author: | .THOMAS F. DALEY, Judge.

text:
    Charles YUSPEH, Julie Y. Benson, Joel Y. Ashner and Wallace Murphy v. Hansen E. KOCH, David E. Koch, Certified Security Systems, Inc., CSS Acquisition, L.L.C., and Michael Ditcharo.
    No. 02-CA-698.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.
    As Amended on Limited Grant of Rehearing March 24, 2003.

      Michael H. Rubin, Juston M. O’Brien, McGlinchey Stafford, PLLC, Baton Rouge, LA, and Harry Rosenberg, Phelps Dunbar, L.L.P., New Orleans, LA, and William W. Hah, William W. Wall & Associates, Metairie, LA, for Defendant/Appellants, Hansen E. Koch and David E. Koch.
    Lynn H. Frank, Joseph R. Ward, Jr., Ward, Nelson LLC, New Orleans, LA, for Plaintiff/Appellees Charles Yuspeh, Julie Y. Benson, and Joel Y. Ashner.
    Keith R. Credo, and William C. Credo, III, Metairie, LA, for PlaintiffrAppellee, Wallace Murphy.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and CLARENCE E. McMANUS.
   | .THOMAS F. DALEY, Judge.

Defendants, Hansen and David Koch, appeal a jury verdict in favor of plaintiffs, Charles Yuspeh, Wallace Murphy, and other minority shareholders in Certified Security Systems, Inc. (CSS), a closely held corporation in the commercial and home alarm system business. The plaintiff minority shareholders sued the Koch brothers, the majority shareholders, for the value of plaintiffs’ stock in CSS, following a cash out or “freeze out” merger that was approved by the majority shareholders in December of 1997. The minority shareholders alleged that the merger was accomplished by breach of fiduciary duty and fraud. In particular, plaintiffs allege that the Kochs’ purchase of 34 shares of CSS common stock just prior to the merger in 1997 was fraudulent and a breach of fiduciary duty. The additional shares of stock enabled the Kochs to obtain the necessary voting percentage to approve the freeze out merger. CSS was merged into CSS Acquisitions, L.L.C., a company created by the Kochs and wholly owned by them. The merger did not affect CSS’s day to day operations or accounts, but the 14minority shareholders in CSS were excluded from any ownership interest in the new limited liability company.

Plaintiffs’ suit did not seek to undo the merger, but claimed as damages the value of the minority shareholders’ stock as of the day before the merger. The suit originally included a shareholders’ derivative claim, but this claim was dismissed at the beginning of trial.

After an extensive trial on the merits, a jury found that Hansen and David Koch breached their fiduciary duty to the plaintiffs, committed fraud, and caused the plaintiffs damages. The jury awarded each plaintiff damages representing the value of their stock. Yuspeh was awarded $1,136,867.00, Murphy was awarded $546,575.00, and Yuspeh’s daughters, Julie Benson and Joel Ashner, were awarded $196,767.00 each. The jury also awarded non-pecuniary damages for mental anguish to Yuspeh and Murphy, $100,000.00 and $300,000.00 respectively. The trial court adopted the jury findings and rendered judgment against Hansen Koch and David Koch, jointly and in solido, in favor of:

Charles Yuspeh in the amount of $1,136,876.00 for his stock and $100,000.00 for general damages with legal interest from date of judicial demand until paid and 33 1/3% attorney fees and all costs of court.
Joel Yuspeh Ashner in the amount of $196,767.00 for her stock with legal interest from date of judicial demand until paid and 33 1/3% attorney fees and all costs of court.
Julie Yuspeh Benson in the amount of $196,767.00 for her stock plus legal interest from date of judicial demand until paid and 33 1/3% attorney fees and all costs of court.
Wallace Murphy in the amount of $546,575.00 for his stock and $300,000.00 for general damages with legal interest from date of judicial demand until paid and 33 1/3% attorney fees and all costs. From this judgment, the Kochs appeal.

| STATEMENT OF THE FACTS

CSS was incorporated by Yuspeh, Murphy, and Michael Ditcharo in 1983. One hundred (100) shares of common stock were originally authorized and issued. Yuspeh was President and majority shareholder and owned 52 shares. Murphy was on the Board of Directors and owned 25 shares, Yuspeh’s two daughters had 9 shares each, and Michael Ditcharo had 5 shares. In 1986 CSS needed capital to maintain its growth. Samuel Katz, a friend of Yuspeh’s, invested $250,000.00 in CSS in return for one hundred (100) shares of preferred stock, one (1) share of common stock, and majority voting control in CSS. In addition, CSS and Katz executed a buy back option that permitted CSS to reacquire the stock from Katz for over $1 million dollars. In 1990, seeking to reacquire control of the company from Katz and get new capital for the company, Yuspeh learned from his bank that Hansen and David Koch (brothers) might be interested in investing in CSS. In 1990, after investigating CSS, the Kochs decided to invest in the company. The Kochs initially invested $2 million dollars, allocated as follows: $1.5 million in secured notes bearing 12% percent per annum interest and $500,000.00 for 500 shares of 12% cumulative participating preferred stock. The $1.5 million in notes was secured by a UCC security interest in the company’s assets.

At the same time that the Kochs invested the $2 million dollars, Yuspeh received a 10 year right to purchase the Kochs’ preferred stock for a price that essentially was greater than one-half (1/2) of the company’s fair market value or a 25% percent per annum compound return on the original $2 million dollars that the Kochs invested.

I (¡In 1993, the Kochs’ loan to CSS was delinquent. After extensive discussion between the Kochs and Yuspeh the loan was restructured and the Kochs lent additional monies to CSS. As part of the restructure, the 500 shares of 12% cumulative participating preferred stock was exchanged for 51% of the company’s issued and outstanding common stock. The Kochs agreed not to call their existing loans that were in default. The Kochs agreed to adjust the accumulation of interest in the buy back agreement of their preferred stock. Also, certain monies that the Kochs expected to earn pursuant to the 25% per year compound buy back agreement were converted to money earned for non-compete agreements and consulting agreements.

The corporate articles were also amended to require a vote of 60% percent of the shareholders to reorganize the company, down from the previous 66% percentage needed.

While CSS continued to actively sell and purchase alarm contracts, the company was operating at a loss. Yuspeh and Murphy both testified that their business strategy when they founded CSS was to build recurring monthly revenues (RMR) by sales and by acquiring accounts from smaller alarm companies. Once the RMR became large enough, they expected to sell the company or the company’s accounts to a larger national alarm company for a substantial profit. Although CSS continued to grow in number of accounts, its lack of profitability was unsettling to the Kochs, who had lent to the company substantial sums of money. After 1993 Hansen Koch started taking a more active role in monitoring the company’s financial position and began to question Yuspeh’s financial projections.

In 1994, Hansen Koch fired Yuspeh for reporting false financial information. The testimony of the parties indicates that Yus-peh was holding back |7accounts payable and not advising Koch of the true current financial condition of the company.

Yuspeh sued CSS for wrongful termination and CSS reconvened asserting numerous claims against Yuspeh. After a full trial and appeal, Yuspeh lost his wrongful termination claim.

In 1994, after Yuspeh’s termination, Hansen Koch became the President and Chief Operating Officer of CSS. Murphy continued as the head of the sales department, but testified that his authority was restricted. Murphy quit CSS in 1996, dissatisfied with the terms of his employment.

Sometime in early 1997, Hansen and David Koch offered to buy Murphy’s 25 shares of stock. In a letter dated April 14, 1997, Murphy offered his 25 shares of stock to the Kochs for $149,500.00. Pursuant to the corporate articles, Murphy placed all shareholders on notice of the offer to sell his stock, satisfying the mandatory right of first refusal set forth in the corporate articles. The Kochs rejected Murphy’s offer, but countered with an offer to buy Murphy’s stock for $25,000.00. According to Murphy’s testimony, Koch later doubled that offer to $50,000.00. Murphy rejected this counter offer.

Although Yuspeh and Murphy were no longer active in the management of the corporation, they continued to attend annual shareholders’ meetings. At each shareholders’ meeting there was a review of the company’s financial position and all of the parties continued to discuss the potential value of the company’s accounts. At the July 1997 shareholders’ meeting, the minutes show that Ken Boudreaux, the comptroller (and also a Director), reported RMR was around $120,000.00. At that same meeting, Yuspeh noted to the Board members that he |shad heard Entergy was purchasing companies at 45 times their RMR. The minutes show that Hansen and David Koch did not wish to sell CSS at that time.

In December of 1997, Hansen and David purchased 34 authorized but unissued, shares of common stock (17 each) from the corporation at a price of $50.00 per share. Prior to this transaction, which was approved by the Board of Directors, Bou-dreaux requested and received a “hold harmless” agreement from the Kochs, which provided that the Kochs would indemnify him should any litigation result from the stock sale and pending merger. Also in December, the Board of Directors, which at that time consisted of Hansen and David Koch and Ken Boudreaux, proposed a merger of CSS into another company owned exclusively by the Kochs. The Kochs had obtained the opinion of Chaffe & Associates, investment bankers, that the company had a negative value because the debt CSS owed to the Kochs was greater than the company’s assets, and thus the stock was worth nothing.

At a shareholders’ meeting on December 30, 1997, the Kochs were joined by Ditcha-ro’s five shares and the freeze out merger was approved. Plaintiffs had not been notified of the Kochs’ purchase of the 34 shares of authorized but unissued common stock. The merger set the value of plaintiffs’ stock at $50.00 per share, a sum plaintiffs felt was grossly inadequate. The plaintiffs sued defendants to obtain the value of their stock, among other claims.

SUMMARY OF ARGUMENTS

Defendants Hansen and David Koch appeal the jury’s verdict, arguing numerous Assignments of Error.

Defendants argue that there are specific remedies for dissenting shareholders, stated in LSA-R.S. 12:131, which plaintiffs did not follow, and thus they have no right or cause of action for the value of their shares. Defendants have |9filed Exceptions of No Right of Action and No Cause of Action with this Court arguing this position.

The Kochs argue that the jury was given a prejudicial jury instruction that the “merger was improper,” which was the ultimate fact that the jury had to decide. Because the jury instruction was so tainted, the Kochs argue that this Court must perform a de novo review of the evidence of liability and damages.

The Kochs argue that their purchase of the 34 shares of common stock without notice to the minority shareholders was not fraudulent or a breach of their fiduciary duty to minority shareholders, because the shareholders’ agreement did not contain preemptive rights and there was no affirmative duty to notify the minority shareholders. Second, they argue that Yuspeh and Murphy were represented by counsel who reviewed all the documents and advised the plaintiffs before they signed all of the transactions in 1986, 1990, and 1993; therefore, the plaintiffs cannot allege fraud in connection with these transactions. The Kochs argue that the rights of first refusal, which are contained in the stockholders’ agreement after 1986, applies only to shares currently owned by shareholders and did not include the 34 shares that were authorized but unissued and held by the corporation.

The Kochs argue that if “fraud” in fact applies here, the 1993 loan restructuring agreement they confected with CSS must be unwound, even though each plaintiff testified that they were advised by independent counsel of their choice who reviewed the documents and advised them prior to their signatures. The Kochs argue that there was no legal “duress” prior to the plaintiffs’ signing. They argue that the plaintiffs’ fear of losing their jobs if they didn’t sign the 1990 and 1993 agreements does not constitute legal duress, which is specifically defined in the Civil Code. Defendants argue that if the 1993 restructuring agreement is unwound because of fraud, their debt to the company must be reinstated.

| ^Defendants argue that they did not breach any fiduciary duties to the corporation. They argue that if they did breach a fiduciary duty by signing the 1993 restructuring agreement, then Yuspeh, who also signed this agreement, also breached his fiduciary duties to CSS. Defendants argue that it is also clear in the law that their refusal to personally guarantee a bank loan to CSS is not a breach of fiduciary duty.

Defendants argue that it was error for the trial court to deny their Motion for Mistrial after it refused to qualify their expert witness, John Rooney, who would have testified regarding the value of CSS.

The Kochs also assign as error the jury’s award of general, or “nonpecuniary,” damages to Murphy and Yuspeh. They also argue that the trial court’s award of attorney’s fees in the amount of one third of the judgment, including legal interest, was error.

SUMMARY OF DISPOSITION

We deny the Exceptions of No Right and No Cause of Action, finding that LSA-R.S. 12:131 is not the plaintiffs’ exclusive remedy in this situation. We agree that the jury instructions that included the language “improper merger” were clearly prejudicial error, and thus, we perform a de novo review of the evidence. We decline to find that the trial court erred in not granting a mistrial following its refusal to qualify John Rooney as an expert, but find that portions of his testimony were wrongfully excluded; therefore, we have considered his testimony in our de novo review. After thorough review of the record before us, we decline to find any fraud or duress in connection with the 1990 and 1993 agreements, but do find that the Kochs committed fraud and breached their fiduciary duties to CSS and to the minority shareholders in the way they purchased the 34 authorized but unissued shares in CSS. Because of that fraud and breach, we agree that the merger was L improper and that plaintiffs are entitled to damages for the value of their stock before the merger. We necessarily amend the jury’s damage award to take into consideration the amount of debt owed to the Kochs by CSS. Regarding the non-pecuniary damages, we reverse, finding that the evidence shows that Murphy’s and Yuspeh’s interest in CSS was of an overwhelmingly pecuniary nature, and that neither the law nor the evidence supports this award. We agree that the trial court’s award of attorneys’ fees in the amount of one third of the judgment, without an evidentiary hearing, was error. We vacate the award, and remand to the trial court for an evidentia-ry hearing on attorneys’ fees considering the factors in State, Dept. of Transp. and Development v. Williamson, 597 So.2d 439 (La.1992).

EXCEPTIONS OF NO RIGHT OF ACTION AND NO CAUSE OF ACTION

Defendants filed with this Court Exceptions of No Right of Action and No Cause of Action. First, defendants argue that the plaintiffs’ exclusive remedy for the value of their shares is under LSA-R.S. 12:131, entitled “Rights of a shareholder dissenting from certain corporate actions,” the requirements of which the plaintiffs unarguably did not meet. We disagree. Nothing in the language of LSA-R.S. 12:131 or case law states that this is a minority shareholder’s exclusive remedy for contesting the value of his shares in a merger. Moreover, the statute does not address fraud or breach of fiduciary duty claims. See Levy v. Billeaud, 443 So.2d 539 (La.1983). Therefore, we deny this Exception.

Defendants also argue that the plaintiffs have no cause or right of action for fraud or breach of fiduciary duty. They argue that there can be no “fraud of silence” because the defendants had no duty to notify the plaintiffs that they would be purchasing the 34 authorized but unissued shares, because the shareholders’ agreement contained no preemptive rights. Defendants rely on Thornton ex rel. Laneco Const. Systems, Inc. v. Lanehart, 97-1995 (La.App. 1 Cir. 12/28/98), 723 So.2d 1118, which states that Louisiana statutory law specifically grants the board of directors the power to issue and sell stock in the corporation on such terms as it determines, within the limits specified by the corporate articles, bylaws, or other shareholder agreements. The board is not required to first offer such stock to existing shareholders, unless the Articles of Incorporation provide for preemptive rights. Plaintiffs distinguish this case on several grounds. First, they note that Lanehart involved the sale of only five shares of stock, a .4% voting interest, to a third party, not an interested director. They argue that this sale did not materially affect the plaintiffs voting or ownership rights. Further, since the Lanehart plaintiff had no preemptive rights, the court found that the directors did not have to offer any of the five shares to plaintiff; the court did not address the issue of disclosure to the plaintiff.

Plaintiffs argue that officers and directors such as Hansen and David Koch are deemed to stand in a fiduciary relation to the corporation and its shareholders and must discharge their duties in good faith. LSA-R.S. 12:91; Levy v. Billeaud, supra. The duty imposed on a fiduciary embraces the obligation to render a full and fair disclosure to the beneficiary of all facts that materially affect his rights and interests. The fiduciary’s duty to disclose has been held paramount to the beneficiary’s duty to investigate possible conflicts of interest. Plaquemines Parish Com’n Council v. Delta Development Co., Inc., 502 So.2d 1034 (La.1987).

The Kochs’ purchase of the 34 shares did not violaté any stockholder’s preemptive rights, because there were none under the terms of the shareholders’ agreement. Their action, however, did breach their fiduciary duty to the minority shareholders. This sale had vastly different implications for the minority shareholders than the one in Lanehart. As the plaintiffs point out in brief, had they known that their voting power had been diluted by the sale of the 34 shares and that the merger was imminent, they could have sought in-junctive relief pursuant to |1sLSA-R.S. 12:130.2 to slow down the process and insure that they received a fair value for their shares in the merger.

JURY INSTRUCTIONS

The defendants objected to a jury instruction that used the phrase “improper merger.” They argue that this instruction was extremely prejudicial because this was the very issue the jury was to address: whether the merger events in December 1997 were valid or were the result of fraud or breach of fiduciary duty by the Kochs. The instruction contains this language: “Since the original corporation and its stock no longer exist and since the minority shareholders cannot be put back in the position that they had before the improper merger, they seek the monetary equivalent of what they lost in the merger ■...”.

Plaintiffs respond that the court’s use of this phrase merely described the plaintiffs’ claims, and that the instruction as a whole was clear that the jury was to decide whether the merger was improper. We disagree, finding that the trial judge’s use of this phrase was very prejudicial to the defendants, because it addressed the ultimate issue the jury was to decide, and was not overcome by the instruction as a whole. We cannot say that the jury’s verdict was surely unattributable to the improper instruction.

Generally, the factual findings of a jury are accorded great weight and will not be disturbed on appeal absent manifest error, [cite omitted] However, when a verdict is based upon jury instructions “that are faulty in a critical regard, the verdict is tainted and not entitled to a presumption of regularity.” [cites omitted] Not every deficient jury instruction mandates a de novo review, [cite omitted] An appellate court exercises great restraint before overturning a jury verdict on a suggestion that the jury instructions were so erroneous as to be prejudicial, [cites omitted] The standard of review to determine whether an erroneous jury instruction tainted the verdict involves | ucomparing the degree of error with the jury instructions as a whole and the circumstances of the case, [cite omitted] Therefore, the pertinent inquiry is whether the erroneous instruction misled the jury to such an extent that the jury was prevented from doing justice, [cite omitted]

Greer v. Lammico, 29,066 (La.App. 2 Cir. 4/13/98), 712 So.2d 598.

This entire case turned on whether or not the freeze out merger and actions leading up to it violated the rights of minority shareholders. A jury instruction that characterizes the merger as “improper” without some condition such as “allegedly” is clearly critical and prejudicial to the defendants.

Where a jury verdict is “tainted” due to a material error at trial but an otherwise complete trial record exists, the general rule is that the appellate should, if it can, render judgment on the record. Ferrell v. Fireman’s Fund Insurance Co., 94-1252 (La.2/20/95), 650 So.2d 742.

As a result of the error in the jury instruction, we have conducted a de novo review of the evidence.

FRAUD AND BREACH OF FIDUCIARY DUTY

We conclude that the Kochs did not commit fraud in the 1993 restructuring agreement, but do conclude that they committed fraud and breached their fiduciary duty to CSS and the minority shareholders in their acquisition of the 34 shares of stock, and therefore, the jury’s conclusion that plaintiffs are entitled to damages for the value of that stock will be upheld.

The Civil Code defines fraud as “a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.” LSA-C.C. art.1953. The jury was so instructed.

We agree with the Kochs that the 1993 restructuring agreement itself was not fraudulent, and agree that plaintiffs were all advised by independent counsel | 1 .¡prior to signing the documents. However, we find that the Kochs’ purchase of the 34 shares to be a breach of their fiduciary duty to the corporation and minority shareholders for the following reasons.

Fiduciary is defined as “any person, firm, partnership, association or corporation, including a usufructuary, who or which occupies a position of peculiar confidence toward any person, firm, association, partnership, trust or estate.” LSA-R.S. 12:1(J). Black’s Law Dictionary defines a fiduciary as “a person having duty, created by his undertaking, to act primarily for another’s benefit in matters connected with such undertaking. A term to refer to a person having duties involving good faith, trust, special confidence, and candor towards another.” LSA-R.S. 12:91 provides that: “Officers and directors shall be deemed to stand in a fiduciary relation to the corporation and its shareholders, and shall discharge the duties of their respective positions in good faith, and with that diligence, care, judgment and skill which ordinarily prudent men would exercise under similar circumstances in like positions.”

The Kochs sold themselves the 34 shares for a price of $50.00 per share. This stock purchase was for the sole purpose of obtaining the voting percentage necessary to perform the freeze out merger and leave the minority shareholders with no ownership interest in the new entity. The Kochs sold themselves the stock for $50.00 per share, for a total of $1,700.00, in December of 1997. Yet only months earlier, around April of 1997, they had offered Murphy $50,000.00 for his 25 shares, or $2,000.00 per share. Clearly, the Kochs knew that the shares of CSS were worth substantially more than $50.00 per share.

Ken Boudreaux, the only non-interested director on CSS’s Board, testified that he told Hansen Koch that the minority shareholders deserved something for |1fitheir stock and that he did not think it was fair for them to be “kicked out” of the company with nothing. Before voting for the issuance of the 34 shares and the freeze out merger, he insisted that CSS provide him with a “hold harmless” agreement before he would agree to approve the Kochs’ purchase of the 34 shares for $50.00 each. Additionally, he requested and received a personal guaranty of the “hold harmless” agreement by Hansen Koch. Clearly Bou-dreaux had serious reservations about the propriety of the Kochs’ actions.

The duty to notify the minority shareholders of their purchase did not come from preemptive rights in the shareholders’ agreement, but from their general fiduciary duty to protect the interests of minority shareholders. This is especially important because this purchase was made with the sole purpose of accomplishing the merger to the detriment of the minority shareholders’ stake in CSS.

Hansen Koch clearly knew, at the July 1997 board meeting, of the value of CSS’s accounts, by the information that Entergy was buying companies for multiples of at least 45 times RMR. Other witnesses confirmed that the market was “hot” for alarm companies at this time.

Hansen Koch testified that he pulled the $50.00 per share value “out of the sky.” The $50.00 value clearly had no relation to any financial information of the corporation. Hansen Koch also testified that he and his brother expected to recoup all their money once they took over 100% of the company. Hansen testified that he was “wearing a number of hats” and that in voting to issue the 34 shares and voting in favor of the freeze out merger, he “was protecting his own interest.” This contradicts the Kochs’ position, as per Chaffe & Associates, that CSS had negative value. Considering all of the above factors, the jury did not err in finding that the Kochs committed fraud and breached their fiduciary duty to the corporation and its minority shareholders in their acquisition of the 34 shares so that they could 117accomplish the freeze out merger to the detriment of the value of the minority shareholders’ stock.

NONPECUNIARY DAMAGES

The jury awarded Murphy $300,000.00 in nonpecuniary damages and Yuspeh $100,000.00 in nonpecuniary damages. We find that the evidence does not support this award.

Defendants argue that nonpecuniary damages are not available because LSA-C.C. art.1998 allows them only in a breach of contract case. We agree that art.1998 does not apply in this case.

Courts have recognized a cause of action for mental anguish damages for breach of fiduciary duty. See Montet v. Lyles, 93-1724 (La.App.6/24/94), 638 So.2d 727. In Johnson v. First Nat’l Bank of Shreveport, 2000-870 (La.App. 3 Cir. 6/20/01), 792 So.2d 33, the court noted that contemporaneous physical injury is not always required for mental anguish damages, though in that particular case, the court found a contemporaneous physical injury. In the instant case, we find that Yuspeh and Murphy failed to prove that they suffered compensable mental anguish in this case.

Both Yuspeh and Murphy testified that it was their primary hope to build up CSS and sell it to a larger company in order to fund a comfortable retirement. This was their goal both before and after the Kochs became investors in CSS. Yuspeh was fired for cause in 1994; Murphy resigned in 1996. Neither was involved in the day to day running of the company after that. The merger took place at the end of 1997. Prior to that, earlier in 1997, both men testified that they |isurged the Kochs to sell the company, both wanting to capitalize on the seller’s market in 1997 for alarm companies. Murphy’s letter of April, 1997, in which he offers to sell his shares to the Kochs in 1997 for $149,500.00, is clear evidence of his primarily pecuniary interest in CSS at that time. We also note that in the minutes of the April 8, 1994 shareholders’ meeting, Yuspeh, who had been terminated on March 18, 1994, states that he either wanted to sell his stock for approximately $1.3 million, work for someone else in the security business, start another alarm company, or do something else.

The testimony and evidence show that neither Yuspeh nor Murphy wanted to regain control of CSS and continue its presence in the local market. Despite testimony that each man was emotionally devastated by the merger, the rest of the evidence clearly shows that their interest in CSS was financial and that their loss was financial. The evidence clearly shows that Yuspeh’s mental anguish resulted from his firing, and Murphy’s resulted from his resignation. The jury clearly erred in finding that Yuspeh and Murphy bore their burden of proof for nonpecuniary damages as a result of the merger; therefore, we reverse these awards.

VALUE OF THE STOCK

Although we have determined that LSA-R.S. 12:131 is not a dissenting shareholder’s exclusive remedy, we look to the statute for guidance in establishing the value of a dissenter’s stock. It requires a determination of “fair cash values of [the minority stockholder’s] shares as of the day before such vote is taken.” LSA-R.S. 12:131(C)(2). Fair cash value is the net value of the company after taking into account all expenses and debt. The “vote” referred to is “the meeting of shareholders at which such proposed corporate action is submitted to a vote.” R.S. 11912:131(C)(l)(a). The shareholders’ meeting was December 30, 1997, so the evaluation date for fair cash value must be December 29,1997.

The jury heard the testimony of Harold Asher, plaintiffs’ expert CPA, who performed a valuation of CSS. The jury also heard from Mark Gronowski, another expert witness for plaintiff who performed another valuation of CSS. Other witnesses who testified regarding the value of CSS are Barbara Harris, the current comptroller of CSS; Ken Boudreaux, the former comptroller of CSS; Chaffe & Associates’ Frances Alford and David Black Chaffe; and John Rooney, defendants’ expert.

Harold Asher, plaintiffs’ expert CPA, valued the stock as if the company had been sold in a market sale, because the market existed for alarm companies in December of 1997, which was described as a seller’s market and a “feeding frenzy.” He valued the company as of January 1, 1998, several days after the merger vote. He found debt to the Kochs of $1.5 million, total stockholders’ equity of $4.25 million, not including the net operating loss benefit and the tax benefit of approximately $450,000.00. Asher also deducted the $500,000.00 to the preferred stockholders, leaving $3.75 million in value to be divided by the stockholders according to their shares, which would result in $950,000.00 to Yuspeh, $450,000.00 to Murphy, and $165,000.00 each to Benson and Ashner. Because Asher used January 1,1998 as the valuation date, he refused to consider the total of more than $4 million in debt to the Kochs on the company’s books on December 29, debt that both Murphy and Yuspeh agreed was validly owed to the Kochs. |¡>n Asher also refused to consider the non-competition agreements and the consulting agreements as valid debt.

Mark Gronowski testified as an expert in valuing security alarm monitoring contracts for the plaintiffs. He worked for Barnes Associates, an investment banking and consulting firm, specializing in the security alarm industry. He used the market value method to value CSS, which figures a gross sales price by multiplying the RMR by a multiple. He defined RMR as the contractual obligation that the customer has in order to receive services from the service provider. RMR did not include all revenue each month, such as installation fees or servicing fees. That gross sales price is then usually adjusted for any assets and liabilities the company has. He used an RMR of $120,000.00 at plaintiffs’ counsel’s direction, because he was not furnished with an RMR report. He used multipliers between 40.1 and 43.3, though he testified that 46 was probably closer to what multiple CSS could have gotten in the market at that time. He concluded that CSS’s value ranged from roughly $4.8 million on the low side to $5.6 million on the high side. This represented the purchase price, not the ultimate value to shareholders, since liabilities were the responsibility of the seller, he testified, and would be deducted from the purchase price prior to determining what shareholders got.

Frances Alford of Chaffe & Associates was called by the plaintiffs under cross examination. She testified that she performed the research that was needed to value CSS. Though Chaffe ultimately concluded that the company’s stock had a negative value because the debt to the Kochs exceeded the assets, Alford’s handwritten notes indicate that she considered a value on the company of around $4.92 million dollars. She used two different RMRs, $190,000.00 and $120,000.00, and used different multipliers, one as high as 45. She used the West Book’s rule of thumb analysis to make the final valuations, with a multiplier of 24.

| M John Rooney, the defendant’s witness, was proffered as an expert in security alarm company valuation. Rooney testified that it was possible to reconstruct the RMR from source documents such as the recurring revenue register, in the absence of a specific RMR report. He calculated that in the beginning of 1997, RMR was around $121,000.00, but sank to around $100,000.00 by the end of that year. He found this decline substantial and irregular for the industry at the time.

Ken Boudreaux, the comptroller of CSS at the time of the merger, testified as a fact witness. He was hired by the Kochs after Yuspeh was fired in 1993. Bou-dreaux was elected a director in 1994 and the company’s secretary. CSS’s books were in disarray and his job was to straighten them out to get an accurate picture of the company’s finances. He testified that the company lost money from 1993 to 1997, and in 1997 its liabilities exceeded its assets.

In July of 1997, Boudreaux reported to the shareholders that RMR was around $120,000.00. At that same meeting, Yus-peh reported that Entergy was purchasing alarm companies for 45 times RMR. As of September 30, 1997, the company’s financial statement identified total debt of $5,014 million, of which approximately $3 million was long term debt and $1,791 million was interest due on that.

Hansen Koch testified regarding the debt CSS owed to him and David, which totaled, just before the merger, $5.3 million, which included $500,000.00 of preferred stock in CSS. The rest consisted of the amounts due on the notes, interest thereon, and the non-competition and consulting fees.

After conducting a thorough de novo review of the different experts’ valuation methods, we find that the jury erred in its valuation of CSS’s stock. We have used all of the evidence to conduct our own valuation. First, all of the witnesses who testified on this issue agreed that RMR is the initial cornerstone in determining an alarm company’s market value. The only consistent RMR figure ^that the evidence offers is $120,000.00 per month, which we will use. The evidence also offered different multipliers, but the one most consistently recited was 46, considering thé seller’s market for alarm companies in 1997. Therefore, our initial evaluation of CSS’s value is $5.4 million ($120,000.00 x 46 = $5,400,000.00). To that figure, we will add $250,000.00 for cash, accounts receivable, inventory and other tangible assets (as per Harold Asher’s evaluation), for a total of $5,650,000.00.

The jury erred in not subtracting all of the debt owed to the Kochs. We have already found that there was no fraud in the 1993 restructuring agreement. We find that this debt is legitimate debt. In their testimonies, both Yuspeh and Murphy agreed that the Kochs were rightfully owed the money they put into CSS both in 1990 and in the 1993 restructuring agreement, which includes the non-competition and consulting fees. We find that these items were valid debt; they were a way to restructure the original 1990 debt owed to the Kochs, which Yuspeh and Murphy agreed was legitimate. The evidence shows that the debt to the Kochs totaled approximately $5.3 million, including $500,000.00 in preferred stock. We subtract the amount for preferred stock from the total debt, since the 1993 restructuring agreement converted the preferred stock to common stock, and find that the total debt owed to the Kochs was $4.8 million. We add to that the $65,000.00 loan that Hansen Koch made to CSS in December 1997, and also add back the $1,700.00 purchase price of the 34 shares, for a total debt of $4,866,700.00. Subtracted from $5.65 million, this leaves $783,300.00 to be divided up among the shareholders according to their percentages before the Kochs’ purchase of the 34 shares. Out of 204 shares outstanding, the Kochs had 52 each, Yuspeh had 52 (25.49%), Murphy 25 (12.26%), Benson and Ashner 9 each (4.41%), and Ditcharo 5. We, therefore, award Yuspeh $199,663.17; Murphy $96,032.58; and Benson and Ashner | ^$34,543.53 each, plus interest from the date of judicial demand as well as all court costs at the district court level. Each party is to bear their own costs of appeal.

We vacate the award of attorneys’ fees, and remand for an evidentiary hearing to set attorneys’ fees in light of the criteria in State, Dept. of Transp. and Development v. Williamson, 597 So.2d 439 (La.1992).

AFFIRMED IN PART; AMENDED IN PART; REVERSED IN PART.

      . The suit originally named Michael Ditcharo, owner of 5 shares of stock, who voted with Koch brothers for the merger, as a defendant, but he was dismissed prior to trial.

      . The evidence shows that Yuspeh effectively controlled these 18 shares in addition to his 52. His daughters were not involved in the day to day operations of CSS and Yuspeh nearly always voted their shares by proxy.

      . Certified Security Systems, Inc. v. Yuspeh, 97-2004 (La.App. 4 Cir. 4/22/98), 713 So.2d 558.

      . R.S. 12:130.2 is found in the subchapter entitled "Dissenting Shareholders’ Rights, Fair Price Protection, and Control Share Acquisition.”

      . Murphy valued the shares at $250,000.00, but offered them to the Kochs for $149,500.00.

      . The jury was instructed that an award for mental anguish "as a result of damage to property” was recoverable. This suit, however, was not about damage to property. Plaintiffs’ suit alleged economic damages for the loss of income and the loss of value of their shares. The line of cases authorizing awards for mental anguish to property owners for damage to property contemplates physical damage to corporeal property.

      . Murphy’s testimony regarding his emotional loss relates primarily to his resignation in 1996.

      . The trial court refused to qualify the defendants’ expert, John Rooney, and so the jury never heard his opinion on the value of CSS, nor were the defendants allowed to question him regarding his opinion of plaintiffs’ experts’ conclusions on the value of CSS. Because we have performed a de novo review of the evidence, we have considered John Rooney’s proffered testimony.

      . If the tax benefit was added back of approximately $200,000.00, that would be assigned primarily to Yuspeh and Murphy.


source: Caselaw Access Project

author: |, MAX N. TOBIAS JR, Judge. hGORBATY, J.,

license: Public Domain

text:
    Gabriel OUBRE v. Azmi ESLAIH, Reassurance of New York, Nighthawk Cab Company, Marc Williams and Allstate Insurance Company. Melanie Eslaih, Wife of/and Azmi Eslaih v. Marc D. Williams, Allstate Insurance Company and Louisiana Department of Transportation and Development. Martin Mongrue v. Azmi Eslaih, Reassurance of New York, Nighthawk Cab Company, Marc Williams and Allstate Insurance Company.
    Nos. 2002-CA-1386, 2002-CA-1387, 2002-CA-1388.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2003.
    Rehearing Denied March 31, 2003.

      Charles R. Ward, Jr., Covington, LA, for Defendanb-Appellant.
    Charles L. Rice, Jr., City Attorney, Albert A. Thibodeaux, Chief Deputy City Attorney, John E. Smith, Deputy City Attorney, Frank B. Hayne, III, Assistant City Attorney, New Orleans, LA, for Defendant/Appellant. .

      (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA R. MURRAY, Judge MICHAEL E. KIRBY, JUDGE MAX N. TOBIAS JR, and Judge DAVID S. GORBATY.).
   |, MAX N. TOBIAS JR, Judge.

This case arises from injuries sustained by the plaintiff, Azmi Eslaih, when, while standing on the shoulder of the interstate highway where his taxicab had stalled late one night, he was pinned between his taxicab and a second family owned vehicle when his cab was struck by a vehicle driven by defendant, Marc Williams. Mr. Es-laih alleges that at least two New Orleans police cruisers passed him and his stalled vehicle on the night in question, but did not stop to offer assistance. He and his wife, Melanie Eslaih, sued the City of New Orleans in negligence, asserting that a police officer has an affirmative duty to protect the public from a known dangerous traffic situation and that the police officers’ failure to do so was the proximate cause of his injuries.

FACTS

On 3 November 1995, around midnight, the plaintiff, Azmi Eslaih, a cab driver for Nighthawk Cab Company, was traveling on Interstate 10 West in New Orleans, approaching or at the Westbank Expressway/South Claiborne Avenue exit, when his vehicle stalled and could not be restarted. Mr. Eslaih was forced to Lpull his vehicle to the only emergency lane along that stretch of raised interstate, which is located along the left-hand lane of the interstate, by pushing the cab across several lanes of travel and stopping the car with its front facing the westbound traffic. Mr. Eslaih testified that he put on the hazard fights and tried repeatedly to start the engine, but that he was unsuccessful. As he had no cell phone or radio by which he could contact anyone for assistance, he waited with his cab for someone to stop and offer him assistance. After approximately forty-five or fifty minutes he was picked up by another cab driver and driven home. While at home, Mr. Eslaih called AAA (an automobile club) of which he was a member, and ate a snack before deciding to return to his taxicab to remove some personal items and meet the tow truck dispatched by AAA. He reportedly arrived at the scene at approximately 2:00 a.m. to wait for the tow truck. He parked the van just beyond the stalled vehicle in the emergency lane, with the van facing in the opposite direction, so that the trunk of the cab and the back of the van were adjacent. Mr. Eslaih stood between the cab and the van, transferring various personal items from the cab to the van.

At approximately 3:00 a.m, Mr. Eslaih was still waiting for the tow truck when an automobile driven by defendant, Marc D. Williams, was proceeding in a westerly direction on Interstate 10, approaching the stalled taxicab. Mr. Williams struck the stalled taxicab, pinning Mr. Eslaih between it and the van. Mr. Eslaih suffered two broken legs and underwent reconstructive surgeries. He was | ¡¡hospitalized repeatedly over several months and required a number of medical procedures to repair his injured legs.

Mr. Eslaih testified that he witnessed one New Orleans Police Department marked cruiser pass him and his cab sometime between the time he moved his cab to the emergency lane and the time he was picked up by another cab. He further testified that he later saw another marked cruiser pass his cab after he revisited the scene while he was moving personal items from his cab to the van. Neither patrol car stopped to offer him assistance, and it is this alleged failure on the part of the police department that gives rise to the cause of action of the plaintiffs in negligence against the City of New Orleans.

At the trial on the merits, the only live witnesses presented were Mr. Eslaih, Officer James Edward Seaberry, Jr., and Sergeant Orman J. Walters, Jr. of the New Orleans Police Department. Officer Sea-berry was one of the officers who reported to the accident scene after Mr. Eslaih and his vehicle were hit. He confirmed that both of Mr. Eslaih’s vehicles were fully in the emergency lane and not encroaching on any lane of travel. He further testified that he was unaware of what the police department’s policy regarding assisting stranded motorists was in 1995, but testified that if an officer had offered Mr. Eslaih assistance, policy would have dictated that he park his cruiser behind the stranded vehicle with all of his lights on, and that procedure would have been to secure the scene and warn oncoming motorists of the stalled vehicle. He testified that the New Orleans Police Department had patrolling jurisdiction for the area surrounding that stretch of | interstate, but indicated that it was unlikely that a patrol car would have been traveling that stretch of interstate at that time of night.

Sergeant Orman J. Walters, Jr. was called by the City to testify regarding the rules and regulations of the police department as of the time of the subject accident. Sergeant Walters testified that, upon passing Mr. Eslaih and his stalled vehicle prior to the accident, a prudent police officer, unless he had been dispatched on an emergency mission, would have stopped and made an investigation, given that the car was parked facing the wrong direction. He testified that Code 2 calls, which indicate life-threatening situations, do not necessitate initiation of the blue light or siren on a police cruiser. Further, he testified that, even if a passing police officer was en route to a life-threatening emergency, he or she could have radioed another patrol car to investigate the stalled vehicle.

Deposition testimony of Chief Michael A. Helmstetter of the Crescent City Connection Police Department was introduced into evidence. His testimony established that the site of the accident was beyond the patrolling jurisdiction of his department. He further confirmed that no entry in the dispatch logs of the Crescent City Connection Police Department existed that indicated that any member of his force either responded to or had notice of the plaintiffs accident. To the best of his knowledge, the site of the accident was within the patrolling jurisdiction of the New Orleans Police Department.

IfiCaptain Brian Etland of the Louisiana State Police testified in his deposition that similarly, Louisiana State Troopers do not patrol the area immediately surrounding the site of the accident and that, to the best of his knowledge, that area is under the patrolling jurisdiction of the New Orleans Police Department.

Prior to the trial on the merits, Marc D. Williams and his insurance carrier, Allstate Insurance Company, settled with the plaintiffs; AAA, who was also named as a defendant, was dismissed on summary judgment. The plaintiffs voluntarily dismissed the State of Louisiana prior to trial. The only remaining defendant at trial was the City of New Orleans. The trial court, after conducting a bench trial on all issues, found the City of New Orleans liable for 30% of Mr. Eslaih’s damages, which were determined as follows: $250,000.00 in general damages; $70,768.33 in medical special damages; and $36,000.00 in past lost wages. The judgment rendered by the Court further ordered that “all other defendants be held hable for the remaining 70% of fault.”

Both the plaintiff and the City of New Orleans appeal the judgment of the trial court. In the first assignment of error, Mr. Eslaih asserts that the trial court erred in assigning any fault to “all other defendants” on the grounds that the City of New Orleans failed to raise an affirmative defense of comparative fault in its Answer or subsequent pleadings. Second, he asserts that the Court erred in awarding only $250,000.00 in general damages given the seriousness of the injuries sustained. Third, Mr. Eslaih asserts that the trial court erred in suggesting that he can only recover 30% and not 50% of the judgment from the City of New ^Orleans, given that the accident in question occurred prior to the 1996 amendment revisions to Louisiana law regarding joint and solidary liability.

The City of New Orleans lodged its appeal asserting eight assignments of error. In its first assignment of error, the City asserts that the trial court erred in finding it liable to the plaintiff. It its second assignment of error, the City argues that the trial court erred in failing to find the plaintiff contributorily negligent in causing his injuries. Assignments of error five through nine are assignments of error grounded in factual findings by the trial court relating to the plaintiffs liability and veracity and will be treated as sub-parts of assignment of error number two. In its final assignment of error, the City argues that the quantum in this case as determined by the trial court is excessive.

DISCUSSION

Defendant’s Assignment of Error Number One.

The City of New Orleans asserts in its initial assignment of error that there was insufficient evidence to find the City liable for the injuries sustained by the plaintiffs as a result of the automobile accident. In its judgment, the trial court notes that in Louisiana, a police officer has an affirmative duty to see that the public is not subjected to an unreasonable risk of harm when he or she becomes aware of a dangerous traffic situation. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173; Edwards v. Daugherty, 97-1542 (La.App. 3 Cir. 3/10/99), 729 So.2d 1112. Thus, a law enforcement officer has breached his duty to the public 17once he becomes aware of a dangerous traffic situation and does nothing to protect the public or to secure the accident scene.

In the present case, Mr. Eslaih testified that he put the hazard lights on as soon as he moved his cab across the interstate to the emergency lane, and maintained in his testimony at trial that his blinkers remained on for at least two hours more, after he had arrived at the accident scene in his wife’s van. He further testified that he also engaged the emergency hazard lights on the van as well while he was waiting for the tow truck dispatched by AAA to arrive. Although the City calls into question whether it is credible that the hazard lights remained on for the entire two- to three-hour period in question, no evidence is presented to contradict Mr. Eslaih’s account. A trial court’s function is to judge the credibility of the witnesses before it; this court will not disturb its ruling with regard to the veracity of a witness’ testimony. Although no evidence has been put forth by the plaintiffs that any police officer or representative of the New Orleans Police Department was ever made aware of a dangerous traffic situation, it is reasonable to find that the engagement of the hazard lights on both vehicles and that the presence of a vehicle in the emergency lane pointed in the wrong direction would be sufficient notice to any passing law enforcement officer to trigger the duty to protect the public from a known traffic hazard, even if the presence of Mr. Eslaih was not known. If, as has |sbeen argued by the City, no opportunity existed to stop by the police officer(s) in question due to some sort of emergency situation or exigent circumstance, it is not unreasonable to expect that the unknown police officer could have radioed another cruiser to respond to what did eventually become a very dangerous traffic situation.

Although no evidence is presented to corroborate Mr. Eslaih’s testimony regarding the two police cruisers that he claims passed him that night, we find no evidence to suggest that he was mistaken or untruthful.. Given the trial court’s traditional function as evaluator of credibility of the witnesses before it, we will not disturb its findings regarding the truthfulness or accuracy of Mr. Eslaih’s testimony. That is, the trial court was neither manifestly erroneous nor clearly wrong in its conclusion.

Defendant’s Assignments of Error Number Two and Five through Nine.

The City contends that the trial court erred in failing to assign any fault to Mr. Eslaih for his alleged negligence as a cause of his injuries. Specifically, the City contends that Mr. Eslaih was negligent in the following particulars:

-making repeated attempts to restart a stalled vehicle over an extended period of time, without any warning to traffic other than emergency lights;
-failing to direct traffic away from the stalled vehicle in a manner beyond relying upon the vehicle’s emergency flashers;
-failing to call a tow truck until after “significant delay” and failing to use the stalled vehicle’s floor mats to warn oncoming motorists; and
| a-failing to protect the public from the hazard created by the presence of the stalled vehicle immediately beside a high speed lane of travel and interfering with the safe flow of traffic and creating a public hazard.

The City cites La. R.S. 32:141 and 32:296, and argues that the prohibition against leaving an unattended vehicle on the shoulder of any state highway was breached by Mr. Eslaih and that his abandonment of the stalled cab created an unreasonable risk of harm. However, La. R.S. 32:141 specifically provides that its prohibitions do not apply to “the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position.” [Emphasis supplied.] Further, La. R.S. 32:296 provides that its prohibition against parking a vehicle upon the highway shoulder operates against a driver “unless such stopping, parking, or standing is made necessary by an emergency.” As such, it is clear that, given the facts of this case, Mr. Eslaih was not negligent per se in his stopping of the stalled cab on the shoulder of the interstate. In fact, it is clear from the facts of this case that Mr. Eslaih had absolutely no other' option, as his vehicle stalled in a lane of traffic and as there was no other available emergency lane or area removed from the interstate.

The City’s argument that Mr. Eslaih was negligent in failing to direct traffic around his stalled vehicle or to remove the vehicle from the roadway in a timely manner is similarly without merit. The City cites Ly v. State of Louisiana (La.App. 5 Cir.1993), 633 So.2d 197, as support for this contention. In Ly, the plaintiffs were driving along Interstate 10 when their vehicle stalled in the eastbound center lane of travel during the early morning hours. Instead of |1()removing the vehicle from the lanes of travel or attempting to warn oncoming traffic of the stalled vehicle, the driver of the vehicle put on the hazard lights and attempted to repeatedly start the vehicle without success. Ms. Ly’s husband stood next to the vehicle and did not attempt to flag anyone down. Their car was struck by an oncoming vehicle and the driver was killed, with her husband suffering serious injuries that eventually led to his death. The Fifth Circuit Court of Appeal found both plaintiffs negligent in their failure to remove the vehicle from the roadway or make known the dangerous situation to other drivers. Id. The present case is obviously distinguishable in that the plaintiffs stalled vehicle was removed from the interstate and did not obstruct any lanes of travel. Because the Court in Ly predicated the plaintiffs’ negligence on the fact that the stalled vehicle was still in the lane of traffic, we find the ruling in Ly inapplicable to this case.

Although the City argues that Mr. Eslaih should have been more proactive in warning oncoming traffic of the danger posed by the presence of his vehicle in the emergency lane, it appears that Mr. Eslaih took appropriate action in removing his vehicle from the roadway and putting on the emergency blinkers. Although he did not actively attempt to direct other drivers away from his stalled vehicle, it would conceivably have put him at even greater peril to do so. Further, the assertion that he did not call a tow truck in a more timely manner is specious; Mr. Eslaih was without any method of communicating with any towing companies until after he arrived at home, at which time the evidence shows he did call AAA to have a tow truck dispatched.

If Mr. Eslaih was negligent in any way, it was in failing to call the police himself to report the stalled vehicle so that a law enforcement officer could secure the scene prior to his car being towed. However, we find that the trial court did not In commit manifest error in failing to assign fault to Mr. Eslaih. His actions following the stalling of his cab did not create an unreasonable risk of harm.

Plaintiffs’ Assignment of Error Number One.

In their initial assignment of error, the plaintiffs assert that the trial court erred in assessing any degree of fault to any defendant or tortfeasor other than the City of New Orleans on the grounds that the City failed to raise the liability of any other party, other than Mr. Eslaih himself, as an affirmative defense and, as a consequence, the plaintiffs’ claim that no evidence was presented regarding the fault of any other party. Further, the plaintiffs maintain that they had no notice that the liability of any other parties was at issue at trial and that inclusion in its judgment of the comparative fault of other parties amounted to unfair surprise to them.

While it is true that the City of New Orleans failed to raise as an affirmative defense in its answer the comparative fault of any party other than Mr. Eslaih, La. C.C.P. art. 1154 provides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading....

Although the plaintiffs are correct in asserting that the negligence of any party other than Mr. Eslaih was not raised in the answer of the City, there was sufficient evidence presented at trial for the trial court to consider the negligence of parties other than Mr. Eslaih and the defendant. The record reflects that no objection was made at trial regarding any evidence introduced reflecting the negligence of other parties. In fact, La C.C. art. 2324, in effect as of the time of l^the accident, suggests that it is incumbent upon a trial court to determine the percentage of fault' for each tortfeasor, regardless of whether that party is present at trial or even known. Touchard v. Williams (La.4/12/93), 617 So.2d 885. While it is clear that AAA was dismissed from this matter on summary judgment, the remaining former defendants were dismissed voluntarily from this litigation by the plaintiffs. Their negligence or lack of fault was never determined by the trial court. We conclude that the trial court committed error in failing to consider the fault of Mr. Williams. We need not, however, quantify with a specific percentage Mr. Williams’ fault other than to find that he is at least significantly at fault for the accident; we do, however, find that he is at least 50% at fault for the accident. Nevertheless, as discussed below, because the City will be liable for 50% of the final judgment as a solidary obligor under pre-revision La. C.C. art. 2324, any error committed by the trial court regarding the apportionment of fault to “all other defendants” is essentially harmless and will not change the result.

Plaintiffs' Assignment of Error Number Three.

The plaintiffs argue that the trial court erred in its judgment by “suggesting” that the City of New Orleans could only be held liable for 30% of the damages, and not for up to 50% in accordance with joint and several liability as it existed at the time of the accident in question.

1S Prior to 1996, Louisiana law provided that joint obligors were solidarity liable for up to 50% of a judgment rendered in favor of a plaintiff. Specifically, La. C.C. art. 2324, in effect on or about 3 November 1995, provided:

A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.
B. If liability is not solidary pursuant to Paragraph A, or as otherwise provided by law, then liability for damages caused by two or more persons shall be solidary only to the extent necessary for the person suffering injury, death, or loss to recover fifty percent of his recoverable damages; however, when the amount of recovery has been reduced in accordance with the preceding article, a judgment debtor shall not be liable for more than the degree of his fault to a judgment creditor to whom a greater degree of fault has been attributed. Under the provisions of this article, all parties shall enjoy their respective rights of indemnity and contribution. Except as provided in Paragraph A of this Article, or as otherwise provided by law, and hereinabove, the liability for damages caused by two or more persons shall be a joint, divisible obligation, and a joint tortfeasor shall not be solidarily hable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person’s insolvency, ability to pay, degree of fault, or immunity by statute or otherwise.

The language of article 2324 at that time “balanced the risks of insolvent, incapable of paying, unknown, and absent tortfeasors among plaintiffs and the known, solvent defendants.” Dumas v. State of Louisiana, 2002-0563 (La.10/15/02), 828 So.2d 530, citing, Touchard v. Williams, supra. As discussed infra, there is nothing to suggest that the trial court was precluded from considering the negligence or fault of parties not at trial in this matter. Further, pursuant to article 2324 and its interpretation by the Louisiana Supreme Court, it is clear that the City of New Orleans, as a tortfeasor whose negligence was apportioned at 30% and whose degree of fault is equal to or greater than the degree of fault attributed to |uMr. Eslaih, is liable for 50% of the award made to Mr. Eslaih, and the judgment of the trial court must be amended to reflect the City of New Orleans’ status as a quasi-solidary obligor as provided by law as of the date of the accident.

Plaintiffs’ Assignment of Error Number Three and Defendants’ Assignment of Error Number Two.

Both the plaintiffs and the City of New Orleans argue that the general damages award is incorrect. As one might expect, the plaintiffs argue that $250,000.00 in general damages is insufficient to compensate Mr. Eslaih for the serious injuries he sustained to his legs as a result of the accident in question and that a more adequate figure would be $500,000.00. The plaintiffs also argue that because Mr. Eslaih was treated at Charity Hospital in New Orleans, he is entitled to have taken into account what he would have spent at a more expensive, private hospital and that his general damage award should be augmented to reflect not what his medical expenses were, but what they could have been. We find no statutory or jurisprudential support for this argument, and the plaintiffs cite none.

The City asserts that the general damages are too high, given the fact that Mr. Eslaih was not in the hospital for several months, as has been suggested by the plaintiffs’ counsel, but rather that he underwent several procedures that did not require extended stays in the hospital.

We find that the amount of general damages awarded by the trial court to be neither unreasonably high nor unreasonably low. As a consequence, it is our ruling that the trial court did not abuse its vast discretion in the amount of damages awarded.

[^Conclusion

We find that the trial court did not commit manifest error in determining that the City of New Orleans was negligent and in attributing 30% of the total fault to the City after the trial on the merits. We further find that the trial court did not err in failing to find Mr. Eslaih negligent under the facts of this case. Although the judgment rendered by the Court should have specifically set forth the amount of fault attributable to each potential tortfea-sor, the failure to do so does not change the effect of the final judgment and, as such, is harmless error. Due to the City’s status as a solidary obligor under tort law in effect as of the date of the accident, the City is liable for 50% of the total judgment and the judgment is amended to reflect the City’s status as an obligor for that 50%. Finally, we find that the amount of damages awarded by the trial court to be reasonable and not an abuse of discretion.

AMENDED; AS AMENDED, AFFIRMED.

GORBATY, J., dissents with reasons.

hGORBATY, J.,

dissents with reasons.

Being mindful of this Court’s limitations in reviewing credibility calls, I find plaintiffs claims that he saw two NOPD police cruisers pass him by without stopping on the night of this accident difficult to believe.

“[Wjhere documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story, the court of appeal may find manifest error even in a finding purportedly based upon a credibility determination.” Rosell v. ESCO, 549 So.2d 840 (La.1989).

I frankly do not believe that two NOPD cruisers passed Mr. Eslaih parked on the shoulder of the road facing the wrong way with his emergency flashers on and did not stop. Adding to my disbelief is the fact that Mr. Eslaih was driven to his house by another cabbie, took the time to eat a sandwich, and called AAA, but did not think to call the NOPD. The totality of the circumstances leads me to disbelieve Mr. Eslaih’s self-serving testimony.

Accordingly, I would reverse the judgment of the trial court, and find that the City of New Orleans has no liability for the incident sued upon.

      . The City actually has assignments of error numbered one through nine, but there is no assignment of error number four, so there are in actuality only eight assignments of error.

      . The City of New Orleans raises as its Assignment of Error number seven that the trial court erred in finding that it was likely that the hazard lights were engaged on the stalled vehicle as long as three hours past the time they were engaged given the nature of the car trouble. However, no evidence in the record exists to suggest the true mechanical problem encountered by Mr. Eslaih and, absent any evidence to suggest that the hazard lights could not have been functioning at the time of the accident, we defer to the trial court in its assessment of the plaintiff's veracity.

      . Defendant’s Assignment of Error number 5.

      . Defendant's Assignment of Error number 6.

      . Defendant’s Assignment of Error number 8.

      . Defendant’s Assignment of Error number 9.


author: J^DREW, J.

text:
    STATE of Louisiana, Appellee, v. Cornell F. BOYKIN, Appellant.
    No. 36,989-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Louisiana Appellate Project, by Peggy S. Sullivan, Cornell F. Boykin, for Appellant.
    Richard Ieyoub, Attorney General, Paul J. Carmouehe, District Attorney, John Ford McWilliams, Jr., Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before GASKINS, WILLIAMS and DREW, JJ.
   J^DREW, J.

After two remands for resentencing, Cornell Boykin was adjudicated a second felony offender and sentenced to 20 years at hard labor, to be served consecutively with another sentence for which he was already incarcerated. His claim of an excessive sentence is without merit. We therefore affirm.

Background

In 1995, Boykin was convicted at jury trial of the November 1994 distribution of a Schedule II CDS, cocaine. He was adjudicated a second felony offender and originally sentenced to 20 years at hard labor. We affirmed the conviction but, finding that the state had failed to prove that the cleansing period had not lapsed, we vacated the habitual offender adjudication and sentence, and remanded for resentencing. State v. Boykin, 29,141 (La.App.2d Cir.1/31/97), 688 So.2d 1250.

On initial remand, defendant was adjudicated as a fourth felony offender and received the mandatory life sentence. Finding insufficient evidence to show that two predicate offenses fell within the applicable cleansing period, we vacated the habitual offender adjudication and sentence, and remanded for resentencing. State v. Boykin, 34,133 (La.App.2d Cir 12/6/00), 774 So.2d 1074.

On the second remand, the state filed an Amended Third Felony Habitual Offender bill of information. After numerous motions and hearings, the trial court adjudicated defendant a second felony offender and imposed a sentence of 20 years at hard labor, to be served consecutively with another 18-year sentence, also for the crime of distribution of cocaine. | ¡/Both the state and defense filed motions for reconsideration of sentence, each being denied without a hearing. Defendant does not now challenge his adjudication as a second felony offender, only that his sentence is excessive. The state did not perfect its appeal.

Discussion

Defendant argues that the trial court did not discuss any personal information concerning defendant and did not address the allegation that he acted under the compulsion of an addiction.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1988); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). In the instant case, the record shows an adequate factual basis for the sentence imposed.

Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. I, § 20, if it is grossly out of proportion to the 13seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864. A trial court has broad discretion to sentence within the statutory limits. Past records of drug offenses weigh heavily in upholding the imposition of even maximum sentences. See State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Prior to imposing sentence, the trial court noted that when defendant originally was adjudicated a second felony offender, his sentencing exposure then, as now, was 15 to 60 years. The sentence imposed under those initial circumstances was. 20 years. The court reviewed a PSI report and thoroughly outlined and considered the facts of this case, a matter with which the trial court had dealt off-and-on for five years, through jury trial, three habitual offender proceedings, and two previous sentencings, prior to the sentencing appealed herein. The sentencing guidelines in effect at the time of the offense recommended a sentence of 17 to 20 years.

The trial court then adequately considered the La.C.Cr.P. art. 894.1 guidelines in effect at the time of this sentencing. The court determined by understatement that:

• there was an undue risk of the commission of another offense if defendant were to be granted probation;
14« defendant was in need of custodial treatment; and
• a lesser sentence would deprecate the seriousness of the offense.

To buttress the above conclusions, the court noted that in the two decades preceding his original sentence, defendant had accumulated 20 arrests and 13 convictions. These various offenses of conviction included many misdemeanors including theft, battery, driving under revocation, and DWI, as well as three quite serious felonies:

• unauthorized entry of a business (bargained down from simple burglary);
• simple robbery (bargained down from purse snatching); and, stunningly,
• a prior conviction for distribution of cocaine, the same offense as now.

The PSI further informed the court:

• that for most of the defendant’s adult life, the only times he went as long as a year without being arrested was when he was incarcerated;
• that the defendant’s two stretches on parole were “dismal,” each resulting in revocation;
• that the defendant failed to comply with his conditions of supervision and parole, in the following non-exclusive ways:
• failing to report as required;
• failing to perform community service;
• failing to pay supervision fees; and arguably worse,
• frequently testing positive for the use of CDS.

On this record, we do not find constitutional error. Even though this crime involves a small amount of cocaine, the preceding two decades paint a | Bbleak picture, particularly when one considers this defendant’s prior convictions for:

• distribution of cocaine; and
• simple robbery, a violent and dangerous offense.

The jurisprudence noted herein would uphold the imposition of the maximum authorized sentence in this case. However, the sentence actually reimposed here is near the lower end of the defendant’s total sentencing exposure, and is in full compliance with the La.C.Cr.P. art. 894.1 guidelines in effect on the date of this offense and at the time of the original sentencing.

Defendant’s allegations of addictive disposition as an explanation for committing this offense are sad and may certainly be grounded in reality; however his present plea for compassion and consideration is trumped by the stark reality of:

• his past dismal criminal record; and
• his failure to take advantage of innumerable programs to educate himself and overcome his alleged addiction, while in and out of jail.

It is noted, however, that he now submits a total of 16 certificates with his pro se Supplemental Brief, filed with this court on November 27, 2002. These documents reflect that he has, at least sporadically, taken advantage of many prison programs designed to help him adjust to his | ¿future release, which participation will hopefully inure to the protection of the public somewhere down the road. Perhaps in recent years he has finally become receptive to the opportunities available in the criminal justice system to assist him towards a self-supporting, drug-free and violence-free life on the streets. That noted, while previously on the streets, this defendant has time and time again frittered away all manner of rehabilitative opportunities and second chances. Nothing in the PSI reflected that this man, when free, has ever had any positive impact on his community; instead he has consistently been a drain on society.

So we come full circle, and the defendant winds up with the exact same sentence as originally administered by the learned trial judge. The 20-year hard labor sentence now imposed is lawful. It is neither grossly disproportionate to the severity of the offense nor is it shocking to our sense of justice. There is no showing of an abuse of the district court’s great discretion in the imposition of this sentence which, under the disheartening facts and circumstances of this case, is not constitutionally excessive.

CONCLUSION

The defendant’s sentence is AFFIRMED.

      .The defendant was out on bond awaiting sentence on his first distribution conviction, when he committed the instant offense.

      . Even at 40 years of age, he still apparently lacks a GED.

      . Of these certificates, three were issued in 1995, none in 1996, none in 1997, none in 1998, one in 1999, 11 in 2000, one in 2001, and none in 2002.