David R. Rabalais v. Jack Gardner's Ten Minute Oil Change, Inc.

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.

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APPEAL FROM THE
LAFAYETTE CITY COURT
PARISH OF LAFAYETTE, NO. 2013CV0978
HONORABLE FRANCES MORAN BOUILLION, CITY COURT JUDGE

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BILLY HOWARD EZELL
JUDGE

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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.

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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

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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.

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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)).

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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.

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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.

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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.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal. Rule 2–16.3.

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