SPRAUL v. JOHNSON (2025)

The buyer in a bond for deed contract sued the sellers for recission of the contract and for damages, including his loss of use of the property, the amount he paid for utilities and taxes related to the property, and the amount he paid the sellers towards the purchase price. The trial court granted judgment in favor of the buyer, and the sellers appealed. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 19, 2021, plaintiff, Randall Louis Spraul (buyer), entered into a bond for deed contract with defendants, Dewey Eugene Johnson, Sr. and Mildred Rita Augustine Johnson (sellers), relative to the sale of commercial property located in East Baton Rouge Parish. The contract provided for a price of $150,000.00, consisting of a $30,000.00 deposit and monthly installments of $2,000.00.

In February 2022, Mr. Spraul filed a petition for recission of contract and for damages against the Johnsons alleging that although he had made approximately $42,000.00 in payments on the property, he never had the full enjoyment of the property as contemplated by the contract. According to Mr. Spraul, even prior to the parties signing the bond for deed contract, he began paying utilities for the property and had continued to do so. Mr. Spraul alleged that the Johnsons refused to give him keys to the property and also failed to remove the “approximately 30 junk vehicles” that were covering the property. As a result, Mr. Spraul was unable to secure liability insurance for the property. Mr. Spraul further asserted that in October 2021, the Johnsons told him that if he went onto the property for any reason, including to remove his personal property, he would be arrested. The Johnsons further advised Mr. Spraul that they never intended for him to have access to the property until all payments were made in full. Believing the Johnsons were in breach of the contract, Mr. Spraul ceased the $2,000.00 monthly payments on November 1, 2021.

In answer to the petition, the Johnsons denied that there was any agreement to allow Mr. Spraul to occupy the property “other than by specific recurring permission of the Johnsons.” They argued that Mr. Spraul was directed to enter the property only during business hours and either in the company of the Johnsons or with their permission. The Johnsons maintained that while they never denied a request by Mr. Spraul for access to the property, “[g]ranting [Mr. Spraul's] broad request for uncontrolled access would effectively grant him possession of the premises and defeat the owners’ control of the property.”

The matter proceeded to a bench trial, at which time Mr. Spraul's counsel objected to the Johnsons being allowed to introduce any evidence as they had not participated in any pre-trial proceedings. The trial court granted the objection, but noted that the issue could be addressed again at a later time.

When Mr. Spraul's counsel rested his case, the trial court asked counsel for the Johnsons to proceed, who in turn indicated his intention to call both Mr. and Mrs. Johnson as witnesses. Counsel for Mr. Spraul renewed his original objection. Responding to the renewed objection by Mr. Spraul's counsel, the Johnsons’ counsel argued that he only planned to call the parties as witnesses and that the obligation to furnish names of witnesses did not include the parties to the case because they were “obvious witnesses.” The trial court sustained the objection, noting, “All right. We'll move on to, I guess, closing arguments.”

During closing arguments, the Johnsons’ counsel again objected to his clients not being allowed to testify. Counsel called it “grossly unfair,” adding that if the trial court was going to exclude the testimony, he would like to proffer the evidence. The trial court noted that the time for a proffer had passed as the proceedings had moved on to closing arguments. Counsel then attempted to introduce evidence, which offer was also denied based on the stage of the proceedings and the trial court's prior ruling concerning the Johnsons’ failure to participate in the pre-trial proceedings.

At the conclusion of the hearing, the trial court ruled in favor of Mr. Spraul, finding that the jurisprudence supported a conclusion that “the purchaser through a bond for deed shall be the possessor.” Because possession was never given to Mr. Spraul, the trial court issued a judgment in favor of Mr. Spraul in the amount of $44,000.00 (the $30,000.00 deposit plus all payments ¹ made toward the property), cancelled the contract, and ordered the Johnsons to pay all costs of the proceedings.² The trial court signed a judgment on April 2, 2024, in accordance with its findings. It is from this judgment that the Johnsons appeal, arguing the trial court erred in misinterpreting the possession rights under bond for deed contracts; in ordering return of all payments without considering the Johnsons’ substantial compliance with the contract terms; in rescinding the contract without finding a material breach by the Johnsons; and in excluding the Johnsons’ testimony and evidence based on non-compliance with pre-trial proceedings.³

LAW AND ANALYSIS

We first address the Johnsons’ arguments related to the bond for deed. A bond for deed is defined as “a contract to sell real property, in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer.” La. R.S. 9:2941. Under this special contract to sell, possession of the immovable is delivered immediately to the prospective purchaser prior to the payment of the bond for deed installments. McCoy v. Robbins, 42,901 (La. App. 2 Cir. 1/9/08), 974 So.2d 170, 172. The bond for deed has been interpreted by the jurisprudence as a device to circumvent the normal prohibition against conditional sales, i.e., sales under which passage of title is postponed until payment of the price. Lyons v. Pitts, 40,733 (La. App. 2 Cir. 3/8/06), 923 So.2d 962, 965; Seals v. Sumrall, 2003-0873 (La. App. 1 Cir. 9/17/04), 887 So.2d 91, 94. In the case of a failed bond for deed transaction, the purchaser is entitled to the return of all moneys paid on the purchase price, including the down payment and monthly installments, the insurance premiums, and the taxes paid. Montz v. Theard, 2001-0768 (La. App. 1 Cir. 2/27/02), 818 So.2d 181, 187.

Because a bond for deed is a “contract to sell,” we look to the Civil Code articles for the law applicable to such contract. Seals, 887 So.2d at 94. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. Civ. Code art. 2046. However, a doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. La. Civ. Code art. 2053; see also La. Civ. Code art. 2055. When the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purposes. La. Civ. Code art. 2054.

The interpretation of a bond for deed, like any contract, is a question of law. Appellate review of questions of law is simply to discern whether the trial court's interpretive decision is legally correct. See Seals, 887 So.2d at 94. If legal error is found, an appellate court is to make a de novo review. Id.

In pertinent part, the bond for deed signed by the parties provided as follows:

[C]ontemporaneously with the execution of this instrument, [Mr. Spraul] has paid to [the Johnsons] the sum of THIRTY THOUSAND and NO/100 ($30,000.00) Dollars, cash in hand paid, receipt whereof is hereby acknowledged, and [Mr. Spraul] does hereby bind and obligate himself, his heirs, successors and assigns to pay unto [the Johnsons] the additional sum of ONE HUNDRED TWENTY THOUSAND AND NO/100 ($120,000.00) Dollars, payable at the rate of TWO THOUSAND AND NO/100 ($2,000.00) Dollars per month ․ Said payments are to be made beginning May 1, 2021 ․ until the foil sum of ONE HUNDRED FIFTY THOUSAND AND N0/100 ($150,000.00) Dollars, including the THIRTY THOUSAND and NO/100 ($30,000.00) Dollars down payment, has been paid on account of principal. If, and only if, [Mr. Spraul] promptly pays all taxes, assessments and insurance, as set forth hereafter, [the Johnsons] will, at that time, execute a sufficient warranty deed, as hereinafter set forth, selling and conveying unto [Mr. Spraul] the following described real estate ․

․.

Appearers further declare that the taxes for the year 2020 have been paid, and taxes for the year 2021 will be prorated as of the date of execution for this Bond for Deed, and [Mr. Spraul] binds and obligates himself to pay all subsequent taxes promptly when due ․ and to carry premises liability at their expense and to deliver to [the Johnsons], a premises liability policy with an endorsement in favor of [the Johnsons] on the said property ․ [Mr. Spraul] further declares that he shall repair or maintain, at his expense, the property and the buildings thereon in such manner as to prevent the deterioration or devaluation thereof. In the event that maintenance or repairs are not made by [Mr. Spraul], and it becomes necessary or desirable to preserve the buildings or premises from damage or deterioration, [the Johnsons] shall have the right to enter on and into the property and make such repairs or maintenance as necessary; in such event, [Mr. Spraul] shall become liable for and owe to [the Johnsons] those costs expended by [the Johnsons] in the conservation of the premises, said payments becoming due under this Bond for Deed upon the next monthly payment period arising after presentment to [Mr. Spraul] of the sums expended.

Appearers further declare that the maintenance or repair of the premises being [the] responsibility of [Mr. Spraul], [Mr. Spraul] will indemnify, hold harmless and defend [the Johnsons] from any and all liability, costs, claims, demands, damages, suits, or other actions arising in, on or out of the property, premises or buildings that are the subject of this agreement; this indemnification shall operate without regard to whether such costs, claims, demands, actions, etc. are brought by [Mr. Spraul], his invitees or guests, or third parties, and shall indemnify [the Johnsons] even in those instances where [the Johnsons] may be contributory negligent. The foregoing indemnity provisions shall NOT apply to [the Johnsons], [the Johnsons’] guests, invitees, agents or employees, on the premises to remove [the Johnsons’] personal effects or scraps, or otherwise on the premises on [the Johnsons’] mission or business.

․

Appearers further declare that [the Johnsons] shall have two years commencing May 1, 2021, to remove [the Johnsons’] personal property and scrap material from the property. Further, any property or materials not removed on or before April 30, 2023, shall be abandoned unto [Mr. Spraul], and become [Mr. Spraul's] property.

The Johnsons argue on appeal that Mr. Spraul had supervised access to the property during business hours. Thus, they contend, Mr. Spraul's right of possession was not restricted as they substantially complied with the contract. The Johnsons further assert that the contract did not contain an express provision requiring immediate transfer of possession. Rather, the terms of the contract contemplated continued seller involvement with the property as it granted the Johnsons two years to remove the vehicles from the property. We find no merit to the Johnsons’ arguments regarding these issues.

Based on our review of the bond for deed contract, we conclude that the language of the contract is clear and explicit. Thus, no further interpretation of the parties’ intent is necessary. La. Civ. Code art. 2046. Moreover, for the sake of argument, even if we were to acknowledge, as did the trial court below, that the contract did not specifically provide that possession would immediately transfer to Mr. Spraul, we note that our decision would remain unchanged. As per the contract, Mr. Spraul was required to obtain premises liability insurance on the property, pay property taxes, and maintain and repair the property to prevent deterioration. The contract further provided that if Mr. Spraul did not maintain the property, making it necessary for the Johnsons to preserve the property from deterioration, the Johnsons had the right to enter onto the property and make any necessary repairs or maintenance. The contract further provided that the Johnsons had two years to remove their personal property and scrap material from the premises, after which time anything that remained would become Mr. Spraul's property. There can be no interpretation of these terms in the contract other than it was intended that Mr. Spraul would have immediate possession of the property. Thus, focusing on the language of the bond for deed contract and the applicable jurisprudence, we find no error in the trial court's finding that Mr. Spraul was entitled to immediate possession of the property upon entering into the contract with the Johnsons and that the Johnsons breached the contract by failing to give Mr. Spraul possession of the property. Moreover, we find no error in the trial court's $44,000.00 award to Mr. Spraul, representing the $30,000.00 deposit and all payments made towards the property. See Montz, 818 So.2d at 187.

Next, we address the Johnsons’ argument regarding the trial court's exclusion of their testimony and evidence. The Johnsons allege the trial court abused its discretion by excluding their testimony and evidence based solely on their alleged failure to participate in pre-trial proceedings. The Johnsons further argue that the trial court's exclusion of their testimony was inappropriate given that they “were named parties whose participation as witnesses should have been anticipated.” We find no merit to these arguments.

A trial judge has great discretion in conducting a trial. The judge is required to do so in an orderly, expeditious manner and to control the proceedings so that justice is done. La. Code Civ. P. art. 1631; Pino v. Gauthier, 633 So.2d 638, 648 (La. App. 1 Cir. 1993), writs denied, 94-0243 and 94-0260 (La. 3/18/94), 634 So.2d 858, 634 So.2d 859. The judge's discretion includes the admissibility of a witness's testimony. Combs v. Hartford Ins. Co., 544 So.2d 583, 586 (La. App. 1 Cir.), writ denied, 550 So.2d 630 (La. 1989). It is only upon a showing of a gross abuse of discretion that appellate courts have intervened. Pino, 633 So.2d at 648. Louisiana Code of Civil Procedure article 1551 provides that a trial court may issue a pre-trial order that controls the subsequent course of the action, such as the identification of witnesses, documents, and exhibits prior to trial. If a party's attorney fails to obey a pre-trial order, the court may render such orders as are just for the violation. La. Code Civ. P. art. 1551(C).

A trial court's evidentiary rulings are reviewable on appeal subject to the provisions of La. Code Civ. P. art. 1636. However, the evidence excluded by the trial court below must be available for appellate review. Lonesome Development, LLC v. Town of Abita Springs, 2021-1463 (La. App. 1 Cir. 6/29/22), 343 So.3d 831, 844, writ denied, 2022-01158 (La. 11/1/22), 349 So.3d 3. Without a proffer, appellate courts have no way to ascertain the nature of the excluded testimony. Id.

It is well settled that error may not be predicated upon a ruling that excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the court by counsel. See La. Code Evid. art. 103(A)(2); Goza v. Parish of West Baton Rouge, 2008-0086 (La. App. 1 Cir. 5/5/09), 21 So.3d 320, 330-331, writ denied, 2009-2146 (La. 12/11/09), 23 So.3d 919, cert denied, 560 U.S. 904, 130 S.Ct. 3277, 176 L.Ed.2d 1184 (2010). It is incumbent upon the party who contends his evidence was improperly excluded to make a proffer, and if he fails to do so, he cannot contend such exclusion was erroneous. Baggett v. Baggett, 2023-0653 (La. App. 1 Cir. 12/27/23), 381 So.3d 92, 97.

As previously noted, before closing arguments began, the trial court sustained a renewed objection by Mr. Spraul's counsel to the Johnsons being allowed to introduce any evidence as they had not participated in any pre-trial proceedings. It was at this point that the Johnsons’ counsel should have requested to either proffer the testimony or make a statement setting forth what he believed the Johnsons’ testimony would be. See La. Code Civ. P. art. 1636; see also La. Code Civ. P. art. 1632.⁴ The Johnsons’ counsel did neither.

Rather, the proceedings continued on to closing arguments by counsel. Following closing remarks by Mr. Spraul's counsel, the following colloquy occurred:

THE COURT:

All right. Thank you. Mr. Harris?

[MR. HARRIS (COUNSEL FOR THE JOHNSONS)]:

Your honor, I submit that it is grossly unfair to not allow either of the defendants to testify. One of them is stone deaf and he has not heard any of the testimony here, but Mrs. Johnson is fine, and she is a party to this whole transaction, and can explain just about everything that Mr. Spraul has contended. It never occurred to me that I would have to tell the plaintiffs counsel that the defendants would testify in this matter. I mean, it's just so obvious, but if the court would allow, I would — and you're going to exclude their testimony, I would like to make a proffer of evidence.

THE COURT:

Not at this time. We're on closing arguments. Your opportunity to proffer has passed.

[MR. HARRIS (COUNSEL FOR THE JOHNSONS)]:

All right. Then I would like to offer and introduce into evidence —

THE COURT

There's no introduction of evidence at closing.

[MR. HARRIS (COUNSEL FOR THE JOHNSONS)]:

Pardon?

THE COURT:

There's no introduction of evidence at closing. Additionally, you did not provide a list of potential exhibits in accordance with any pre-trial order. You did not participate in any pre-trial conferences, you didn't come to the court, you didn't answer. We had to get you on the phone to get you to even participate. We're here. We're at the end -- conclusion of the trial. [Counsel for Mr. Spraul] has rested and did his closing argument. I'm asking if you'd like to close on behalf of your clients. If not, we will proceed with the ruling.

Based on our review of the record, we are unable to find that the trial court grossly abused its discretion in conducting the order and timing of the trial. Nor do we find any abuse of discretion in the trial court's failure to allow the Johnsons to testify or introduce any evidence that was not timely exchanged and noted on the pre-trial order. Moreover, the Johnsons failed to timely make a proffer of the excluded evidence. Thus, there is nothing for us to review on appeal.

DECREE

For the above and foregoing reasons, we affirm the trial court's April 2, 2024 judgment and assess all costs associated with this appeal against defendants, Dewey Eugene Johnson, Sr. and Mildred Rita Augustine Johnson.

AFFIRMED.

Prior to the beginning of trial, the plaintiff moved to prevent the defendants from introducing any testamentary or documentary evidence, based on the defendants’ failure to attend the pre-trial conference or comply with the pre-trial order. In response, Mr. Harris, counsel for the defendants, argued:

Your Honor, we have no exhibits or witnesses that have not already been alluded to in the plaintiff's pleadings or in the answer that was filed in the record. The only testimony we have to present today is the defendants in the case (sic). We don't have any experts or outside witnesses.

The trial court replied:

All right. I guess the court will grant your motion as presented. However, we'll allow Mr. Harris to when it's his opportunity to present a case if you'd like to reurge something at that time, we'll readdress it. So, if he wants to introduce someone [who is] not a named party, we'll see if you'd like to reurge your objection at that time.

After the plaintiff rested, Mr. Harris stated, “I've only got these two witnesses.” Mr. Adams then renewed his objection “to any testimony or evidence by the defendants[.]” The trial court sustained Mr. Adams’ objection and immediately called upon him to make closing statements, stating: “All right. We'll move on to, I guess, closing arguments. Mr. Adams?” After Mr. Adams made his closing arguments, the trial court stated, “All right. Thank you. Mr. Harris?” At this juncture, the first statement Mr. Harris made included a request to proffer the testimony of his clients, the defendants. The trial court denied the proffer, stating, “Not at this time. We're on closing arguments. Your opportunity to proffer has passed.”

A trial court's interlocutory rulings on evidentiary rulings are reviewable on appeal, subject to the provisions of LSA-C.C.P. art. 1636. See Haney v. Lewis, 2015-1173 (La.App. 1 Cir. 6/3/16), 2016 WL 3127254, *7 (unpublished), writs denied, 2016-1252, 208 So.3d 888 and 2016- 1254 (La. 10/28/16), 208 So.3d 889. Pursuant to LSA- C.C.P. art. 1636, when the court rules against the admissibility of any evidence, the court shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence. Article 1636 is mandatory, not discretionary.¹ Williams v. Williams, 2006-2491 (La.App 1 Cir. 9/14/07), 970 So.2d 633, 640. Here, counsel for the defendants sought to proffer the contested evidence immediately following the plaintiff's closing arguments and prior to the case being submitted for consideration. Thus, I find that the trial court's refusal to allow the defendants to proffer their own testimony violated LSA-C.C.P. art. 1636’s mandate and constituted legal error. See Williams, 970 So.2d at 640.

Denial of a proffer is reversible error. See Michelli v. Michelli, 93-2128 (La.App. 1 Cir. 5/5/95), 655 So.2d 1342, 1350. However, if the trial court properly excluded the defendants’ testimony, then the refusal to allow the proffer is of no moment. See Succession of Moore, 54,338 (La.App. 2 Cir. 3/30/22), 339 So.3d 12, 28, writ denied, 2022-00973 (La. 10/4/22), 347 So.3d 859; Gordon v. Levet, 96-600 (La.App. 5 Cir. 1/15/97), 688 So.2d 57, 63, writ denied, 97-0406 (La. 4/4/97), 692 So.2d 418. In this regard, I find that the trial court abused its discretion by prohibiting the defendants from offering any evidence, and in particular their own testimony, under the facts of this case. While LSA-C.C.P. art. 1551(C) authorizes the trial court to impose sanctions for failure to appear or to participate in good faith in pre-trial proceedings, the statute explicitly restricts said sanctions to “such orders as are just.”² See Benware v. Means, 1999-1410 (La. 1/19/00), 752 So.2d 841, 846. Additionally, although a trial judge has great discretion in deciding whether to receive or refuse the testimony objected to on the grounds of failure to abide by the rules, any doubt must be resolved in favor of receiving the information. Palace Properties, L.L.C. v. Sizeler Hammond Square Limited Partnership, 2001-2812 (La.App. 1 Cir. 12/30/02), 839 So.2d 82, 91, writ denied, 2003-0306 (La. 4/4/03), 840 So.2d 1219.

In Benware v. Means, 1999-1410 (La. 1/19/00), 752 So.2d 841, the plaintiff's attorney filed a motion for sanctions after several pre-trial or status conferences and several continuances of trial dates. Benware, 752 So.2d at 843. The trial court granted the motion and prohibited the defendant from calling witnesses and offering evidence at the subsequent trial, which resulted in a judgment against the defendant. In considering the propriety of the trial court's sanctions, the Louisiana Supreme Court discussed the 1997 amendment to LSA-C.C.P. art. 1551, specifically the addition of Subsection C and its references to LSA-C.C.P. art. 1471. The Supreme Court wrote:

Article [1551(C)], which incorporated Article 1471(2) and (3), now authorizes the “death penalty” of dismissal or judgment by default in appropriate cases of disobedience of or disregard for orders pertaining to pre-trial procedure. However, this extreme penalty obviously should seldom be imposed and should be reserved for only the most flagrant case.

Benware, 752 So.2d at 846. The Supreme Court in Benware instructed that, when a court determines the appropriate penalty for disobedience of or disregard for court orders relating to pre-trial procedures, it should consider the following factors: whether the misconduct was by the attorney, the client, or both; the stage of the proceeding at which the violation occurred; the presence or absence of prejudice to the opposing party's preparation of the case; and the nature and persistency of the misconduct that constitutes the violation. Benware, 752 So.2d at 846-847. It was further noted in Benware that each case must be decided upon its own facts and circumstances. Benware, 752 So.2d at 847. In assessing the appropriateness of the sanctions imposed in Benware, the Supreme Court noted that the sanctioned defendant was an attorney representing himself in a legal malpractice suit, and thus, “this is not the case of an unknowing and vulnerable client who may be unjustly harmed by a penalty arising from the failure of his attorney to respond to court-ordered pre-trial procedures.” Benware, 752 So.2d at 848. The Supreme Court characterized the defendant's actions as “willful and continued disregard for his responsibilities” before concluding, “[t]his is precisely the ‘rare’ case this court contemplated as appropriate for imposition of the harshest penalty.” Benware, 752 So.2d at 848.

In Guste v. Lirette, 2015-1284 (La.App. 1 Cir. 6/28/16), 2016 WL 3569840, the plaintiffs argued that the defendants, a business and business owner, should be penalized for their failure to comply with the pretrial order. The trial court refused to allow the defendants to call any witnesses or present any defenses. Additionally, the trial court found that the defendants failed to respond to the plaintiffs’ requests for admissions and deemed all of the requests admitted. Guste, 2016 WL 3569840 at *1. The bench trial proceeded essentially as a default proceeding, with only the plaintiffs calling witnesses and presenting evidence. Although the defendants were allowed to cross-examine the plaintiffs’ witnesses and present argument, “they were not allowed to present any evidence, even [the defendant business owner's] own testimony, except as a proffer.” Guste, 2016 WL 3569840 at *1.

In applying the Benware factors on appeal, this court noted that at the time the pretrial order was violated, the business owner was representing himself and the business had yet to make an appearance; that no pretrial motions, including motions to compel, were filed, and penalties were requested on the day of trial; and that the evidence demonstrated the plaintiffs were not prejudiced in the preparation of their case. Guste, 2016 WL 3569840 at *2-3. This court found:

The sanctions of dismissal or default are to be imposed only in “extreme” cases involving “the most culpable conduct” where “there is a gross disregard for the authority and the efficient operation of the court.” [Benware], 752 So.2d at 847. The record in this case does not support a finding that this is such an extreme case.

Guste, 2016 WL 3569840 at *4. Further, even though the trial court had allowed the defendants to proffer witness testimony, this court found “that justice requires that the trial court's ․ judgment be vacated and this matter be remanded for proceedings consistent with the views expressed herein.” Guste, 2016 WL 3569840 at *4.

Though each case must be decided upon its own facts and circumstances, the precepts of Benware and Guste provide guidance. See Benware, 752 So.2d at 847. Here, the alleged misconduct in failing to participate in pre-trial proceedings was on the part of the attorney, not the client. Moreover, there is no evidence that the plaintiff's preparation was prejudiced, because the only contested evidence was the defendants’ own testimony. As set forth above, the Supreme Court has instructed that such an “extreme penalty obviously should seldom be imposed and should be reserved for only the most flagrant case[.]” Further, this court has instructed that although a trial judge has great discretion in deciding whether to receive or refuse the testimony objected to on the grounds of failure to abide by the rules, any doubt must be resolved in favor of receiving the information. Palace Properties, 839 So.2d at 91.

With these principles in mind, I find that the record does not warrant the exclusion of the defendants’ testimony, and that such exclusion constituted an injustice. Accordingly, I would vacate the trial court's judgment and remand for further proceedings consistent with this opinion.

FOOTNOTES

1.   We note that in his petition, Mr. Spraul alleged he made payments amounting to approximately $42,000.00 on the property. However, $44,000.00 was the amount reported by Mr. Spraul when he was questioned during the hearing.

2.   The trial court denied all other relief requested by Mr. Spraul, including his request for damages attributable to theft, inconvenience, and loss of business.

3.   Mr. Spraul's appeal of the trial court's April 2, 2024 judgment was dismissed by this court on February 21, 2025, for Mr. Spraul's failure to timely file an appellate brief.

4.   Pursuant to La. Code Civ. P. art. 1632, the normal order of trial is:(1) The opening statements by the plaintiff and the defendant, in that order;(2) The presentation of the evidence of the plaintiff and of the defendant, in that order;(3) The presentation of the evidence of the plaintiff in rebuttal; and(4) The argument of the plaintiff, of the defendant, and of the plaintiff in rebuttal, in that order.Although Article 1632 expressly permits the trial court to vary the order “when circumstances so justify,” the trial court has great discretion in conducting a trial, and it is only upon a showing of a gross abuse of discretion that appellate courts have intervened. Pino, 633 So. 2d at 648.

1.   Though the trial court has the discretion to receive the proffer in full or to require a statement setting forth the nature of the evidence, it is error to deny a party both forms of proffer. Succession of Moore, 54,338 (La.App. 2 Cir. 3/30/22), 339 So.3d 12, 27, writ denied, 2022-00973 (La. 10/4/22), 347 So. 3d 859.

2.   I note that this is consistent with LSA-C.C.P. art. 1551(B), which provides that a pre-trial order may be modified at trial “to prevent manifest injustice.” Palace Properties, L.L.C. v. Sizeler Hammond Square Limited Partnership, 2001-2812 (La.App. 1 Cir. 12/30/02), 839 So.2d 82, 91, writ denied, 2003-0306 (La. 4/4/03), 840 So.2d 1219.

LANIER, J.

McClendon, C.J., dissents and assigns reasons.