WHIPPLE, J.
This matter is before us on appeal by defendant, Barry Fanguy, from a judgment of the trial court rendered in favor of plaintiffs, Schoolhouse, Inc. and Eight Balls, Inc. For the following reasons, we affirm.
On September 21, 1973, Schoolhouse, Inc. entered into a lease with Nelo Hebert for a certain lot of ground with a camp house located thereon in Point-Aux-Chene, Louisiana, for a term of forty-nine years. The lease, which was issued on a yearly basis, was renewable on March 1, 1974, and each year thereafter, for the sum of $400.00 per year. Likewise, on November 4, 1973, Eight Balls, Inc. entered into a lease with Nelo Hebert for an adjacent parcel of land with a camp house located thereon for a period of fifty years. This lease was also renewable on March 1st of each year at the sum of $350.00 per year.
On August 13, 2007, Fanguy filed an answer and reconventional demand. In his reconventional demand, Fanguy contended that Schoolhouse, Inc. and Eight Balls, Inc., as defendants-in-reconvention, had breached the terms of the lease agreements by failing to keep the premises in reasonable repair, thereby entitling Fanguy, as plaintiff-in-reconvention, to a rescission of the lease and a judgment declaring the lease terminated and no longer in effect and ordering the occupants evicted. Fanguy further sought damages for the lessees' alleged failure to keep the leased premises in reasonable repair.
The matter was heard before the trial court on November 9, 10, and 12, 2009. At the conclusion of trial, the parties submitted posttrial briefs and on March 3, 2010, presented closing arguments to the trial court. On June 1, 2010, the trial court rendered judgment in favor of plaintiffs and against Fanguy. The trial court specifically incorporated the following findings in its actual judgment:
In accordance with these findings, the trial court then awarded damages and ordered other relief in favor of Schoolhouse and Eight Balls, as follows:
The trial court further adopted plaintiffs' post-trial memorandum and amended proposed findings of fact and conclusions of law as further reasons for judgment.
On June 16, 2010, Fanguy filed a petition for a suspensive appeal from the June 1, 2010, judgment of the trial court. The trial court entered an order of appeal and set a bond at $66,000.00. Fanguy then filed a "Power of Attorney," dated June 23, 2010, as a purported satisfaction of his obligation to furnish a suspensive appeal bond to perfect his suspensive appeal. On July 13, 2010, plaintiffs filed a rule to show cause why the appeal bond should not be deemed insufficient/invalid and why the suspensive appeal should not be set aside, contending that the power of attorney submitted by Fanguy as security for the suspensive appeal was meaningless and legally insufficient. Thereafter, Fanguy filed a cash bond in the amount of $66,000.00, which the trial court initially ordered be substituted for the previously filed power of attorney as security for the suspensive appeal. After a hearing on plaintiffs' rule, however, the trial court determined that as a mere power of attorney, Fanguy's filing did not meet the criteria for a judicial bond pursuant to LSA-C.C.P. arts. 5121, et seq. Thus, the subsequently filed cash bond could not relate back to cure any defects and perfect a suspensive appeal as there was no "bond" to cure. Accordingly, the trial court set aside the suspensive appeal and converted the instant appeal to a devolutive appeal.
Fanguy appeals, contending that the trial court erred: (1) in finding that he had disturbed the peaceable possession of plaintiffs; (2) in failing to render a ruling and decision on the reconventional demand for eviction; and (3) in converting the instant appeal to a devolutive appeal.
In Fanguy's first assignment of error, he contends that the trial court erred in finding as a fact that he disturbed the plaintiffs' peaceable possession of the leased property. Thus, in this assignment of error, Fanguy essentially challenges the
A court of appeal may not set aside a trial court's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The Louisiana Supreme Court has announced a two-part test for the reversal of a factfinder's determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). See also Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart v. State, through Department of Transportation and Development, 617 So.2d at 882. Where factual findings are based on determinations regarding the credibility of witnesses, the trier of fact's findings demand great deference. Boudreaux v. Jeff, 2003-1932 (La.App. 1st Cir.9/17/04), 884 So.2d 665, 671; Secret Cove, L.L.C. v. Thomas, 2002-2498 (La.App. 1st Cir.11/7/03), 862 So.2d 1010, 1016, writ denied, 2004-0447 (La.4/2/04), 869 So.2d 889. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d at 844.
In support of their petition, plaintiffs called several members of Schoolhouse and Eight Balls to testify. These members recounted numerous incidents involving repeated acts of interference and acts of intimidation by Fanguy, which plaintiffs had documented as they occurred and which were noted by the trial court in its written reasons. Plaintiffs also called representatives from the Department of Health and Hospitals, Office of Public Health, as well as a parish building inspector and representative from the U.S. Army Corps of Engineers Regulatory Branch to testify regarding the events giving rise to plaintiffs' lawsuit.
After hearing the testimony of several witnesses, who kept written records regarding Fanguy's actions, the incidents at issue and photographs, which were introduced into evidence, the trial court concluded that Fanguy had engaged in a course of conduct that interfered with plaintiffs' peaceable possession of the leased property. The trial court also heard and rejected. Fanguy's testimony. Notably, the trial court's written reasons specifically indicate that the trial court's judgment depended heavily on the credibility of the witnesses. In rendering judgment, the trial court noted that it found the testimony of the various plaintiff-members "particularly credible," while the testimony of Fanguy was found to be "self-serving, contradictory, and not credible." Moreover, the trial court rejected Fanguy's explanations, noting that Fanguy was also "openly hostile and belligerent on the stand."
Considering that credibility determinations are subject to the strictest deference, that the manifest error-clearly wrong standard demands great deference for the trier of fact's findings and that where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong, Theriot v. State, Department of Wildlife and Fisheries, 94-1536 (La.App. 1st
Accordingly, we find no merit to this assignment of error.
In Fanguy's second assignment of error, he contends that the trial court erred in failing to "render a ruling and decision" on his reconventional demand. Generally, silence in a judgment of the trial court as to any issue, claim, or demand placed before the court is deemed a rejection of the claim and the relief sought is presumed to be denied. Hayes v. Louisiana State Penitentiary, 2006-0553 (La. App. 1st Cir.8/15/07), 970 So.2d 547, 554, n. 9, writ denied, 2007-2258 (La.1/25/08), 973 So.2d 758.
The transcript herein reflects that Fanguy's reconventional demand was taken up or placed before the trial court in the proceedings below. Although the judgment of the trial court did not specifically state that Fanguy's reconventional demand was denied, given the trial court's ruling on the main demand, the trial court clearly considered and rejected Fanguy's reconventional demand, by refusing to order the eviction of the plaintiffs and the other relief sought by Fanguy therein.
Thus, this assignment of error also lacks merit.
In Fanguy's final assignment of error, he contends that the trial court erred in finding that the Power of Attorney was not an "insufficient" or "invalid" bond for which defects therein could be cured within four days pursuant to LSA-C.C.P. art. 5124.
In converting the instant appeal to a devolutive appeal, the trial court determined that the mere "Power of Attorney" filed by Fanguy was not, in fact or law, a suspensive appeal bond at all, and that the cash bond subsequently filed by Fanguy was not timely filed pursuant to LSA-C.C.P. art. 2123.
After careful review and considering the above legal precepts and jurisprudence, we find the trial court correctly determined that a Power of Attorney filed by Fanguy could not be cured as this filing did not bond any surety or meet the requirements of a suspensive appeal bond. Accordingly, we find no error in the trial court's determination that Fanguy failed ab initio to post a bond and to convert the appeal to a devolutive appeal.
This assignment also lacks merit.
Based on the above and foregoing reasons, the June 1, 2010 judgment of the trial court is hereby affirmed. Costs of this appeal are assessed against the defendant/appellant, Barry Fanguy.
McCLENDON, J., dissents in part, agrees in part, and assigns reasons.
McCLENDON, J., dissents in part, agrees in part, and assigns reasons.
Louisiana Code of Civil Procedure article 5124 requires that before an appeal is dismissed for a defect in the bond the appellant must have the opportunity to correct it by furnishing a new or supplemental bond. The purported bond filed in this case was issued in favor of Barry Fanguy, referenced the case number in the underlying district court proceedings, reflected a bond amount of $66,000 (as set by the trial court), and was signed on behalf of the bonding company by an executing agent and senior vice president. Although the bond may have been defective, the document was not merely a blank piece of paper without any binding consequences, and appellant should have been afforded the opportunity to correct the defect. I agree with Justice Tate's dissent in Guilliot v. City of Kenner, 326 So.2d 359, 364, wherein he recognized that the court had "disregarded the unambiguous code of civil procedure articles . . . preventing dismissal of appeals without an opportunity to correct or replace technically inadequate