial of Townsend's motion for a post-verdict judgment of acquittal, Townsend waived the 24-hour sentencing delay provided by La. C. Cr. P. art. 873.

      In addition to his brief by appellate counsel, on September 29, 2017, Townsend filed an untimely pro se response to the state's brief reasserting the argument raised by his appellate counsel and asking for this Court's lenience.

      The trial court also noted subsection (B)(10) of the article, "The offender used a dangerous weapon in the commission of the offense." Considering that, the trial court observed, "Obviously, having possession of a firearm is using-or a dangerous weapon was involved." Although the elements of the charged offense were met in that Townsend, a convicted felon, possessed a weapon, we note he did not "use" a dangerous weapon as envisioned by art. 894(B)(10) merely by possessing it.