author: GARRETT, J.,

text:
    STATE of Louisiana, Appellee v. Keddrick KENNON, Appellant
    No. 52,661-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019
    LOUISIANA APPELLATE PROJECT, By: Peggy Sullivan, Counsel for Appellant
    KEDDRICK KENNON, Pro Se
    J. SCHUYLER MARVIN, District Attorney, HUGO A. HOLLAND, JR., JOHN M. LAWRENCE, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, GARRETT, and BLEICH (Ad Hoc), JJ.
   GARRETT, J.,

The defendant, Keddrick Kennon, was convicted of one count of distribution of cocaine and one count of possession of cocaine. On appeal, his convictions were affirmed and his sentences were affirmed as amended. He subsequently pled guilty to being a second felony offender; the trial court vacated his previous sentences and imposed an agreed upon sentence of 60 years at hard labor. Because he was not sentenced on both convictions, the defendant filed a writ application which we granted, vacating the sentence and remanding for resentencing. On remand, the trial court sentenced the defendant to 60 years at hard labor for the habitual offender adjudication based upon the cocaine distribution conviction and five years at hard labor for the cocaine possession conviction. The sentences were imposed concurrently. The defendant now appeals his 60-year sentence at hard labor as excessive. We affirm the defendant's adjudication as a second felony offender and the sentences imposed upon him.

FACTS

The facts pertaining to the defendant's convictions were set forth in detail in State v. Kennon , 50,511 (La. App. 2 Cir. 4/13/16), 194 So.3d 661, writ denied , 16-0947 (La. 5/19/17), 220 So.3d 747. To briefly summarize, an inmate serving as a trustee for the Minden Police Department agreed to work as a confidential informant ("CI") in controlled drug purchases in January and February 2014. As the result of several transactions with the CI, the defendant was charged by bill of information with three counts of distribution of a Schedule II controlled dangerous substance ("CDS"), cocaine, in violation of La. R.S. 40:967(A)(1), and one count of distribution of an imitation CDS, in violation of La. R.S. 40:971.1. Following a jury trial, the defendant was acquitted on one count of cocaine distribution and the imitation CDS distribution charge. He was convicted of one count of cocaine distribution, as well as one count of possession of cocaine as a responsive verdict to the third charge of cocaine distribution. He was sentenced to 30 years at hard labor on the distribution conviction and five years at hard labor on the possession conviction, to run consecutively. This court affirmed his convictions, amended his distribution sentence to be served without benefit of parole, probation or suspension of sentence for the first two years, and, as amended, affirmed his sentences.

On June 3, 2016, the state charged the defendant as a fourth felony offender. On August 1, 2016, pursuant to a plea agreement, the defendant pled guilty to being a second felony offender, his previous sentences were vacated, and he was resentenced to 60 years at hard labor. The trial court informed him that he had 30 days to appeal his sentence.

On March 1, 2018, the defendant filed a motion to correct illegal sentence claiming that the trial court failed to (1) specify the class of multiple offender (second, third or fourth) he was adjudicated, and (2) impose determinate sentences for the two convictions. The trial court denied the motion, and the defendant made a writ application to this court. We denied the writ as to the classification, finding that the record indicated that the defendant pled guilty to being a second felony offender. However, we granted the writ as to the determinate sentences issue because the defendant received only one sentence, the agreed upon 60-year sentence, despite the trial court vacating both of his previously imposed sentences. We set aside the 60-year sentence and remanded the case to the trial court for resentencing. State v. Kennon , 52,343 (La. App. 2 Cir. 7/20/18).

The resentencing hearing was held on September 10, 2018. Initially, the defendant represented himself and questioned whether the "new law comes into effect" regarding his "multi-bill." The trial court informed him that he would be able "to seek relief based upon whatever the law is there." The trial court then appointed the public defender to represent the defendant at the hearing and temporarily passed the case. After consulting with the defendant, the public defender argued that the defendant should be "subject to retroactivity of the new habitual law under Esteen v. State . " The trial court held that, under the habitual offender bill of information, it would sentence the defendant on the cocaine distribution conviction according to the "agreed upon time of sixty years at hard labor." As to the cocaine possession conviction, the trial court sentenced him to five years at hard labor, to be served concurrently and with credit for time served. The trial court also informed the defendant that he had 30 days to appeal "this sentence."

On October 16, 2018, the defendant filed a pro se motion for appeal, which the trial court granted. It also appointed the Louisiana Appellate Project ("LAP") to represent the defendant.

ARGUMENTS

In the brief filed on his behalf by LAP, the defendant acknowledges that, as a rule, an agreed upon sentence cannot be appealed, pursuant to La. C. Cr. P. art. 881.2, and that the law in effect at the time of the commission of the offense determines the penalty under the habitual offender law, La. R.S. 15:529.1. Furthermore, the defendant admits that the sentencing range for a second felony offender would have been 15 to 60 years at hard labor at both the time of the offense in 2014 and his adjudication as a second felony offender in 2016. In both 2014 and 2016, had he been adjudicated a fourth felony offender, the penalty would have been life imprisonment without parole, probation or suspension of sentence. The defendant further states that, if he had been convicted of the same crime with the same criminal history, he would have been facing a sentencing range of 20 years to life imprisonment in 2018. Nonetheless, the defendant points out recent amendments which significantly reduced the sentencing exposure under La. R.S. 40:967 and La. R.S. 15:529.1. He requests that his 60-year sentence be reviewed for constitutional excessiveness pursuant to State v. Dorthey , 623 So.2d 1276 (La. 1993). The defendant argues that this sentence is excessive because it is grossly out of proportion to the severity of the crime and is not representative of the strides the State of Louisiana has made to reform sentencing. He asserts that, although he agreed to a sentence of 60 years, in light of the changes to the law in the two years since his initial agreement, as well as the fact that he was being resentenced, the trial court should have considered whether his sentence was constitutionally excessive.

The defendant also filed a pro se brief, which primarily copies the LAP brief. Additionally, the defendant cites portions of the 2017 version of La. R.S. 15:529.1 and makes arguments regarding the possible sentencing ranges in effect at the time of his 2018 resentencing hearing. He erroneously asserts that, as a fourth felony offender in 2018, he would have faced only a maximum of 20 years.

The state contends that, pursuant to La. C. Cr. P. art. 881.2, the defendant is precluded from appealing or seeking review of the sentence because it was imposed in conformity with a plea agreement. It also observes that the defendant received a considerable benefit from the plea agreement.

LAW

A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. La. C. Cr. P. art. 881.2(A)(2). Where a specific sentence or sentencing cap has been agreed upon as a consequence of a plea bargain, a sentence imposed within the agreed range cannot be appealed as excessive if that right has not been specifically reserved. State v. Taylor , 44,205 (La. App. 2 Cir. 5/13/09), 12 So.3d 482.

However, when the right to appeal has been mentioned by the district court during the plea colloquy, even though there is an agreed sentence or sentence cap, the defendant's sentence may be reviewed. State v. Thomas , 51,364 (La. App. 2 Cir. 5/17/17), 223 So.3d 125, writ denied , 17-1049 (La. 3/9/18), 238 So.3d 450 ; State v. Fizer , 43,271 (La. App. 2 Cir. 6/4/08), 986 So.2d 243. Further, when the trial court fails to specifically advise the defendant that he has the right to appeal his sentence or that he was waiving that right, the sentence may be reviewed on appeal. State v. Brown , 50,138 (La. App. 2 Cir. 9/30/15), 181 So.3d 170.

After resentencing, it is appropriate for this court to review the entirety of the record, including the transcripts of both the original sentencing hearing and the resentencing hearing, to determine whether an adequate factual basis for the trial court's sentence exists and whether the trial court abused its discretion in sentencing. State v. Darnell , 51,499 (La. App. 2 Cir. 8/9/17), 243 So.3d 1162, writ denied , 17-1526 (La. 5/25/18), 242 So.3d 1231 ; State v. Billingsley , 2013-11 (La. App. 3 Cir. 10/9/13), 123 So.3d 336.

Ordinarily, appellate review of sentences for excessiveness is a two-step process, the first being an analysis of the trial court's compliance with the sentencing guidelines of La. C. Cr. P. art. 894.1. State v. Bass , 49,804 (La. App. 2 Cir. 7/8/15), 169 So.3d 831. Nevertheless, when a specific sentence has been agreed upon, there is no need for the trial judge to give reasons for the sentence, as normally required by La. C. Cr. P. art. 894.1. State v. Fizer , supra . Further, when a defendant fails to file a motion to reconsider sentence in the lower court, appellate review is limited to an analysis of the sentence for constitutional excessiveness. State v. Mims , 619 So.2d 1059 (La. 1993) ; State v. Bass , supra .

Under that standard, the reviewing court determines whether a sentence violates La. Const. art. I, § 20, and 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. Dorthey , supra ; State v. Darnell , 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 , 01-0467 (La. 1/15/02), 805 So. 2d 166 ; State v. Darnell , supra . A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. State v. Darnell , supra .

On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. State v. Bass , supra .

A defendant is not convicted of being a habitual offender but is adjudicated a habitual offender as a result of prior felony convictions. The sentence to be imposed following a habitual offender adjudication is simply an enhanced penalty for the underlying conviction. State v. Parker , 03-0924 (La. 4/14/04), 871 So.2d 317. Thus, the punishment to be imposed on a habitual offender is that provided by La. R.S. 15:529.1 as it exists on the date a defendant commits the underlying offense. State v. Parker , supra . The use of a subsequent amendment to a sentence is an improper metric to find a sentence excessive. State v. Floyd , 52,183 (La. App. 2 Cir. 8/15/18), 254 So.3d 38.

In State v. Dorthey , supra , and State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, the Louisiana Supreme Court addressed the issue of mandatory minimum sentences in the context of the habitual offender law. In State v. Dorthey , supra , the supreme court held that a trial court must reduce a defendant's sentence to one not constitutionally excessive if the trial court finds that the sentence mandated by the habitual offender law makes no "measurable contribution to acceptable goals of punishment," or is nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime."

State v. Dorthey , supra , did not restrict the sentence review principles espoused in that decision solely to the mandatory minimum penalties provided by La. R.S. 15:529.1. State v. Fobbs , 99-1024 (La. 9/24/99), 744 So.2d 1274.

DISCUSSION

The first issue we must address is whether the defendant's agreed upon 60-year sentence can properly be appealed as excessive. During the plea colloquy in the habitual offender proceeding, the trial court informed the defendant that he was waiving his right to appeal his conviction, but failed to mention the waiver of his right to appeal the sentence. Further, the trial court subsequently informed him, both at his original habitual offender sentencing and on resentencing, that he had 30 days to appeal the sentence. In these circumstances, this Court has allowed the sentence to be reviewed because the issue of whether the advisement of the right to appeal had any effect on the voluntariness of the plea might arise. State v. Brown , supra ; State v. Thomas , supra .

The defendant argues that there is little in the record to rely on in determining whether the sentence is excessive. Since the 60-year term was an agreed upon sentence, the trial court was not obliged to provide reasons for imposition of sentence. However, we have the benefit of the trial court's initial sentencing of the defendant prior to the filing of the habitual offender bill. Additionally, the trial court ordered a presentence investigation report which was reviewed and is in the record before us. The trial court noted several mitigating factors in his social history (the defendant raised his two siblings while his mother worked to support their family; he was married and had a total of six children, some of whom he financially supported). However, it also found that the defendant's criminal history was "quite extensive," his parole had been revoked twice, and he had failed to take advantage of the many resources expended to give him a second chance. The trial court further observed that the defendant, who was born in 1973, had above average intelligence and had the ability to do things other than sell drugs. The trial court specifically considered that the defendant was not a victim of drugs or held captive to an addiction, but was a supplier, distributor, and the cause of problems for drug victims.

At the time of his distribution of cocaine offense in 2014, as a second felony offender, the defendant faced sentencing exposure of not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction of distribution of cocaine, or a range of 15 to 60 years. Thus, his agreed upon 60-year sentence was the maximum allowed by law. However, as a fourth felony offender, with two of his previous drug convictions and the underlying distribution of cocaine conviction being punishable by more than 10 years, the defendant would have been subject to mandatory life imprisonment. Accordingly, he received a substantial reduction in his sentencing exposure as the result of the plea agreement.

The basis of the defendant's argument, however, is that this court should consider the 2017 amendments to both the distribution of cocaine sentences and the habitual offender law which were in effect at the time of his resentencing and reflected the legislature's acknowledgement that the prior sentencing provisions resulted in excessive sentences for habitual offenders.

We recognize the recent changes in the drug and habitual offender laws. However, the jurisprudence does not afford the defendant the benefit of the leniency of the 2017 amendments because his underlying offense occurred before it took effect. State v. Parker , supra . Further, the legislature specified that the 2017 amendments would have "prospective application only to offenders whose convictions became final on or after November 1, 2017." A 2018 amendment further clarified that courts "shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed." La. R.S. 15:529.1(K)(1). Thus, the legislature "clearly stated its intent to diminish the penalties for certain habitual offenders, but equally clearly stated its intent not to reopen or relitigate cases that arose before the effective date." State v. Floyd , supra . The defendant's attempt to utilize the 2017 amendments "as a convenient metric to find his sentence excessive," has recently been rejected by this Court. State v. Floyd , supra .

Otherwise, the defendant is required to show that, under the law in effect at the time of his underlying offense, the imposed sentence makes no "measurable contribution to acceptable goals of punishment," or is nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime." State v. Dorthey , supra .

In addition to the underlying distribution of cocaine conviction, the defendant's criminal record includes a 1993 distribution of cocaine conviction for which his parole was revoked. Further, the record shows that in 2003, he was charged with possession of cocaine with intent to distribute, second or subsequent offense, but pled guilty to attempted possession of cocaine with intent to distribute in October 2004. His parole was also revoked on this offense. The defendant's record includes a 1995 possession of cocaine conviction, as well as the one arising out of the defendant's 2014 transactions. The defendant's drug activity has spanned a 20-year period and is sufficient to validate his status as a drug dealer. The sentencing reduction he received as the benefit of his agreement to plead as a second felony offender cannot be minimized, as he faced a mandatory life sentence for his offenses under the 2014 habitual offender law. When viewed in the light of the harm done to society, the sentence the defendant agreed to, while the maximum allowed for a second felony offender, cannot be said to shock the sense of justice. The defendant has obviously failed to benefit from prior leniency afforded him in sentencing and has not been successfully rehabilitated despite the many opportunities given to him. As noted by the trial court, the defendant's drug activity has continued to pose a dangerous threat to the community. For these reasons, the agreed upon 60-year sentence has been shown to be meaningfully tailored to the culpability of this defendant and, accordingly, we affirm it.

ERROR PATENT

Our review reveals two errors patent. First, pursuant to La. R.S. 15:529.1(G), the trial court should have imposed the 60-year sentence without benefit of probation or suspension of sentence. Second, the applicable version of the underlying offense statute, La. R.S. 40:967 (B)(4)(b), requires that the first two years of the sentence be served without benefit of parole, probation, or suspension of sentence. Regarding the imposition of a parole restriction, the conditions imposed on the statute of the underlying offense are those called for in the sentencing as a habitual offender. Thus, the 60-year sentence should have restricted parole for two years. However, neither error requires corrective action because the "without benefits" provisions of the statutes are self-activating under La. R.S. 15:301.1. State v. Casaday , 51,947 (La. App. 2 Cir. 4/11/18), 247 So.3d 1057, writ denied , 18-0700 (La. 11/5/18), 255 So.3d 1047 ; State v. Garner , 46,723 (La. App. 2 Cir. 11/2/11), 78 So.3d 186.

CONCLUSION

The defendant's adjudication as a second-felony offender and the sentences subsequently imposed upon him are affirmed.

AFFIRMED.

      The underlying convictions, all of which arose in Webster Parish, were: May 1993, distribution of cocaine; November 1995, possession of cocaine; and October 2004, attempted possession of cocaine with intent to distribute.

      The predicate offense was the 2004 conviction for attempted possession of cocaine with intent to distribute.

      In State ex rel. Esteen v. State , 16-0949 (La. 1/30/18), 239 So.3d 233, the Louisiana Supreme Court allowed resentencing pursuant to the more lenient penalty provisions enacted by the legislature in 2001, which were later declared in La. R.S. 15:308(B) to apply retroactively to certain defendants who committed crimes, who were convicted, or who were sentenced prior to June 15, 2001.

      In State v. Johnson , supra , the supreme court held that, to rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is "exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case." The defendant in the instant case does not assert that he is "exceptional."

      In 2014, the sentencing range for distribution of cocaine under La. R.S. 40:967 was not less than two years, nor more than 30 years, with the first two years being without benefit of parole, probation, or suspension of sentence.

      The defendant's 1993 distribution of cocaine conviction carried a maximum sentence of 30 years and his 2003 attempted possession of cocaine with intent to distribute carried a maximum sentence of 15 years. The 2017 amendment removed from this subsection violations of the Controlled Dangerous Substances Law and other crimes punishable by imprisonment for 12 years or more. It bears noting, however, that even as a fourth felony offender under the 2017 amendments to the habitual offender law, the defendant could still have received a maximum life sentence.

      The defendant's convictions became final after the Louisiana Supreme Court denied his application for a writ of certiorari on May 19, 2017. La. C. Cr. P. art. 922(D). Although he subsequently filed for reconsideration of that denial, it was not considered, pursuant to Supreme Court Rule IX, § 6. State v. Kennon , 16-0947 (La. 11/17/17), 230 So. 3d 219.

      While technically Dorthey , supra , involved a mandatory minimum sentence imposed under the habitual offender law and this case does not, this general excessive sentence language applies to analysis of this sentence as well.


source: Caselaw Access Project

author: STEPHENS, J.

license: Public Domain

text:
    Sandra B. BLANCHE, Plaintiff-Appellant v. Billy VARNER - Shelter Director, Defendant-Appellee
    No. 52,659-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019
    SANDRA B. BLANCHE, In Proper Person Appellant
    BRADLEY S. BOURGEOIS, Counsel for Appellee
    Before WILLIAMS, PITMAN, and STEPHENS, JJ.
   STEPHENS, J.

Sandra B. Blanche appeals a judgment by the Monroe City Court, Parish of Ouachita, State of Louisiana, granting the exception of no cause of action filed by the defendant, Billy Varner in his capacity as director of the DeSiard Street Homeless Shelter. Sandra Blanche, appearing in proper person, appeals the trial court's judgment, which we affirm for the following reasons.

DISCUSSION

Blanche filed suit against Billy Varner in his capacity as the shelter director of the DeSiard Street Homeless Shelter. In her sole allegation against Varner, Blanche claimed she was turned away from the shelter on Friday, June 8, 2018. According to Blanche, a homeless female, she had no place to stay for shelter. Blanche alleged she was given no reason as to why she was not allowed to stay at this homeless shelter, but she was assigned work duty. In her petition, Blanche sought damages in the amount of $ 5,000.00.

In response, Varner filed an exception of no cause of action, arguing Blanche failed to state a cause of action which would afford her a remedy by law or contract. Varner claimed the DeSiard Street Homeless Shelter is a privately run, charitable nonprofit entity. In his exception, he noted that the shelter's services are generally available to persons in need, but that the shelter is not obligated to provide such services. Moreover, according to Varner, he had prior experience with Blanche and reasonable grounds to refuse her admittance into the shelter overnight.

At the hearing on the exception, Varner explained why he denied Blanche overnight accommodations at the shelter. The trial court noted that those reasons did not have "a whole lot to do with what the exception is," but hoped it would answer Blanche's question about why she had been denied shelter. Ultimately finding that Blanche had failed to assert a cause of action against Varner, a judgment was rendered granting the exception. This appeal by Blanche ensued.

LEGAL PRINCIPLES

On appeal, Blanche generally argues that the trial court erred in granting Varner's exception, specifically maintaining that the trial court did not allow her to present documents in support of her claims. She argues that Varner denied her shelter due to personal reasons, but provides no legal or contractual support for her position.

Provided by La. C.C.P. art. 927(A)(5), the peremptory exception of no cause of action tests the legal sufficiency of the plaintiff's petition by determining whether the law affords a remedy on the facts alleged in the petition. Scheffler v. Adams and Reese, LLP , 2006-1774 (La. 2/22/07), 950 So.2d 641 ; Gipson v. Fortune , 45,021 (La. App. 2 Cir. 1/27/10), 30 So.3d 1076, writ denied , 2010-0432 (La. 4/30/10), 34 So.3d 298. A "cause of action," when used in the context of the peremptory exception of no cause of action, refers to the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. White v. St. Elizabeth B.C. Bd. of Directors , 45,213 (La. App. 2 Cir. 6/2/10), 37 So.3d 1139. The purpose of the exception of no cause of action is not to determine whether the plaintiff will prevail at trial, but is to ascertain if a cause of action exists. Bogues v. Louisiana Energy Consultants, Inc. , 46,434 (La. App. 2 Cir. 8/10/11), 71 So.3d 1128. The exception is triable on the face of the petition, and for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Fink v. Bryant , 2001-0987 (La. 11/28/01), 801 So.2d 346.

The burden of demonstrating that the petition states no cause of action is upon the mover. Wright v. Louisiana Power & Light , 2006-1181 (La. 3/9/07), 951 So.2d 1058 ; Scheffler, supra . All reasonable inferences are made in favor of the nonmoving party in determining whether the law affords any remedy to the plaintiff. Villareal v. 6494 Homes, LLC , 48,302 (La. App. 2 Cir. 8/7/13), 121 So.3d 1246. Generally, no evidence may be introduced to support or controvert the exception. However, a jurisprudentially recognized exception to this rule allows the court to consider evidence that is admitted without objection to enlarge the pleadings. Villareal, supra .

Generally, an exception of no cause of action must be overruled unless the allegations in the petition exclude every reasonable hypothesis other than the premise on which the defense is based, i.e. , unless the plaintiff has no cause of action under any evidence admissible under the pleadings. Villareal, supra ; Steed v. St. Paul's United Methodist Church , 31,521 and 31,522 (La. App. 2 Cir. 2/24/99), 728 So.2d 931, writ denied , 1999-0877 (La. 5/7/99), 740 So.2d 1290.

An appellate court's review of a trial court's ruling sustaining an exception of no cause of action is de novo because the exception raises a question of law, and the trial court's decision is based only on the sufficiency of the petition. Fink, supra . The essential question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiff's favor, the petition states any valid cause of action for relief. Wright, supra.

DISCUSSION

In ruling upon an exception of no cause of action, we must accept the allegations of the petition as true and conduct a de novo review of the matter. After carefully reviewing the contents of Blanche's petition in the light most favorable to her, we conclude that it does not state a cause of action. In her petition, Blanche makes the sole allegation that she, a homeless female, was "turned away" from the homeless shelter by the director, Varner, and she was given no reason for the denial of services. Considering the allegations of Blanche's petition, which we accept as true for purposes of Varner's exception, Blanche does not establish that Varner was legally or contractually obligated to provide her with shelter at the facility where he was director. Whereas Blanche argues on appeal that she "was unprotected under the laws that allow protection to homeless people," Blanche does not cite what those laws are, and we cannot we find any legislation or jurisprudential authority which support a claim on her behalf. Additionally, Blanche does not claim she was illegally denied services as a member of a protected class of persons.

The DeSiard Street Homeless Shelter is a privately run, charitable nonprofit entity-it is not a public facility. Varner's facility was offering services as an altruistic service; neither Varner nor the shelter had a legal duty to provide services to Blanche, nor was Varner or the shelter contractually obligated to her. Furthermore, we recognize that Varner had a duty to protect the other occupants and employees of the shelter, and as director he would have to make decisions to so protect those individuals. Finally, Blanche's petition did not provide any facts indicating that Varner was acting outside of his capacity as the director; in fact, he was named a defendant as the "Shelter Director," so the allegations against him were in his representative capacity on behalf of the shelter and not him personally.

Blanche asserts in her appeal brief that she was not allowed to "present documents," presumably at the hearing on Varner's exception. Although evidence is generally inadmissible to controvert an exception of no cause of action, the trial court allowed Blanche to introduce the rules and regulations of the Salvation Army regarding its homeless facility. The trial court noted that the Salvation Army's rules and regulations were inapplicable to the DeSiard Street Homeless Shelter, and we agree. The evidence presented by Blanche is irrelevant and inapplicable to her asserted allegations and do not controvert the exception.

Therefore, we see absolutely no basis for relief for Blanche, considering the allegations she has made, and conclude that the law does not afford a remedy on the facts alleged in the petition. Even accepting the well-pleaded allegations in the petition as true, as we are bound to do in determining the merits of Varner's exception, we find that the petition fails to state or disclose a cause of action for which relief may be granted to Blanche under Louisiana legislative or jurisprudential law.

CONCLUSION

For the reasons stated herein, we conclude that the trial court did not err in its judgment in favor of Billy Varner-Shelter Director, dismissing the claims of Sandra B. Blanche. All costs of this appeal are assessed to Blanche.

AFFIRMED.


author: BLEICH, J. (Ad Hoc)

text:
    Rochundra GARRISON, et al., Plaintiffs-Appellants v. STATE FARM FIRE AND CASUALTY COMPANY, et al., Defendants-Appellees
    No. 52,655-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019.
    ANTHONY J. BRUSCATO, Counsel for Appellant, Sam Winston, Jr.
    K. DOUGLAS WHEELER, Counsel for Appellee, State Farm Fire and Casualty
    MARCY L. ALLEN, Counsel for Appellee, Duane T. Lucky, Jr.
    Before MOORE, COX, and BLEICH (Ad Hoc), JJ.
   BLEICH, J. (Ad Hoc)

Plaintiff, Sam Winston, Jr., has appealed from the trial court's judgment in favor of Defendants, Duane Lucky, Jr., and his notary bond surety, State Farm Fire and Casualty Company, dismissing with prejudice all of Plaintiff's claims against Defendants. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

This is the second time that this case has been before this Court. Some of the underlying facts and initial procedural history are taken from Garrison v. State Farm Fire and Casualty Co. , 51,245 (La. App. 2 Cir. 04/05/17), 217 So.3d 586, 587-88 :

Sam Winston, Jr. ("Winston"), was the owner of a 2004 Buick LeSabre. Winston lived with his adult daughter, Rochundra Garrison [ ("Garrison") ], and her children at a residence in Bastrop. Winston allowed Garrison to drive the vehicle, but he remained the title owner. The title documents were kept in the vehicle. The car developed a hole in the radiator and overheated when operated. Garrison contacted her friend, Clarence Hollins [ ("Hollins") ], a mechanic at Ray's Auto World ("Ray's Auto"), a used car lot in Bastrop, and he agreed to repair the car. Ray Waller [ ("Waller") ] was the owner of Ray's Auto. The vehicle was then towed to the Ray's Auto lot, where it remained for several weeks. When Garrison returned to ask about the repairs, Hollins told her that the car had been sold by Waller.
The chain of title shows a sale of the 2004 Buick on October 15, 2013, from Winston to Waller, with Winston's signature witnessed by Duane Lucky, Jr. ("Lucky"), as notary. Then, on November 23, 2013, Waller sold the car to Mary Palmer, with Lucky again witnessing the signatures as notary. Winston denied signing the bill of sale or title. The plaintiffs, Winston and Garrison, filed a lawsuit against Waller for conversion and obtained a judgment against him. The plaintiffs then filed a petition against Lucky and State Farm Fire and Casualty Company ("State Farm"), which had issued a notary bond for Lucky, alleging that he had facilitated the conversion by notarizing the sale documents without confirming the identity of the person purporting to sign as Winston. The plaintiffs obtained an affidavit from Waller, who stated that he had taken the sale documents for the 2004 Buick to Lucky's office so that he "would notarize" the documents with his signature. Waller testified that he did not sign Lucky's name as notary.
In his deposition, Lucky denied signing the documents as notary and asserted that his name was also forged. Lucky testified that after receiving a letter from plaintiffs' attorney regarding the forged signatures, he confronted Waller, who admitted that he had forged Lucky's name to the title and bill of sale. Lucky stated that he had done prior notary work for Waller and other used car dealers. Lucky acknowledged that he routinely notarized the signature of the dealer, as the vehicle seller, without requiring the seller to appear and sign before him.

Defendants filed a motion for summary judgment based on Lucky's deposition testimony that he had not signed the documents. In opposition, Plaintiffs submitted the Waller affidavit. Thereafter, Lucky's attorney obtained a second affidavit from Waller in which he stated that he signed Lucky's name on the bill of sale and title transferring ownership of Winston's vehicle. A hearing was held and the trial court, inter alia , granted Defendants' motion for summary judgment which was reversed by this Court in Garrison, supra .

Following remand, trial was held on February 12, 2018, on the exception of prescription, the main demand against Defendants, and a reconventional demand for defamation filed by Lucky. The trial court, finding that Winston's claim against Defendants had not prescribed, denied the exception of prescription. The trial court then found that Winston failed to prove that Lucky signed the disputed documents and rendered judgment in Defendants' favor, dismissing with prejudice Plaintiff's claims against them. The trial court likewise found that Lucky did not establish his claim against Winston and rendered judgment in favor of Plaintiff on Lucky's reconventional demand, dismissing it with prejudice. It is from this judgment that Winston has appealed. State Farm has answered the appeal.

DISCUSSION

Plaintiff asserts that the trial court erroneously required him to prove that the notary's signature was forged, instead of requiring Lucky to establish that the signature was a forgery, and that this legal error requires this Court to review the record de novo . This assignment of error lacks merit because it mischaracterizes or takes out of context comments regarding the burden of proof made by the trial judge during his reasons for judgment, which are discussed more in depth below.

Plaintiff next asserts that if the Court determines that manifest error is the proper standard of review, the trial court's factual conclusion that the evidence did not show that Duane Lucky, Jr., signed the forged documents is manifestly erroneous.

A district court's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review unless they are manifestly erroneous or clearly wrong. Wooley v. Lucksinger , 09-0571 (La. 04/01/11), 61 So.3d 507 ; Rosell v. ESCO , 549 So.2d 840 (La. 1989). When findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trial court's findings. Robinson v. Board of Supervisors for University of Louisiana System , 15-2145 (La. 06/29/17), 225 So.3d 424 ; Rosell, supra; Fuller v. Bissell , 51,759 (La. App. 2 Cir. 01/10/18), 245 So.3d 1169.

Under the manifest error standard, the trial court's factual findings can be reversed only if the appellate court finds, based on the entire record, no reasonable factual basis for the factual finding and that the fact finder is clearly wrong. Baker v. PHC-Minden, L.P. , 14-2243 (La. 05/05/15), 167 So.3d 528 ; Fuller, supra . Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Robinson, supra . But where no such factors are present, and the fact finder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id. ; Bellard v. American Central Insurance Co. , 07-1335 (La. 04/18/08), 980 So.2d 654 ; Johnson v. Tucker , 51,723 (La. App. 2 Cir. 11/15/17), 243 So.3d 1237, writs denied , 17-2075, 17-2073 (La. 02/09/18), 236 So.3d 1262, 1266.

The following is excerpted from the trial court's written reasons for judgment:

[T]he basis for the plaintiff's case is that Mr. Lucky signed the documents discussed hereinabove in his capacity as a notary through the use of improper or negligent procedures which facilitated the conversion and sale of Mr. Winston's vehicle to a third party purchaser. If Mr. Lucky did not sign these documents, the plaintiff has no case . It goes without saying that State Farm is a defendant only in its capacity as surety for Mr. Lucky and can have no liability unless and until liability is visited upon Mr. Lucky, a circumstance again calling for Mr. Lucky's signature to be present on the documents in question, a matter upon which the plaintiff bears the burden of proof....
Mr. Lucky ... emphatically denied having signed these documents in question during his trial testimony. Mr. Lucky's testimony on this topic has always been that his name appears on the documents but that the handwriting is not his signature . The plaintiff's argument contrary to that assertion misconstrues and misrepresents the pleadings and Mr. Lucky's testimony. Mr. Lucky's position has always been consistently that, while his name appears on the documents, he did not sign the documents and that is not his signature, not his handwriting, is the clear and obvious meaning conveyed.
With respect to Mr. Waller, this court is mindful of the Honorable Second Circuit's instruction that this court is to assess the credibility of witnesses during the trial of this matter and the court has done so. Mr. Waller has presented the court with inconsistent statements for evidence on the matter of Mr. Lucky's signature . Mr. Waller has stated both that he, Mr. Waller, forged Mr. Lucky's name to the documents in question and has also stated that he took the documents over to Mr. Lucky's office and left them for Mr. Lucky to sign, to notarize, but he never saw Mr. Lucky sign the documents in question. The court notes the significant contradictions and internal inconsistencies in Mr. Waller's testimony regarding how the signature purporting to be Mr. Lucky's got on the documents in question and further notes that it has been judicially determined in the prior but related suit that Mr. Waller converted and sold Mr. Winston's vehicle without the permission of the owner. In other words, the related case indicates that Mr. Waller is a thief. Hence his credibility is absolutely zero and his testimony is entitled to no weight whatsoever. On one occasion, as part of the various explanations he gave for his conduct and the involvement or lack thereof of Mr. Lucky, Mr. Waller said that he took the documents in question over to Mr. Lucky's office and left them for Mr. Lucky to notarize, a position which he later recanted and then candidly admitted to forging Mr. Lucky's signature on the documents in question . The testimony of Mr. Lucky in this regard is that Mr. Waller did not bring these documents to his office and leave them to be notarized.....
Mr. Lucky has consistently denied having signed the documents in question and Mr. Waller recanted his statement of having [taken] the documents by Mr. Lucky's office and having left them there for Mr. Lucky to sign in favor of his later pronouncement that he signed. In other words, he forged Mr. Lucky's name to the documents in question . The court finds the showing made by this evidence to be insufficient for the court to find as a matter of fact that on this occasion Mr. Waller took documents by and left them for Mr. Lucky to sign and that Mr. Lucky in fact did thereafter sign them. The recantations and inconsistencies by Mr. Waller make his testimony useless to the court and do not assist the plaintiff in proving that such an arrangement transpired on this occasion. That is particularly the case when Mr. Lucky has consistently and emphatically denied having signed the documents in question . The foregoing postulated scenario ... is still insufficient for the plaintiff to sustain his required burden of proof that Mr. Lucky signed these documents. ...
[T]he plaintiff has failed to show that Mr. Lucky signed the documents in question. The court observed with interest that neither party engaged a forensic document examiner to examine the handwriting at issue which would have greatly assisted the court and the parties in resolving this issue which is the crux of the case....

The trial court's factual findings in this case, as set forth above, are clearly based upon its credibility determinations and as such, are not manifestly erroneous or clearly wrong. Furthermore, once Lucky denied having signed the title and bill of sale documents (which he did consistently as well as by supplying the court with two documents to show the differences between his actual signature and that of the signature purporting to be his on the title and bill of sale), the burden was upon Plaintiff to present evidence sufficient to establish that the signatures on the documents were Lucky's. The trial court did not err in finding that Plaintiff failed to do so.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is affirmed. Costs of this appeal are assessed against Plaintiff-Appellant, Sam Winston, Jr.

AFFIRMED .

      Initially, suit was filed by both Winston and his daughter. However, she was dismissed from the lawsuit when an exception of no cause of action filed by Defendants was granted.

      In this judgment, the trial court also denied a peremptory exception of prescription filed by State Farm, and rendered judgment in favor of Plaintiff against Lucky dismissing his reconventional demand and all claims therein.

      Because we are affirming the trial court's judgment, we do not reach the issue raised by State Farm in its answer to the appeal.


author: WILLIAMS, C.J.

text:
    Donald E. SONNIER, Jr., Plaintiff-Appellee v. Kenneth A. GORDON, Jr. and Susan Franks Gordon, Defendant-Appellee-Appellant
    No. 52,650-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019
    STROUD, CARMOUCHE & BUCKLE, PLLC, By: Nichole M. Buckle, Shreveport, Counsel for Appellant, Susan Franks Gordon
    KITCHENS LAW FIRM, APLC, By: Richard R. Ray, Bossier City, Counsel for Appellee, Donald E. Sonnier, Jr.
    KENNETH A. GORDON, JR., Fort Lauderdale, Appellee, In Proper Person
    Before WILLIAMS, PITMAN, and STEPHENS, JJ.
   WILLIAMS, C.J.

The defendant, Susan Gordon, appeals a judgment in favor of the plaintiff, Donald Sonnier, Jr., in the amount of $ 200,000, plus interest, attorney fees and costs. The trial court found that Susan Gordon and Kenneth Gordon were liable for repayment of the funds which they received in consideration for executing the 2011 promissory note. For the following reasons, we affirm.

FACTS

Kenneth Gordon, Jr., and Susan Gordon were married in 1990. During the marriage, they formed and acted as managing members of Diamond Realty Group, LLC ("Diamond Group"), which was engaged in the purchase and sale of real estate in northwest Louisiana. Apparently, the Gordons stopped living together in 2009, but remained married. In May 2010, Diamond Group signed an agreement granting to a separate company an exclusive license to use the Diamond Realty trade name. Kenneth and Susan Gordon ceased selling real property in Louisiana, but Diamond Group continued to exist as an entity with the primary asset consisting of the right to receive the license fee for the trade name. Kenneth Gordon later assigned his financial interest in Diamond Group to Susan Gordon.

In the fall of 2010, Kenneth Gordon and his friend, Donald Sonnier, Jr., decided to go into business together to buy and sell real estate in Texas. They agreed that Sonnier would provide the cash to get the business started and Gordon would manage the daily operations. In October 2010, checking account # 19690 was opened at American National Bank in the name of Diamond Realty Group, LLC. The mailing address of the account was the home address of Susan Gordon. From November 2010 through March 2011, Sonnier deposited $ 216,500 into account # 19690. During that time period, Kenneth and Susan Gordon were still married and were the managing members of Diamond Group.

On April 19, 2011, Kenneth Gordon and Susan Gordon signed a promissory note in favor of Donald Sonnier in the amount of $ 200,000, plus 3.5% interest from the date of execution. The promissory note provided for an award of attorney fees if legal action was required to collect the amount due on the note. At the time they signed the promissory note, the Gordons were married and in a community property regime. In August 2011, Kenneth Gordon was indicted for one count of conspiracy to defraud the United States and he was convicted of that crime in 2012. United States v. Gordon , USDC (W.D. La.) No. 5:11-CR-219 (2013). In March 2013, Gordon was remanded to federal prison and the real estate business venture with Sonnier failed a short time later.

In October 2014, the plaintiff, Sonnier, filed suit to collect the amount due under the promissory note signed by the defendants, Kenneth and Susan Gordon. In March 2015, the district court granted summary judgment in favor of plaintiff in the amount of $ 200,000. On appeal, this court reversed the summary judgment, finding that a genuine issue of material fact existed as to whether consideration had been given to defendants in exchange for their execution of the note. The matter was remanded for further proceedings. Sonnier v. Gordon , 50,513 (La. App. 2 Cir. 4/13/16), 194 So.3d 47.

At trial in August 2018, Sharon Buzzanca testified that she was a certified public accountant who had worked with plaintiff during the years 2010 and 2011. Buzzanca stated that she was aware at the time that the Gordons were owners of Diamond Group and that she knew the employer ID # of their company because she had completed a tax form for them to file with the IRS. Buzzanca testified that she was aware Sonnier had agreed to invest funds in the business venture with the Gordons and that he had deposited $ 216,500 into the 19690 account.

Subsequently, the trial court issued reasons for judgment finding that the evidence showed that plaintiff had paid consideration to both defendants in exchange for their execution of the promissory note and that the amount of the consideration exceeded the $ 200,000 face value of the note. The trial court rendered judgment in favor of the plaintiff in the amount of $ 200,000, plus interest from April 2011, attorney fees and costs. The defendant, Susan Gordon, appeals the judgment. Kenneth Gordon did not file an appeal.

DISCUSSION

Defendant contends the trial court erred in finding that she was liable to repay the plaintiff on the basis of the promissory note. She argues that the promissory note cannot be enforced against her because she did not receive anything of value as consideration in exchange for signing the note.

An instrument is issued for value if it is issued for a promise of performance to the extent the promise has been performed. La. R.S. 10:3-303(a)(1). "Consideration" means any consideration sufficient to support a simple contract. The maker has a defense if the instrument is issued without consideration. If an instrument is issued for a promise of performance, then the issuer has a defense to the extent performance of the promise is due and has not been performed. If the instrument is issued for value as stated in subsection (a), the instrument is also issued for consideration. La. R.S. 10:3-303(b). In the context of negotiable instruments, consideration is what the obligor has received for her obligation. Thomas v. Bryant , 597 So.2d 1065 (La. App. 2 Cir. 1992).

In a suit on a promissory note, if the plaintiff produces the note sued upon, then he has proved entitlement to the amount evidenced by the note. The defendant must then show that the debt has been diminished, extinguished or is otherwise unenforceable. Sonnier v. Gordon , supra . Under Louisiana law, in a suit on a promissory note by the payee against the maker, the payee is entitled to the presumption that the instrument was given for value received. However, the presumption is rebutted if the maker casts doubt upon the consideration. Once the maker has raised doubt about the consideration, the burden shifts to the payee to prove consideration by a preponderance of the evidence. Sonnier , supra ; Lilly Lyd, L.L.C. v. Graham , 2014-594 (La. App. 5 Cir. 12/30/14), 167 So.3d 829.

In the present case, Sharon Buzzanca testified that she worked with Sonnier during 2010 to 2011 when he was investing money into the business with Kenneth Gordon. Buzzanca stated that notices from the Louisiana Secretary of State's office show that at the time, the Gordons were the managing members of Diamond Group, which was the owner of account #19690 at American National Bank. Buzzanca testified that based on bank statements from November 2010 to March 2011, Sonnier had deposited $ 216,500 into account #19690 when the Gordons signed the promissory note in April 2011. Buzzanca stated that Sonnier did not write any checks to Susan Gordon individually.

Donald Sonnier testified that he agreed to provide the financing for the business venture with Kenneth Gordon. Sonnier stated that he deposited $ 216,500 into account #19690, which was owned by Diamond Group and that he believed Kenneth and Susan Gordon were the owners of that company. Sonnier testified that the promissory note signed by the Gordons was intended to secure repayment of his initial investment in the business. Sonnier explained that this intent was shown in an email from his attorney that was forwarded to Kenneth Gordon, stating that the Gordons would sign a promissory note as Sonnier invested the funds into the business. Sonnier stated that he had asked Susan to sign over her interest in the licensing fee, but she did not want to do that and so she signed the promissory note. Sonnier testified that he believed Susan was aware that Diamond Group was used to open account #19690 because she and Kenneth were married and were owners of that company.

Susan Gordon testified that she and her former husband, Kenneth, had formed Diamond Group, which has existed as a shell company to receive the income from a licensing fee since 2010. Gordon stated that prior to the lawsuit, she did not know that account #19690 had been opened in the name of Diamond Group, but she was aware that Kenneth and Sonnier were starting a business in Texas. Gordon testified that she was not a signatory for account #19690, she did not receive funds from that account and none of her bills were paid from that account. Gordon stated that she went with Kenneth to the office of Sonnier's attorney and felt upset when she was asked to sign over her interest in the licensing fee of Diamond Group because that was a source of income for her and the children. Gordon testified that when she refused to transfer her rights, she was presented with the promissory note and one of the men told her she was required to sign the note because she and Kenneth were married, but she did not recall who had said that. Gordon stated that she last lived with Kenneth at the Victorias Drive address in Benton and then in January 2011, she moved into her father's residence at Ashdown Drive. She testified that the mailing address for Diamond Group is her home address. Gordon acknowledged that bank records show that in April 2011, the address for account #19690 was changed from Victorias Drive to her Ashdown address. Gordon stated that even though she received monthly statements from American National Bank addressed to Diamond Group over a number of years, she never opened any of that mail. Gordon testified that she thought the bank statements mailed to her company, Diamond Group, at her address, were related to Kenneth's business in Texas and she just threw the mail into a box, where it remained unopened until she shredded the mail approximately six months before trial. Gordon stated that the divorce judgment shows that the community property regime between her and Kenneth terminated in March 2013.

In her brief, Gordon argues that she did not receive consideration for signing the note because she never received any of the funds deposited into account # 19690, she never exercised control of those funds and she was not a signatory on that account. However, the evidence presented shows that the consideration for the promissory note signed by the Gordons was Sonnier's commitment to provide financing for the business venture with Kenneth, who was Susan Gordon's spouse at the time. The bank records demonstrate that Sonnier performed his promise by depositing $ 216,500 into account #19690, making those funds available to Kenneth Gordon for use in the business venture. Although Susan denied knowing that Diamond Group was used to hold funds for the business venture, such a lack of knowledge is contradicted by her testimony that she believed the bank statements addressed to Diamond Group were related to Kenneth's business in Texas. The record shows that the funds were made available whether she chose to exercise control over the funds or not and her spouse did have access to the funds. The evidence presented supports the finding that there was consideration for the promissory note. This assignment lacks merit.

Susan Gordon also argues that even if Diamond Group was an owner of account #19690, she did not have an ownership interest in that account as a member of Diamond Group because, under La. R.S. 12:1329, a limited liability company is a separate legal entity from its members, who do not have an interest in the limited liability company property. However, as stated above, the consideration for Susan in signing the promissory note was the financing provided by Sonnier for the business venture of her spouse and there is no showing that she was promised an ownership interest in the funds deposited into that account. This assignment of error lacks merit.

Gordon asserts there is no cause to support the obligation of the promissory note. Cause is the reason a party obligates himself. La. C.C. art. 1967. Contrary to her assertion, although Gordon stated she did not receive funds directly from the account, the evidence indicated that the community regime of Kenneth and Susan Gordon would have benefitted to the extent that the business venture was successful. Thus, the record supports a finding that there was cause for defendant's obligation. The assignment of error lacks merit.

Gordon contends the trial court erred in finding valid consent for the promissory note. She argues that her consent was not valid because she signed under duress.

A contract is formed by consent of the parties. La. C.C. art. 1927. Consent is vitiated when obtained by duress that causes a reasonable fear of unjust injury to a party's property. La. C.C. art. 1959. In her brief, Gordon asserts that she signed the note only after she was threatened with losing her rights to the license fee received by Diamond Group.

However, Gordon testified that she refused to transfer her rights when asked and then was told that she needed to sign the promissory note because she and Kenneth were married. This testimony does not support the assertion that her right to the licensing fee was threatened. Thus, there was no showing that Gordon was subject to such duress as to cause a reasonable fear of unjust injury to her property. The assignment of error lacks merit.

Gordon contends the trial court erred in finding that the full amount of the promissory note was owed. She argues that the promissory note cannot be enforced beyond the amount of funds actually given as consideration.

In brief, Gordon asserts that even though Sonnier deposited $ 216,500 in the account, $ 150,000 of that amount was used at Sonnier's instruction to pay his personal loan debt to Gibsland Bank. At trial, Sonnier acknowledged that bank records indicated a payment was made to Gibsland Bank from account #19690, but he did not know the nature of the loan that was apparently paid. Kenneth Gordon testified that he had signed the check to Gibsland Bank and remembered that the check was issued to pay a loan for Sonnier.

The record shows that there was little evidence to establish what or whom the loan benefitted. Given the conflicting testimony, the trial court needed to weigh the credibility of the witnesses. The trial court found that Kenneth Gordon was not a credible witness whereas the court relied on Buzzanca's testimony that Sonnier had made significant payments to the business venture exceeding the face amount of the note. Based upon this record, we cannot say the trial court was clearly wrong in finding that defendants owed the full amount of the promissory note. The assignment of error lacks merit.

Gordon argues that Sonnier is precluded from recovery of the promissory note because of his own bad faith. An obligee may not recover damages when his own bad faith has caused the obligor's failure to perform. La. C.C. art. 2003.

In her brief, Gordon contends Sonnier's own actions after Kenneth Gordon went to prison damaged their business and prevented Sonnier from being repaid. The evidence shows that Sonnier abided by his agreement to invest funds into the business venture and there is no showing that he made misrepresentations regarding the execution of the promissory note. Thus, the record does not support a finding that Sonnier is precluded from recovery in this matter. The assignment of error lacks merit.

Gordon also argues that despite the existence of the community property regime between her and Kenneth at the time the debt was incurred, Sonnier has no right to collect the debt from her personally because Kenneth Gordon was the spouse who incurred the obligation sued upon. Community property comprises property acquired during the legal regime through the effort or skill of either spouse and the natural and civil fruits of both community property and a spouse's separate property. La. C.C. arts. 2338 and 2339.

Contrary to her argument, the evidence presented shows that Susan Gordon personally incurred the obligation by signing the promissory note. Thus, the record does not support the contention that Susan Gordon is not liable for repayment of the debt shown by the promissory note. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court's judgment is affirmed. Costs of this appeal are assessed to the appellant, Susan Gordon.

AFFIRMED.