NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 13-1387
DAVID R. RABALAIS
VERSUS
JACK GARDNER’S TEN MINUTE OIL CHANGE, INC.
**********
APPEAL FROM THE LAFAYETTE CITY COURT PARISH OF LAFAYETTE, NO. 2013CV0978 HONORABLE FRANCES MORAN BOUILLION, CITY COURT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of John D. Saunders, Jimmie C. Peters, and Billy Howard Ezell, Judges.
AFFIRMED.
Steven Thomas Richard 911 Veterans Memorial, Suite 204 Metairie, LA 70005 (504) 352-0853 COUNSEL FOR DEFENDANT/APPELLEE: Gardner’s One Stop, Inc. David R. Rabalais The Dill Firm P. O. Box 3324 Lafayette, LA 70505 (337) 261-1408 COUNSEL FOR PLAINTIFF/APPELLANT: David R. Rabalais EZELL, Judge.
David Rabalais appeals a trial court judgment which dismissed his claim
against Gardner’s One Stop, Inc.1, for the theft of $3,000 by one of its employees.
The trial court found that David failed to establish that any employee of Gardner’s
committed a theft. For the following reasons, we affirm the judgment of the trial
court.
FACTS
According to David, an attorney practicing in Lafayette, he had just settled a
case. He withdrew $3,500 in cash from his bank on Monday, March 25, 2013. He
put $500 in his money clip and left the other $3,000 in the bank envelope. The
$3,000 consisted of thirty one-hundred dollar bills. He and his paralegal were
going to take the $3,000 to the casino and celebrate the settlement with their
spouses later in the week.
David put the envelope in his jacket and went to the mall to meet his wife at
Macy’s. He and his wife then left in separate cars to meet at Copeland’s for dinner.
Not wanting to bring the envelope into Copeland’s, David testified that he placed
the envelope under the passenger’s rear floor mat of the driver’s side. After dinner,
he returned to his car and drove home and parked the car in his garage.
The next day, David went to work. He asked his runner, Delaney Meaux, to
run a couple of errands. He needed to have some knives sharpened, and he wanted
his car washed. Delaney first took the knives to Piper’s Haven and left them there
to be sharpened. She then went to Gardner’s to have the car washed.
1 At the start of the trial, the parties stipulated that the proper name of the defendant is Gardner’s One Stop, Inc. Once Delaney arrived at the carwash, she took David’s gym bag, shoes, and
iPad from the back seat and placed them in the trunk. She did not look under the
floor mats. Once the car was washed, she returned to the law office.
About twenty to thirty minutes after Delaney left, David remembered the
envelope containing the cash under the floor mat. He kept trying to call Delaney,
but she did not hear her phone because it was on silent in her purse. When she got
back from the carwash, David checked under the floor mat and the envelope
containing the cash was gone. David and Delaney immediately returned to the
carwash.
Once they got to the carwash, they ran into Jennifer Primavera. She told
them that no one had turned in any money and suggested they search the garbage
cans. A search of the garbage cans did not turn up the envelope of cash. David
then decided to go search his home, even though he did not remember taking the
envelope out of the car. He did not find the cash. David called Jennifer to let her
know that he did not find the cash. She then transferred him to Carl Tauzin, the
operational manager at Gardner’s. Carl told David that they had surveillance
cameras and that he would review it.
Anxious about the cash, David decided to return to the carwash. David was
eventually directed to Michael Gardner, one of the owners. Michael told David
that he reviewed the security tape and did not see anything suspicious on it. David
told Michael that he would like to review the tape himself. David testified that
Michael agreed at first but then changed his mind. At this point, David told him he
was going to call the police.
Once David called the police, Officer Norman Maldonado was dispatched to
the carwash. Officer Maldonado testified that Michael was very upset when he
2 arrived and would not let him look at the video. Michael explained that he was
busy when the officer arrived because he was short a cashier. A few days later, on
Friday, Officer Maldonado returned to the carwash and was able to view the video.
Officer Maldonado’s review of the video shows a woman vacuuming the
driver side rear. She stops vacuuming, takes a few seconds, looks up, looks to the
rear of the vehicle, looks back down. He then sees movement again. After a few
seconds, she removes herself from the area. He agreed it was not possible to see if
she picked anything up. Officer Maldonado determined that there was not enough
evidence on the video to arrest the woman.
Officer Maldonado also interviewed the woman about the incident the day
David discovered the envelope of cash was missing. She even agreed to be
searched at that time. However, the officer testified that he could visually look at
her and tell it was not necessary. He also interviewed Delaney, the runner, and
was not suspicious of her.
On Wednesday, March 27, David prepared a letter informing Gardner’s that
he had drafted a lawsuit to be filed within the week. He also requested that it not
delete, destroy, or in any way impact the surveillance video taken at the time of the
incident. This letter was faxed to Gardner’s that day.
Michael testified that the only fax machine is located in the oil change
business, which is located in a different building from the carwash. He did not see
the fax, which was on his desk, until Saturday. By that time, the video had been
overwritten. Michael testified that you cannot retrieve a video after four days. At
that time, Michael’s schedule had him working Tuesday, Wednesday, and every
other Saturday.
3 David filed suit on March 27, 2013. A hearing was held on September 12,
2013. The trial court determined that there had been no spoliation of evidence and
that David had failed to meet his burden of proof. From this ruling, David filed the
present appeal.
CONVERSION
David contends that he carried his burden of establishing more probably than
not that the money was taken by an employee of Gardner’s. He argues that several
of the trial court’s facts cited in support of the decision were directly contradicted
by credible, affirmative testimony.
A conversion ―is an intentional act done in derogation of the plaintiff’s
possessory rights.‖ La. Health Care Grp., Inc. v. Allegiance Health Mgt., Inc., 09-
1093, p. 7 (La.App. 3 Cir. 3/10/10), 32 So.3d 1138, 1043 (quoting Kinchen v.
Louie Dabdoub Sell Cars, Inc., 05-218 (La.App. 5 Cir. 10/6/05), 912 So.2d 715,
718. ―Any wrongful exercise or assumption of authority over another’s goods,
depriving him of the possession, permanently or for an indefinite period of time, is
conversion.‖ Glod v. Baker, 08-355, p. 10 (La.App. 3 Cir. 11/19/08), 998 So.2d
308, 317, writ denied, 08-2937 (La. 2/20/09), 1 So.3d 497.
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 13-1387
DAVID R. RABALAIS
VERSUS
JACK GARDNER’S TEN MINUTE OIL CHANGE, INC.
**********
APPEAL FROM THE LAFAYETTE CITY COURT PARISH OF LAFAYETTE, NO. 2013CV0978 HONORABLE FRANCES MORAN BOUILLION, CITY COURT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of John D. Saunders, Jimmie C. Peters, and Billy Howard Ezell, Judges.
AFFIRMED.
Steven Thomas Richard 911 Veterans Memorial, Suite 204 Metairie, LA 70005 (504) 352-0853 COUNSEL FOR DEFENDANT/APPELLEE: Gardner’s One Stop, Inc. David R. Rabalais The Dill Firm P. O. Box 3324 Lafayette, LA 70505 (337) 261-1408 COUNSEL FOR PLAINTIFF/APPELLANT: David R. Rabalais EZELL, Judge.
David Rabalais appeals a trial court judgment which dismissed his claim
against Gardner’s One Stop, Inc.1, for the theft of $3,000 by one of its employees.
The trial court found that David failed to establish that any employee of Gardner’s
committed a theft. For the following reasons, we affirm the judgment of the trial
court.
FACTS
According to David, an attorney practicing in Lafayette, he had just settled a
case. He withdrew $3,500 in cash from his bank on Monday, March 25, 2013. He
put $500 in his money clip and left the other $3,000 in the bank envelope. The
$3,000 consisted of thirty one-hundred dollar bills. He and his paralegal were
going to take the $3,000 to the casino and celebrate the settlement with their
spouses later in the week.
David put the envelope in his jacket and went to the mall to meet his wife at
Macy’s. He and his wife then left in separate cars to meet at Copeland’s for dinner.
Not wanting to bring the envelope into Copeland’s, David testified that he placed
the envelope under the passenger’s rear floor mat of the driver’s side. After dinner,
he returned to his car and drove home and parked the car in his garage.
The next day, David went to work. He asked his runner, Delaney Meaux, to
run a couple of errands. He needed to have some knives sharpened, and he wanted
his car washed. Delaney first took the knives to Piper’s Haven and left them there
to be sharpened. She then went to Gardner’s to have the car washed.
1 At the start of the trial, the parties stipulated that the proper name of the defendant is Gardner’s One Stop, Inc. Once Delaney arrived at the carwash, she took David’s gym bag, shoes, and
iPad from the back seat and placed them in the trunk. She did not look under the
floor mats. Once the car was washed, she returned to the law office.
About twenty to thirty minutes after Delaney left, David remembered the
envelope containing the cash under the floor mat. He kept trying to call Delaney,
but she did not hear her phone because it was on silent in her purse. When she got
back from the carwash, David checked under the floor mat and the envelope
containing the cash was gone. David and Delaney immediately returned to the
carwash.
Once they got to the carwash, they ran into Jennifer Primavera. She told
them that no one had turned in any money and suggested they search the garbage
cans. A search of the garbage cans did not turn up the envelope of cash. David
then decided to go search his home, even though he did not remember taking the
envelope out of the car. He did not find the cash. David called Jennifer to let her
know that he did not find the cash. She then transferred him to Carl Tauzin, the
operational manager at Gardner’s. Carl told David that they had surveillance
cameras and that he would review it.
Anxious about the cash, David decided to return to the carwash. David was
eventually directed to Michael Gardner, one of the owners. Michael told David
that he reviewed the security tape and did not see anything suspicious on it. David
told Michael that he would like to review the tape himself. David testified that
Michael agreed at first but then changed his mind. At this point, David told him he
was going to call the police.
Once David called the police, Officer Norman Maldonado was dispatched to
the carwash. Officer Maldonado testified that Michael was very upset when he
2 arrived and would not let him look at the video. Michael explained that he was
busy when the officer arrived because he was short a cashier. A few days later, on
Friday, Officer Maldonado returned to the carwash and was able to view the video.
Officer Maldonado’s review of the video shows a woman vacuuming the
driver side rear. She stops vacuuming, takes a few seconds, looks up, looks to the
rear of the vehicle, looks back down. He then sees movement again. After a few
seconds, she removes herself from the area. He agreed it was not possible to see if
she picked anything up. Officer Maldonado determined that there was not enough
evidence on the video to arrest the woman.
Officer Maldonado also interviewed the woman about the incident the day
David discovered the envelope of cash was missing. She even agreed to be
searched at that time. However, the officer testified that he could visually look at
her and tell it was not necessary. He also interviewed Delaney, the runner, and
was not suspicious of her.
On Wednesday, March 27, David prepared a letter informing Gardner’s that
he had drafted a lawsuit to be filed within the week. He also requested that it not
delete, destroy, or in any way impact the surveillance video taken at the time of the
incident. This letter was faxed to Gardner’s that day.
Michael testified that the only fax machine is located in the oil change
business, which is located in a different building from the carwash. He did not see
the fax, which was on his desk, until Saturday. By that time, the video had been
overwritten. Michael testified that you cannot retrieve a video after four days. At
that time, Michael’s schedule had him working Tuesday, Wednesday, and every
other Saturday.
3 David filed suit on March 27, 2013. A hearing was held on September 12,
2013. The trial court determined that there had been no spoliation of evidence and
that David had failed to meet his burden of proof. From this ruling, David filed the
present appeal.
CONVERSION
David contends that he carried his burden of establishing more probably than
not that the money was taken by an employee of Gardner’s. He argues that several
of the trial court’s facts cited in support of the decision were directly contradicted
by credible, affirmative testimony.
A conversion ―is an intentional act done in derogation of the plaintiff’s
possessory rights.‖ La. Health Care Grp., Inc. v. Allegiance Health Mgt., Inc., 09-
1093, p. 7 (La.App. 3 Cir. 3/10/10), 32 So.3d 1138, 1043 (quoting Kinchen v.
Louie Dabdoub Sell Cars, Inc., 05-218 (La.App. 5 Cir. 10/6/05), 912 So.2d 715,
718. ―Any wrongful exercise or assumption of authority over another’s goods,
depriving him of the possession, permanently or for an indefinite period of time, is
conversion.‖ Glod v. Baker, 08-355, p. 10 (La.App. 3 Cir. 11/19/08), 998 So.2d
308, 317, writ denied, 08-2937 (La. 2/20/09), 1 So.3d 497.
A conversion is committed when any of the following occurs: 1) possession is acquired in an unauthorized manner; 2) the chattel is removed from one place to another with the intent to exercise control over it; 3) possession of the chattel is transferred without authority; 4) possession is withheld from the owner or possessor; 5) the chattel is altered or destroyed; 6) the chattel is used improperly; or 7) ownership is asserted over the chattel.
Dual Drilling Co. v. Mills Equip. Invs., Inc., 98-343, 98-356, p. 4 (La. 12/1/98),
721 So.2d 853, 857 (citing Frank L. Maraist & Thomas C. Galligan, Louisiana
Tort Law § 1-2, at 3 (1996 & Supp.1998)).
4 The plaintiff must prove by a preponderance of the evidence that a
conversion occurred. Crawford v. Reagan, 34,417 (La.App. 2 Cir. 2/28/01), 779
So.2d 1116. ―Proof by a preponderance of evidence means that the fact or cause
sought to be proved is more probable than not.‖ James v. McHenry, 36,098, p. 2
(La.App. 2 Cir. 9/18/02), 828 So.2d 94, 95. A trial court’s factual determination
that a conversion has or has not occurred is subject to the manifest error standard
of review. Glod, 998 So.2d 308. The reviewing court must determine whether the
fact finder’s conclusion was reasonable. Id.
David specifically claims that he eliminated other scenarios with credible
evidence. He claims that he established that he placed the money in his car, his car
was locked or in the garage at all times, his car and house were not vandalized, that
neither he nor Delaney removed the money, and no one was under the rear floor
mat until it was vacuumed by a carwash employee.
The evidence established that the carwash employee seen on camera who is
vacuuming that portion of the car was employed as part of a work release program.
She agreed to be searched by Officer Maldonado, but he did not see that it was
necessary. Also, Armen Alexandrian, the transitional work program manager with
the Lafayette Sheriff’s Office, testified that all work release employees are ―pat
searched‖ when they return. Any cash found over $30 is considered contraband.
This particular employee was not caught with any excess cash.
Also, both Officer Maldonado and Michael saw the video and did not see
any indication that a theft had occurred. Michael testified that he looked at it two
to three times and never saw anything establishing a removal of the envelope from
the car. Carl also saw the tape, and there is no testimony from him that he saw
anything suspicious.
5 We cannot say that the trial court’s determination that David failed to prove
by a preponderance of the evidence that someone at Gardner’s took the envelope
containing the cash was manifestly erroneous or clearly wrong. Even David
admitted that Delaney could not be ruled out as someone who possibly took the
envelope.
SPOLIATION OF EVIDENCE
David argues that the trial court erred in failing to apply the spoliation
presumption. He argues that Michael had his fax in hand requesting that he
preserve the video and he made no effort to preserve the video.
―Where a litigant fails to produce evidence available to him and he does not
provide a reasonable explanation, the presumption is that evidence would have
been unfavorable.‖ Lawrence v. City of Shreveport, 41,825, p. 11 (La.App. 2 Cir.
1/31/07), 948 So.2d 1179, 1187, writ denied, 07-441 (La. 4/20/07), 954 So.2d 166.
―That presumption does not apply where the litigant explains the failure to produce
the evidence.‖ Id.
Prior to trial, the parties stipulated that if Stephanie Tauzin testified at trial,
she would state that she could not specifically remember the fax from David. If
she did receive the fax, she would not have called Michael but would have placed
the fax in his file box. She is the person who most often checks the fax machine,
but someone else could have checked it also.
Stephen Gardner, another owner, testified that at that time Michael worked
Tuesday, Wednesday, and every other Saturday. Officer Maldonado testified that
Michael was not there on Friday when he viewed the video. Michael testified that
he did not see the fax until Saturday. By this time, the video from the day of the
incident had been overwritten.
6 Jeffrey Koenig, a product evaluation manager with Revo America, the
company that manufactured the surveillance equipment, testified that the data
would only be available if the hard drive is large enough to accommodate the
material because it keeps recording. How many days were available depended on
the amount of motion. It ranged from 12.6 days to 3.2 days. Jeffrey also explained
that once the data is overwritten, there is no way to retrieve it.
We agree with the trial court that a reasonable explanation exists as to why
the video was not available. Furthermore, the video was not only viewed by
several people at the carwash but also by Officer Maldonado, who was an unbiased
witness. No one saw anything establishing a theft of the envelope of cash.
For these reasons, the judgment of the trial court is affirmed. Costs of this
appeal are assessed to David Rabalais.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal. Rule 2–16.3.