author: McCLENDON, J.

text:
    Gerald "Buzz" BREAUX, as President of the Parish of Lafourche v. LAFOURCHE PARISH COUNCIL.
    No. 2002 CA 1422.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.
    Rehearing Denied Aug. 25, 2003.

      Leslie Clement, Jr., Thibodaux, Council for PlaintifflAppellee Gerald “Buzz” Breaux, as President Of the Parish of La-fourche.
    Phillip E. Foco, W. Shelby McKenzie, Baton Rouge, Council for Defendant/Appellant Lafourche Parish Council.
    Before: FOIL, McCLENDON, and KLINE, JJ.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   McCLENDON, J.

This is an appeal from specific portions of a declaratory judgment imposing limits on the Lafourche Parish Council’s authority to contract by resolution on behalf of the Parish and, additionally, ruling that LSA-R.S. 42:263 is constitutional as it applies to Lafourche Parish. For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On May 4, 2001, Gerald “Buzz” Breaux, as President of the Parish of Lafourche (the Parish President), filed a petition for declaratory judgment and injunctive relief against the Lafourche Parish Council (the Council) asserting that the Council had circumvented the provisions of the La-fourche Parish Home Rule Charter (the Charter) by improperly and illegally utilizing resolutions and/or motions, rather than ordinances, to enter into contracts.

The matter was heard, judgment rendered and each party thereafter filed a motion for new trial. The motions were heard and on March 18, 2002, judgment was signed. It is from this judgment that the Council appeals assigning the following specification of error:

The trial court erred in imposing limits other than those found in Lafourche Parish Home Rule Charter Article IV.A on the Council’s authority to contract on behalf of the Parish by resolution — additionally and improperly restricting the Council’s authority to contract to contracts which: a) only bind the Council and not the Parish, and b) pertain to internal Council matters only. Concomitantly, the trial court erred in granting the President unfettered authority, following initial approval of the budget, to contract for the expenditure of all parish funds without necessity of additional ordinance or resolution.

The Parish President answered the appeal asserting error in the trial court’s judgment regarding legal representation. Specifically, the Parish | -¡President asserts that LSA-R.S. 42:263 is unconstitutional as applied to Lafourche Parish and, therefore, the trial court erred in approving the employment of legal counsel by the La-fourche Parish Council through the use of resolution.

DISCUSSION

Contracts

Pursuant to the authority of the Louisiana Constitution of 1974, the people of the Parish of Lafourche, on August 14, 1976, adopted a Home Rule Charter which became effective on October 1, 1976. The Charter was amended in an election held on January 17, 1998, and became effective, as amended, in January 2000. This is the controlling document before this Court.

Article II of the amended Charter sets forth the rules on organization, structure and distribution of powers and functions of Lafourche Parish. Article II, Section A(l) provides that the name of the governing authority is the Lafourche Parish Council and is comprised of nine members. Among the powers of the Council, Section A(9) states that the governing authority shall be vested with and shall exercise all legislative power. Other powers of the Council are enumerated and include investigatory powers as well as the power to establish and control parish agencies, levy taxes, borrow money, appropriate money (as provided in Article V), grant franchises, exercise the right of eminent domain, appoint or remove certain legislative employees, and set bonds.

Section B of Article II relates to the Parish President. The parish president is the chief executive officer. Section B(l). Section B(2) provides in part:

14Except as otherwise provided in this charter, the president shall be chief executive officer of the parish and shall be vested with the executive power of the parish.

This section goes on to enumerate special powers of the president, none of which specifically include the authority to approve, sign or enter into contracts.

Article IV of the Home Rule Charter specifically addresses ordinances and resolutions. Section A regarding acts requiring the Council to pass an ordinance, provides a nonexclusive listing of acts which require ordinances, including acts which provide for the reapportionment of the Council, levy taxes or assessments, appropriate funds or adopt a budget, grant, renew or modify a franchise, provide for raising revenue, regulate parish service charges, incur debt in any manner in excess of budgeted appropriations, abandon parish property, acquire, dispose of, or lease real property, adopt or modify the official map, plat, subdivision ordinance, regulations, or zoning plan, amend or repeal any ordinance, propose amendments to the Charter, create, abolish, merge, or consolidate any parish department, office or agency, and provide fines or penalties for violation of a rule or regulation.

Section G of Article IV specifically authorizes the Council to perform certain acts by resolution and provides:

An act of the governing authority which is not to have the force of law may be enacted by resolution. Acts which may be adopted by resolution shall include but shall not be limited to one which:...
2. Approves a contract and authorizes a person to sign or execute on behalf of the governing authority a contract which has been approved...

|,Jn this appeal, the Council asserts that the approval of contracts was expressly added in the Charter amendments to the list of acts which the Council may adopt by resolution subject to certain limitations expressed in the Charter. Further, the Council suggests that by also adding the phrase “in excess of budgeted appropriations” behind the phrase “incurs debt in any manner” among the acts requiring an ordinance, the Charter provides the Coun-di authority to enter into contracts by resolutions so long as it does not incur debt in excess of budgeted appropriations. The Council argues that the Parish President since taking office in 2000 has insisted that any action by the Council which is to have legal effect, like contracts, must be by ordinance and that he has refused to acknowledge the validity of any contracts approved by the Council by resolution and further averring that the Council in approving contracts by resolution has encroached on his executive authority to “administer” the budget. Thus, the Council contends, it has been obstructed and a governmental stalemate has resulted.

Article VII, Section D of the Home Rule Charter provides:

This charter shall be liberally construed to establish for the people of this parish effective home rule, free from legislative interference as to the structure, organization and distribution of powers and functions of its government, and with the power and authority to manage its affairs as contemplated and intended by the constitution.

In Louisiana Television Broadcasting Corp. v. Total C.A.T.V., 341 So.2d 1183 (La.App. 1 Cir.), writ refused, 343 So.2d 1076 (La.1977), this Court stated:

Statutory rules of construction of laws are as applicable to municipal and parish ordinances as they are to state statutes. Liller v. Louisiana Board of Alcoholic Beverage Control, 59 So.2d 222 (La.App.Orleans 1952). When a law is clear and free from ambiguity its letter is not to be disregarded under the pretext of pursuing its spirit. LSA-C.C. Article 13. The words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of | ^grammar rules as to the general and popular use of the words. LSA-C.C. Article 14. When a law is clear and free from all ambiguity, it must be given effect as written. Hebbler v. New Orleans Fire Department, 310 So.2d 113 (La.1975). Every word in a statute must be given meaning, if possible; no word, clause, phrase or sentence of a statute shall be deemed meaningless or surplusage if a construction can be legitimately found which will give force to and preserve every word of the statute. State v. Fontenot, 112 La. 628, 36 So. 630 (1904); State v. Dozier, 258 La. 323, 246 So.2d 187 (1971). In construing a statute, legislative aim and design may be inquired into by the courts for the purpose of determining legislative intent, only when a statute is ambiguous or subject to two reasonable interpretations. Fire Department, above; State v. McCulloch, 126 So.2d 191 (La.App. 4th Cir.1961).

Louisiana Television Broadcasting Corp. v. Total C.A.T.V., 341 So.2d at 1185.

When a law is susceptible of two or more interpretations, that which affords a reasonable and practical effect to the entire act (the Charter in this case) is to be preferred over one which renders part thereof ridiculous or nugatory. Alliance For Affordable Energy v. Council of City of New Orleans, 96-0700, p. 13 (La.7/2/96), 677 So.2d 424, 431; Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La. App. 1 Cir.1984). Additionally, where it is possible to do so, it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question which harmonizes and reconciles it with other provisions. Bunch v. Town of St. Francisville, 446 So.2d at 1360.

The words of the Home Rule Charter, the controlling document in this matter, are clear and give the Council the authority to approve contracts. Article IV, Section G. The Charter is silent with respect to any independent contracting authority by the Parish President and, according to the Charter, the executive power given to the Parish President is subject to other provisions therein. Article II, Section B(2). The document must be read as a whole to give it meaning. It is presumed that every word, sentence or 17provision in the Charter was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. Conversely, it will not be presumed that the drafters inserted idle, meaningless or superfluous language in the law or that it intended for any part or provision of the law to be meaningless, redundant or useless. Bunch v. Town of St. Francisville, 446 So.2d at 1360. Article IV, which deals with resolutions, is as much a part of the Home Rule Charter as is Article II, which sets forth the powers of the Parish President and the Council, and it must be read as such to give it a reasonable effect. Otherwise, Article IV would be without meaning and useless. Because Article IV specifically permits the Council to approve contracts, we find that the trial court erred in limiting this authority to approving contracts that only affect the Council.

Finding that the Council is given specific authority in the Charter to approve contracts, the next issue is whether it may do so by resolution or only by ordinance. The Charter clearly provides that ordinances are required in certain instances. Article IV, Section A. The Charter is also clear in that it specifically provides that the Council may enact a resolution which approves a contract when an ordinance is not specifically required. Article IV, Section G. The Charter does not say that the Council may enact a resolution which approves a contract that only benefits the Council itself. There is no such limiting language. According to the words of the Charter, the Council may approve a contract by resolution and it may also authorize a person to sign or execute on behalf of the governing authority (the Council) a contract which has been approved by resolution. Article IV, Section G(2).

Additionally, according to Article IV, Section A(7), an ordinance is required when the Council incurs a debt “in excess of budgeted ^appropriations.” This implies therefore that an ordinance would not be required if the Council incurs a debt within budgeted appropriations, and the Council can act by resolution. This is the only interpretation which gives meaning to all provisions of the Home Rule Charter.

Thus, if the Council, within a line item, wishes not to add, reduce or transfer amounts, but only wishes to specify within a line item how the appropriated funds, not yet encumbered, are to be spent, it can do so by resolution provided it does not result in a debt in excess of that budgeted line item appropriation. Accordingly, expenditures may be contractually authorized within a line item by Council resolution under Article IV, Section G, subject to the limitations of Article IV, Section A.

Legal representation

In answer to the appeal, the President asserts that the trial court erred in approving the resolution procedure used by the Council pursuant to the provisions of LSA-R.S. 42:263 to employ an attorney to represent it in this proceeding.

In this matter, the district attorney for the Parish of Lafourche recused himself because of a conflict of interest. The Council, following the procedures set forth in LSA-R.S. 42:263 A, appointed an attorney by resolution.

The President asserts in his answer to the appeal that this statute is unconstitutional as it applies to Lafourche Parish in violation of La. Const. |9Article VI, Sections 5 and 6, because it affects and changes the structure and organization of the local governmental subdivision.

The Louisiana Constitution of 1974, Article VI, Section 5 provides that any local governmental subdivision may draft, adopt, or amend a home rule charter. Article VI, Section 6 provides:

The legislature shall enact no law the effect of which changes or affects the structure and organization or the particular distribution and redistribution of the powers and functions of any local governmental subdivision which operates under a home rule charter.

The Home Rule Charter is silent regarding the employment of legal counsel. Therefore, pursuant to LSA-R.S. 16:2 E, the Lafourche Parish District Attorney’s Office usually serves as legal counsel for the Lafourche Parish Council. However, since the district attorney declined to represent the Council in this matter, it employed counsel by resolution in accordance with LSA-R.S. 42:263 A. It is not disputed that the Council followed the statutory procedure for obtaining special counsel by resolution. The trial court in considering the matter determined that the statute was not unconstitutional, stating:

| ^Representation by counsel for advice and response to a lawsuit is not a matter of structure and organization. It is a matter of legal representation. To prevent legal representation when an entity is clearly entitled to legal representation has more effect on the powers and structure and function and organization of the government than the grant of authority to retain counsel in special matters. I believe that the statute, title 42, section 263 allows and requires a resolution for that selection process.
We agree and do not believe that LSA-R.S. 42:263 abridges or impinges upon the local government’s structure or organization or distribution of powers and functions. We therefore do not find that the statute is unconstitutional as it applies to Lafourche Parish.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed insofar as it 1) imposes limits not found in the Home Rule Charter on the Lafourche Parish Council’s authority to approve contracts on behalf of the Parish by resolution, subject to the limitations of Article IV, section A of the Charter, and 2) authorizes the Parish President to contract for the expenditure of all parish funds without the necessity of additional ordinance or resolution. The judgment of the trial court finding that LSA-R.S. 42:263 is not unconstitutional as it applies to Lafourche Parish is affirmed. Each party shall bear its own costs.

AFFIRMED IN PART AND REVERSED IN PART.

      . The general topics of the issues reviewed and ruled on by the trial court were: contracts, parish agencies, ordinance procedure, cooperative endeavors, roads and streets, compensation, and legal representation. In this appeal, the Council seeks review of only that portion of the judgment pertaining to contracts.

      . We note that one version of the amended Charter included in the record herein added the new language "Approves a contract” at the beginning of Section G.3 rather than at the beginning of Section G.2. Also that same version of the Charter includes the word "previously” in Section G.2 before the word "approved.” However, the most current version of the Home Rule Charter made part of the record herein, places the language regarding approval of contracts in Section G.2 and does not include the word "previously.”

      . LSA-R.S. 42:263 A,provides:
      No parish governing authority, levee board except as provided in Subsection B hereof, parish school board, city school board, or other local or state board shall retain or employ any special attorney or counsel to represent it in any special matter or pay any special attorney or counsel to represent it in any special matter or pay any compensation for any legal services whatever unless a real necessity exists, made to appear by a resolution thereof stating fully the reasons for the action and the compensation to be paid. The resolution then shall be subject to the approval of the attorney general and, if approved by him, shall be spread upon the minutes of the body and published in the official journal of the parish.

      . La. Const. Art. VI, Section 5 provides in pertinent part.
      (A) Authority to Adopt; Commission. Subject to and not inconsistent with this constitution, any local governmental subdivision may draft, adopt, or amend a home rule charter in accordance with this Section. The governing authority of a local governmental subdivision may appoint a commission to prepare and propose a charter or an alternate charter, or it may call an election to elect such a commission.
      (E) Structure and Organization; Powers; Functions. A home rule charter adopted under this Section shall provide the structure and organization, powers, and functions of the government of the local governmental subdivision, which may include the exercise of any power and performance of any function necessary, requisite, or proper for the management of its affairs, not denied by general law or inconsistent with this constitution.

      . LSA-R. S. 16:2 E provides:
      E. In the parish of Lafourche, the district attorney shall ex officio and without extra compensation, general or special, be the regular attorney and counsel for the parish governing authority, the school board, and every state board or commission domiciled therein, including levee boards, hospital and asylum boards, education boards, and all state boards or commissions the members of which, in whole or in part, are elected by the people or appointed by the governor or other prescribed authority.


source: Caselaw Access Project

author: |,WILLIAM H. BYRNES, III, Chief Judge. |, GORBATY, J., |! JONES, J.,

license: Public Domain

text:
    John BERTUCCI, Kim Friedman, Leroy Williams and Susanna Diaz, et al. v. LAFAYETTE INSURANCE COMPANY, et al.
    No. 2002-CA-0242.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.

      Eric A. Bopp, Walter R. Woodruff, Jr., Edward S. Bopp, Arabi, LA, for Plain-tiffiAppellee.
    Peter J. Butler, Peter J. Butler, Jr., Richard G. Passler, Rebecca J. Becker, Breazeale, Sachse & Wilson, L.L.P., New Orleans, LA, for Defendant/Apellant, Prudential Property & Casualty.
    Byron A. Richie, Richie & Richie, L.L.P., Shreveport, LA, for Appellant, Patterson Insurance Company.
    William J. Wegmann, Jr., Orr Adams, Jr., Law Firm of William J. Wegmann, L.L.C., Metairie, LA, for Defendant/Appellant, Those Certain Underwriters at Lloyd’s, London.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   |,WILLIAM H. BYRNES, III, Chief Judge.

Appellants, Prudential Property & Casualty Insurance Company, Patterson Insurance Company, and Those Certain Underwriters at Lloyd’s, London, appeal a trial court judgment denying their exceptions of improper venue. This court has recently ruled on the identical issue presented herein on a supervisory writ taken by other defendant insurance companies similarly situated in this litigation. See Bertucci v. Lafayette Insurance Company, 2001-2177, 2001-2224 (La.App. 4 Cir. 1/30/02), 809 So.2d 494 (hereinafter referred to as “the Bertucci writ”). Therein we reversed the judgment of the district court. Because that ruling has become the law of this ease, we adopt it herein and reverse the district court’s denial of the appellants’ exception of improper venue.

On January 28, 2001, plaintiffs filed a Class Action Petition for Breach of Insurance Contract and Damages in the 34th Judicial District Court against 76 insurance companies alleging that the companies had breached their contracts of | ^insurance by failing to properly adjust the plaintiffs’ property damage claims following a January 23, 2000 hail storm.

Appellants filed exceptions of improper venue on the basis that they did not issue policies of insurance to any of the named plaintiffs. They argued that East Baton Rouge was the proper venue for suits against domestic or foreign insurers because neither of the applicable exceptions to the general venue rule found in La. C.C.P. art. 42, namely La. C.C.P. art. 76 (action on insurance policy) and art. 76.1 (action on contract), were available where none of the named plaintiffs held policies with these defendants. Plaintiffs opposed the exception. Following a hearing, the district court overruled defendants’ exceptions finding venue proper under La. C.C.P. art. 693(B) which provides that “[a]n action brought against a class shall be brought in a parish of proper venue as to any member of the class as a defendant.” The district court further hinted that venue might also be proper under the doctrine of ancillary venue.

In an opinion rendered on January 30, 2002 in the Bertucci writ, we granted the supervisory writ sought by the similarly situated defendants in this matter and reversed the district court’s finding that St. Bernard Parish was a parish of proper venue for suit against them. In so holding, we found that the general rules of venue, rather than the rules governing venue for class actions, applied to the defendants because although the plaintiffs’ petition had pled a defendant class, that petition failed to include the named defendants in that class of unnamed insurers. Thus, we ruled that the district court erred in failing to sustain the defendants’ exceptions to venue where no named plaintiff had a policy of insurance with them|ssuch that venue would be established in St. Bernard Parish. In addition, we found no justification to support the district court’s finding that ancillary venue was appropriate to the litigation. Bertucci v. Lafayette Insurance Company, 2001-2177, 2001-2224 (La.App. 4 Cir. 1/30/02), 809 So.2d 494.

“The ‘law of the case’ principle embodies the rule that an appellate court will not reconsider its own rulings of law in the same case.” Lejano v. Bandak, 97-0888, p. 24 (La.12/12/97), 705 So.2d 158, 170. [Citations omitted]. This court has previously held that the law of the case doctrine applies to all prior decisions of an appellate court, including decisions rendered on supervisory writ applications. Tsatsoulis v. City of New Orleans, 99-2544, p. 1 (La.App. 4 Cir. 8/30/00), 769 So.2d 137, 138. The doctrine is discretionary, however, and is not applicable in cases of palpable error or when its application would result in manifest injustice. Lejano, 97-0388, p. 24, 705 So.2d at 170. [Citations omitted].

The issues involved in our January 30, 2002 decision on the Bertucci writ applications are identical to those presented in this appeal. Plaintiffs claim that they are amending their petition to include the named defendants within the putative defendant class. As we stated in our decision on the Bertucci writ, the plaintiffs are free to amend their petition to correct any deficiencies in its drafting. Nonetheless, we are a court of record and must limit our review to the evidence in the record on appeal. As an appellate court, we cannot review evidence that is not in the record on appeal and we cannot receive new evidence. Littlejohn v. Quiram, 2001-0075, p. 2 (La.App. 4 Cir. 10/24/01), 800 So.2d 73, 74. Thus, even had plaintiffs amended their petition since the filing of this appeal, such amendment would not be part of the record on appeal, and we would not be allowed to consider such amendment in our review of this matter.

14PIaintiffs have shown no palpable error in our earlier decision, and application of the law of the case doctrine will not result in any manifest injustice. This is especially true where, as we noted in Bertucci, supra, p. 7, 809 So.2d at 498:

As relators note, no one plaintiff has asserted claims against all of the defendant-insurers, nor for obvious reasons could they, and it is difficult to identify “common or identical questions of fact” with regard to the various insurers in the present circumstance. Furthermore, no single plaintiff possesses a cause of action for damages against two defendants, which arises from a succession set of facts that would be spilt between two venues. Accordingly, there is not justification for finding that ancillary venue was appropriate to the litigation.

For the reasons stated above, we apply our decision in the Bertucci writ to the instant appeal. The judgment of the trial court denying appellants’ exceptions of improper venue is reversed, and this matter is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

GORBATY, J., concurs with reasons.

JONES, J., dissents with reasons.

|, GORBATY, J.,

CONCURS WITH REASONS.

The original three-judge panel on this case was split, with one judge voting to reverse the judgment of the district court, one judge concurring in the result, and one judge dissenting. Consequently, a five-judge panel was assembled. Thereafter, three judges voted to affirm the district court judgment, and two judges voted to reverse. However, in order to reverse the district court ruling, a previous writ disposition of this Court would have to be overruled en banc. See Bertucci v. Lafayette Ins. Co., 2001-2177, 2001-2224 (La.App.4 Cir.1/30/02), 809 So.2d 494. This court voted en banc not to overrule the previous disposition. Accordingly, the previous disposition is dispositive of the instant appeal, and the district court judgment appealed herein must be reversed.

I was one of the judges who voted to overrule the earlier writ disposition because I believe that this Court’s previous ruling was erroneous.

In Bertucci v. Lafayette Ins. Co., 2001-2177, 2001-2224 (La.App.4 Cir.1/30/02), 809 So.2d 494, this Court found that the plaintiffs’ petition pled a defendant class, but that the petition failed to include the named defendants (presumably the rela-tors) in that class of unnamed insurers. This statement begs the question “how does one name an unnamed insurer?” Because of the deficiency in the petition, this Court found that the general rules of venue applied to the |grelators because no named plaintiff had a policy of insurance with relators such that venue could be established in St. Bernard Parish.

However, in Cacamo v. Liberty Mutual Fire Ins. Co., 1999-3479, p. 4-5(La.6/30/00), 764 So.2d 41, 44, the Supreme Court explained that the general venue rules of La.Code Civ.Proc. art 42, are subject to the exceptions contained in La.Code Civ. Proc. arts. 71-85. The Court further confirmed its previous decision in Kellis v. Farber, 523 So.2d 843 (La.1988), wherein it was held that the plain meaning of Art. 43 allowed the venues provided for in arts. 71-85 to supplement the general venue provisions of art. 42 whenever venue under art. 42 is appropriate. Louisiana Code of Civil Procedure art. 76 allows an action on an insurance policy to be brought where the loss occurred or where the insured is domiciled. Plaintiffs allege in their petition that they are domiciled and that the loss occurred in St. Bernard Parish.

My reading of the petition convinces me that the plaintiffs did indeed identify a class of unnamed defendants in their petition sufficient for the district court to presume the existence of a defendant class for purposes of establishing venue under the supplemental venue rules. See Cacamo v. Liberty Mutual Fire Ins. Co., 1999-3479 (La.6/30/00), 764 So.2d 41.

However, I am bound by the previous ruling of this Circuit, and, therefore, must concur in the result.

|! JONES, J.,

dissents with reasons.

I disagree with the majority opinion finding venue to be improper as to the defendant insurance companies.

The law of the case doctrine is inapplicable, and it should not be followed. Particularly in the matter sub judice, we should have exercised our discretion in order to prevent palpable error or manifest injustice.

The issues involved in our January 30, 2002, decision in the Bertucci writ application are identical to those presented in this appeal. However, the Bertucci writ application focused on the denial of venue based on the failure of the Appellees to plead a defendant class, and that ancillary venue was improper because:

... no one plaintiff has asserted claims against all of the defendant-insurers, nor for obvious reasons could they, and it is difficult to identify ‘common or identical questions of fact’ with regard to the various insurers in the present circumstance. Furthermore, no single plaintiff possesses a cause of action for damages against two defendants, which arises from a successive set of facts that would be split between two venues.

Bertucci, 2001-2177, p. 7 (La.App. 4 Cir. 1/30/02), 809 So.2d 494, 498.

| ¡.However, the district court provided sufficient reasoning as to why venue was proper in this instance, which forms the basis of my dissent.

There are pertinent points made by the district court which cannot be disregarded, nor can they be found to be manifestly erroneous. First, the district court determined that:

... it must first consider the defendants’ exceptions of venue before proceeding to address the remainder of the exceptions and motions and before turning to any other issues raised in the class action suit. The court cannot defer the decision on [sic] venue exception until class certification or any other issue. Garrison v.s.[sic] Blood Center for South Louisiana, 2001-C-0302 (La.App. 4th Cir. 4/13/01), writ denied, 2001-1051, (La. 6/29/01 2001), 794 So.2d 811 [sic]. Further, according to the concurring decision of Judge Plotkin in the Garrison ease, the trial court must assume that class certification is proper for the limited purpose of considering the venue exception, citing Cacamo v. Liberty Mutual Fire Insurance Co., 764 So.2d 41 (La.2000).

The Bertucci writ application found that a defendant class was not sufficiently pled ' based upon the language of the petition, which states in pertinent part:

VI.
In addition to the individual defendants named herein, there is a class of insurance companies who are licensed to write policies of insurance in the State of Louisiana who in fact did issue policies of insurance to members of the proposed class of plaintiffs covering damages sustained to their property (ies) [sic] as a result of a hail storm of January 23, 2000. Moreover these same insurance companies did either fail to properly adjust or did unfairly and/or inadequately adjust the property damage claims of the proposed class of plaintiffs, all contrary and in breach to said policies of insurance.
VII.
The aforesaid defendants and the class of unnamed defendants are liable to plaintiffs severally for such damages as are reasonable in the premises.

IsThe district court reasoned, and I agree, that the petition, although poorly crafted, referenced an unnamed defendant class, and additionally suggested that the unnamed defendant class was liable along with the named defendants. This formed a sufficient basis for the district court to make a decision on venue with the presumption of the existence of a defendant class. The district court further noted that:

[e]ven taken together with all of its arguable shortcomings and claimed lack of artful drafting, this court, nevertheless, concludes the plaintiffs petition successfully set forth a claim against a defendant class of insurance companies on the cause of action stated therein and as they have a legal right to do so. When a plaintiff class is pleaded and is objected to on venue grounds, our courts are required to assume, for the limited purposes of deciding the venue issue, that the class certification is proper, Cacamo, supra and Garrison, supra. There appears to be no legal justification to distinguish the defendant class from that rule, when as here, the court determines that the allegations made in the petition are sufficient to state a recognizable cause of action against the defendant class.

Clearly, the district court determined that a defendant class existed for the limited purposes of determining venue, which is consistent with the law on venue. The district court did not have the leisure of making a determination as to the defendant class any further than it did prior to a venue determination.

In its determination of venue in this case, the district court further noted that:

The Louisiana Supreme Court in Caca-mo reversed a decision of the 4th Circuit and specifically held that those plaintiffs in a class action case could establish venue against foreign insurance companies, (notwithstanding home-based provisions of Article 42(7) which would have provided for venue in East Baton Rouge Parish and against domestic insurance companies, notwithstanding the home-based provisions of Article 42(2) which would have provided for venue in their registered offices) as an available supplementary venue under Article 76 (authorizing venue on an action on an insurance policy in the parishes where the loss occurred or where the insured is domiciled) and/or Article 76.1 (authorizing venue in an action on a contract in the parishes where the contract [4was executed or any work was performed or to be performed). In either or both instances, according to the Supreme Court in Cacamo, these provisions of the law or laws authorizing the supplementary venue are not to be strictly construed, since they are in part and parcel of the general venue rules in Article 43.

Based on this reasoning, the district court did not err in finding venue to be proper. Once the district court presumed that the defendant class existed, the district court had the latitude to invoke supplementary venue provisions pursuant to Cacamo.

The district court indicated in its Reasons for Judgment that ancillary venue may be appropriate in this case. The doctrine of ancillary venue as described in Underwood v. Lane Memorial Hospital, 97-1997, (La.7/8/98), 714 So.2d 715, 719 is as follows: “Ancillary venue applies when separate claims involving common or identical questions of fact share no common venue. The concept of ancillary venue allows such claims to be tried together for reasons of judicial economy and efficiency, even though venue is not proper technically for one claim or one party.”

Under the particular facts and circumstances of this case, ancillary venue is improper. Pursuant to Underwood, the basic premise of ancillary venue is that if A sues B, and A sues C, then venue that is proper as to B is also proper as to C. In this case, although involving one storm, the parties are apportioned as A vs. B, C vs. D, and E vs. F. Therefore, Underwood is not applicable. Thus, I am in agreement with the opinion of the majority and the Bertucci writ panel as it relates to ancillary venue.

However, the Appellees have demonstrated palpable error in our earlier decision, and application of the law of the case doctrine would result in manifest injustice.

      . The relators in the Bertucci writ were Liberty Mutual Insurance Company, Liberty Mutual Fire Insurance Company, St. Paul Guardian Insurance Company, St. Paul Insurance Company, and Audubon Insurance Company.

      . Those Certain Underwriters at Lloyd’s, London ("Certain Underwriters") state in their brief to this court that the facts relevant to its appeal are identical to those relevant to the Bertucci writ except that it did issue policies of insurance to two named plaintiffs. They point out, however, that neither of those plaintiffs are domiciled in St. Bernard Parish and that none of the alleged losses suffered by those plaintiffs occurred in St. Bernard Parish. Consequently, Certain Underwriters assert that its appeal and the Bertucci writ are identical in all pertinent respects. We agree.

      .A proposal to overrule this Court's previous decision in 2001-2177 and 2001-2224, 809 So.2d 494 was circulated en banc by this panel. A majority of the judges of this Court voted not to overrule that previous decision. Therefore, it is dispositive of the instant appeal.


author: GUIDRY, J.

text:
    Suzanne Samuel BOOTH; Thomas Norris Samuel, III; Warren Guy Samuel and Jonathan Smith Samuel v. MADISON RIVER COMMUNICATIONS, INC.
    No. 2002 CA 0288.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Rehearing Denied Sept. 4, 2003.

      Eugene A. Booth, Baton Rouge, Counsel for Plaintiffs/Appellees Suzanne Samuel Booth, Thomas Norris Samuel, III, Warren Guy Samuel, and Jonathan Smith Samuel.
    Walter C. Dunn, Monroe, Counsel for Defendant/Appellant Madison River Communications, L.L.C.
    Thomas C. McKowen, Baton Rouge, Counsel for Intervenors/Appellees Lynn Joseph Aldridge, Jr. and Carolyn Joyce Aldridge.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

In this trespass action, appellant, Madison River Communications, L.L.C. (Madison River), appeals the trial court’s judgment in favor of appellees, Suzanne Samuel Booth, Thomas Norris Samuel III, Warren Guy Samuel, Jonathan Smith Samuel, (collectively “Samuels”) Lynn Joseph Aldridge Jr., and Carolyn Joyce Al-dridge (collectively “Aldridges”). For the reasons that follow, we reverse in part, amend in part, and affirm in part as amended.

FACTS AND PROCEDURAL HISTORY

The instant controversy involves a fifty-foot wide tract of land located between U.S. Highway 61 and a parallel running railroad track to its west. Madison River applied for a permit from the Louisiana Department of Transportation and Development (DOTD) to lay fiber optic cable in DOTD’s right of way between U.S. Highway 61 and the railroad track. DOTD granted the permit to Madison River to lay its cable in the most westerly five to six feet of the highway right of way, which westerly boundary was marked with DOTD concrete markers.

Madison River’s installation process began in January 2000, and was completed in the summer of 2000. Sometime thereafter, Guy Samuel contacted Madison River to inform it that it laid the fiber optic cable and conduit on property owned by the Samuels. After several attempts by the Samuels to contact Madison River, the Samuels filed a petition for preliminary injunction, permanent injunction, and damages on December 29, 2000. On May 21, 2001, a hearing on the rule for preliminary injunction was held, whereupon counsel informed the court that the rule was obviated upon stipulation of counsel, and the matter would proceed via ordinary process.

| ^Thereafter, on August 15, 2001, the Aldridges filed a petition of intervention, asserting that they are the owners of property to the north of and adjacent to the property at issue in the instant litigation: As such, the Aldridges sought an order directing Madison River to remove its communication transmission system and restore the property to its original condition. Additionally, they sought damages for invasion, trespass, destruction of property, and resulting mental anguish.

A trial was held on November 7, 2001. In a judgment signed on November 28, 2001, the trial court found in favor of the Samuels and the Aldridges. The trial court further awarded the Samuels $90,000.00 in damages and $12,080.00 in attorney’s fees. Additionally, the Aldridg-es were awarded $9,000.00 in damages and $8,000.00 in attorney’s fees.

ASSIGNMENTS OF ERROR

On appeal from the trial court’s judgment, Madison River does not dispute its liability for trespass, but rather, confines its alleged errors to the issues of damages and attorney’s fees. In particular, Madison River asserts the following assignments of error:

1. The trial court’s awards of general damages for trespass to plaintiffs and intervenors in the sums of $90,000 and $9,000, respectively, are so excessive that they constitute manifest error and are a clear abuse of the trial court’s discretion.
2. The trial court erred in allowing plaintiffs and intervenors to introduce into evidence a copy of a letter ... from Madison River’s counsel to plaintiffs’ offering to pay $5,000 for a thirty day continuance of plaintiffs’ rule for preliminary injunction.
3. The trial court’s awards of attorney[’]s fees to plaintiffs and interve-nors are contrary to law.

^DISCUSSION

Damages

In an action for trespass, it is incumbent upon the plaintiff to show damages based on the result or consequence of an injury flowing from the act of trespass. Harrington v. Abshire, 98-1651, 98-1652, p. 8 (La.App. 3rd Cir.3/31/99), 732 So.2d 677, 682. The damages must be proved by a preponderance of the evidence, and this burden may be met by either direct or circumstantial evidence. Harrington v. Abshire, 98-1651, 98-1652 at 8, 732 So.2d at 682.

In Britt Builders, Inc. v. Brister, 618 So.2d 899, 903 (La.App. 1st Cir.1993), we previously outlined the damages to which a plaintiff in a trespass action is entitled:

A person injured by trespass is entitled to full indemnification for the damages caused. Where there is a legal right to recovery, but the damages cannot be exactly estimated, the courts have reasonable discretion to assess same based upon all of the facts and circumstances. Damages are recoverable even thought the tort-feasor acts in good faith.
Damages for dispossession are regarded as an award of compensatory damages for violation of a recognized property right and are not confined to proof of actual pecuniary loss. Anguish, humiliation, and embarrassment are appropriate considerations. Damages are recoverable for unconsented activities performed on the property of another, based on physical property damage, invasion of privacy, inconvenience, and mental and physical suffering. [Citations omitted.]

With regard to the amount of damages to be assessed against a trespasser, both for the invasion of the plaintiffs’ property right and the resulting mental anguish, humiliation, and embarrassment, the trial court is afforded much discretion. Beasley v. Mouton, 408 So.2d 446, 448 (La.App, 1st Cir.1981). The role of an appellate court in reviewing damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. It is only when the damage award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the | particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

In the instant case, the trial court issued lump sum damage awards to both the Samuels and the Aldridges. When such is the case, it is presumed that the judgment awards all the items of damage claimed. Prince v. Mattalino, 583 So.2d 541, 543 (La.App. 3rd Cir.1991). However, based on the record before us, we find that the trial court clearly abused its discretion in awarding $90,000.00 and $9,000.00 in damages to the Samuels and Aldridges, respectively.

It is unclear, from the record currently before us, how the trial court arrived at these figures. Madison River asserts, on appeal, that a letter sent by it to the Samuels, offering to pay $5,000.00 if the Samuels would agree to a thirty-day continuance, was wrongly admitted into evidence by the trial court, and that this offering formed the basis of the trial court’s determination of damages. Because the trial court did not issue any reasons for judgment, we cannot say that this letter formed the basis of the trial court’s decision on the damages issue. However, we agree that the trial court clearly abused its discretion in allowing this letter into evidence as support of damages suffered by the plaintiffs. While possibly relevant to the issue of ownership, a one time offering for a rental payment is not relevant to the issue of trespass damages suffered by either the Samuels or the Aldridges and therefore, the trial court erred in allowing this evidence to be admitted.

In determining that the trial court abused its discretion in awarding the above sums of damages, we begin by noting that there is no evidence in the record as to physical property damage for which the Samuels and Aldridges should be awarded damages. Mr. Richard Dour, the project engineer in charge of the cable installation on the Samuels’ and the Al-dridges’ property, stated that all of the cable | fiand conduit was removed as of July 14, 2001. Mr. Dour further stated that the condition of the property, as of the date of trial, was the same as it was prior to the construction. Therefore, the Samuels and the Aldridges are not entitled to any damages for physical damage to their property, as that item of damage was rendered moot by Madison Rivers’ removal of the conduit and restoration of the property.

Additionally, the record is devoid of any evidence as to any mental anguish suffered by the Samuels or the Aldridges. Neither Guy Samuel nor Joseph Aldridge testified as to any mental anguish suffered by them, or by any of the other parties, as a result of Madison River’s trespass on to their property. Therefore, we find that any damages awarded must have been for inconvenience and/or invasion of privacy. As such, based on the record before us, we find that the highest amount of damages that can be awarded to the Samuels and the Aldridges is $1,500.00 and $750.00 respectively. See Beasley v. Mouton, 408 So.2d at 449; Namie v. State, Department of Highways, 353 So.2d 1095, 1099 (La. App. 2nd Cir.1977), writ denied, 355 So.2d 264 (La.1978); Lowe v. Jones, 519 So.2d 379, 383 (La.App. 2nd Cir.), writ denied, 522 So.2d 1097 (La.1988). Further, because the Samuels collectively owned a one third interest in the property at issue, we reduce the $1,500.00 award by one third, to reflect their interest in the property. See Reitzell v. Spooner, 505 So.2d 829, 831 (La.App. 2nd Cir.), writ denied, 507 So.2d 227 (La.1987).

Attorney’s Fees

As a general rule, it is well settled that attorney’s fees are not allowed except when authorized by statute or contract. Koch v. Louisiana Power & Light Company, 298 So.2d 124, 129 (La.App. 1st Cir.), writ denied, 302 So.2d 17 (La.1974). The record contains no evidence that the Samuels or the Aldridges entered into a contract with Madison River, providing for attorney’s fees, nor is there a|7statute that allows for recovery of attorney’s fees in circumstances such as these. Therefore, we find the court abused its discretion in awarding $12,080.00 and $3,000.00 in attorney’s fees to the Samuels and the Aldridg-es, respectively.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s judgment to the extent that it granted attorney’s fees to the Sam-uels and the Aldridges. We amend the remainder of the trial court’s judgment, reducing the amount of damages awarded to the Samuels and the Aldridges to $1,500.00 and $750.00, respectively. All costs of this appeal are to be borne equally by the appellees half assessed to Suzanne Samuel Booth, Thomas Norris Samuel, III, Warren Guy Samuel, and Jonathan Smith Samuel; and half assessed to Lynn Joseph Aldridge and Carolyn Joyce Aldridge.

REVERSED IN PART, AMENDED IN PART, AFFIRMED IN PART AS AMENDED.

      . The Samuels sought damages for invasion, trespass, destruction of property, and resulting mental anguish.

      . In brief, the parties address expropriation laws and the jurisprudence construing those laws to provide for attorney's fees. However, the instant case was one for trespass, not inverse condemnation. Therefore, we find these arguments to be inapplicable to the facts as contained in the record before us.


author: I «McCLENDON. J.

text:
    James L. DAGGS v. Bobby MARTIN & Gulf Inland Contractors, Inc.
    No. 2002 CA 1799.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Rehearing Denied Aug. 25, 2003.

      Joseph L. Waitz, Houma, Counsel for Plaintiff/Appellant James L. Daggs.
    Daniel Caruso, New Orleans, Counsel for Defendant/Appellee Gulf/Inland Contractors, Inc.
    Before: FOIL, McCLENDON, and KLINE, J.J.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   I «McCLENDON. J.

On appeal in this admiralty case brought pursuant to 33 U.S.C.A. § 905(b), the plaintiff challenges the dismissal of his action for damages based on a holding that his injuries were due to vessel negligence rather than employer negligence. For the following reasons, we affirm.

Gulf/Inland Contractors, Inc. is in the business of constructing offshore well jackets, platforms and similar structures. On June 30, 1998, it began construction of a fixed platform for Castex Oil Company in the Lake Pagic Field in inland Louisiana waters. In constructing the platform, Gulfilnland used a spud barge that it owned, which was towed to the job site. It also employed a construction crew that arrived at the site by crewboat and went home each night. GulfiTnland employed Bobby Martin as supervisor of the job and James L. Daggs as a roustabout.

On July 9, 1998, the day of the accident, the barge was spudded down at an angle near the platform. One corner of the barge was approximately four inches from the platform (hereinafter referred to as the “near corner”), while the adjacent corner was a greater distance from the platform (hereinafter referred to as the “far corner”). At the far corner of the barge, there was no gangway between the barge and the platform and no netting beneath the area. At the time of the accident, Daggs was standing in a skiff under the platform, attaching a one-inch pipe to the side of the platform, when Martin stepped from the barge to the platform at the far corner carrying a pipe jack. As Martin traversed the area part of the pipe jack fell, striking Daggs’s hard hat and hand, resulting in injuries to Daggs.

On April 15, 1999, Daggs filed a petition for damages pursuant to 38 U.S.C.A. § 905(b), the vessel negligence provision of the Longshore and Harbor Workers’ Compensation Act, against Gulfilnland and Martin, | ¡¡asserting total and permanent disability and seeking damages. After hearing the matter, the trial court rendered judgment, dismissing the plaintiffs claim for damages resulting from vessel negligence with prejudice. Daggs appeals, contending the trial court erred in finding that employer negligence, rather than vessel negligence, caused his injuries.

Section 905(b) of the Longshoremen and Harbor Worker’s Compensation Act provides a statutory negligence action against a ship owner by a longshoreman who sustains injuries during employment aboard its vessel. In Scindia Steam Navigation Co. Ltd. v. De Los Santos, 451 U.S. 156, 175-176, 101 S.Ct. 1614, 1626-27, 68 L.Ed.2d 1 (1981), the Supreme Court articulated the scope of a vessel owner’s duties as follows: (1) to warn the longshoremen of hidden defects that would be known to the ship owner in the exercise of reasonable care and to deliver to the stevedore a safe ship with respect to gear, equipment, tools, and work space; (2) to avoid exposing the longshoremen to harm from hazards under the control of the vessel; and (3) to intervene in the stevedoring process if it knows that a hazard exists that presents an unreasonable risk of harm to the longshoremen, and to eliminate or neutralize the hazard. See also Bergeron v. Main Iron Works, Inc., 563 So.2d 954, 957 (La. App. 1 Cir.1990), writs denied, 569 So.2d 960, 965 (La.1990). The vessel owner is otherwise entitled to rely on the stevedore to perform its operations adequately and is under no obligation to discover that the stevedore is acting improvidently. Scindia Steam Navigation Co. Ltd. v. De Los Santos, 451 U.S. 156, 170, 101 S.Ct. 1614, 1623, 68 L.Ed.2d 1 (1981).

Herein, Gulf/Inland acted in a dual capacity, as the vessel owner and as the plaintiffs employer. Therefore, although it retains its immunity for acts taken in its capacity as an employer, it can be sued for acts of vessel |4negligence. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 531-32, 103 S.Ct. 2541, 2548, 76 L.Ed.2d 768 (1983); Orgeron v. Avondale Shipyards, Inc., 561 So.2d 38, 41 (La.1990), cert. denied, 498 U.S. 818, 111 S.Ct. 62, 112 L.Ed.2d 36 (1990). When the employer of an injured harbor worker is also the owner of the vessel and is sued under Section 905(b) for vessel negligence, the court’s task is to analyze the allegedly negligent conduct to determine whether the conduct was performed in the course of the operation of the owner’s vessel, as a vessel, or whether the conduct was performed in furtherance of the employer’s harborworker operations. Gravatt v. City of New York, 226 F.3d 108, 125 (2 Cir.2000), cert. denied, 532 U.S. 957, 121 S.Ct. 1485, 149 L.Ed.2d 373 (2001).

The application of Scindia to the present facts leads to the conclusion that Gulf/Inland was negligent in its capacity as an employer, not in its capacity as a vessel owner. The task of the barge was to transport materials to the job site. The task of the construction crew was to construct the platform; this task included transporting the pipe jack from the barge to the platform. The performance of the construction work was separate and apart from the work of the vessel. There is no evidence in the record that the barge or anyone present at the site was engaged in vessel duties at the time of the accident.

Additionally, the record reflects that the near corner of the barge was within four inches of the platform and provided an avenue of safe ingress and egress. There is no evidence in the record that the far corner, where the distance was much greater, was used, other than on this one occasion, to |Kreach the platform. Rather, it is undisputed that the crew regularly used the near comer for ingress and egress. Daggs’s injuries were caused by Martin’s action in carrying the pipe jack from the barge to the platform at the far end of the barge, rather than using the point of ingress and egress where the barge and the platform nearly touched. Clearly, in attempting to reach the platform at this location, Martin was acting solely in his capacity as the supervisor of the job and was not engaged in a vessel-related activity.

Furthermore, any knowledge of a dangerous condition or of any improvident acts on behalf of Gulf/Inland in its role as stevedore cannot be imputed to Gulf/Inland in its capacity as a vessel owner. To impute this knowledge to the vessel owner would effectively eliminate the provision of Sections 905(b) that provides that this remedy is exclusive of all other remedies, by allowing a vessel owner to be held liable in tort for damages arising from its negligence as a stevedore. Castorina v. Lykes Bros. S.S. Co., Inc., 758 F.2d 1025, 1033, (5 Cir.1985), cert. denied, 474 U.S. 846, 106 S.Ct. 137, 88 L.Ed.2d 113 (1985); Holmes v. Daybrook Fisheries, Inc., 98-1824, p. 4-5, (La.App. 4 Cir. 2/24/99), 730 So.2d 1006. For these reasons, we find no error in the trial court’s determination that Gulf/Inland was not negligent in its capacity as a vessel owner.

Accordingly, the judgment of the trial court is affirmed. Costs are assessed against James L. Daggs.

AFFIRMED.

      . The trial court determined that the distance at the far comer was approximately two and one-half feet. Daggs strenuously argues that this factual determination was manifestly erroneous. This case does not turn on this factual determination as the near corner of the barge was the intended point of ingress and egress. Furthermore, there is no manifest error in this factual determination of the trial court. With respect to the distance between the barge and the platform, the parties presented various factual scenarios, requiring a factual determination by the trier of fact. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).


text:
    William ALCORN v. CITY OF BATON ROUGE, through the Baton Rouge Police Department. Albert Burns v. City of Baton Rouge, through the Baton Rouge Police Department.
    Nos. 2002 CA 0952, 2002 CA 0953.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Rehearing Denied Aug. 25, 2003.

      Jill L. Craft, Baton Rouge, Counsel for Plaintiffs/Appellees, William Alcorn and Albert Burns.
    Arlene C. Edwards, Baton Rouge, Counsel for Defendant/Appellant, City of Baton Rouge, through The Baton Rouge Police Department.
    Before: FOIL, McCLENDON and KLINE , JJ.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   McCLENDON, J.

This case involves allegations of workplace racism directed at two African-American police officers employed by the Baton Rouge Police Department. By virtue of this appeal, the City of Baton Rouge, through the Baton Rouge Police Department (hereinafter “the City”) contests a judgment awarding damages to said retired police officers for claims of racial discrimination, racial harassment and unlawful retaliation. For the following reasons, we reverse in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

Albert Burns, Sr., an African-American male, joined the Baton Rouge Police Department as a police officer in 1972 and retired in 1998. He filed suit against the City on October 9, 1996, alleging age discrimination, race discrimination and racial harassment.

In 1973, William Duplessis Alcorn, Jr., an African-American male, joined the Baton Rouge Police Department as a police officer. Mr. Alcorn retired in 1993 due to disability. Mr. Alcorn sued the City on September 24, 1996, alleging age and race discrimination, as well as racial harassment. Additionally, Mr. Alcorn alleged unlawful retaliation.

The suits were consolidated for trial. On May 13, 1999, the City filed a motion for summary judgment, asserting the claims were prescribed. The trial court granted the motion and rendered judgment, dismissing both plaintiffs’ claims in their entirety. The plaintiffs appealed that judgment. On appeal, this court affirmed the dismissal of the claims of age discrimination, determined that summary judgment was inappropriate as to the claim of retaliation and the claims of racial discrimination and harassment, and | ¡¿remanded the case for trial of those issues. Alcorn v. City of Baton Rouge c/w Burns v. City of Baton Rouge, 99-2464, 99-2465 (La.App. 1 Cir. 11/3/00) (unpublished opinion).

The matter was tried before a jury on January 7-14, 2002. After trial, the jury entered a verdict in favor of the plaintiffs. The trial court rendered judgment in accordance with that verdict, awarding Mr. Alcorn $300,000 for race-based harassment, $200,000 for racial discrimination, and $50,000 for unlawful retaliation. It further rendered judgment in favor of Mr. Burns in the sums of $300,000 for race-based harassment and $200,000 for racial discrimination. The City appeals.

PRESCRIPTION

On appeal, the City asserts that the plaintiffs’ claims of racial harassment and discrimination have prescribed. However, the City did not file an exception of prescription in the trial court or in this court. See LSA-C.C.P. arts. 927, 928 B, and 2163. Rather, it filed a motion for summary judgment prior to the commencement of trial, asserting therein that the matters before the trial court had prescribed. From a judgment granting the motion and dismissing the plaintiffs’ claims in their entirety, the plaintiffs appealed. This court affirmed the dismissal of the plaintiffs’ claims of age discrimination, reversed the dismissal of the plaintiffs’ remaining claims, and remanded the case for trial of the remaining claims. Alcorn v. City of Baton Rouge c/w Burns v. City of Baton Rouge, 99-2464, 99-2465 (La.App. 1 Cir. 11/3/00) (unpublished opinion). The City did not seek review of our decision at the Louisiana Supreme Court. The unsuccessful Rassertion that the claims of racial discrimination, harassment and retaliation were untimely as grounds for seeking a summary judgment prior to the trial on the merits does not provide a procedural vehicle for appellate review of the issue of prescription on the entire record, an issue not considered by the trial court.

Furthermore, assigning as error on appeal that the actions have prescribed is also insufficient to raise the issue, which must be presented in a formal pleading. LaBove v. Resource Transp. Co., 625 So.2d 583, 587 (La.App. 3 Cir.1993). Therefore, the defendant failed to properly raise an exception of prescription either before the trial court or before this court. For these reasons, we do not reach the issue of prescription.

JURY CHARGES AND VERDICT FORM

The jury awarded each plaintiff damages for his claim of discrimination. On appeal, the City asserts that parts of the jury instructions and the jury interrogatories inaccurately present the claim of discrimination to the jury. At issue is the following excerpt from the jury instructions:

To prevail on a claim for discrimination, each plaintiff must prove that: 1) he was denied promotional opportunities, or opportunities for advancement, and/or was excluded from training, and 2) race was a motivating factor in the employer’s decision to deny those opportunities.
If you find that the plaintiffs have proved each of these elements in support of their claims, you will then consider whether the defendant has shown by a preponderance of the evidence that the plaintiffs would not have been promoted or given additional training for other reasons apart from the plaintiffs’ race. An employer may fail to promote and deny training to an employee for any reason, good or bad, in its business judgment as long as the decision was made without a discriminatory motive.
If you find that the defendant has proved by a preponderance of the evidence that it had a non-discriminatory explanation for its decision, you will then consider whether the plaintiff has shown by a preponderance | Rof the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. If you do not believe the reasons put forth by the defendant, you are permitted, but not compelled, to infer that the defendant’s actions constituted intentional discrimination. If you find the defendant’s explanation to be false, you may reasonably infer that it is attempting to cover up a discriminatory purpose and may find the defendant hable to Mr. Alcorn and/or Mr. Burns for discrimination.

The portions of the verdict form at issue with respect to both Mr. Burns and Mr. Alcorn also concern their claims of discrimination. In all essential aspects, the questions and answers are identical in both sets of questions. Therefore, we will include only one set of the pertinent questions in this opinion. The pertinent parts of the jury verdict form provide:

B. DISCRIMINATION

8. Was Mr. Alcorn denied promotional opportunities, or opportunities for advancement, and/or was he excluded from training?
YES XXX (12-0) NO
(If your answer was “YES”, proceed to Question 9 If your answer was “NO”, skip to Question 11)
9. Was Mr. Alcorn’s race a motivating or determinative factor that prompted the Baton Rouge Police Department to take action?
YES XXX (12-0) NO
(If your answer is “YES”, proceed to Question 10 If your answer is “NO”, skip to Question 11)
10. What amount, if any, will fairly compensate Mr. Alcorn for damages resulting from racial discrimination? $200,00.00

The City avers that the jury instructions constitutes plain error as they erroneously characterize the plaintiffs’ allegations of discrimination as claims for the denial of promotional opportunities and the exclusion of training, without stating that such are not necessarily actionable under Title VII as tangible employment actions and that the employer may provide a legitimate reason for the denials, which if not found to be pretextual, |fiabsolves them from liability. The City also asserts that the jury interrogatories form erroneously failed to provide the jury with a question concerning pretext.

It is undisputed that the City did not object to the jury instruction or to the jury interrogatories at trial. It is well settled that a party cannot claim improper jury charges as error where he fails to timely object to the charges. LSA-C.C.P. art. 1793; Levet v. Calais & Sons, Inc., 514 So.2d 153, 156-7 (La.App. 5 Cir.1987). This rule applies to jury interrogatories. State, Dept. of Transp. and Dev. v. McMillion Dozer Serv., Inc., 93-590, p. 3 (La. App. 5 Cir. 5/31/94), 639 So.2d 766, 768, writs denied, 94-2345, 94-2348 (La.11/29/94), 646 So.2d 399; Keith v. Gallioto, 592 So.2d 510, 512 (La.App. 5 Cir. 1991). Therefore, in most circumstances, the City would be procedurally barred from appellate review of said jury instructions and interrogatories.

However, courts have held that where the jury instructions or interrogatories contain a “plain and fundamental” error, the contemporaneous objection requirement is relaxed and appellate review is not prohibited. Berg v. Zummo, 00-1699, p. 13 (La.4/25/01), 786 So.2d 708, 716 n. 5; Trans-Global Alloy Ltd. v. First Nat’l Bank, 583 So.2d 443, 448 (La.1991). The adequacy of the instruction “must be determined in light of the instruction as a whole.” Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1554, p. 36 (La.App. 1 Cir. 3/11/94), 634 So.2d 466, 488, writ denied, 94-0906 (La.6/17/94), 638 So.2d 1094. Jury charges will be considered adequate on appeal if they fairly and reasonably identify the issues and provide correct principles of law. Johnson v. Terrebonne Parish Sheriff's Office, 95-1180, p. 7 (La.App. 1 Cir. 2/23/96), 669 So.2d 577, 582, writ denied, 96-0727 (La.4/26/96), 672 So.2d 907. A jury verdict |7shall not be set aside because of an incorrect jury instruction absent a showing of prejudice such that the jury was misled and was unable to render a just verdict. Hanley v. Doctors Hosp. of Shreveport, 35,527, p. 21 (La.App. 2 Cir. 6/6/02), 821 So.2d 508, 523.

Assuming arguendo that the City’s objections to the jury instructions and interrogatories were not barred, it has failed to show that they were so erroneous and prejudicial as to justify a de novo review on this case. The standard of proof required for a claim of race-based discrimination is whether race was a motivating factor in an employer’s decision to deny promotion opportunities, to deny opportunities for advancement, or to exclude from training. On appeal, the City asserts solely that the verdict form did not include a question regarding “legitimate reasons” for the City’s actions. However, the trial court, in its jury instructions, stated that if the defendant proved the plaintiffs would not have been promoted or given training for reasons apart from the plaintiffs’ race, the jury could reject the plaintiffs’ discrimination claims. The trial court also instructed the jury on a finding of a non-diseriminatory explanation for its decision and the plaintiffs’ showing of pretext, as well as the inference of discriminatory intent. Therefore, we find that the City failed to show that the instructions given and the verdict form used constituted “plain and fundamental” error requiring the relaxation of the requirements of LSA-C.C.P. art. 1793.

EVIDENTIARY MATTERS

On appeal, the City asserts that the trial court erred in excluding evidence of the 1988 policy of the City regarding race-based harassment and in including the testimony of two plaintiffs’ witnesses, Moses Evans, Sr. and Moses Evans, Jr. Article 103(A) of the Louisiana Code of Evidence governs evidentiary rulings and provides, in pertinent part, that “[e]rror may not be |spredicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” The proper inquiry for determining whether a party was prejudiced by a trial court’s alleged erroneous ruling is whether the alleged error, when compared to the entire record, had a “substantial effect” on the outcome of the case. If the effect of the outcome of the case is not substantial, reversal is not warranted. Emery v. Owens-Corporation, 00-2144, p. 7 (La.App. 1 Cir. 11/9/01), 813 So.2d 441, 449, writ denied, 02-0635 (La.5/10/02), 815 So.2d 842. A reviewing court is prohibited from reversing a harmless error. Preatto v. Tidewater Marine, Inc., 00-0624, p. 11 (La. App. 4 Cir. 2/6/02), 809 So.2d 1084, 1091, writ denied, 02-0678 (La.5/3/02), 815 So.2d 822. The burden of proof lies with the defendant. Emery v. Owens-Corporation, 00-2144, p. 7 (La.App. 1 Cir. 11/9/01), 813 So.2d 441, 449.

a. Exclusion of evidence regarding the 1988 policy of the City prohibiting racial harassment

During discovery, the City provided the plaintiffs with its 1994 policy regarding race-based harassment. The trial began on January 7, 2002 at 1:30 p.m. The following day, the City sought to introduce its 1988 policy prohibiting race-based harassment, asserting that it was inadvertently omitted from its pretrial order. The trial court refused to allow the policy to be admitted. On appeal, the City contends the trial court erred in not allowing it to introduce evidence of the 1988 policy or question the plaintiffs regarding said policy.

At trial, various witnesses attested to the fact that a policy prohibiting race-based harassment and setting forth a mechanism for addressing those issues existed prior to the 1994 policy. Hence, without reaching the issue of the admissibility of the 1988 policy, we conclude that any error the trial | ¡¡court may have committed in excluding the 1988 policy was harmless. Therefore, the trial court’s refusal to admit the 1988 policy, if in error, is insufficient to warrant interdiction of the jury’s verdict.

b. Inclusion of the testimony of Moses Evans, Sr. and Moses Evans, Jr.

Moses Evans, Sr. and Moses Evans, Jr., both past Baton Rouge police officers, testified on behalf of the plaintiffs, providing examples of racial discrimination and harassment each allegedly experienced while employed by the City. On appeal, the City avers that the trial court erred in allowing such evidence in support of the plaintiffs’ claims as the evidence did not concern similarly situated employees in nearly identical circumstances, citing Wyvill v. United Companies Life Ins. Co., 212 F.3d 296 (5th Cir.2000), cert. denied, 531 U.S. 1145, 121 S.Ct. 1081, 148 L.Ed.2d 957 (2001).

Based on our review of the record, we find that the testimony of these witnesses regarding their experiences did not have a substantial effect on the outcome of the case. In the record, there is ample evidence to support the jury’s verdict without consideration of this testimony. Therefore, we reject the City’s contention that this evidence was “highly prejudicial.” Rather, the testimony of the Evanses merely corroborated the plaintiffs’ testimony regarding a racially hostile environment and race-based discrimination. We find that any error in admitting this testimony was harmless and, therefore, is insufficient to warrant interdiction of the jury’s verdict.

THE CITY’S LIABILITY TO MR. ALCORN FOR UNLAWFUL RETALIATION

In his petition, Mr. Alcorn alleged that the City retaliated against him for filing a claim with the EEOC in two ways: 1) he was denied a promotion to the position of head of the Internal Affairs Division; and 2) his pay was docked for participating in a deposition associated with this litigation. The |! (jury awarded him $50,000 for unlawful retaliation. On appeal, the City contends the evidence does not support the jury’s finding that Mr. Alcorn suffered any action in retaliation for filing his EEOC claim.

The Anti-Retaliation Provision of Title VII makes it unlawful for a employer to discriminate against any employee because the employee engaged in protected activity. 42 U.S.C. § 2000e-3(a). To establish a prima facie case for retaliation, the plaintiff must prove by a preponderance of the evidence that: (1) he engaged in an activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse employment action. Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 298 (5th Cir.1994), citing Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir.1992). The filing of a charge of discrimination with the EEOC is a protected activity. 42 U.S.C. § 2000e-3(a). Adverse employment actions include “hiring, granting leave, discharging, promoting, and compensating.” Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.1997). Once the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant to articulate a legitimate, non-retaliatory reason for the adverse employment action. Long v. Eastfield College, 88 F.3d 300, 305 (5th Cir.1996). If the defendant introduces evidence that, if true, would permit the conclusion that the adverse action was non-discriminatory, the employee assumes the burden of proving that the reasons given were a pretext for retaliation. The plaintiff must show that “but for” the protected activity, the termination would not have occurred. McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir.1983); Hanley v. Doctors Hosp. of Shreveport, 35,527, p. 14 (La.App. 2 Cir. 6/6/02), 821 So.2d 508, 520.

lnThe first alleged retaliatory act was the docking of Mr. Acorn’s pay for participating in a deposition associated with this case. At trial, Mr. Acorn admitted that he was not the deponent, he was on duty at the time of the deposition, he did not give his supervisor a leave or vacation slip, and he failed to get his supervisor’s permission. Mr. Acorn also admitted that he was required by his employer to fill out a vacation or leave slip when on duty and taking care of personal business. Nevertheless, Mr. Alcorn testified that he believed his pay was docked in retaliation for filing this suit.

Mr. Alcorn’s supervisor, Lieutenant Bob Dickerson, testified that Mr. Alcorn was away from the office without permission in violation of the police department’s policy. Chief of Police Greg Phares testified that Mr. Alcorn was required by police department policy to obtain approval if he was going to be away from the office on personal business for an hour or longer. Therefore, although Mr. Alcorn testified that he believed his pay was docked in retaliation for filing the EEOC claim or this lawsuit, he produced no evidence to support this claim.

The second alleged retaliatory incident was the failure of the Chief of Police to appoint Mr. Alcorn to the position of head of the Internal Affairs Division after he filed a claim with the EEOC. In the early 1990’s, Lieutenant Fred Gernant, the head of the Internal Affairs Division retired, leaving his position vacant. Chief Phares considered, among others, Mr. Alcorn and Lieutenant Dickerson for the position. He appointed Lieutenant Dickerson to the position. Although Mr. Alcorn admitted that he and Lieutenant Dickerson held the same qualifications for the position, he testified that he believed he did not receive the promotion because of his pending EEOC charge.

|12Chief Phares testified that he appointed Lieutenant Dickerson because he believed that Lieutenant Dickerson would perform the functions of that job better than Mr. Alcorn. In addition, the Chief testified that Mr. Alcorn had missed a lot of work, while Lieutenant Dickerson had a good attendance record, which was necessary to the orderly functioning of this division.

The City put forth legitimate, non-retaliatory reasons for the failure to appoint Mr. Alcorn to the position of Internal Affairs commander and for the action taken regarding Mr. Alcorn’s attendance of the deposition without taking leave. Mr. Al-corn did not put forth any evidence to show that the actions would not have occurred “but for” a retaliatory motive. We conclude, therefore, that the jury erred in concluding that Mr. Alcorn experienced unlawful retaliation and will reverse the award for damages for that claim.

THE CITY’S LIABILITY TO MR. BURNS AND MR. ALCORN FOR RACE-BASED HARASSMENT

On appeal, the City challenges the jury’s determination that the plaintiffs suffered race-based harassment. To prevail on a race-based harassment claim alleging hostile working environment, the plaintiffs must prove: 1) they belong to a protected class; 2) they were subjected to unwelcome harassment; 3) the harassment complained of was based on race; 4) the harassment complained of affected a term, condition, or privilege of employment; and 5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.2002); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir.2001). Where the harassment is allegedly committed by a supervisor with immediate or successively higher authority over the harassment victim, the employee needs to satisfy only the first four elements. Furthermore, an employer may raise an affirmative defense by showing that it exercised reasonable care to prevent and promptly correct any harassing behavior and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. However, this affirmative defense is available to employers only when the supervisor’s harassment does not culminate in a tangible employment action against an employee, such as discharge, demotion, or undesirable reassignment. Faragher v. City of Boca Raton, 524 U.S. 775, 808, 118 S.Ct. 2275, 2293, 141 L.Ed.2d 662 (1998).

For harassment on the basis of race to affect a term, condition, or privilege of employment, as required to support a hostile work environment claim under Title VII, it must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). In determining whether a workplace constitutes a hostile work environment, courts must consider the following circumstances: “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993).

|ua. Mr. Alcorn’s testimony

Mr. Alcorn testified at trial as follows. He entered the police academy on February 16, 1973. At the academy, it was obvious that there were two classes of police officers, a black class and a white class. During physical training, he could outrun everyone, but he received no awards at graduation. He heard many racial slurs on the police radio, and he was always paired with a black officer for pretend combat.

Within a week of his first assignment, he heard a voice on the police radio that he did not recognize state, “There’s a bunch of niggers over here on Government Street. Send somebody over here to clear them out.” Also, there were two types of marked vehicles, units for white officers and units for black officers. He was assigned to the worst shift, 11 p.m. to 7 a.m., the entire time. White officers rotated off that shift.

He, then, transferred to the newly created burglary division. While there, unlike white officers, he was required to complete his reports after he clocked out. He stayed with the burglary unit for approximately one year and, then, transferred because his sergeant was a racist.

At a subsequent assignment, the officers were taken to the parking lot and told to line up. One officer said he was not “going to put his back to niggerville.” At that, Alcorn stepped out of line and told the sergeant that he did not appreciate that comment. The sergeant told Alcorn to leave his feelings at home. After a couple of weeks, he transferred to another station where he worked as a deskman or radioman, while all the other officers were in the field. While there, a lieutenant told Mr. Alcorn, “Alcorn, you’re not a nigger no more, you’re a Baton Rouge police officer.” He transferred again.

At one point, Mr. Alcorn was assigned to work with a white officer. The white officer told Alcorn that the only reason he was riding “with a |1Bnigger” was because he was being punished. After three days, Alcorn refused to ride with this individual because he used the word “nigger.”

Subsequently, he transferred to the Juvenile Division. The lieutenant there stated that he was not a racist and that he was very friendly with “coloreds.” Black officers were not paired with white officers. If a black officer did not come to work, his riding partner would usually be sent home rather than paired with a white officer. He applied to attend the training three times, but never attended. On one occasion, the chief of police approved his request, but a white officer went in his place.

Upon leaving the Juvenile Division in 1984, he went to Internal Affairs, where he remained for approximately eleven years. In Internal Affairs, Alcorn dealt almost daily with Deputy Chief Phillips, who was second in command. On a daily basis, Deputy Chief Phillips made some type of comment about race.

Before Lieutenant Dickerson replaced Lieutenant Gernant as head of Internal Affairs, Lieutenant Dickerson told Mr. Al-corn that he was going to be “H.N.I.C., head nigger in charge.” In the 1990’s, Chief Deputy Phillips referred to Mr. Al-corn and the other African-American officers in Internal Affairs as “coons” and “jigaboos.” Mr. Alcorn expressed dissatisfaction with this, but nothing changed. He also told Pat Englade, Chief Phares’ Chief of Staff, of Deputy Chief Phillips’ racist comments, with no result. Then, he told Chief Phares, who took no action.

Mr. Alcorn left Internal Affairs because he could not work with Lieutenant Dickerson and Deputy Chief Phillips. Prior to going to Internal Affairs, he loved his job. Also, while in Internal Affairs, Mr. Alcorn, Lieutenant Dickerson and Lieutenant Ger-nant smoked together and told |1ftjokes, some of which were about African-Americans. Mr. Alcorn admitted that he, too, told jokes about African-Americans.

Then, Mr. Alcorn transferred to Community Services as commander with nine officers reporting to him. He stayed for about one year and then, in 1997, transferred to the Fourth District as a shift lieutenant. While in Community Services and at the Fourth District, he experienced no harassment.

Next, he went to the First District as a district commander. There, he was exposed to “nigger jokes” and “racist comments.” Mr. Alcorn asked those offending officers to stop the jokes, but they did not. Mr. Alcorn reported these occurrences to his superior, but nothing happened. Mr. Alcorn left that position in 1995, because he “had had enough of the attitudes of the police department.”

While employed by the City, Mr. Alcorn also spent many years on the SWAT team. When he first joined in 1974, white officers could go to any schools they wanted to attend, but black officers only went to schools that all officers attended. After he made sergeant, he applied for the FBI Academy, but they sent a white female. The next time he applied, he was rejected. In the 1990’s, when he applied, they sent a younger officer.

While at the SWAT team’s youth camp, one SWAT team member wore a shirt with a Ku Klux Klan rider on it. Mr. Alcorn complained to his supervisor, who did nothing. He, then, complained to Lieutenant Vernice Breaux, who told the officer to take off the shirt. Members of the SWAT team also called black officers “night riders.”

After the mid-1980’s, the only occurrence was a comment made by an officer who said that he was being punished and had to ride with “niggers.” Also, he heard the word “nigger” on the police radio up until the mid-{1980’s.17 The last direct comment made to Mr. Alcorn concerning race occurred in the mid-1990’s when Deputy Chief Phillips said, “You’re going to be the H.N.I.C.” The use of racial epithetsv slurs, jargon and talk were made directly and indirectly to him throughout his entire career. Black officers also used the word “nigger” among themselves, which Mr. Al-corn found offensive.

b. Mr. Burns’ testimony

Mr. Burns testified as follows. He began working for the City as a police officer on December 7, 1972. A racial comment concerning his marriage was made to Mr. Burns when his wife dropped him off at the police academy, shortly after he began his training as a police officer. Mr. Burns complained to the training director who later told Mr. Burns that it would not happen again. Also, while moving a truck to cut the grass at the academy, the firearm instructor said, “You’re the first nigger that (sic) ever been in my truck.”

During his first three and one-half years of employment with the City, Mr. Burns worked in the narcotics and intelligence divisions. While in narcotics, an officer with higher rank used the word “nigger” in his presence. Also, racial epithets were frequently used in Mr. Burns’ presence.

Upon leaving narcotics, Mr. Burns was assigned to the Second District, where he sat at a desk for three months because he did not have a black partner. At times, his supervisor would send him home with pay as he was unwelcome in the precinct. ■While in the Second District, he worked with Sergeant Pitman who said several times that he did not like “niggers.” Sergeant Pitman also said, “Let’s go over to North Boulevard and arrest some niggers.” Sergeant Pitman made similar comments on the police radio. Once Sergeant Pitman said, “Well, I’m going over to Gus Young and get me |18a couple of niggers.” Mr. Burns complained about this treatment and was reassigned to the First District. The First District maintained separate cars for the black and white officers. Mr. Burns continued to complain and was transferred to Highland Road where he spent approximately one year on the “punishment beat,” which was much longer than other officers stayed on that assignment.

Subsequently, in the later part of 1977, Mr. Burns went to the School Liaison Division and he worked as a school liaison until 1985. Derogatory references to black people occurred fairly frequently on the radio between 1977 and 1985. Mr. Burns complained when he recognized the voice on the police radio.

In 1989, he transferred to the Fourth District where he remained until the early 1990’s when he transferred to the First District. There, he occasionally received rat-o-grams, derogatory jokes not restricted to racial subjects that were circulated by an unknown author, and received a letter from the Ku Klux Klan, also from an unknown source. He occasionally heard the term “nigger” on the police radio. Other officers, including supervisors, used the word “nigger.” Mr. Burns advised his supervisor of these occurrences. Mr. Burns, then, worked in the Second District briefly before transferring to Internal Affairs.

In Internal Affairs, Deputy Chief Phillips told ethnic jokes. Mr. Burns complained of this to Deputy Chief Phillips, who said he did not mean anything by the jokes. Deputy Chief Phillips also used the word “nigger” many times. While in Internal Affairs, Mr. Burns may have told an ethnic joke about blacks to Deputy Chief Phillips. Mr. Burns told his supervisor, Lieutenant Bob Gernant, that he was offended by Deputy Chief Phillips’ use of the words “honky” and “nigger.” Deputy Chief Phillips also used the |19word “jiga-boo,” but Mr. Burns did not report that to Lieutenant Gernant. Mr. Burns did not discuss these matters with the Chief of Police.

While employed by the City, Mr. Burns also spent twenty-two years on the SWAT team. Members of the SWAT made racial comments, and black members were denied training. In 1992 or 1993, he became a team leader, but was removed from that supervisory position approximately two years later. Subsequently, SWAT team members sometimes referred to him as the “old black dude.”

c. The City’s liability for race-based harassment

Although the City disputed much of the plaintiffs’ testimony at trial, after reviewing the evidence and assessing the credibility of the various witnesses, the jury concluded that Mr. Alcorn and Mr. Burns were subjected to a “hostile or abusive work environment” because of their race and that the hostile or abusive work environment was “created or permitted by a Supervisor with immediate or successively higher authority” over them. The jury further determined that the harassment resulted in the taking of a tangible employment action against each of the plaintiffs.

Clearly, the jury’s determinations, in this case, rested heavily on credibility issues. Credibility determinations are factual issues that will not be disturbed on appeal in the absence of manifest error. Brown v. Eppinette, 36,405, p. 10 (La.App. 2 Cir. 12/18/02), 833 So.2d 1268, 1273. As the trier of fact, a jury is free to accept or reject, in whole or in part, the testimony of any witness. Pelican Point Operations, L.L.C. v. Carroll Childers Co., 00-2770, p. 8 (La.App. 1 Cir. 2/15/02), 807 So.2d 1171, 1176, writ denied, 02-0782 (La.5/10/02), 816 So.2d 293. Such factual |^determinations are subject to the manifest error standard of review. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). When there is a conflict in the testimony, reasonable evalúa-tions of credibility and reasonable infer-enees of fact should not be disturbed upon review, although the appellate court may feel its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). 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, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). The reviewing court must always keep in mind that if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882-83 (La.1993); Housley v. Cerise, 579 So.2d 973, 976 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Considering the record in its entirety and without restating all of the evidence of racial remarks and allegations, we find no manifest error in the jury’s determination that the defendant is liable to the plaintiffs for racial discrimination.

DAMAGE AWARDS

In an action for harassment or discrimination, a plaintiff can recover loss of wages, loss of future income, medical expenses and compensatory damages. Neither Mr. Alcorn nor Mr. Burns asserted claims for lost past or future wages or for medical expenses, and the record is void of any evidence of these categories of damages. Rather, evidence in the record on the issue of damages is limited to compensatory or general damages, which Li encompasses mental or physical pain and suffering, inconvenience, loss of intellectual or physical enjoyment or other losses of lifestyle that cannot be measured exactly in monetary terms. The jury awarded each plaintiff $300,000 in compensatory damages for harassment and $200,000 in compensatory damages for discrimination. On appeal, the City asserts that the evidence presented to the jury was insufficient to find either plaintiff suffered any damages.

Much discretion is vested in the trial court or jury in its assessment of general damages. LSA-C.C. art. 2324.1. In reviewing an award of damages, the court of appeal must determine whether the trier of fact has abused its much discretion in making the award. Turner v. Ostrowe, 01-1935, p. 5 (La.App. 1 Cir. 9/27/02), 828 So.2d 1212, 1216, writ denied, 02-2940 (La.2/7/03), 836 So.2d 107, citing Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); Turner v. Ostrowe, 01-1935, p. 5 (La.App. 1 Cir. 9/27/02), 828 So.2d 1212, 1216, writ denied, 02-2940 (La.2/7/03), 836 So.2d 107. After a determination that the trier of fact has abused its “much discretion,” an appellate court can only adjust the h?,award to the highest or lowest point that is reasonably within that discretion. Duncan v. Kansas City Southern Railway Co., 00-0066, p. 14 (La.10/30/00), 773 So.2d 670, 683, cert. dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001).

At trial, each plaintiff testified to the great degree of mental pain and suffering he experienced as a result of the conditions of his employment. Also, the actions taken by each plaintiff in attempting to avoid or rectify the race-based harassment and racial discrimination prevalent throughout his career show the level to which each was subjected to mental pain and suffering.

Mr. Alcorn testified that he suffered with sleepless nights. Although he was unable to identify the year the sleeplessness began, he noted that it cleared up a couple of years after he left Internal Affairs. Mr. Alcorn further testified that he suffered with headaches while assigned to Internal Affairs. Mr. Alcorn also stated that he experienced stomachaches, nervousness and some depression. He offered no further elaboration on these conditions or symptoms, except to note that he did not seek counseling for the depression. He also stated that he suffered embarrassment as a result of the racial remarks. Mr. Alcorn testified that, while he worked in Internal Affairs, it was very difficult to “be relegated on a daily basis to less than a second class citizen by the Deputy Chief of Police” and that “it got to the point where it was unbearable to go to work.”

Mr. Burns testified that, as a result of his working conditions, he was “grumpy,” suffered with high blood pressure, withdrew from friends, and could not sleep. Mr. Burns testified that the actions of the City caused him to seek medical attention. Mr. Burns testified that a doctor diagnosed him with high blood pressure and prescribed medication. He also testified that | he “withdrew from a lot of things, visiting friends.” He stated, “I spent a lot of time on the boat because I was awake all the time.”

Considering the totality of the evidence presented by the plaintiffs, we conclude that the jury’s general damage awards do not constitute an abuse of the “much discretion” of the trier of fact because they are not excessive “for the particular injuries and their effects under the particular circumstances on the particular injured.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). An appellate court’s role in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Reck v. Stevens, 373 So.2d 498, 504 (La.1979). Accordingly, the jury’s awards of general damages to Mr. Alcorn and Mr. Burns are affirmed.

CONCLUSION

For the foregoing reasons, the trial court’s award of $50,000 to William Alcorn for unlawful retaliation is reversed. In all other respects, the judgment of the trial court is affirmed. Costs in the sum of $13,885.58 are to be shared equally by the City of Baton Rouge, through the Baton Rouge Police Department and William Al-corn.

REVERSED IN PART AND AFFIRMED IN PART.

      . Initially, Burns also asserted a claim of unlawful retaliation. However, at the beginning of trial, the trial judge severed that claim, and it is not part of this appeal.

      . In reversing the grant of summary judgment on the race-based discrimination, harassment and retaliation claims, this court determined that genuine and numerous issues of material fact, requiring credibility determinations and the resolution of conflicting testimony, remained; therefore, summary judgment was inappropriate.

      . Although the City asserted in an assignment of error that the jury erred in finding it liable to the plaintiffs for both racial discrimination and harassment, it failed to brief the issue of its liability for racial discrimination. Therefore, pursuant to the Uniform Rules, Court of Appeal, Rule 2-12.4, we find that this assignment of error has been abandoned. See Devers v. Southern University, 97-259, p. 13 (La. App. 1 Cir. 4/8/98), 712 So.2d 199, 207.

      . The term "tangible employment action” in-eludes a significant change in employment status, such as hiring, firing, and failing to promote, the reassignment with significantly different responsibilities, and a decision causing a significant change in benefits.