text:
    Anthony JEANMARIE, et al. v. Mark A. PEOPLES, et al.
    No. 2009-CA-1059.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 2010.

      Robert W. Drouant, Robert W. Drouant, Attorney at Law, New Orleans, LA, for Anthony Jeanmarie and Alcibia Jeanmarie.
    Charlotte C. Meade, William E. Wright, Jr., Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, for Mark A. Peoples and Pyramid Title, LLC.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge DENNIS R. BAGNERIS, SR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

1Defendants-appellants, Mark A. Peoples and Pyramid Title, LLC, appeal an adverse summary judgment signed on March 30, 2009, in favor of the plaintiffs-appellees, Anthony Jeanmarie and Alcibia Jeanmarie, in the sum of $168,607.72 together with attorney’s fees to be set by the court.

The thrust of the appeal is (1) that Mr. Peoples should not have been held personally liable for a check drawn on the account of his title company and (2) that the summary judgment was granted without adequate discovery and contrary to the law of negotiable instruments.

On August 26, 2005, Mr. Peoples, through his company, Pyramid Title LLC, handled a closing involving Melanie Yvonne Murray as purchaser and the Je-anmaries as sellers of the property located at 2412-14 Independence Street, New Orleans. As part of the transaction, Encore Credit Corporation (“Encore”) funded two loans to Ms. Murray, one in the sum of $104,000.00 and the second in the sum of $26,000.00, each secured by a mortgage from Ms. Murray in favor of Encore. At the closing, check # 3662 drawn on the Pyramid escrow account with AmSouth Bank (now Regions Bank) in the sum of $110,303.86 was made payable to the Jean-maries.

|gMr. Peoples contends that he signed the Pyramid check to the Jeanmaries in his representative capacity. He further alleges that Encore failed to timely fund the $26,000.00 loan, resulting in a shortfall in Pyramid’s account.

Mr. Peoples alleges that in a separate and unrelated closing on the same date, another lender failed to fund the loan, resulting in an additional shortfall in the Pyramid account.

Apparently, the Jeanmaries deposited the $110,303.86 check in their account on November 2, 2005. The delay in making the deposit was related to Hurricane Katrina, but the timing of the deposit is not an issue in this case. On November 4, 2009, the check was returned NSF. Thus, the Jeanmaries property was effectively transferred from them without compensation.

Mr. Peoples alleges that he has been unable to locate his files pertaining to the two transactions since Hurricane Katrina.

Sometime after the Jeanmaries filed this suit, they received an unconditional tender from Encore of $26,000.00, the amount of the previously unfunded second loan. Nevertheless, the Jeanmaries filed a motion for summary judgment seeking to hold Mr. Peoples and Pyramid liable for the entire amount of the NSF check, together with penalties and attorney fees.

At the March 20, 2009 hearing on the motion for summary judgment, the appellants argued that discovery was necessary in order to determine why there were insufficient funds in the Pyramid trust account. Additionally, Mr. Peoples argued that regardless of whatever liability Pyramid might be found to have, he could not be held personally liable. The trial judge ruled in favor of the Jeanmaries in open court and signed the judgment ten days later. The $168,607.72 awarded to |sthe Jeanmaries represents twice the amount of the NSF check, less the $26,000.00 tendered by Encore, pursuant to La. R.S. 9:2782.

In a motion for new trial filed on April 9, 2009, Mr. Peoples and Pyramid asserted that Mr. Peoples signed the check in his representative capacity only. Consequently he should not be held personally liable on the check or for the penalties payable under La. R.S. 9:2782. This appeal follows the denial of that motion for a new trial.

Mr. Peoples does not dispute that he is the sole member of Pyramid Title and that he acted as' the attorney/notary in the property transaction underlying this litigation.

It is uncontested that written demand was made on Mr. Peoples and Pyramid in accordance with La. R.S. 9:2782 and that more than fifteen days elapsed thereafter without payment.

The opposition to the motion for summary judgment filed in the trial court on behalf of the appellants does not raise the issue that Mr. Peoples acted only in a representative capacity when he signed the check drawn on the Pyramid trust account. That defense was raised with specificity for the first time in connection with the motion for new trial.

The record contains an undisputed copy of the check in question. It bears the title, “Pyramid Title LLC Escrow Account.” Mr. Peoples does not contest the 14fact that the check bears his signature upon the line entitled “Authorized Signature.”

La. R.S. 10:3-402 concerning signatures affixed in a representative capacity provides as follows:

§ 3-402. Signature by representative
(a) If a person acting, or purporting to act, as a representative signs an instrument by signing either the name of the represented person or the name of the signer, the represented person is bound by the signature to the same extent the represented person would be bound if the signature were on a simple contract. If the represented person is bound, the signature of the representative is the “authorized signature of the represented person” and the represented person is liable on the instrument, whether or not identified in the instrument.
(b) If a representative signs the name of the representative to an instrument and the signature is an authorized signature of the represented person, the following rules apply:
(1) If the form of the signature shows unambiguously that the signature is made on behalf of the represented person who is identified in the instrument, the representative is not liable on the instrument.
(2) Subject to Subsection (c), if (i) the form of the signature does not show unambiguously that the signature is made in a representative capacity or (ii) the represented person is not identified in the instrument, the representative is liable on the instrument to a holder in due course that took the instrument without notice that the representative was not intended to be liable on the instrument. With respect to any other person, the representative is liable on the |Binstrument unless the representative proves that the original parties did not intend the representative to be liable on the instrument.
(c) If a representative signs the name of the representative as drawer of a check without indication of the representative status and the check is payable from an account of the represented person who is identified on the check, the signer is not liable on the check if the signature is an authorized signature of the represented person.

Comment No. 3 of the Uniform Commercial Code Comment found under La. R.S. 10:3-402 shows that La. R.S. 10:3— 402(c) quoted above is the paragraph applicable to the fact situation found in the instant case:

3. Subsection (c) is directed at the check cases. It states that if the check identifies the represented person the agent who signs on the signature line does not have to indicate agency status. Virtually all checks used today are in personalized form which identify the person on whose account the check is drawn. In this case, nobody is deceived into thinking that the person signing the check is meant to be liable. This subsection is meant to overrule cases decided under former Article 3 such as Griffin v. Ellinger, 538 S.W.2d 97 (Texas 1976).

In the instant case, the check clearly identifies the represented person at the top in boldface and a large font as Pyramid Title LLC as follows:

PYRAMID TITLE LLC
ESCROW ACCOUNT
PH 504-484-0900
4332 CANAL STREET
NEW ORLEANS, LA 701119

The signature line is entitled, “AUTHORIZED SIGNATURE,” a designation not typically found on personal checks. It is patent on the face of the check that Mark Peoples signed as the authorized signatory for Pyramid Title and not in his personal capacity, consistent with La. R.S. 10:3-402(c). There is nothing | (¡subtle, obscure or ambiguous about this. Therefore, we find that the face of the check, at the very least, is sufficient without more to raise a genuine issue of material fact that Mr. Peoples did not sign in his personal capacity.

This conclusion is consistent with the result reached by the Third Circuit in Boutin v. Rodrigue, 07-566, p. 6 (La.App. 3 Cir. 10/31/07), 969 So.2d 713, 717, where the court examined checks which on their face were analogous to the one at issue in the instant case:

We also note that Boutin contends that the payments made by Rodrigue in his personal capacity support his contentions herein. However, this assertion lacks merit. None of the payments made to Boutin for the purchase of his stock were made by Rodrigue in his personal capacity. It is undisputed that the first payment to Boutin of $2,500.00 was drawn on the account of Café Tee George, not a personal account of Ro-drigue. The two subsequent payments of $5,000.00 and $3,000.00 were made by Rodrigue Studios, L.L.C., which is also a separate legal entity, and not by Ro-drigue in his personal capacity.

However, the plaintiffs contend that Mr. Peoples was required to plead as an affirmative defense the allegation that he signed only in his representative capacity. As he did not do this, the plaintiffs contend that he is barred from doing so for the first time in his motion for a new trial.

The party pleading an affirmative defense bears the burden of proof. Touro Infirmary v. Marine Medical Unit, Inc., 96-2506 (LaApp. 4 Cir. 5/12/97), 699 So.2d 90, 93. However, we have already found that the check at issue in this case shows on its face that it was the check of Pyramid Title LLC and not the personal check of Mark Peoples. As a matter of law, Mr. Peoples is presumed to have signed in a representative capacity only. Therefore, the burden of proof to show that the parties intended otherwise falls heavily on the plaintiffs. As this burden of 17proof falls upon the plaintiffs, it follows that this cannot be said to be an affirmative defense where the burden of proof would fall upon Mr. Peoples. Moreover, the burden of proof remains with the mov-ant in a motion for summary judgment. La. C.C.P. art. 966 C(2). Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507, p. 1 (La.12/8/00), 775 So.2d 1049, 1050, citing Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, pp. 16-17 (La.2/29/00), 755 So.2d 226, 236.

Therefore, at this stage of the proceedings, where we are conducting a de novo review of the record, we find that on the face of the record there is, at the very least, a genuine issue of material fact as to whether Mr. Peoples signed the check in his personal capacity.

The plaintiffs also assert a claim of personal liability on the part of Mr. Peoples based on a theory of personal professional negligence, i.e., as a legal professional Mr. Peoples was negligent in issuing the NSF check and a professional is not shielded from personal liability by corporate or LLC status. See Spano v. Mitchell, 05-2115 (La.App. 1 Cir. 9/15/06), 943 So.2d 1131. However, the record does not reflect that the issue of professional negligence was raised in the summary judgment motion filed by the plaintiffs. There is nothing to indicate that it was argued below. Therefore, it is impossible for this Court at this stage of the proceedings to find that the plaintiffs have borne their burden of proof in this regard.

Our finding of the existence of a genuine issue of material fact concerning the capacity in which Mr. Peoples signed the check drawn on the “Pyramid Title |SLLC Escrow Account,” is fully dispositive of the issue of summary judgment as it pertains to Mr. Peoples.

The trial court also rendered judgment against Pyramid, and Pyramid raises no defense based on the manner in which the check was signed. Its only basis for appeal, as was noted earlier in this opinion, is that at the March 20, 2009 hearing on the motion for summary judgment, the appellants argued that discovery was necessary in order to determine why there were insufficient funds in the Pyramid trust account. Pyramid contends that it was error for the trial court to grant summary judgment against them prior to allowing them time to complete discovery.

The Jeanmaries point out that over two years had elapsed subsequent to the time that counsel for the appellants’ malpractice carrier, Continental Casualty Company (“Continental”) answered the Jeanmaries’ petition and over nine months since the petition was answered on behalf of Mr. Peoples and Pyramid. During this time there is no record of any attempts by the appellants to obtain discovery. It was not until January 12, 2009, when counsel for Mr. Peoples and Pyramid wrote to Mr. Charles McHale concerning the possibility of obtaining information from outside sources in order to reconstruct information in Mr. Peoples files missing since Hurricane Katrina, that the appellants began discovery efforts.

Summary judgment may be considered even before the parties have completed discovery. Humphries v. Cooper Truck Center, 40,586, p. 6 (La.App. 2 Cir. 3/8/06), 923 So.2d 940, 944. It is within the trial court’s discretion to render a summary judgment, if appropriate, or to allow further discovery. Id. While parties should be given a fair opportunity to present their claim, there is no absolute right |flto delay action on a motion for summary judgment until discovery is completed. Id.

This Court has described the discretion involved in the decision of whether to grant a continuance to permit further discovery as “wide.” Chatman v. Thor Offshore Boat Service, Inc., 410 So.2d 784, 786 (La.App. 4 Cir.1982). The trial court’s decision in this regard should only be reversed upon a showing of an abuse of that discretion. Id., at p. 7, 923 So.2d at 944.

Leake & Andersson, LLP v. SIA Insurance Company, 03-1600 (La.App. 4 Cir. 3/3/04), 868 So.2d 967, cited by appellants, is distinguished from the case at hand in that Leake involved a recently filed lawsuit. The present litigation was filed years prior to the hearing on the motion for summary judgment. The appellants were well aware of the issues involved in this litigation and had already received two continuances.

While the appellants may have an interest in pursuing discovery to reveal the conditions which led to the check presented to the Jeanmaries being dishonored by the bank as regards some claim the appellants may theoretically have against a third party, we do not see the relevance of that issue to the claim of the Jeanmaries inasmuch as the check issued to the Jean-maries represents an unconditional promise of payment. La. R.S. 10:3-104. It has been four years since this unconditional promise to pay them was rejected by the bank and payment still has not been made to them.

Moreover, the Jeanmaries contend that the following language found in the affidavit of Mr. Peoples offered in opposition to their motion for summary judgment contains sufficient explanation of why the check was returned NSF such 11flthat further discovery is not necessary for purposes of this litigation, regardless of what rights the appellants hope to discover in the future against third parties:

* * *
3. Encore failed to timely fund the second loan for $26,000, causing a shortfall for the transaction.
4. In addition, the lender for another transaction closed on August 26, 2005, failed to fund a loan commit-mént, creating a shortfall on that transaction.
5. As a result of these shortfalls, there were insufficient funds to cover the check provided to the Jeanmaries in connection with their sale of property on August 26, 2005.

In reviewing all of the factors noted above that the trial judge had before her when she made her decision to deny the appellants request for further discovery, we cannot find any abuse of her wide discretion.

Based on the foregoing, we vacate that portion of the trial court judgment adverse to Mr. Peoples, but affirm that portion of the trial court judgment adverse to Pyramid, and remand to the trial court for further proceedings consistent with this opinion.

VACATED IN PART, AFFIRMED IN PART AND REMANDED.

      . § 2782. Nonsufficient fund checks; damages, attorney fees
      A. Whenever any drawer of a check dishonored for nonsufficient funds fails to pay the obligation created by the check within fifteen working days after receipt of written demand for payment thereof delivered by certified or registered mail, the drawer shall be liable to the payee or a person subrogated to the rights of the payee for damages of twice the amount so owing, but in no case less than one hundred dollars plus attorney fees and court costs.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge.

license: Public Domain

text:
    Byron MITCHELL v. DEPARTMENT OF POLICE.
    No. 2009-CA-0724.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 17, 2010.
    Raymond C. Burkart III, Burkart & Associates, L.L.C., Covington, Louisiana, for Plaintiff/Appellant.
    Penya Moses-Fields, City Attorney of Orleans Parish, Nolan P. Lambert, Chief Deputy City Attorney of Orleans Parish, Shawn Lindsay, Victor L. Papai, Jr., Assistant City Attorney of Orleans Parish New Orleans, Louisiana, for Defendant/Appel-lee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD).
   JAMES F. McKAY III, Judge.

|, Sergeant Byron Mitchell appeals from the Civil Service Commission’s (“the Commission”) dismissal of his appeal following the Commission’s affirming the New Orleans Police Department’s appointing authority’s decision to suspend him for five days for a violation of neglect of duty. For reasons that follow, we affirm.

On August 28, 2008, Officer Calvin Pre-vost attended an Accident Review Board Hearing concerning his involvement in a traffic accident. He was accompanied by his supervisor Sergeant Byron Mitchell. During the hearing, Deputy Chief Lawrence Weathersby (then Major Weathers-by) noticed that Officer Prevost was wearing a gold bracelet, a dress code violation. Deputy Chief Weathersby verbally reprimanded Officer Prevost and ordered him to remove the bracelet. Officer Prevost complied with the order. Deputy Chief Weathersby also verbally reprimanded Sergeant Mitchell for allowing his subordinate, Officer Prevost, to attend the formal hearing while wearing the bracelet. When the hearing was over, Sergeant Mitchell and Officer Prevost left the building. At that time, Deputy Chief Weath-ersby witnessed from his vantage point in a second story 12window, Sergeant Mitchell assisting Officer Prevost in putting the bracelet back on. As a result of this action, disciplinary proceedings for neglect of duty were filed against the appellant.

On October, 31, 2007, a hearing was held before Captain Louis Colin. Captain Colin recommended a penalty letter of reprimand for the violation. On December 3, 2007, Superintendent Warren J. Riley held that Sergeant Mitchell was in violation of Neglect of Duty, Chapter 18:28 relative to personal appearance. Superintendent Riley also found Sergeant Mitchell’s conduct to be contrary to the standards prescribed by Rule IX, Section 1 paragraph 1.1 of the Rule of the Civil Service Commission for the City of New Orleans regarding maintaining standards of service. Superintendent Riley increased the penalty from a letter of reprimand to a five day suspension, effective on December 16, 2007.

On February 12, 2008, the matter came before the Commission. Hearing Examiner Harry Tervalon found that the appointing authority met its burden of proof and that Sergeant Mitchell’s actions rose to the level of discipline given in the matter.

On March 17, 2009, the Commission dismissed Sergeant Mitchell’s appeal finding the appointing authority carried its burden of proving the offense was committed and that Sergeant Mitchell continued to allow Office Prevost to violate uniform rules immediately after they were both reprimanded for their actions.

The applicable legal precepts in this ease are as follows: an employee who has gained permanent status in the classified city civil service cannot be subjected |sto disciplinary action by his employer except for cause expressed in writing. The employee may appeal from such disciplinary action to the City Civil Service Commission. The burden of proof on appeal, as to the facts, shall be on the appointing authority. La. Const, art. X, § 8 (1974); Walters v. Department of Police of City of New Orleans, 454 So.2d 106, 112-113 (La.1984). The Commission’s decision is subject to review on any question of law or fact upon appeal to the appropriate court of appeal. La. Const, art. X § 12(B).

The Commission has a duty to independently decide, from the facts presented, whether the appointing authority had good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed was commensurate with the dereliction. Walters, 454 So.2d at 113. Legal cause for disciplinary action exists whenever an employee’s conduct impairs the efficiency of the public service in which that employee is engaged. Cittadino v. Department of Police, 558 So.2d 1311, 1315 (La.App. 4 Cir.1990). The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity occurred, and that such activity bore a real and substantial relationship to the efficient operation of the public service. Id., at 1315.

In reviewing the Commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, this Court should not modify the Commission’s order unless it is arbitrary, capricious or characterized by an abuse of discretion. Walters, 454 So.2d at 114. “Arbitrary or capricious” means that there is no rational |4basis for the action taken by the Commission. Bannister v. Department of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647.

At the hearing, Sergeant Mitchell testified that he was Officer Prevost’s supervisor and that he was aware that it was a violation to wear jewelry other than a watch and personal rings while in uniform. He also testified that he was present at the accident review hearing on August 28, 2007, and heard Major Weathersby admonish Officer Prevost for wearing the gold bracelet while in uniform. Based on the record, Major Weathersby testified that almost immediately after this admonition occurred he observed Sergeant Mitchell assisting Officer Prevost in putting the gold bracelet back on his wrist. Although, this accounting was refuted by appellant, claiming that he was merely showing Officer Prevost how to convert the bracelet to a medical alert bracelet, the Commission agreed with Major Weathersby’s rendition. Clearly this decision was based upon a credibility call and the Commission believed Major Weathersby’s version of what transpired. Curiously, the Commission stated it “cannot confirm that the two were actually engaged in reattaching the bracelet”, but yet dismissed the appellant’s appeal. However, we cannot conclude that the Commission acted arbitrary and capricious in its conclusion.

Based upon the record before this Court, we affirm the decision of the Commission.

AFFIRMED.


author: DAVID S. GORBATY, Judge. JONES, J.,

text:
    STATE of Louisiana v. Sean CASSIMERE.
    No. 2009-KA-1075.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 17, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Brad M. Scott, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Sean Cassimere.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY).
   DAVID S. GORBATY, Judge.

11 Sean Cassimere appeals his sentence rendered after a remand for resentencing. For the following reasons, we affirm the sentence.

STATEMENT OF CASE AND FACTS:

The defendant was charged with one count of armed robbery, for which he was found guilty and sentenced to serve fifteen years at hard labor. Defense counsel filed a motion for new trial, motion to reconsider sentence and a motion for a post-verdict judgment of acquittal. All were denied by the trial court. Defense counsel also filed a motion for appeal.

This Court considered the appeal, in which the sole assignment of error was that the sentence was excessive. Judge McKay, writing for the majority, vacated the sentence, finding that the trial court had failed to consider mitigating circumstances when sentencing the defendant. Judge Kirby dissented stating that it was clear from the record (and the majority opinion) that any mitigating circumstances had been considered by the trial court and, therefore, the sentence should be affirmed.

On May 5, 2008, the Fourth Circuit Court of Appeal issued an order directing the trial court to re-sentence the defendant within sixty days.

On October 27, 2008, Mr. Cassimere was resentenced. The trial court reimposed the fifteen-year sentence and ordered that it be served without benefit of probation, parole, or suspension of sentence. The trial court further ordered that the |2sentence be served concurrently with any other sentence, and that the defendant receive credit for time served. The trial court stated:

Okay. He now comes before the court for a re-sentencing pursuant to a split decision by the Court of Appeals, with McKay and Love making up the majority and Kirby, making up the minority and publishing a written dissent. Since I have had the opportunity to review this record, I do have a recollection of this case; however, I don’t remember a hundred percent of what happened in this case. I do remember that the victim had pulled up in front of a home in a van. He had money in his pocket and Mr. Cassimere walked up to him, threatened to kill him, took his money and took his van. When I imposed the sentence initially, I did take into account his youth as being 19-years-old. I also took into account his homelessness, and the fact that he allegedly was trying to take his daughter to a homeless shelter. However, homelessness and youth does not excuse threatening to kill a person to take their transportation ... And unlike the majority opinion in this case, I respectfully disagree that mere youth and homelessness should mitigate against a sentence any less than the fifteen years.
* * *
I find that he used a firearm in connection with the perpetration of this offense and I have also taken into consideration the mitigating circumstance of his youth. However, unlike Judge Love and Judge McKay, this court does not find 'that homelessness is a mitigating circumstance that would justify this court in reducing an already extremely lenient sentence any further down than it is.

On March 23, 2009, this Court issued an order directing the trial court to grant the defendant an out-of-time appeal, and the trial court appointed the Louisiana Appellate Project to represent him.

ASSIGNMENT OF ERROR 1:

The defendant argues that his defense counsel’s failure to object to the ex-cessiveness of the fifteen year sentence or to file a motion to reconsider sentence at the October 27, 2008 resentencing constituted ineffectiveness.

|sTo establish ineffectiveness under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant bears the burden of demonstrating that the required factors as elucidated were present. Our Court was faced with the issue of ineffectiveness in State v. Bienemy, 483 So.2d 1105, 1106-1107 (La.App. 4 Cir.1986), and cited the Strickland two-pronged test:

A two-pronged test to assess effectiveness of counsel was enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984);
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
The defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome. Strickland v. Washington, supra; State v. Robinson, 461 So.2d 403 (La.App. 4th Cir.1984).

See also State v. Comeaux, 93-0731 (La.App. 4 Cir. 1/13/94), 631 So.2d 529, 531, quoting State v. Bienemy, supra.

In State v. Wilson, 99-3151, pp. 7-8, (La.App. 4 Cir. 11/8/00), 773 So.2d 222, 227, this Court explained:

To carry his burden of proof on this claim [ineffective assistance of counsel], a defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 693, 104 S.Ct. at 2068. However, if an alleged error results from a reasonable strategic decision, counsel’s performance will not be considered deficient on that basis. State v. Brooks, 505 So.2d 714, 724(La.), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987).

Defendant argues that trial counsel at the resentencing hearing misread the opinion of this Court vacating the original sentence, and remanding for resentencing. He contends that trial counsel believed the case was remanded solely for the judge to state his reasons for rendering the fifteen-year sentence. Thus, because of the misreading of the earlier opinion and its dictates and the misinterpretation by the trial judge, trial counsel did not properly advocate for defendant. Defendant argues that trial counsel should have motioned for a reconsideration of the sentence to preserve the defendant’s right to appeal. Contrary to the defendant’s assertions, the remand was ordered because this Court opined that the trial court had failed to consider mitigating circumstances, i.e., the defendant’s homelessness, his youth, and the fact that he needed to find shelter for himself and his daughter. At the resen-tencing, the trial judge clearly stated that he had and did again consider the mitigating circumstances.

Defendant argues that he can show that but for the legal deficiency created by his trial counsel, his original sentence of fifteen years would have changed on appeal because it was excessive.

We find this assignment of error merit-less because counsel’s failure to move for a reconsideration of sentence would not have changed the judge’s sentence. The judge reconsidered the mitigating circumstances and clearly would not have | ^rendered a different sentence. However, in the event of further review, we will discuss defendant’s second assignment of error.

ASSIGNMENT OF ERROR 2:

Defendant asserts that the fifteen-year sentence for armed robbery is excessive under the circumstances of this case. An armed robbery conviction carries a possible sentence of ten to ninety-nine years at hard labor, without the benefit of parole, probation or suspension of sentence. The court resentenced defendant to fifteen years, only five years more than the mandatory minimum.

In State v. Landry, 03-1671, pp. 7-9 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239-1240, this Court set forth the standard for reviewing an excessive sentence claim:

La. Const, art. I, § 20 explicitly prohibits] excessive sentences. State v. Baxley, 94-2982, p. 4 (La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Francis, 96-2389, pp. 6-7 (La.App.4Cir.4/15/98), 715 So.2d 457, 461. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley supra. A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 676. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 10, 656 So.2d at 979.
In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La.C.Cr.P. art. 894.1, and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189. If adequate compliance with La.C.Cr.P. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Bonicard, 98-0665, p.3 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, 185.
However, in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, 819 this court stated:
The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resen-tencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La.C.Cr.P. art. 881.4(D).
In State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608, the Louisiana Supreme Court stated:
On appellate review of sentence, the only relevant question is “ ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984)), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const, art. I, § 20, i.e., when it imposes “punishment disproportionate to the offense.” State v. Sepulvado, 367 So.2d 762, 767 (La.1979).

17Here, the trial court resentenced the appellant to serve fifteen years at hard labor. The defendant argues, as he did in his first appeal, that this sentence is excessive nonetheless because the trial court did not take into account that he was only a teenager and was homeless at the time the crime occurred. At the original sentencing, the judge did not articulate reasons for the sentence imposed, but did state that he was aware from the trial testimony that the appellant was nineteen at the time of trial, that he was homeless, and that he had been asked to leave one homeless shelter because he tried to take his young daughter inside the men’s dormitory. The judge reiterated his awareness of these factors at resentencing. The facts of the case show that the defendant drew a gun and robbed the victim of money and goods, forcing the victim to flee his van under the threat of being shot. Whether the defendant was outside the van or inside the van is of no moment. Likewise the location of the armed robbery is not relevant to sentencing. These “faulty” facts are a distinction without a difference. We also note that the defendant did not appeal his conviction in his first appeal. Accordingly, we find that the trial court did not abuse its discretion by imposing the fifteen-year sentence, which was only five years over the minimum sentence. Indeed, in State v. Smith, 01-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4, the Court noted that the defendant’s forty-year sentence was “within the thirty-five to fifty-year range this Court has found acceptable for first offenders convicted of armed robbery. State v. Thomas, 98-1144, p. 2 (La.10/9/98), 719 So.2d 49, 50; State v. Augustine, 555 So.2d 1331, 1332 (La.1990) and the cases cited therein.” The defendant’s excessive sentence claim has no merit.

| ¡Accordingly, we find that trial counsel’s failure to move to reconsider the sentence did not constitute ineffective assistance of counsel, and that the sentence imposed is not excessive. The sentence is affirmed.

SENTENCE AFFIRMED.

JONES, J.,

Dissents.

|,I respectfully dissent, and would find that the district court did not comply with the instructions upon remand by this Court. For this reason, I respectfully dissent.

      . State v. Cassimere, 05-0063 (La.App. 4 Cir. 7/27/05), 906 So.2d 757 (unpub.)

      . While we are aware that Hurricane Katrina occurred shortly after this case was remanded for resentencing, we are unaware of why it took three years to resentence the defendant.


author: COOKS, Judge. GREMILLION, Judge,

text:
    James Patrick CLUSE d/b/a J.P. Cluse Construction v. H & E EQUIPMENT SERVICES, INC.
    No. 09-574.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2010.

      Stan Gauthier, II Law Corporation, Nicole Laborde Romero, Lafayette, LA, for Plaintiff/Appellant, James Patrick Cluse.
    Taylor, Porter, Brooks & Phillips L.L.P., John Ashley Moore, William H.L. Kaufman, Baton Rouge, LA, for Defendant/Appellee, H & E Equipment Services, Inc.

      Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, DAVID J. PAINTER, JAMES T. GENOVESE and SHANNON J. GREMILLION, Judges.
   COOKS, Judge.

|,FACTS

James Patrick Cluse d/b/a J.P. Cluse Construction (Cluse) traded in a 2001 Ka-matsu bulldozer for a 2003 bulldozer with H & E Equipment Services, Inc. (H & E) on October 9, 2006. Cluse’s dealings with H & E began in June 2006 when he brought his 2001 dozer to H & E’s shop in Maurice, Louisiana, to diagnose a problem. At that time Cluse met H & E’s salesman, Brent Broussard (Broussard), and told him the 2001 dozer was in the shop for transmission repair. On July 26, 2006, H & E advised Cluse that it believed the 2001 dozer needed approximately twenty-six thousand dollars worth of repair to the transmission.

Cluse originally purchased the 2001 doz-er from Motion Equipment (Motion) in Tomball, Texas, shortly before he took it to H & E. As Cluse had only used the dozer approximately 13 hours since he purchased it from Motion, he called them concerning this recommendation for repair. Motion advised Cluse to ship the dozer to them for repair intending to stand behind the item it had recently sold to Cluse. Motion changed the transfer pump on the 2001 dozer at its cost and advised Cluse that the repairs were complete, informing Cluse that with these repairs the dozer would work anywhere from two months to five years. Motion also provided Cluse with an estimate for the costs of a new transmission and advised Cluse that RMS Heavy Equipment Repair had serviced the transmission on this dozer on August 10, 2006. After the dozer was returned to Cluse from Motion, Cluse used the dozer to do dirt work and push trees for about a month.

Cluse contacted various entities, including H & E, for quotes on the price of a new dozer. He informed Broussard at H & E that he wanted to trade the 2001 dozer for a 2003 dozer. On September 21, 2006, Broussard was given full access to the dozer for inspection, without Cluse present, and was free to speak to two of Cluse’s |2employees present at the site. One of Cluse’s workers, Clifton Rossyion (Rossyion), spoke with Broussard about the condition of the 2001 dozer and informed him that the dozer had recently been repaired in Houston, that, at times, it would stop pulling while at other times it worked fine. Rossyion informed Brous-sard he believed the recent replacement of the pump had not cured the real cause of the problems he was experiencing with the dozer, and he thought Motion should have changed the torque converter or done more work on the transmission. In his opinion this would have been a more appropriate solution to the dozer’s pulling problem. However, Rossyion testified Cluse was not experiencing problems while using the dozer after its return from Motion.

Broussard conducted an inspection and ran the machine a few minutes, apparently satisfied with his inspection for H & E. Broussard prepared an inspection report for H & E expressing his concerns about the transmission and the slight hesitation with the dozer moving forward. H & E, through its salesman Broussard, contacted Cluse and made a written offer to sell him the 2003 dozer he was interested in for sixty-eight thousand dollars. Cluse agreed to purchase the 2003 dozer for that price. H & E, again through Broussard, offered to accept Cluse’s 2001 dozer as a trade-in for fifty-two thousand dollars. Cluse agreed to accept this offer. Both parties signed a document entitled “Sales Quotation” on the first page and “Order” on the second page. This document is dated “10/9/2006”. The “Sales quotation” and “Order” are signed by “Pat Cluse for J.P. Cluse Construction” and by “Brent Brous-sard H & E Equipment Services.” The 2003 dozer was delivered to Cluse four days later, and Cluse’s 2001 dozer was picked up from him by H & E. Charles Nichols, (Nichols), Branch Manager for H & E, testified that he did not see the document, which has a blank for the manager’s signature, until eleven days after it was signed |sby Cluse and about seven days after delivery of the 2003 dozer to Cluse. A few days later, Broussard telephoned Cluse to inquire as to who changed the transfer pump on the 2001 dozer. Cluse informed Broussard that Motion had performed the work. Broussard later called Cluse informing him the “deal” had to be redone as H & E had discovered problems with the transmission on Cluse’s 2001 dozer. Cluse did not believe there was any basis to redo the trade-in with H & E, and refused to return the 2003 dozer or to change the sale agreement.

On October 25, 2006, Cluse’s daughter, Andrea Cluse (Andrea), was contacted by a Louisiana State Police Officer, Trooper Craig Alexander (Alexander), who advised her H & E wanted to recover its 2003 dozer in her father’s possession or it would file criminal charges against him. The officer then called Cluse and told him the same. Cluse believed he was in lawful possession of the 2003 dozer purchased from H & E and refused to relinquish possession. Shortly thereafter, H & E located the 2003 dozer on one of Cluse’s job-sites near Arnaudville, Louisiana, and confiscated the 2003 dozer. H & E then returned Cluse’s 2001 dozer to that same job-site in an unusable condition.

Cluse filed suit against H & E alleging unlawful conversion of his property, i.e. the 2003 dozer, and alleging damages for defamation of character because criminal charges were filed against him by H & E. H & E filed an exception of improper venue. After a full evidentiary hearing on the exception, the trial court granted H & E’s exception finding there was no completed contract of sale. This court granted a writ and rendered a decision finding Cluse alleged claims sufficient to support venue in St. Martin Parish. James Patrick Cluse v. H & E Equipment Services, Inc. H & E thereafter filed an answer and reconventional demand alleging if a sale was completed, then H & E is entitled to a recission of the sale based on fraud and |4redhibition. In its demand, H & E also alleges Cluse intentionally misrepresented the condition of the 2001 dozer traded-in to it.

The matter was tried before a jury which returned a verdict in favor of H & E finding there was not a completed sale of the 2003 dozer to Cluse. The jury found H & E’s claims of recission and redhibition were moot. The jury also found H & E was not liable for any damages due to Cluse’s defamation claim. Additionally, although the jury found there was no completed sale of the 2003 dozer to Cluse, the jury refused to award any amount of money to H & E for Cluse’s use of the 2003 dozer while it was in his possession. Under the verdict form presented to the jury, because the jury found there was no sale of the 2003 dozer from H & E to Cluse, the jury was directed to make no finding regarding the issues of whether H & E wrongfully converted the 2003 dozer from Cluse, whether H & E knew of defects in the 2001 dozer or could have discovered such defects by reasonable inspection, or whether Cluse knew or should have known of the transmission defect in the 2001 doz-er when he traded it to H & E for the 2003 dozer. Cluse appeals asserting the jury-erred in finding there was no sale of the 2003 dozer and in failing to award damages for Cluse’s defamation claim. H & E answered the appeal preserving its claims raised in its reconventional demand.

ANALYSIS

We find the juiy erred as a matter of law in concluding there was not a completed sale of the 2003 dozer to Cluse. Because we find the jury committed legal error we must review the case de novo.

Appellate review of a question of law is simply a decision as to whether the lower court’s decision is legally correct or incorrect. Phoenix Assur. Co. v. Shell Oil Co., 611 So.2d 709 (La.App. 4 Cir.1992). If the trial court’s decision was based on its erroneous application of law, rather than on a valid exercise of discretion, the trial |scourt’s decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).
Ducote v. City of Alexandria, 95-1269, p. 2 (La.App. 3 Cir. 7/17/96), 677 So.2d 1118, 1120.
Therefore, when the trial court has made an error in the interpretation or application of law, the appellate court must review the record in its entirety de novo and render a judgment on the merits. Rosell [v. ESCO, 549 So.2d 840, 850 n. 2 (La.1989) ]

Young v. Young, 06-77, pp. 3-4 (La.App. 3 Cir. 5/31/06), 931 So.2d 541, 544-45.

A contract of sale is governed by provisions of the Louisiana Civil Code in Title IV “Conventional Obligations Or Contracts” and Title VII “Sale.” Louisiana Civil Code Article 2439 defines a sale as the following,

Sale is a contract whereby a person transfers ownership of a thing to another for a price in money.
The thing, the price, and the consent of the parties are requirements for the perfection of a sale.

Ownership of the thing sold “is transferred between the parties as soon as there is agreement on the thing and the price is fixed, even though the thing sold is not yet delivered nor the price paid.” La. Civ. Code art. 2456.

Consent of the parties is defined in La. Civ.Code art. 1927 as follows:

A contract is formed by the consent of the parties established through offer and acceptance.
Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.
Unless otherwise specified in the offer, there need not be conformity between the manner in which the acceptance is made.

The evidence clearly demonstrates there was offer, acceptance, and delivery of the thing sold. H & E prepared and provided a written offer to Cluse which clearly | (¡identified the 2003 dozer to be sold to Cluse and the 2001 dozer to be traded-in, the price for which H & E was willing to sell the 2003 dozer to Cluse, the value it was willing to credit Cluse for his 2001 dozer as a trade-in, the interest rate and monthly payment amount Cluse would owe to pay the balance due, and a 90 day powertrain warranty provision. On the document captioned “Order,” prepared by H & E, the document is marked with the designations “new customer,” “Sale,” “used,” and recites “Sold to J.P. Cluse Const.” On the signature lines, at the bottom of the contract, appeal's the word “Accepted” and on the next line is printed “H & E Equipment Services, L.L.C.” On the next line is printed “By” with a signature line identified beneath it as the line for the “salesman” to sign for H & E. That line is in fact signed by Mr. Brent Brous-sard. On the right-hand bottom of the page appears the printed name “J.P.Cluse Const.” and beneath that line is the signature “Pat Cluse.”

On another document prepared by H & E captioned “Sales Quotation,” appears a signature line for “Brent Broussard H & E Equipment Services” and thereon appears the words “Customer Acceptance of this Proposal” beneath which appears the signature of Cluse and the date “10/09/06.” This document is addressed to “Pat Cluse, J.P. Cluse Construction” and begins by stating “H & E Equipment Services is pleased to submit the following quotation for your consideration.” The document then describes in detail the 2003 dozer being offered for sale to Cluse, a description of the 2001 dozer to be accepted for trade-in from Cluse, the amount for which H & E is offering to sell the 2003 dozer to Cluse, the amount which H & E is willing to credit Cluse on trade-in for his 2001 dozer, the sales tax, and finance rates for 24 months of payments on the balance due.

Clearly there was offer and acceptance and, thus, a completed sale. All of the elements are present. Additionally, H & E delivered the 2003 dozer to Cluse, who 17took possession of it immediately upon delivery, and the 2001 dozer was delivered into H & E’s possession. No one disputes any of these facts. Ownership of the 2003 dozer took place with Cluse acknowledging by his signature that he accepted H & E’s offer as written. See La.Civ.Code art. 2456. The thing, the price and consent were all undeniably present and perfected with Cluse’s written acceptance of H & E’s offer.

We are not persuaded by H & E’s contention that the language on the contract of sale which recites “All orders subject to approval” and a signature line below which appears the words “Branch Manager Approval,” means there could be no completed sale unless and until a branch manager signed the document. We find this language is ambiguous, at best, and is subject to more than one reasonable interpretation. The language appears in the same small print as the language concerning the 90 day warranty in the same area of the document and could easily be read as referring to the warranty.

The determination of whether the language in a contract is clear or ambiguous is a question of law subject to de novo review. See McKinley v. Scott, 98-263 (La.App. 3 Cir. 10/28/98), 721 So.2d 1018, writ denied, 99-117(La.3/12/99), 739 So.2d 207 and Boykin v. PPG Indus., Inc., 08-117 (La.App. 3 Cir. 6/18/08), 987 So.2d 838, writ denied, 08-1635 (La.10/31/08), 994 So.2d 537. As we have already stated, the contract includes the words “sale” and “sold to J.P. Cluse Const”, words which are clear and unambiguous. Additionally, there was delivery of the thing sold to Cluse and partial payment of the purchase price by delivery of the used dozer to H & E. No evidence, other than H & E’s self-serving testimony after-the fact, in any way indicates these parties intended to make a conditional sale as H & E asserts.

In further support of this contention, H & E relies on the provisions of La Civ. Code art. 1947 and or La. Civ.Code art. 2460. Louisiana Civil Code Article 1947 ^provides:

When, in the absence of a legal requirement, the parties have contemplated a certain form, it is presumed that they do not intend to be bound until the contract is executed in that form.

Louisiana Civil Code Article 2460 provides:

When the buyer has reserved the view or trial of the thing, ownership is not transferred from the seller to the buyer until the latter gives his approval of the thing.

H & E misconstrues the recited law and ignores the previously discussed law on contracts of sale. Mr. Charles Joseph Nichols (Nichols), the H & E Branch Manager, testified “When I got the document, it’s a sale; and if the numbers look good, that’s fíne. But they came to me shortly after I got the document and says, ‘We’re having trouble with the transmission on the dozer.’ ” This testimony again indicates that the document at issue evidenced a sale, even to the branch manager, but because H & E made a bad appraisal of the 2001 dozer, it unilaterally decided not to call the transaction a completed sale.

Even if we assume that Article 2460 applies to dealer trade-ins, and H & E had a right to the “view and trial” of the 2001 dozer before the trade/transfer was perfected, H & E was accorded full opportunity to inspect the 2001 dozer prior to cementing the deal by delivery of the 2003 dozer and taking possession of the dozer. Broussard conducted an inspection of the 2001 dozer and filled out an inspection sheet entered into evidence. The content of that inspection sheet is revealing. Among other notations on that sheet, Broussard lists the general condition of the 2001 dozer as “good” and leaves several items on the form blank. Despite the fact that Broussard describes the condition of the dozer as “good,” H & E asserts Cluse misled them about the condition of the dozer when he allegedly described the condition of the same dozer as “good.” The inspection form indicates Broussard checked out the diesel |9engine and observed no problems, he checked out the starting system and noted no problems, he checked out the transmission and commented that the transmission shifts in all gears, but noted that there is hesitation “slightly when shifted to forward.” (emphasis added). Part five, entitled “Torque Converter,” is left blank. Parts six through seventeen on the inspection report detail Broussard’s inspection of the 2001 dozer and even list the percentage of wear remaining on various essential components of the equipment which he lists as sixty percent to eighty per cent of wear remaining on these various detailed components of the dozer.

Apparently Broussard was not interested in making a more thorough determination of the condition of the transmission or figuring out why it appeared, as he noted, to be experiencing some problem when shifted forward. H & E was given full access to the 2001 dozer to fully inspect it before offering a trade-in value to Cluse. Further, the record demonstrates H & E was familiar with the condition of the 2001 dozer even before Broussard inspected it just prior to the transaction at issue. H & E inspected the dozer to diagnose earlier problems Cluse was having with it. Thus, nothing indicates that when H & E made its offer to Cluse such offer was contingent on any suspensive condition regarding further “view or trial” of the 2001 dozer. H & E made an offer which was accepted for a certain price, which was paid in part by a trade-in and in part to be paid by financing, the terms of which were laid out in the agreement. Such action would alone have amounted to a sale even without delivery, but here there was in fact delivery of the thing sold, the 2003 dozer, and delivery of the 2001 dozer traded-in placing both parties in physical possession of their respective property.

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La Civ.Code art. 1906. There are four necessary elements for a valid contract: capacity, consent, object, and lawful |10cause. La. Civ.Code arts. 1918, 1927, 1966, 1971. In other words, the parties must have the capacity to contract and give their consent freely for a certain object, and the contract must have a lawful purpose. Id. Both parties must be bound in order for there to be a contract.

Leger v. Tyson Foods, Inc. 95-1055 p. 5 (La.App. 3 Cir. 1/31/96), 670 So.2d 397, 401. The parties to this contract of sale had the capacity to contract. Consent is evidenced by the offer and acceptance of the offer, and further evidenced by delivery of the object sold. The object of the sale is clearly identified, and the cause was lawful.

Having concluded that a sale occurred, we also conclude that H & E acted improperly in removing the 2003 dozer from the lawful possession of Cluse after ownership of that dozer passed to Cluse. The Louisiana Supreme Court citing 89 C.J.S., verba, Trover & Commission, s 3, explained conversion as follows:

[t]he essence of conversion is not the acquisition of property by the wrongdoer, but a wrongful deprivation of it to the owner, although a temporary deprivation will be sufficient; and in consequence it is of no importance what subsequent application was made of the converted property, or that defendant derived no benefit from his act.
In order to constitute a conversion there must be either some repudiation of the owner’s right, or some exercise of dominion over it inconsistent with such right, as otherwise expressed, there must be a wrongful taking or a wrongful detention, or an illegal assumption of ownership, or an illegal user or misuser. Conversions, it has been said, are of two classes, where possession is originally wrongful, and where possession originally rightful becomes wrongful by wrongful detention. See also Jennings-Heywood Oil Syndicate v. Houssiere-Latreille Oil Co., 127 La. 971, 54 So. 318; [231 La. at 669, 92 So.2d 574] A.B.C. Oil Burner and Heating Co., Inc. V. Palmer, La.App., 28 So.2d 642 [462] (certiorari denied); and Edwards v. Max Thieme Chevrolet Co., La.App., 191 So. 569 (certiorari denied).
In an action ex delicto, on the other hand, plaintiffs recourse is to seek judgment for the value of the property wrongfully detained or appropriated. Bender v. Looney, 22 La.Ann. 488, 152 La. 419, 93 So. 490; Liles v. Producers’ Oil Co., 155 La. 385, [231 La. 670, 92 So.2d 574] 99 So. 339; Carter-Allen Jewelry Co. v. Overstreet, 165 La. 887, 116 So. 222; and Kramer v. Freeman, [198 La. 244, 3 So.2d 609(1941)] supra.

Importsales, Inc. v. Lindeman, 231 La. 663, 668, 92 So.2d 574, 576 (La.1957).

Cluse began his suit as an action seeking a declaratory judgment that the 2003 doz-er belongs to him and seeking either specific performance for the return of the 2003 dozer to his possession, or in the alternative, if it cannot be returned to him, for payment of the value of the dozer at the time of the wrongful conversion. Cluse’s action alleges H & E wrongfully converted the 2003 dozer by unlawfully taking the dozer from his possession, and thereafter depriving him of its use. Cluse’s action is ex delicto. H & E admits they took possession of the 2003 dozer from Cluse without his consent. Because they sold the 2003 dozer, specific performance is not possible. At the time of the conversion the 2003 dozer was valued at $68,000.00. We therefore award Cluse this amount for the value of the dozer at the time of the wrongful taking.

We turn now to consider Cluse’s general damages claim for the wrongful conversion. We have previously held general damages for illegal seizure of property includes “embarrassment, humiliation, mental anguish, and worry.” Gulf Rice Milling v. Sonnier 05-1432, p. 9 (La.App. 3 Cir. 5/03/06), 930 So.2d 256, 262 writ denied 06-1846 (La.10/27/06), 939 So.2d 1282 and writ denied 06-1855(La.10/27/06), 939 So.2d 1284. In Gulf Rice Milling, we upheld an award of $100,000.00 in general damages to a rice farmer for wrongful seizure of his rice and money. In that case Mr. Sonnier testified he enjoyed a good reputation in the community before this incident and testified he was concerned that this may have blemished his reputation. He was embarrassed when people asked him to explain the seizure and embarrassed at having to explain the situation to his banker. His wife testified he became quiet and withdrawn in his “own little world” after the seizure of his property. | ^Likewise, Mr. Cluse is a businessman of many years in his community and an elected official. His daughter testified he just went to work and stayed home after his property was seized. We believe a reasonable sum which would compensate Cluse for his emotional suffering, mental anguish, worry, embarrassment and humiliation as a result of the wrongful conversion is $40,000.00.

H & E filed a reconventional demand, which states that in the event the court determines there was a sale of the 2003 dozer, H & E is entitled to payment of the unpaid balance of $17,160.00 plus interest from October 9, 2006, until paid, as such rate of interest is provided in the contract at 4.75%APR. Cluse admits that no payments were made which would reduce the balance owed after he was deprived of the dozer’s possession. We, therefore, find H <& E is entitled to a credit for the $17,160.00 balance due plus interest at 4.5% as provided in the contract up to date payment was to be made in full, October 9, 2008, as per the contract terms.

H & E also seeks recission of the sale of the 2001 dozer to it by Cluse. H & E argues it is entitled to rescind the sale of the 2001 dozer because of the defective transmission and because of Cluse’s alleged misrepresentations that the dozer was fully operational, relying on the provisions of La.Civ.Code art. 2545. Article 2545 provides, 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.

H & E is not entitled to a rescission of the sale of the 2001 dozer. We find Cluse did not intentionally mislead it about the condition of the 2001 dozer. On the contrary, H & E admits Cluse brought the dozer to H & E for inspection and repair in 11,;June 2006 at which time H & E informed Cluse it believed the dozer needed repairs to the transmission with an estimated repair cost of $26,809.99. We cannot discern from the record whether such repairs to the 2001 dozer were actually necessary or would actually have cost the amount estimated. H & E admits Cluse decided not to have such repairs made. Instead, he chose to tender the doz-er for repair to the party he purchased it from in Texas, and they performed what they believed to be the needed repairs at its cost. These facts are undisputed. H & E opened their case by alleging that this case turns on business ethics and alleging that Cluse was an unethical businessman who had either overtly or by silence defrauded them as to the condition of the 2001 dozer. However this accusation is contradicted by the record before us.

H & E admits Cluse contacted their salesman, Broussard, about three months after H & E gave the estimate for repairs to the transmission, to discuss purchasing a new dozer from H & E and trading-in his 2001 dozer. In the interim Cluse sent the dozer to Motion, from whom he originally purchased it, and they performed repairs which they believed were needed to address the mechanical problem. Before making its offer to Cluse for a sale price of the 2003 dozer, and a trade-in value for Cluse’s 2001 dozer, admittedly armed with prior knowledge of the transmission problem, H & E’s representative inspected the dozer, drove the dozer, and noted on a written “Used Equipment Inspection Report” the transmission “slightly [hesitates] when shifted to forward.” Yet, with this knowledge and prior knowledge of the transmission problem, H & E chose not to conduct a closer inspection of the transmission nor to ask Cluse for any record of the recent repairs to the transmission before making him an offer for a trade-in value of the 2001 dozer. H & E alleges Broussard was unable to “fully” inspect the dozer due to “rain” and “his lack of |i4expertise in inspecting equipment.” Thus, it appeal’s H & E not only admits it had prior knowledge of the alleged defect, but further admits its employees chose not to conduct a thorough inspection. Moreover, H & E chose to send an unqualified person to inspect the dozer and allow him to prepare and submit an offer to Cluse.

A review of Broussard’s inspection report shows, however, that he conducted more than a cursory inspection of the doz-er. The report detailed the condition of the dozer. Larry Levet (Levet), used equipment manager for H & E, testified he relies “strictly” on the salesman to give him information about the equipment for an appraisal. He specifically testified, “it’s the salesman’s obligation to get as much information as he can” and if he gets a bad inspection report from the salesman he would “put a bad appraisal on it.” Given these facts, we cannot reasonably conclude that Cluse intentionally mislead H & E about the condition of the 2001 dozer or that he mislead H & E by his silence. H & E is not entitled to a recission of sale nor to a reduction in the value it agreed to give Cluse for the trade-in of the 2001 dozer.

We have elected not to address the evidence presented by Cluse as to the amount of repairs needed on the 2001 dozer left by H & E in an unusable condition on his job site in Arnaudville. We find the 2001 doz-er belonged to H & E at the time it was abandoned.

Further, we find the jury committed legal error in concluding Cluse was not entitled to recovery on his defamation claim. H & E’s employee, Nichols, testified he went to the Rapides Parish Sheriffs Office and filed criminal charges against Cluse for theft of the 2003 dozer. Trooper Alexander testified he spoke to Mr. Mark Baudoin, whose cousin worked for H & E, and Baudoin told Alexander that H & E accused Cluse of stealing the dozer, and Cluse was being charged with theft of the dozer. Trooper Alexander testified he contacted Andrea Cluse by telephone and 11sinformed her H & E was looking for her dad, Pat Cluse, because he had stolen a dozer. He further testified he then contacted Cluse and related the same information to him.

Our state supreme court has defined defamation, and has held words which accuse a person of criminal acts are defamatory per se and damages are presumed.

Defamation occurs through either libel or slander. Libel is defamation which is “expressed by print, writing, pictures, or signs”, while slander is communicated by “oral expressions or transitory gestures.” Black’s Law Dictionary 1388 (6th ed.1990). In Fitzgerald v. Tucker, 98-2313, p. 10 (La.6/29/99), 737 So.2d 706, 715-16, the supreme court discussed the law pertaining to defamation:
‘A cause of action for defamation arises out of a violation of Civil Code article 2315. Vicknair v. Daily States Pub. Co., 153 La. 677, 96 So. 529 (1923); Ferdinand F. Stone, 12 Louisiana Civil Law Treatise Tort Doctrine Section 176©, at 227 (1977). Defamation involves the invasion of a person’s interest in his or her reputation and good name. Sassone v. Elder, 92-1856 (La.10/18/93), 626 So.2d 345, 350 (citing W. Page Kee-ton et al., Prosser and Keeton on the Law of Torts Section 111 (5th ed.1984)). In order to prevail in a defamation action, a plaintiff must necessarily prove four elements: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher and (4) resulting injury’.

City of Natchitoches v. Employers Reinsurance Corp., et al, 02-147, p. 5 (La.App. 3 Cir. 6/5/02), 819 So.2d 413, 417-18.

In Louisiana accusation of a crime is considered defamatory per se. Redmond v. McCool, 582 So.2d 262, 265 (La.App. 1st Cir.1991). Generally, defamation per se creates a presumption of falsity and malice which the defendant bears the burden of rebutting. Id.

Davis v. Borskey, 92-2339, pp. 5-6 (La.App. 1 Cir. 8/22/94), 643 So.2d 179, 183, writ granted, 94-2399 (La.12/19/94), 648 So.2d 398, judgment affirmed 94-2399 (La.9/5/95, 660 So.2d 17). 660 So.2d 17.

Words which expressly or implicitly accuse another of criminal conduct or which, by their nature, tend to injure one’s personal or professional reputation are considered defamatory per se. If the plaintiff proves publication of defamatory per se words, the elements of falsity and malice are presumed although they may be rebutted by the defendant. Injury is also presumed ... Injury may include non-peeuniary or general damages such as injury to reputation, personal humiliation, | if,embarrassment and mental anguish even when no special damage such as a loss of income is claimed.

Arledge v. Hendricks, 30,588, p. 4 (La.App. 2 Cir. 6/26/98), 715 So.2d 135, 138-39, writ denied 98-2015 (La.11/20/98), 728 So.2d 1287.

Damages resulting from defamation can include injury to reputation, personal humiliation, embarrassment, and mental anguish and suffering. Rennier v. State, Through Department of Public Safety, 428 So.2d 1261 (La.App. 3 Cir.1983). These are separate elements of damage. Rennier. Defamation damages must be proved by competent evidence, but there is no need to establish the actual pecuniary value of the injury suffered. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Trahan v. Ritterman, 368 So.2d 181 (La.App. 1st Cir.1979).

Lege v. White, 619 So.2d 190, 191 (La.App. 3 Cir.1993).

Nichols testified, in his capacity as a manager at H & E, he filed criminal charges against Cluse with the Rapides Parish Sheriffs Office, because he understood it was the way to get the dozer back. H & E was well aware a written transaction concerning the 2003 dozer had occurred and it had delivered the dozer to Cluse and taken his property as a trade-in. We are satisfied the record establishes H & E acted with reckless disregard for the truth and simply found it more expedient to file a criminal theft charge against Cluse thereby enlisting the help of law enforcement to seize the dozer without first initiating appropriate legal process. Because Cluse was defamed by accusations of criminal activity (defamation per se) the elements of malice, falsity, fault, and injury are presumed. Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129. Far from H & E rebutting these presumptions, the evidence demonstrates the accusation of theft was in fact false and the publication was made not only with a reckless disregard for the truth, but with the ulteri- or motive to enlist the help of third parties and law enforcement to seize property which H & E was not lawfully entitled to seize and remove from Cluse’s possession. H & E enjoyed no | ^privileged communication in defense of its actions.

Injury is presumed in this case. Not only does H & E fail to offer any evidence to rebut that presumption, but we are persuaded by the testimony of Cluse, and more so by the testimony of his daughter, Andrea Cluse, that Cluse, in fact, suffered injury as a result of the defamation. Andrea Cluse testified she knew when she had to call her father and tell him he was being accused of stealing the 2003 dozer, and that criminal charges had been or would be made against him, it would “weigh heavily on him physically and emotionally.” Cluse suffered a stroke prior to this situation. Andrea testified it was important to keep Cluse’s level of stress as minimal as possible because of his stroke. She testified Cluse was embarrassed to be subjected to such accusations. She further testified prior to this episode, Cluse was well known in the community and well respected. He was shocked at such an accusation. According to her testimony, Cluse pretty much isolated himself from people after these accusations were made public and would limit his activities to just going to work and staying at home because he was embarrassed by the accusations of H & E. Cluse was a police juror at the time and, thus, obviously well known in his community. As we have noted above, general damages include injury to reputation, personal humiliation, embarrassment, and mental anguish and suffering. See Rennier v. State, Through Department of Public Safety, 428 So.2d 1261,1264 (La.App. 3 Cir.1983). See also Lege, 619 So.2d 190. The record supports a finding that Cluse suffered personal humiliation and embarrassment, as well as mental anguish and suffering. Understandably, it is difficult to know the exact damage caused to Cluse’s reputation. As noted above, we have held, in accord with settled jurisprudence, damages for defamation “must be proved by competent evidence, but there is no need to establish the actual pecuniary value of the injury suffered. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Trahan v. Ritterman, 368 So.2d 181 (La.App. 1st Cir.1979).” Lege, 619 So.2d at 191. Because we decide this case de novo, we must determine a reasonable award of damages to adequately compensate Cluse under the circumstance.

In McHale v. Lake Charles American Press, 390 So.2d 556 (La.App. 3 Cir.1980), cert. denied, 452 U.S. 941, 101 S.Ct. 3085, 69 L.Ed.2d 955 (1981) this court upheld an award of $150,000.00 in general damages for defamation finding the inflammatory words published in a local newspaper with a circulation of 35,000 greatly injured the attorney’s professional reputation and resulted in severe humiliation and embarrassment and considerable mental distress, despite plaintiffs failure to prove any loss of income as a result of the defamatory statements.

In Thomas v. Busby, 95-1147 (La.App. 3 Cir. 3/06/96), 670 So.2d 603, writ granted for other reasons, 96-0891 (La.5/17/96), 673 So.2d 601, the trial court awarded an attorney $25,000.00 for suffering extreme embarrassment over being accused over the store intercom of stealing a bag of potting soil in a Wal Mart store.

In Trentecosta v. Beck et al., 95-96 (La.App. 4 Cir. 2/25/98), 714 So.2d 721, writ denied, 98-1578 and 98-1585 (La.10/09/98), 726 So.2d 28 the fourth circuit upheld an award of $50,000.00 in general damages for per se defamatory statements accusing a bingo hail owner of bilking thousands of dollars from charities. Plaintiff was further awarded $94,357.50 for business losses arising out of the defamatory statements.

In 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, 99-877 (La.05/07/99), 740 So.2d 1290 the court upheld an award of general damages of $90,000.00 to a Methodist minister for defamation per se. The jury lump sum award included an award for loss of income, damage to reputation, embarrassment and humiliation. The minister was transferred to another church at a decreased salary and testimony showed he suffered a loss of reputation among his fellow ministers.

In Connor v. Scroggs, 35,521 (La.App. 2 Cir. 6/12/02), 821 So.2d 542 our sister court, relying in part on decisions of this court, upheld an award of $35,000.00 to each of the plaintiffs in that case who had been falsely accused of child molestation. The Scroggs court considered the horrendous nature of the crime falsely accused, the lengthy time it took to clear the plaintiffs’ names, and the fact that the plaintiffs lived in a small community.

We note in this case defendant filed criminal charges against Cluse accusing him of theft of property valued at $68,000.00, subjecting him to prosecution for a very serious felony offense. Additionally, the defendant’s own witness and management employee, Nichols, admitted H & E filed the criminal charges as a way to get the 2003 dozer back, i.e. as the most expedient means to get the dozer back from Cluse.

Although Cluse testified he does not know whether the defamatory statements about him caused Trooper Alexander or anyone else to think less of him, that testimony does not equate to an admission that there has been no damage to his reputation. Our law presumes damage has occurred. H & E has not rebutted that presumption. There is convincing, un-re-futed testimony that Cluse was very embarrassed and humiliated at being accused of being a thief. When his daughter called to tell him about the accusations related to her by her childhood friend, Trooper Alexander, Cluse immediately went to find his paperwork showing he bought the dozer. Mr. Cluse is a businessman, and was a police juror at the time of these events. His daughter testified he was normally very active and normally interacted with people, but, after these accusations were made known, he just went to work and then Lnhome. Obviously the defamatory statements caused Mr. Cluse much embarrassment, humiliation, anxiety, mental anguish and hurt feelings, all of which are compensable as general damages for defamation. We note, too, Andrea Cluse’s testimony that Cluse suffered a stroke prior to these events, and it was important for his health to avoid stress and anxiety. Considering these factors, we believe a reasonable sum which would compensate Mr. Cluse for the general damages suffered as a result of the defendant’s defamatory statements is $25,000.00.

CONCLUSION

For the reasons stated above we reverse the trial court’s findings and hold there was a completed sale of the 2003 dozer to Cluse, and we further maintain Cluse’s claim for wrongful conversion of his property. We reverse the jury’s finding on the defamation claim, and hold, as well, that Cluse has established a claim for defamation against H & E. We render judgment accordingly. We further find H & E is entitled to recover the unpaid balance with interest on the purchase price of the 2003 dozer up to October 9, 2008.

REVERSED AND RENDERED. JUDGMENT RENDERED IN FAVOR OF JAMES PATRICK CLUSE IN THE AMOUNT OF $68,000.00 IN SPECIAL DAMAGES, PLUS COURT COSTS AND JUDICIAL INTEREST THEREON FROM DATE OF DEMAND, FOR HIS PROPERTY WRONGFULLY SEIZED BY H & E. JUDGMENT IS RENDERED IN FAVOR OF JAMES PATRICK CLUSE IN THE AMOUNT OF $40,000.00 IN GENERAL DAMAGES, PLUS COURT COSTS AND JUDICIAL INTEREST THEREON FROM DATE OF DEMAND ON THE CLAIM OF CONVERSION OF PROPERTY. JUDGMENT IS RENDERED IN FAVOR OF JAMES PATRICK CLUSE IN THE AMOUNT OF $25,000.00 IN GENERAL DAMAGES, PLUS COURT COSTS AND JUDICIAL INTEREST THEREON FROM DATE OF DEMAND ON THE CLAIM OF DEFAMATION. JUDGMENT IS RENDERED IN FAVOR OF H & E EQUIPMENT SERVICES, INC. IN THE AMOUNT OF $17,160.00 PLUS INTEREST AT THE RATE OF 4.75% UP TO OCTOBER 9, 2008, THIS AMOUNT SHALL BE CREDITED AGAINST ALL SUMS DUE TO BE PAID HEREUNDER TO JAMES PATRICK CLUSE. H & E IS ORDERED TO REMOVE THEIR 2001 DOZER FROM CLUSE’S PROPERTY WITHIN 30 DAYS FROM FINALITY OF THIS JUDGMENT.

GENOVESE, J., dissents.

GREMILLION, J., dissents and assigns written reasons.

GREMILLION, Judge,

dissents.

| T Before the majority had reached the end of the first paragraph of its analysis, it had already determined that the jury had erred, and consequently, it completely disregarded all of the jury’s hard work and conclusions. However, the lawfully empaneled and properly charged jury actually had the authority and the facts to find as it did. I, therefore, respectfully dissent.

The jury found, as a matter of fact, that there had been no sale of the tractor at issue. This circuit has long recognized that a factfinder’s determination that no sale took place is a finding of fact. Travis v. Hudnall, 517 So.2d 1085 (La.App. 3 Cir.1987). It is equally as clear that an appellate court may not disturb such a finding unless the record furnishes no reasonable factual basis for the finding or the finding was clearly wrong. Id. In this case, the jury’s finding of fact was not clearly wrong, as it was supported by the record. The jury had a reasonable factual basis for its finding. The jury heard the defendant maintain that the delivery of the dozer at issue was in the nature of a test drive, and that the contract for sale was never approved by the appropriate manager. It heard testimony that the contract specifically provided that all sales were subject to final approval. The jury also saw the relevant documentation.

The jury reviewed the sales order form in question, requiring that “ALL ORDERS [be] SUBJECT TO APPROVAL.” The jury saw a signature line on the | ¡¡form in question labeled “Branch Manager Approval.” Most importantly of all, the jury witnessed that the signature line was blank. To suggest that this evidence was not enough to provide the jury with a reasonable basis for its conclusion is to improperly invade the jury’s province.

The majority properly points out that the sale of a tractor is complete when price, thing, and consent come together. La.Civ.Code art. 2439. Consequently, no other formalities are required. La.Civ. Code art. 1927. However, the fact that no other formalities are required does not mean that other formalities are not allowed, and cannot be contemplated by the parties. In this case, the jury clearly concluded that additional formalities were contemplated by the parties. Again, namely, the proper signature by the proper manager on the proper form.

The question before us is one of proof of consent. When the parties contemplate a certain form, it is presumed that they do not intend to be bound until the contract is executed in that form. La.Civ.Code art. 1947. Civil Code articles 1927 and 1947, it should be noted, are found in Civil Code Book III, Title IV, Chapter 3, which is entitled, “Consent.” Here, the jury had a reasonable basis to conclude that without approval, there was no consent.

Ultimately, what the majority has given the force of law is its opinion that neither the defendant nor the jury had the right to insist that the contract at issue be completed, by the affixing of all necessary signatures, before the sale was perfected. With all due respect, the law differs from the majority’s opinion. As a general matter, parties may contemplate specific written formalities. La.Civ.Code art. 1947. More specifically, when the parties contemplate being bound only by a signed contract, there is no contractual relationship in the absence of the necessary signatures. Baldwin v. Bass, 28,984 (La.App. 2 Cir. 12/11/96), 685 So.2d 436, writ denied, 97-111 (La.3/7/97), 690 So.2d 20. Additionally, the parties to a sale may make that sale contingent on approval. La.Civ.Code art. 2460.

There was certainly evidence presented that would have allowed the jury to conclude that the parties did not contemplate the final signature of the branch manager. Had it accepted as true the evidence attesting to those facts, the absence of that final signature would have been irrelevant, and the plaintiff would have prevailed. However, that is not what the jury concluded, and that is not the standard that the majority should have applied. Rather, the jury had plenty of evidence at its disposal to allow it to reach the reasonable conclusion that the parties contemplated being bound only by a fully signed written contract. Accordingly, I would affirm the jury’s findings.


author: GREMILLION, Judge.

text:
    STATE of Louisiana, v. L.B.
    No. KA09-1136.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      John Foster DeRosier, 14th Judicial District Court District Attorney, Lake Charles, LA, for Plaintiff/Appellee, State of Louisiana.
    Shane Hinch, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, L.B.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|tThe Defendant, L.B., was found guilty of three counts of aggravated rape and one count of attempted aggravated rape. He was sentenced to life imprisonment on each count of aggravated rape and fifty years at hard labor for the attempted aggravated rape conviction. The trial court ordered all of the sentences to be served without benefit of probation, parole, or suspension of sentence and to run concurrently with each other.

On appeal, Defendant’s conviction for the aggravated rape of A.C. was reversed because the jury verdict was not unanimous. See State v. [L.B.], 08-1061 (La.App. 3 Cir. 4/1/09), 6 So.3d 982. Defendant’s sentence was vacated, and the matter was remanded to the trial court for further proceedings. Id. The sentence for attempted aggravated rape was vacated because it was illegally excessive and the matter was remanded to the trial court for resentencing. Id. This court further found the trial court erred when imposing the sentences for the remaining two counts of aggravated rape without benefit of probation, parole, or suspension of sentence. This court amended those sentences to delete the portion of the sentences to be served without benefits and instructed the trial court to note the amendments in the court minutes. Id.

On June 17, 2009, the trial court resen-tenced Defendant to serve twenty years at hard labor for attempted aggravated rape. The trial court then “adjusted” the two sentences for aggravated rape to life at hard labor.

A motion for appeal was filed on July 17, 2009, and was subsequently granted. Defendant is now before this court asserting two assignments of error. First, Defendant contends the trial court erred at the resentencing by refusing to consider |2suspending, probating, or commuting his life sentences once the previous sentences were amended to reflect simply life at hard labor and not life at hard labor without benefit of parole, probation, or suspension of sentence. Second, the trial court erred at the resentencing by not articulating reasons for imposing the sentences, as required by Louisiana Code of Criminal Procedure Article 894.1.

There are no errors patent, and we, thus, proceed to the first assignment.

ASSIGNMENT OF ERROR NO. 1

At the resentencing hearing, the trial court “adjusted” Defendant’s sentences for aggravated rape. Defense counsel subsequently asked that the two sentences for aggravated rape “be imposed but it be suspended to the 20 years.” The trial court denied the request.

Louisiana Code of Criminal Procedure Article 881(A) provides for the amendment or modification of sentence as follows: “Although the sentence imposed is legal in every respect, the court may amend or change the sentence, within the legal limits of its discretion, prior to the beginning of execution of the sentence.” Louisiana Revised Statute 15:566.2 states that a sentence “shall be considered as commencing on the day following the day on which such prisoner is sentenced without regard to the actual date of incarceration in the state penitentiary.”

In State v. Branch, 96-1626 (La.App. 3 Cir. 5/21/97), 696 So.2d 81, this court read La. R.S. 15:566.2 and La.Code Crim.P. art. 881 together and found that a defendant had less than one day to seek amendment or modification of his sentence. However, the court noted that a defendant may timely file a motion to reconsider his sentence and appeal his sentence as excessive.

|3In Defendant’s previous appeal, this court amended Defendant’s sentences for aggravated rape and ordered the trial court to note the amendment in the court minutes. Instead of amending the court minutes, the trial court “adjusted” Defendant’s sentences for aggravated rape in open court. Defendant was not resen-tenced, as his sentences had already been amended by this court and the trial court was merely setting forth the amendment for the record. As Defendant sought modification of his sentences more than one day after execution of the sentences, the trial court properly denied his request.

ASSIGNMENT OF ERROR NO. 2

Defendant did not object to the sentences based on the trial court’s failure to articulate reasons at the time they were imposed or file a motion to reconsider sentence. Further, in brief to this court, Defendant has not alleged that his sentences are excessive.

In State v. Baylor, 08-141 (La.App. 3 Cir. 11/26/08), 998 So.2d 800, writ denied, 09-0275 (La.11/20/09), 25 So.3d 795, the defendant asserted that the trial court failed to give reasons for imposing sentence and did not allege his sentences were excessive. This court found that because the defendant had not filed a motion to reconsider sentence, his claims were barred by La.Code Crim.P. art. 881.1.

Based on this court’s ruling in Baylor and the fact that the Defendant was not resentenced on the two counts of aggravated rape, we find the Defendant is precluded from seeking review of his claim. Accordingly, we decline to consider this assignment of error.

DECREE

The trial court sentences are affirmed.

^AFFIRMED.