author: TERRI F. LOVE, Judge.

text:
    Nicholas J. MUSACCHIA, Jr. v. HILTON NEW ORLEANS CORPORATION, New Orleans Paddlewheels, Inc., Queen of New Orleans, Inc., Queen of New Orleans at the Hilton Joint Venture, New Orleans Paddlewheels (Texas), Inc., Hilton Hotels Corporation and Hilton Hotels Partner I, Inc.
    No. 2003-CA-1100.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 2004.

      Paul H. Due’, Kirk A. Guidry, Due’, Price, Guidry, Piedrahita & Andrews, Baton Rouge, LA, and Russ M. Herman, Maury Herman, Steven J. Lane, Herman, Herman, Katz & Cotlar, LLP, New Orleans, LA, for Plaintiff/Appellee.
    Robert H.- Murphy, Peter B. Sloss, Robert E. Guidry, Murphy, Rogers & Sloss, New Orleans, LA, for Queen of New Orleans at the Hilton Joint Venture, Hilton New Orleans Corp., Hilton Hotels Corp., and New Orleans Paddlewheels, Inc.
    Jerald L. Album, Patrice W. Oppenheim, Reich, Meeks & Treadaway, L.L.C., Me-tairie, LA, for Russell T. Ribando and Republic Insurance Company.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   TERRI F. LOVE, Judge.

Defendants, the Queen of New Orleans and Russell Ribando, appeal the trial court’s judgment awarding damages of $308,549.92, with interest, to plaintiff, Mu-sacchia for injuries he sustained while attempting to leave the Queen of New Orleans. It is from this judgment that both defendants, the Queen of New Orleans and Russell Ribando appeal. For the following reasons, we affirm the trial court’s finding.

FACTS AND PROCEDURAL HISTORY

In the case at bar it is uncontroverted that on February 17, 1994, plaintiff Nicholas J. Musacchia, Jr. (“Musacchia”) and his cousin and third party defendant, Russell Ribando (“Ribando”) frequented defendants/appellants, the Queen of New Orleans at the Hilton Joint Venture, Hilton Hotels Corporation, Hilton New Orleans Corporation, and New Orleans Paddle-wheels, Inc. (collectively “Queen of New Orleans”). The Queen of New Orleans was a casino gaming vessel, operating | ¡.from the Poydras Street Wharf adjacent to the Riverwalk shopping mall in New Orleans. Although the Queen of New Orleans was built with elevator access, the elevator was not yet operational during its first weeks of business. The vessel could only be accessed by a boarding ramp between the vessel and a shore side boarding structure, which required patrons to either climb a stairway up the boarding structure from the wharf, or come down that stairway from the top of the boarding structure, which was reached from the Mezzanine level of the Hilton Hotel. Musacchia, who was wheelchair bound, received assistance from the employees of the Queen of New Orleans in boarding and leaving the vessel. It was upon leaving the vessel that Musacchia incurred injuries as a result of an accident on the stairway at the Queen of New Orleans.

The plaintiff and defendants all provide differing accounts as it pertains to the occurrence and causation of accident that occurred on February 17, 1994. Musacc-hia avers that on February 17, 1994, he and his cousin Ribando decided to visit the Queen of New Orleans, which had only been open for a couple of weeks. Upon their arrival, they were informed that the elevator, which would deliver them from the Mezzanine level of the Hilton Hotel to the boarding ramp level of the Queen of New Orleans, was not yet completed. Mu-sacchia agreed to allow three casino employees to roll him, in his wheelchair, down the flight of stairs from the hotel to the boarding ramp level. Musacchia avers that several steps down, one of the men holding him lost grip and his chair fell backwards onto the stairs; however, Mu-sacchia was able to support himself with the railing so that he did not fall. Musacc-hia further testified that Ribando had attempted to assist the casino employees with bringing Musacchia down the steps, but was prevented from assisting by the casino employees. Musacchia contends that he was carried down lathe remainder of the stairs without incident and both he and Ribando boarded the vessel and gambled for approximately three hours. The two men decided to leave around 11:00 p.m., at which time they met a couple of employees on the boarding ramp who told Musacchia that they planned to bring him down two flights of stairs to the parking lot rather than up one flight to the Hilton Mezzanine level. Musacchia insisted they carry him up the same flight of stairs they used before because it was a shorter distance and he felt it was safer. Musacchia turned his wheelchair around and backed up to the bottom step. Two vessel employees positioned themselves in front of him, and he was waiting for a third to come around from behind when the employee on his right side bent down and picked up on the front, right corner of his chair, causing the chair to roll forward and Musacchia to fall backwards, striking his neck and back on the cement steps.

The Queen of New Orleans alleges that Musacchia and Ribando approached the vessel boarding area; they were advised that the boarding structure elevator was not yet operational. Musacchia chose to be carried down the boarding structure from the Hilton Mezzanine level by three male casino employees. Shortly after 11:00 p.m., Musacchia and Ribando decided to leave and approached the boarding ramp. Jacques Legrand, (“Legrand”) a Queen of New Orleans deckhand, was stationed on the vessel at the boarding ramp and told Musacchia to hold up a moment because he needed help leaving the vessel. Legrand testified the casino employees had been trained in the assistance of wheelchair bound patrons, specifically including the carrying of such patrons. Both Michael Petit (“Petit”) and Ernest Bandy (“Bandy”), also Queen of New Orleans employees, were in the vicinity and offered to assist. An employee was positioned on both sides of Musacchia’s wheelchair, while Ribando positioned himself behind the chair. Defendants aver that before Petit and Bandy were ready, Riban-do pulled the chair from under Musacchia, causing Musacchia to fall forward. Bandy caught Musacchia before he could fall all the way to the deck and placed him back in his wheelchair. Petit testified that, before they attempted to carry Musacchia, he radioed for two other casino employees to assist, so there would be five casino employees to carry Musacchia up the stairs. However, before they were in place, Ri-bando lifted up Musacchia’s chair, causing him to fall from his chair. Petit prepared an accident report that evening, which was consistent with this version of the event.

Third party defendant, Ribando testified to a different version of events, claiming that he was not involved in the allegedly injurious lift, but was merely standing several steps behind Musacchia, watching the Queen of New Orleans’ employees.

The trial court held that the Queen of New Orleans’ conduct constituted breach of its duty to provide a safe manner of ingress and egress from its vessel, and that his negligent conduct caused injury to plaintiff.

LEGAL ANALYSIS

Both defendants, the Queen of New Orleans and Russell Ribando appeal the judgment of the trial court. On appeal, the Queen of New Orleans at the Hilton Joint Venture, Hilton New Orleans Corporation, Hilton Hotels Corporation and New Orleans Paddlewheels, Inc., (the Queen of New Orleans) allege four assignments of error:

1.The trial court erred in holding that the Queen of New Orleans was negligent, and that any such negligence was a legal cause of this accident;
2. The trial court erred in failing to asses any comparative fault to the Musacchia;
3. The trial court erred in assessing only 10% fault to Ribando; and
4. The trial court erred in awarding excessive damages;

Defendant Russell Ribando also alleges four assignments of error:

1. The trial court erred in assessing any fault to Ribando;
2. The trial court erred in awarding Musacchia damages;
3. The trial court erred in applying maritime law to the Third Party Demand asserted by defendants, the Queen of New Orleans, against Ri-bando; and
4. The trial court erred in awarding prejudgment interest against Riban-do from the date Musacchia filed suit and not when Ribando was made a party.

The issues presented in this appeal consist primarily of questions of fact. The Louisiana Supreme Court announced a two-part test for the reversal of a fact finder’s determinations:

1. The appellate court must find from the record that a reasonable factual basis does exist for the finding of a trial court, and
2. The appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous.

Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Stobart v. State of Louisiana, Through the DOTD, 617 So.2d 880 (La.1993).

The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Id. The Louisiana Supreme Court has emphasized that:

the reviewing court must always keep in mind that ‘if the trial court of 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.

Housley v. Cerise, 579 So.2d 973 (La.1991), (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).

The rationale for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses, as compared with the appellate court’s access only to a cold record, but also upon the proper allocation of trial and appellate functions between the respective courts. Thus, where two views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Watson v. State Farm Cas. Ins. Co., 469 So.2d 967 (La.1985).

First Assignment of Error

Defendants allege, in their first assignment of error, that the trial court erred in holding that the Queen of New Orleans was negligent, and that any such negligence was a legal cause of this accident. The trial court held that:

The duty of the Queen of New Orleans is [sic] to provide a safe means of ingress and egress to its vessel, which duty it breached.

Musacchia alleges that the Queen of New Orleans owed a duty to its passengers, breached its duty with respect to the safe ingress and egress to the vessel, and that adoption of a procedure to carry wheelchair bound patrons up and down flights of stairs did not avoid breach of such a duty. Defendants, the Queen of New Orleans, aver that deciding to carry wheelchair patrons up or down flights of stairs did, not breach the duty owed of safe ingress and egress to patrons of the Queen of New Orleans. They further argued that the duty owed was to provide a safe manner of ingress and egress to “reasonable patrons” and wheelchair patrons are not to be considered reasonable patrons. We cannot disagree more with this argument, as evidenced by this opinion.

It is a settled principal of general maritime law that a ship owner owes a duty of exercising reasonable care toward those lawfully aboard the vessel who are not members of the crew. This duty of reasonable care encompasses a ship owner’s duty to provide a safe manner of ingress and egress from his vessel. Gatson v. G.D. Marine Services, Inc., 93-0182, p. 6 (La.App. 4 Cir. 1/19/94), 631 So.2d 547, 553. In Alpert v. Zim Lines, 370 F.2d 115 (2nd Cir.1966), the court, citing American President Lines, Ltd. v. Lundstrom, 323 F.2d 817, 818 (9th Cir.1963), held that

A passenger carrier has a duty ‘to exercise extraordinary vigilance and the highest skill to secure the safe conveyance of the passengers’, Allen v. Matson Navigation Co. (9th Cir.1958), 255 F.2d 273, 277, and if it knows that a passenger has physical disabilities it must exercise such higher degree of care — including giving special assistance — as is reasonably necessary to insure that passenger’s safety in view of his disabilities.

The court in Alpert, further opined, “whether negligence exist may depend upon a passenger’s special needs and the ship’s knowledge thereof.” Alpert, 370 F.2d at 116. Passengers injured aboard a vessel have a cause of action in admiralty if the injury is caused by negligence imputed to the owner or operator of the vessel. Monteleone v. Bahama Cruise, 838 F.2d 63 (2nd Cir.1988). In Shofstah et al. v. The Board of Commissioner of the Orleans Levee District, et al. (2002-0018) (La.App. 4 Cir. 1/015/03), 841 So.2d 1 rehearing denied 1/15/03; writ denied 9/26/03, this court referenced its opinion rendered in Sutton v. Duplessis, 584 So.2d 362 (La.App. 4th Cir.1991), in which this court held:

Negligence is actionable only where it is both a cause in fact and a legal cause of the injury. Legal cause requires a proximate relation between the actions of a defendant and that harm which occurs, and such relation must be substantial in character. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980).

The negligence imputed to the Queen of New Orleans is their failure to provide a safe means of ingress and egress for all patrons. Adopting a procedure requiring wheelchair bound patrons to be carried up and down flights of stairs is breach of the duty owed of safe ingress and egress. The act of carrying wheelchair bound patrons was not only both a cause in fact and a legal cause of the injuries Musacchia sustained, but also such negligence was a proximate cause of the accident and Mu-sacchia’s injuries. The Queen of New Orleans opened its doors to all patrons with the knowledge that the elevator was not yet operational. Although, the Queen of New Orleans, expecting wheelchair patrons to frequent the gaming vessel, trained their staff in the adopted procedure of manually carrying wheelchair bound patrons up and down stairs for boarding, this method of ingress and egress, by its very nature, is unsafe. During direct examination, Jacques Legrand, an employee of the Queen of New Orleans, testified:

A: Did you receive any training how to assist wheelchair-bound passengers?
Q: Yes.
A: Would you tell the Court what type of training you received?
Q: Basically, we take a deckhand and we self-practiced with a wheelchair both with a ramp, mainly with a ramp at the time, which goes from the gangway to the vessel itself when it’s docked.

When asked whether the employees of the Queen of New Orleans were trained or practiced carrying wheelchair-bound passengers up and down specifically on the stairway of the boarding structures, Le-grand testified

Q: Yes, we did. We had to because'of the situation at the time we first opened up.
A: And the situation at the time you first opened us was?
Q: It was a little bit of a big deal because we didn’t have the elevators ready the first week or two. I believe the elevators were not complete. And there was a flight of stairs. One flight up from the dock level. One flight down from the lobby level. One flight down from the lobby level. And we knew we would have to be moving passengers possibly up and down these flights of stairs.

The vessel owner remains responsible for the seaworthiness of the vessel, dangerous conditions on board, navigational errors by the pilot, and negligence by the crew, and a reasonably safe means of ingress and egress for those boarding or leaving the vessel. Hogden v. Forest Oil Corporation, 93-0322 (W.D.La.4/26/94), 862 F.Supp. 1552, 1557, citing Moore v. Phillips Petroleum Co., 912 F.2d 789, 1991 A.M.C. 2855 (5th Cir.1990). We find that the Queen of New Orleans was negligent in choosing to accommodate wheelchair patrons by carrying them up and down flights of stairs to enable them to board the vessel, especially when alternative means could have just as easily been used and there were no compelling circumstances present. The Queen of New Orleans opened their doors for business with the knowledge that the elevator was not yet operational and with the knowledge that wheelchair patrons were also invited to frequent the vessel. We further find, as the trial court did, that this method of loading and unloading passengers was inherently risky and unsafe, and such was brought to the attention of the Queen of New Orleans upon the boarding of Mu-sacchia, as exemplified by the testimony that Musacchia was nearly dropped down the stairs while boarding the vessel several hours prior to his accident.

After careful review of the record and jurisprudence, we find that the Queen of New Orleans owed a duty to its passengers to provide a safe means of ingress and egress. We also find that the Queen of New Orleans breached this duty and as a result of such breach, we find that the Queen of New Orleans’ conduct was negligent, which negligence was also a proximate cause of the accident and plaintiffs injuries as well, as discussed hereafter. Therefore, the trial court was not manifestly erroneous in finding the Queen of New Orleans negligent. This assignment of error is without merit.

Second Assignment of Error

In the appellant’s second assignment of error, the defendants assert the trial court erred in failing to attribute any fault to Musacchia. Allocation of fault is a factual finding, which an appellate court may not disturb unless the finding is demonstrably wrong. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607. Factual finding cannot be overturned in the absence of manifest error. Stobart v. State of Louisiana, Through the DOTD, 617 So.2d at 882. The issue to be resolved by this court is not whether the trial court was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Id.

At the trial on the merits, the appellants had the burden of proving that Musacchia was comparatively negligent for the cause of the accident. The trial court held:

the Court does not find that plaintiff, Musacchia, was guilty of comparative negligence, either for his decision to purchase light-weight wheelchair which did not have rear handles, or his agreement to board the vessel once he learned that there was no elevator.

In After the trial court made the determination that defendants were negligent, the burden then shifted to defendant to prove that it was more probable than not that plaintiff himself was comparatively negligent. Gaston v. G & D Marine Services, Inc., 93-0182 (La.App. 4 Cir. 1/19/94), 631 So.2d 547.

Defendants, the Queen of New Orleans, aver that Musacchia should be held responsible for the injuries he sustained as a result of being carried by the Queen of New Orleans’ employees. The Queen of New Orleans contends that because of his disability, Musacchia was left with three options after being informed that the elevator was not functional: (1) allow himself to be carried in his wheelchair; (2) negotiate the stairs himself by pulling himself up or down the stairs using his upper body strength, or by using the handrails, or (3) leave the casino to pursue entertainment elsewhere. The Queen of New Orleans aver that because Musacchia chose to be carried down the boarding structure from the Hilton Mezzanine level, instead of crawling up the stairs or going home, Mu-sacchia should be allocated some fault.

Negligence cannot be imputed to Mu-sacchia simply because upon his arrival, he learned that there was not an elevator to assist him in boarding, and allowed the Queen of New Orleans’ employees to assist him in boarding the vessel. Although Mu-sacchia testified that he allowed the three employees to bring him down the flight of stairs so that both he and Ribando could board the Queen of New Orleans; that upon his egress, he informed the employees of the Queen of New Orleans that he wanted to go back up the one flight of stairs the employees used to board the vessel, rather than traverse two flights of stairs, such is not sufficient to establish that Musacchia was negligent. Defendants aver that Musacchia was negligent in allowing the crewmembers to carry him up the flight of stairs in a chair that had no rear handles; however, Musacchia testified on cross-examination that on the night of the incident he was not in a wheelchair that had handles on the back. The crew-members were better capable of determining whether they were able to assist Mu-sacchia up and down the stairs, based on their training. The Queen of New Orleans’ employees did not inform Musacchia otherwise. Defendants aver that Musacc-hia should be assessed some fault, based on the fact that Musacchia did not assist the crewmembers by giving instructions of how he should be lifted. Although Mu-sacchia testified that he did not give any instructions to the crewmembers, the Queen of New Orleans trained their employees in the procedure of lifting and carrying wheelchair bound patrons up and down flights of stairs. Furthermore, negligence cannot be imputed to Musacchia for allowing the Queen of New Orleans’ crewmembers to perform their jobs according to the training they received. Considering the record before us, we cannot say the trial court’s determination that Musacchia was not at fault in the accident was “manifest error.” Accordingly, this assignment is without merit.

Third Assignment of Error

In its third assignment of error, appellants allege that the trial court erred in assessing only 10% fault to Ribando. In apportioning fault between the Queen of New Orleans and third party defendant, Ribando, we must look to the duty owed by each, and assess the relationship between that breach of duty and the resulting injury. Hodgen v. Forest Oil Corp., 862 F.Supp. 1552 (W.D.La.1994). Allocation of fault is a factual finding, which an appellate court may not disturb unless the finding is demonstrably wrong. Clement, 95-1119, 666 So.2d 607. The trial court held that

After reviewing the evidence and assessing the demeanor and credibility of the witnesses, the Court further finds that it was more probably than not, that the third party defendant, Russell Ri-bando Jr., did in fact participate in the effort to lift plaintiffs wheelchair up the stairs.

As the Queen of New Orleans was the party directly responsible for ensuring a safe manner of ingress and egress for its patrons, breach of such duty was the proximate cause of the accident and plaintiffs injuries as well. Not only was this method of loading and unloading passengers inherently risky and unsafe, but the duty the Queen of New Orleans owed, which was breached, easily encompasses the risk that such accidents and injuries will result. The trial court found that, despite testimony by Musacchia and Ribando, Ribando attempted to assist the Queen of New Orleans’ employees, in the lifting of his friend, but his involvement was minimal and could have been completely avoided had the Queen of New Orleans adopted safer procedures for loading and unloading passengers.

Accordingly, we find that the trial court’s allocation of fault to the Queen of New Orleans at 90% and Ribando at 10% was not demonstrably wrong.

Fourth Assignment of Error

In its fourth assignment of error, appellants assert that the damages awarded to plaintiff are excessive. Thus, we must determine whether an award of $808,549.92, is an abuse of the trial court’s discretion. The trial court has great discretion when assessing damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). Each case is different, and the adequacy of the award should be determined by the facts or circumstances particular to the case under consideration. Id. Thus, the initial inquiry is whether the award for the particular injuries and their effects, under the particular circumstances, on the particular injuries person is a clear abuse of the “much discretion” vested in the judge or jury. Joseph v. City of New Orleans, 2002-1996 (La.App. 4 Cir. 3/5/03), 842 So.2d 420. In reviewing general damages, an appellate court 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. Id. The standard for review is nonspecific, and only when the award, in either direction, is beyond that which a reasonable trier of fact could assess for effects of a particular injury to a particular plaintiff under particular circumstances, should an appellate court increase or reduce award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). The trial court awarded Musacchia $100,000 in past general damages; $100,000 in future general damages; $53,749.92 in past medical expenses; $50,000 in future medical expenses; and $4,800 in houseeleaning expenses.

Dr. Clifford, a neurosurgeon who treated Musacchia, testified:

... while it was quite possible that while he was being carried down steps in the wheelchair and was subsequently dropped, he did sustain sufficient trauma to the back of his neck in a flexion type of injury that could have made these problems significantly symptomatic. Whether or not there were lesions that needed surgical intervention at that point in time remained to be seen.

Dr. Clifford was questioned as to the recommendation of surgery for Musacchia, he testified:

Q: ... there was a chance that he could be — a significant chance that surgery could make him worse and you recommended that he try to live without undergoing surgery?
A: Yes.

Dr. Clifford further provided that:

Q: Based on your treatment, evaluation of Mr. Musacchia, and of course, based on the history given to |1syou by the patient, would you agree that, again using the legal standard that we use of more probably than to, that the complaints that you observed and treated Mr. Musacchia for arose from the accident that he described to you of February 1994?
A: Yes.
Q: In your treatment of Mr. Musacchia did you find him to be truthful and forthright?
A: I did.

Although defendants aver, through the testimony of Musacchia’s neighbor that Mu-sacchia suffered subsequent falls Dr. Clifford testified that the amount of trauma sustained in any subsequent fall to the incident at the Queen of New Orleans, must be quantified and sufficiently significant to affect his opinion. Dr. Clifford was not the only medical testimony submitted to the trial court. In addition to Dr. Clifford’s testimony, Dr. Jarrott, who is also a neurosurgeon, gave supporting testimony to that of Dr. Clifford’s in that Musacchia had bulging cervical discs at C3^1 and C5-6, and that these bulges cause not only ventral flattening of the thecal sac, but dorsal displacement of the spinal cord. Dr. Jarrott further testified that

The accident of September (sic) 17, '94 is thought to have aggravated a preexisting condition possibly in part by the mechanism of damage to the L2-3 disc.

He further testified that Musacchia has intractable pain that is appropriately treated with prescription medication.

Neurologist Dr. Carlos A. Garcia, defendants’ medical expert evaluated Musacchia on December 20,2000. Although he testified that he did not believe that the fall could be responsible for the long period of time for which Musacchia has complained of back and neck pain, Dr. Garcia testified that he was not aware of any medical records documenting any back or neck treatment for Musacchia prior to the accident of February 17, 1994. He further testified that Musacchia fell into the category of persons who are, for whatever reason, more severely psychologically affected by a certain trauma than an average person might be.

During direct examination Musacchia testified about his life prior to the accident on February 17, 1994.

Q: Prior to the accident how did you get by living on your own in a wheelchair?
A: I just did my normal, daily duties and took care of myself. I cooked, cleaned my house, cleaned my yard.
Q: What other kinds of activities could you do before?
A: I did some type of construction using power tools, gardening. Just anything anybody had to do like painting. Anything anybody had to do I would get involved with it.

Musacchia further testified that prior to the accident, he never had any neck or back pain before, other than when he would get out of his wheelchair and sit on hard surfaces for prolonged periods of time. He further testified that the pain would subside after he returned to his wheelchair. Musacchia’s neighbor, Gerald Mire (“Mire”), testified that prior to the February 17, 1994 accident Musacchia would help him on several occasions with siding, painting, and sanding the flooring in Mire’s home. Mire further testified that now, Musacchia very seldom goes outside. Mire testified that Musacchia had always been active. He testified that he used to see Musacchia out in the yard with the flowers. When Musacchia was questioned as to how he spends his days now, he testified:

A: Sitting at home, basically, doing nothing. Sitting in front the computer. I go to card game site like Hearts. I go in there and play Hearts to try and keep my mind occupied and keep it off the pain.
Q: Do you get out as much as you used to before?
A: No, sir. No, sir. I — the left probably four or five months going to the doctor.

Musacchia further testified:

I did everything for myself. Clean the house, cooked, washed dishes, washed clothes, swept, mop, clean my yard, and [sic] rake the leaves in my yard.

Musacchia gave uncontroverted testimony that after the accident, he had to employ a weekly housekeeper, incurring approximately $4,800 in cleaning costs.

Neurosurgeons Dr. Clifford and Dr. Jar-rott both testified as to the future medical expenses that Musacchia might incur. Dr. Clifford testified that Musacchia would more likely than not require future two-cervical disc surgery, and Dr. Jarrott testified that Musacchia will probably require future lumbar surgery.

It is undisputed that Musacchia was injured when the defendants dropped him on the cement steps. Based on the medical testimony given, the injuries Musacchia suffered caused him to endure great pain and suffering. After careful review of the totality of evidence presented to the trial court on Musaechia’s damages, we find the trial court’s award of $308,549.92 did not constitute a clear abuse of its discretion.

Third Party Defendants Assignments of Error

We find that third party defendant’s first and second assignments of error were previously addressed in our legal analysis of the Queen of New Orleans’ second and third assignments of error; therefore, further discussion is not warranted. However, where third party defendant alleges in his third and fourth assignments of error that the trial court erred in applying maritime law to the third party demand asserted by defendants against Ribando and in awarding prejudgment interest against Ribando from the date the plaintiff filed suit, discussion is warranted.

Determination of the question of whether a tort is “maritime” and thus within the admiralty jurisdiction of the federal courts has traditionally depended upon the locality of the wrong. Brodtman, et al. v. Duke, 96-0257, p. 4 (La.App. 4 Cir. 2/11/98), 708 So.2d 447, 452 citing Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 252-253, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). Generally federal maritime jurisdiction is invoked whenever an accident occurs on navigable water and in furtherance of an activity bearing a significant relationship to a traditional maritime activity. Id., citing Offshore Logistics v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986). However, the Queen of New Orleans asserts and the trial court reasoned that the “[p]laintiff and defendants have stipulated and agreed that general maritime substantive law is applicable to this case.” We therefore find, that the trial court did not err in applying general maritime law.

CONCLUSION

For the aforementioned reasons, we affirm the judgment of the trial court.

AFFIRMED.


source: Caselaw Access Project

author: LEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Dimarco LEWIS.
    No. 2003-KA-1234.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 2004.

      Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendani/Ap-pellant, Dimarco Lewis.
    (Court composed of Judge JAMES F. MCKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

The defendant, Dimarco Lewis, was convicted of one count of attempted armed robbery, one count of armed robbery, and two counts of attempted second degree murder. He is now appealing his convictions on the ground that he was denied effective assistance of counsel at his trial, because his attorney failed to move to sever the counts with which Mr. Lewis was charged, and on the ground that the trial court imposed an excessive sentence.

STATEMENT OF THE CASE

Mr. Lewis and Lawrence James were charged with one count of attempted armed robbery and one count of attempted second degree murder in connection with crimes that had been perpetrated against Jonathan Perrow. Mr. Lewis and Mr. James were also charged with one count of armed robbery and a second count of attempted second degree murder in connection with crimes that had been perpetrated against Demetrieus Williams. Both Mr. Lewis and Mr. James originally entered pleas of not guilty.

The attorneys for both Mr. Lewis and Mr. James moved to sever the trials of the two defendants, and the motion was granted. Mr. James was tried first, but the trial ended in a mistrial. The following day Mr. James pled guilty to one count of attempted armed robbery, to one count of armed robbery, to one count of attempted second degree murder, and to one count of being an accessory after the fact to attempted second degree murder. Mr. James was ultimately sentenced to serve ten years at hard labor without the benefit of probation, parole, or suspension of sentence.

A month after Mr. James pled guilty, Mr. Lewis was tried and found guilty on all counts with which he had been charged. Under the Habitual Offender Law, La. R.S. 15:529.1, Mr. Lewis was found to be a second felony offender in connection with his armed robbery conviction. The State also filed a motion to invoke the firearm sentencing provisions of La. R.S. 14:64.3, which provides for the imposition of an additional five-year sentence if a firearm has been used in connection with an armed robbery or an attempted armed robbery.

Mr. Lewis was sentenced to serve forty-nine and one half years at hard labor on the conviction of attempted armed robbery, fifty years at hard labor on the conviction for the attempted second degree murder of Mr. Perrow, one hundred and ninety-eight years at hard labor on the conviction of armed robbery as a second felony offender under La. R.S. 15:529.1, and fifty years at hard labor on the conviction of the attempted second degree murder of Mr. Williams. All sentences were to be served concurrently without the benefit of probation, parole, or suspension of sentence. Additionally, a five-year sentence at hard labor was imposed under the provisions of La. R.S. 14:64.3, because a firearm was used in connection with the crimes of armed robbery and attempted armed robbery. The five-year sentence was to be served consecutively to the one hundred ninety-eight year sentence and was to be served without the benefit of probation, parole, or suspension of sentence. Finally, Mr. Lewis was ordered to pay Mr. Perrow $50,000 in restitution for lost wages.

Mr. Lewis has appealed his convictions. He has urged two specific assignments of error on appeal.

STATEMENT OF THE FACTS

This case involves two separate incidents. Both took place on the same day, however, and they involved similar crimes. In the first incident, the victim of the crimes was Mr. Perrow. In the second incident, Mr. Williams was the victim.

Crimes Against Mr. Perrow

Mr. Perrow was jogging in New Orleans early one morning along his usual jogging route, and as he turned onto Burgundy Street, he saw two young, African American males approaching him on a bicycle. One of the males was pedaling the bicycle, and the other was riding on its handlebars. Mr. Perrow later identified the two males as Mr. Lewis and Mr. James.

Mr. Lewis stopped the bicycle in the middle of the street right in front of Mr. Perrow, and both Mr. Lewis and Mr. James jumped off of the bicycle. Mr. Lewis confronted Mr. Perrow and asked for whatever Mr. Perrow had. Mr. Per-row explained that because he was jogging, he was not carrying anything with him. Mr. Lewis then told Mr. Perrow to continue running. Mr. Perrow had seen a gun in Mr. Lewis’ hand, so he began running down Burgundy Street as quickly as he could.

As he ran, Mr. Perrow heard Mr. Lewis yell, “Die, bitch!” A shot was fired, and the bullet broke Mr. Perrow’s hip. Mr. Perrow fell onto the street where he had been running, and Mr. Lewis continued to shoot him, causing Mr. Perrow to ask, Why are you still shooting me?” Mr. Perrow bled profusely after he was shot, and he testified that at that time, he thought he was dying.

Mr. Jeffery Clements, who lived on Burgundy Street, was resting on a couch in his front room when he heard a loud pop that he recognized as a gunshot. He jumped off his couch and put on his jeans which were nearby. While he was putting on his jeans, Mr. Clements heard two more gunshots in quick succession, then after a momentary pause, he heard another shot, and after a second momentary pause, he heard another shot. He heard a total of five gunshots. Mr. Clements’ front door was shuttered, and although his door was open, the shutters were not. He unlocked the shutters, threw them open, and saw Mr. Perrow on the ground bleeding. He also saw a young African American male that he later identified as Mr. Lewis tucking something into the waistband of his shorts. He also saw another young African American male, whom he later identified as Mr. James, holding a mountain bike by its handlebars.

As Mr. Clements observed Mr. Lewis turning away from Mr. Perrow, Mr. Lewis looked at Mr. Clements, paused, and then proceeded to get on the bicycle. Mr. James then climbed onto the handlebars of the bicycle, and they rode away from the scene.

As soon as he realized what had happened, Mr. Clements called 911 on his cordless telephone and began administering first aid to Mr. Perrow. The police arrived about five minutes later, and shortly thereafter the emergency medical technicians arrived and began attending to Mr. Perrow.

Another Burgundy Street resident, Antonio Chabera, also witnessed some of the events that morning. He was walking his dog when he saw two young African American men ride past him on his bicycle. They caught his attention, because they appeared to be young, and Mr. Chabera was surprised that they were awake so early on a summer morning. After he saw the two males, who were later identified as Mr. Lewis and Mr. James, he continued walking his dog. He entered an empty lot at the corner of Burgundy Street and Elysian Fields Avenue, and he observed the two men ride down Burgundy Street on the bicycle. Minutes later, he heard five gunshots. He ran into the street and saw the same two men that he had seen minutes before. They were getting on their bicycle. Mr. Chabera ran into a nearby bar to ask someone to call the police, and he then ran to help Mr. Perrow. When he saw that Mr. Clements was assisting Mr. Perrow, Mr. Chabera ran in the direction traveled by the bicycle. He saw the bicycle turn down Touro Street toward Claiborne Avenue.

Mr. Perrow, Mr. Clements, and Mr. Chabera all were shown photographic lineups. On the day that Mr. Perrow was shot, New Orleans Police Department Officer Jeff Jacob showed two sets of six photographs each to Mr. Clements and Mr. Chabera separately. Neither was able to identify anyone in the line-up. Approximately two weeks later, Officer Jacob had become aware of new suspects, and Mr. Clements and Mr. Chabera both participated separately in two additional photographic line-ups. Both Mr. Clements and Mr. Chabera identified Mr. Lewis and Mr. James as the perpetrators of the crimes against Mr. Perrow. Because of his injuries, Mr. Perrow was unable to participate in the initial line-ups, but he was shown the second photographic line-up, and he identified Mr. Lewis as the man that he believed shot him and Mr. James as the second perpetrator.

At trial Mr. Perrow, Mr. Clements, and Mr. Chabera all identified Mr. Lewis in court as one of the two people who perpetrated the crimes against Mr. Perrow, and they all testified that they were certain that their identifications were accurate. Both Mr. Clements and Mr. Chabera recalled that Mr. Lewis had at least one gold tooth, but they did not recall seeing the tattoos that were on Mr. Lewis’ arms at the time of the trial. Finally, Mr. Perrow testified that Mr. Lewis was the person who shot him, and Mr. Clements testified that when Mr. Lewis looked at him at the crime scene, he saw Mr. Lewis put something, which could have been a gun, in his waistband. Therefore, Mr. Clements had assumed Mr. Lewis was the perpetrator who had fired the gun.

Crimes Against Mr. Williams

At approximately 9:30 p.m. on the same day that the crimes against Mr. Perrow were perpetrated, Mr. Williams was the victim of an armed robbery, and he was also shot. Shortly after Mr. Williams closed the clothing store that he owned, he drove to his home at Villere Street and Elysian Fields Avenue. He parked his car, set the car alarm, and then saw a man step out of the alleyway next to his residence. Mr. Williams focused his attention on the man, because there was no reason for him to be in the alleyway. Mr. Williams observed the man looking up and down the street to determine whether anyone was nearby. The man then took a gun from his waistband and pulled a bandana that had been around his neck over the lower part of his face. He then approached Mr. Williams and said, “Bitch, don’t move, I got you.” Mr. Williams dropped the keys he was holding and offered to give the man everything in his possession. In response, the man thrust the gun into Mr. Williams’ side and told him to pick up the keys. The man then forced Mr. Williams to walk up the steps to his house. When he reached the landing at the top of the first flight of stairs, Mr. Williams observed a second man on the landing. The second man was armed with a gun, and Mr. Williams saw him pull a bandana over the lower part of his face. The second man then put his gun against Mr. Williams’ neck, while the first man still had his gun in Mr. Williams’ side. With an armed man on both sides of him, Mr. Williams was forced to open an iron gate in front of the door to his house while one of the robbers said, “Open the mother fucking gate or I’m going to blow your fucking head off. Bitch, open that gate.” Mr. Williams opened the gate, and put a key into a lock on his front door. Just as the front door opened, Mr. Lewis shot him and said, “Bitch, I ain’t playing.”

Mr. Williams testified at trial that while he was being forced into his home at gunpoint, he had been calling his wife, trying to alert her to the situation. When she came to the front door of their house, Mrs. Williams saw her husband bleeding and standing between two men. One of the men, later identified by Mr. Williams as Mr. James, said to her, “Bitch, bring me to the money.” He then grabbed her and forced her to go though the house in a search for money while he continually threatened her. When Mrs. Williams was unable to satisfy his demands for money, Mr. James took her into the kitchen where Mr. Williams was already lying on the floor, having been forced into the kitchen by Mr. Lewis who held a gun to Mr. Williams’ head. Mr. James ordered Mrs. Williams to get on the floor, also. Mr. Williams then asked the two men not to hurt his wife, and he stood up, went to the kitchen stove, and retrieved some money that was hidden in a vent. Mr. James took the money that had been hidden and ran out of the Williams’ house. Mr. Lewis forced Mr. Williams at gunpoint to walk back to his front door, where Mr. Lewis shot Mr. Williams a second time and then fled.

While Mr. Williams was in the hospital recovering from his gunshot wounds, he saw a replay of a news broadcast showing the photographs of two men who had been arrested in connection with the shooting and attempted robbery of a male jogger. Mr. Williams testified at trial that he immediately recognized the perpetrators of the attack on the jogger as the men who had shot and robbed him. Mr. Williams immediately notified the police that the two men who had robbed and shot him were shown on a news broadcast that he had seen. Mr. Williams was subsequently shown two photographic line-ups. He identified Mr. Lewis as the person who had been in the alleyway and who had shot him twice. He identified Mr. James as the person who had held his wife at gunpoint. At trial, Mr. Williams identified Mr. Lewis in open court as the person who shot him. Mr. Williams testified that he had a very clear view of Mr. Lewis in the alleyway outside of his house, because a high intensity light from a utility pole was illuminating Mr. Lewis’ face.

Medical Testimony

Dr. Ralph Lupin testified at trial as an expert witness in forensic physiology. He testified that he had examined the medical records of both Mr. Perrow and Mr. Williams. Mr. Perrow’s medical records showed that he had sustained a number of significant gunshot wounds to the abdomen. One of the bullets perforated Mr. Perrow’s intestines and caused a serious infection. Mr. Williams’ medical records reflected that a bullet penetrated his liver, causing massive bleeding and severe injury to the organ. Both Mr. Perrow and Mr. Williams required numerous surgical procedures. Dr. Lupin opined that if the extraordinary expertise of the Charity Hospital physicians in responding to trauma had not been available to Mr. Perrow and to Mr. Williams, they would have both died from their wounds.

The Defense

The defense presented two witnesses, Roshawn Nobles and Mr. James. Ms. Nobles testified that Mr. Lewis was her boyfriend and that they had two children together. She further testified that Mr. Lewis was with her at all times on the day that the crimes were perpetrated against Mr. Perrow and Mr. Williams. She recalled that she and Mr. Lewis were babysitting at her mother’s apartment where they were staying a few days. She also testified that Mr. Lewis’ grandmother had called at approximately 7:00 a.m. on the day the crimes were committed and that the call had awakened her and Mr. Lewis.

Mr. James testified at trial that his name was, in fact, Lawrence James but that he was booked in connection with the crimes against Mr. Perrow and Mr. Williams under the name Raymond Williams. He testified that he had participated in the crimes against Mr. Perrow and against Mr. and Mrs. Williams. He admitted that he pled guilty to charges in connection with these crimes and stated that Mr. Lewis was not involved in them. He testified that a man known to him only as “Peanut” was the person who shot Mr. Perrow and Mr. Williams. Mr. James did not know Peanut’s name or address, and Mr. James was unable to explain why he and Peanut decided to commit the crimes together. He did say, however, that he and Peanut were both robbers and that “two people that rob people automatically going to bump heads.” Mr. James denied that he had ever told the police that Mr. Lewis was involved in the crimes. The State, however, presented a rebuttal witness, New Orleans Police Department Sergeant Charles Watkins, who testified that Mr. James made an oral statement in which he had said that Dimarco Lewis was the person who had shot Mr. Perrow and Mr. Williams.

ERRORS PATENT

We find no errors patent in this ease.

DISCUSSION

Mr. Lewis has raised two specific assignments of error on appeal. In his first assignment of error, he contends that it was error for the trial court to permit the State to try the charges against him in connection with two separate criminal incidents in a single trial. In his second assignment of error, he contends that the sentence he received was excessive.

Assignment of Error No. 1: It was error to permit the State to try the Perrow and Williams counts together in one trial.

Severability of Offenses

La. C.Cr.P. art. 493 provides as follows:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

La.C.Cr.P. art. 495.1 further provides that “[i]f it appears that a defendant or the state is prejudiced ... by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.”

In State v. Washington, 386 So.2d 1368 (La.1980), the Louisiana Supreme Court discussed the severability of offenses. The Supreme Court stated:

[T]he trial court must weigh the possibility of prejudice versus the important considerations of judicial economy and administration. In determining whether prejudice may result from the joinder, the court should consider whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile.

Id. at 1371.

In State v. Williams, 418 So.2d 562 (La.1982), the Louisiana Supreme Court stated that a motion for a severance of offenses “is addressed to the sound discretion of the trial court and the court’s ruling should not be disturbed on appeal absent a showing of an abuse of discretion.” Id. at 564. In State v. Celestine, 452 So.2d 676, 680 (La.1984), the Supreme Court further stated that “[w]e have held that there is no prejudicial effect from the joinder of two or more offenses when the evidence of each offense is relatively simple and distinct, even though such evidence might not have been admissible in separate trials of the offenses, because, with a proper charge, the jury can easily keep the evidence of each offense separate in its deliberations.”

In State v. Lebreton, 2003-0321, p. 12 (La.App. 4 Cir. 10/8/03), 859 So.2d 785, 794, this Court stated that if the facts of each offense are not complex, and if there is little likelihood that the jury will be confused by the evidence of more than hgpne crime, there is no prejudice, and severance of the offenses is not required. This Court also stated that “[t]he defendant has a heavy burden of proof when alleging prejudicial joinder of offenses, and he must make a clear showing of prejudice.” Id.

Based on the foregoing, if the offenses charged are triable by the same mode of trial and if the trial court judge did not abuse his discretion in determining that the offenses could be tried together, we must affirm the trial court’s decision. In the instant case, all of the charges against Mr. Lewis were triable by a jury composed of twelve jurors, ten of whom were required to concur to render a verdict. See La.C.Cr.P. art. 782(A). Therefore, the joined offenses in the instant case were triable by the same mode of trial.

In determining whether the trial court judge abused his discretion in permitting all of the offenses charged against Mr. Lewis to be tried in a single trial, we must consider the criteria for determining prejudice that were set forth in the Williams case. In the instant case, the facts of each offense were simple and each of the criminal incidents was a completely separate event with its own set of witnesses such that the jury would not have been confused by the various counts and would have been able to segregate the charges and the evidence. Mr. Lewis was not confounded in presenting his defense. In fact, he presented the same defense to both criminal incidents: an alibi to account for his presence at a place other than the crime scenes and the testimony of Mr. James that a man named Peanut, not Mr. Lewis, was Mr. James’ accomplice in the two criminal incidents. Because the defendant did not dispute that the same two men, Mr. James and Peanut, participated in both criminal incidents, the charges would not be used by the jury to infer a criminal disposition. Finally, there was no evidence that because the charges were not severed, the jury was hostile. Therefore, we find that the Williams criteria were met and that Mr. Lewis suffered no prejudice from having the charges against him joined at trial.

Effectiveness of Counsel

We note that Mr. Lewis has raised an underlying issue in connection with his first assignment of error. He contends that because his trial attorney did not move to sever the charges against him, he was denied effective assistance of counsel. With regard to raising on appeal a claim of ineffective assistance of counsel, the Louisiana Supreme Court stated in State v. Prudholm, 446 So.2d 729 (La.1984), that a “defendant’s remedy is through post conviction relief in the trial court where the quality of the attorney’s assistance can be fully developed and explored.” Id. at 737. In State v. Ratcliff, 416 So.2d 528 (La.1982), however, the Louisiana Supreme Court determined that “[s]ince the record discloses evidence needed to decide the issue of ineffective assistance of counsel and that issue was raised by assignment of error on appeal, in the interest of judicial economy we will address the issue now”. Id. at 530. See also State v. Seiss, 428 So.2d 444 (La.1983). In the instant case, this Court finds that an evidentiary hearing at the trial court level is not necessary, because the record before us is sufficient for the determination of counsel’s effectiveness at trial.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court of the United States articulated the test for determining the effectiveness of a criminal defendant’s counsel as follows:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687, 104 S.Ct. at 2064.

Louisiana courts have adopted the two-pronged test established in the Strickland case for determining the effectiveness of counsel. See, e.g., State v. Fuller, 454 So.2d 119 (La.1984); State v. Wilson, 2000-1736 (La.App. 4 Cir. 11/14/01), 803 So.2d 102.

In State v. LaCaze, 99-0584 (La.1/25/02), 824 So.2d 1063, the Louisiana Supreme Court discussed the effective assistance of counsel that a criminal defendant is afforded. The Supreme Court stated as follows:

A criminal defendant is guaranteed the effective assistance of counsel. U.S. Sixth Amendment; La. Const. art. I § 13. To prevail on a claim of ineffective assistance, a defendant must demonstrate (1) that his attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that counsel’s errors or omissions resulted in prejudice so great as to undermine confidence in the outcome. The Sixth Amendment does not guarantee “errorless counsel [or] counsel judged ineffective by hindsight,” but counsel reasonably likely to render effective assistance. Judicial scrutiny must be “highly deferential” and claims of ineffective assistance are to be assessed on the facts of the particular case as seen from “counsel’s perspective at the time,” hence, courts must indulge “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. ”

99-0584, p. 20; 824 So.2d at 1078-79 (footnotes omitted and emphasis added).

In State v. Brooks, 505 So.2d 714 (La.1987), the Louisiana Supreme Court stated that “hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.” Id. at 724. This Court has also recognized that if the trial counsel’s actions fall “within the ambit of trial strategy”, they do not “establish ineffective assistance of counsel.” State v. Bienemy, 483 So.2d 1105, 1107 (La.App. 4 Cir.1986).

We have already found that Mr. Lewis suffered no prejudice by having the charges against him in the two criminal incidents adjudicated in a single trial. Therefore, because the failure to satisfy either prong of the Strickland test precludes a finding of ineffective assistance of counsel, Mr. Lewis’ claim of ineffective assistance of counsel is without merit. We also note that it may have been part of the trial counsel’s trial strategy to have all of the charges tried in one proceeding. The trial counsel successfully brought a motion to sever Mr. Lewis’ trial from that of Mr. James, and he may have considered it to be to Mr. Lewis’ advantage to have all of the charges tried in one case. Had the jury believed Mr. James’ testimony, Mr. Lewis would have been exonerated on all of the crimes without having to undergo another trial.

Based on the foregoing discussion we find that Mr. Lewis suffered no prejudice by having all the charges against him considered in a single trial. Therefore, we find his first assignment of error to be without merit.

Assignment of Error No. 2: The trial court imposed an excessive sentence.

Mr. Lewis contends that imprisonment at hard labor for two hundred and three years without the possibility of probation, parole, or suspension of sentence is the equivalent of a life sentence. Therefore, he argues that his sentence violates the constitutions of both the United States and the State.

The Louisiana Constitution expressly provides that “[n]o law shall subject any person to cruel, excessive, or unusual punishment.” La. Const. art. 1, 20. Although the United States Constitution does not expressly prohibit “excessive punishment”, it does prohibit “cruel and unusual punishment.” U.S. Const. amend. VIII.

In State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973, 977, the Louisiana Supreme Court stated that the deliberate inclusion of the prohibition against excessive sentences in the state constitution by its redactors imposed on the court the duty to review the sentencing provisions of criminal statutes. The Supreme Court further stated that the court is permitted to determine both whether the statutory range of sentences and the sentence of a particular offender is excessive, even if that offender’s sentence were within the prescribed statutory range. Id.

In State v. Bonanno, 384 So.2d 355 (La.1980), the Louisiana Supreme Court discussed the criteria for determining whether a sentence is unconstitutionally excessive as follows:

[T]o determine whether a certain penalty is excessive we must determine whether that penalty is grossly disproportionate to the severity of the crime. To determine whether the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.

384 So.2d at 358 (citations omitted).

In State v. Soco, 441 So.2d 719 (La.1983), the Supreme Court also stated that “[m]aximum sentences provided by the statutes are reserved for the ‘worst kind of offender’.” Id. at 720, citing State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982). The Supreme Court further stated:

In order for there to be proper review of the sentence to determine its constitutionality, La. Const. art. 1, § 20, that is, whether the defendant is the worst kind of offender, an adequate record specifying the basis for the sentence must be made. This record is mandated by C.Cr.P. 894.1, which also provides the sentencing judge with guidelines to follow when passing sentence.

Id. The Supreme Court has also stated that “[i]f the judge records the factors affecting his sentencing decision, the sentence should not be set aside as excessive unless it is grossly disproportionate to the offense or represents nothing more than the needless infliction of pain and suffering.” State v. Pike, 426 So.2d 1329, 1335 (La.1983)

In the instant case the trial court judge adequately complied with the statutory sentencing guidelines under La.C.Cr.P. art. 894.1, and he made his finding in connection with those guidelines part of the record. He found that Mr. Lewis’ conduct during the commission of his crimes “manifested deliberate cruelty to the victims.” He considered all of the mitigating circumstances listed in article 894.1, and he found no mitigating circumstances. Additionally, Mr. Lewis offered no evidence of mitigating factors at the sentencing hearing, and he suggests none in his brief.

At Mr. Lewis’ sentencing hearing, the trial court judge described Mr. Lewis’ crimes as follows:

[W]e have one victim in this case that was going to jog in the morning, which was the favorite thing he had to do every day.... And you go out and attempt to rob him. And when he didn’t give you any money, you shot him five times and left him to die in the street.... You leave there and later that night go to Mr. Williams’ home and go into his home, shoot him, drag his wife around, beat her up and steal their life savings. And then your comment that you make today is, Well [sic], I’m not a robber, I’m a drug dealer....

We also note that at the sentencing hearing Mr. Lewis stated, “I feel like my lawyer laid down on me, my lawyer ain’t do this, my lawyer ain’t do that I don’t have to rob, man. I sell drugs.” We also find that the trial court judge had more than sufficient grounds for his determination that Mr. Lewis was without remorse.

The trial court judge imposed the maximum sentence on each count of which Mr. Lewis was convicted, but he did not order the sentences on the offenses perpetrated against Mr. Perrow to run consecutively to the sentences on the offenses perpetrated against Mr. and Mrs. Williams, as he could have done. See La.C.Cr.P. art. 883. Therefore, Mr. Lewis did not even receive the maximum number of years that he could have been required to serve for his crimes.

We find that the crimes perpetrated by Mr. Lewis are abhorrent and that he is clearly among the worst offenders for whom the maximum sentences are reserved. He showed no remorse for his crimes, and one of his victims, Mr. Perrow, will suffer from permanent physical problems as a result of his injuries. Both Mr. Perrow and Mr. Williams have endured enormous pain and suffering throughout their multiple surgical procedures.

The sentence imposed on Mr. Lewis does not shock our sense of justice. It does not represent the needless infliction of pain and suffering, and it was imposed by the trial court judge after thoughtful consideration of applicable sentencing guidelines. The trial court judge in no way abused his discretion in imposing a sentence of two hundred and three years on Mr. Lewis. In this particular case, that sentence is not excessive. Mr. Lewis’ assignment of error regarding the excessiveness of his sentence is without merit.

CONCLUSION

We find no errors in the judgment of the trial court. Mr. Lewis’ convictions and sentences are affirmed.

AFFIRMED.

      . Mr. James used the alias Raymond Williams.

      . Although Mr. James was originally charged with two counts of attempted second degree murder, one of the counts was amended to a count of being an accessory after the fact to second degree murder.

      . La. R.S. 14:64.3 provides that "[w]hen the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence.” (Emphasis added.) Although it may be arguable that the State’s failure to move to have this provision invoked prior to the trial in some cases is an error patent, we do not find that it was in this case. The indictment in this case charged Mr. Lewis with committing an armed robbery while armed with a gun. Therefore, we do not find that the State’s failure to invoke the sentence enhancement provisions of La. R.S. 14:64.3 prior to Mr. Lewis' conviction violated his right to due process. The jury was certainly aware that the armed robbery of which Mr. Lewis was accused was committed with a firearm, since the irrefutable evidence presented at trial showed that victim was shot twice.

      . La.C.Cr.P. art. 782(A) provides in relevant part that "[cjases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.”

      . The only common witnesses presented by the State were Dr. Lupin, the expert in forensic physiology, and Sergeant Watkins, who testified only as a rebuttal witness to impeach the testimony of Mr. James.

      . Mr. Lewis was sentenced to one hundred ninety-eight years on one count of armed robbery under the Habitual Offender Law, La. R.S. 15:529.1. He was sentenced to an additional five-year term under La. R.S. 14:64.3(A), which provides that "[w]hen the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence.” La. R.S. 14:64.3(A) further provides that the additional penalty shall be served consecutively to the sentence for the armed robbery conviction. Therefore, Mr. Lewis is serving a sentence of two hundred and three years.


author: MICHAEL E. KIRBY, Judge. h McKAY, J.,

text:
    GENGHIS KAHN, INC. v. FORMOSA HOTEL INC.
    No. 2003-CA-1218.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 2004.
    Julian R. Murray, Jr., Shawn M. Murray, Chehardy, Sherman, Ellis, Breslin, Murray & Recile, Metairie, LA, for Plaintiff/Appellee.
    Leonard L. Levenson, Colleen Boyle Ga-non, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

Defendant, Formosa Hotel, Inc., appeals the December 20, 2002 trial court judgment in favor of plaintiff, Genghis Khan, Inc., declaring that plaintiff has validly exercised its five-year renewal option under the lease between the parties, ordering defendant to grant the renewal option and denying defendant’s rule for eviction.

On September 11, 2002, plaintiff filed a petition for injunctive relief, declaratory judgment, specific performance and attorney’s fees against the defendant. The allegations in plaintiffs petition are as follows: The defendant owns a hotel located at the corner of Baronne and Common Streets in New Orleans. Prior to September 14, 2001, the plaintiff operated the Genghis Khan Restaurant on Tulane Avenue for twenty-six years. The defendant entered into a lease agreement with plaintiff for plaintiff to operate a restaurant in defendant’s hotel. The term of the lease was for one year beginning on September 15, 2001, with two five-year renewal options. Plaintiff relocated its restaurant to the hotel, and gave timely written notice of its intention to exercise the first five-year renewal option. The defendant acknowledged timely receipt of plaintiffs written intention |¡.to exercise the first five-year option, but refused to allow plaintiff to exercise the option because plaintiff did not tender a $25,000.00 security deposit at the time it gave notice that it was exercising its option to renew. Under the terms of the lease, the security deposit was waived for the first year of the lease. According to plaintiff, nothing in the lease requires that the deposit be paid at the time written notice is given of plaintiffs intention to exercise its option to renew. Plaintiff tendered the deposit to defendant prior to September 14, 2002, but defendant refused to accept it and insisted that plaintiff vacate the premises at the expiration of the first year of the lease, September 14, 2002.

In its petition, plaintiff prayed for judgment enjoining defendant from evicting plaintiff at the expiration of the first year of the lease. Plaintiff further prayed for judgment declaring that it has validly exercised its five-year renewal option under the lease, and affirming that plaintiff is entitled to specific performance and attorney’s fees pursuant to the terms of the lease and costs of the proceedings.

Defendant answered plaintiffs petition and filed a reconventional demand, asking for a summary eviction proceeding with plaintiff ordered to show cause why it should not be ordered to deliver possession of defendant’s premises due to breaches of the commercial property lease and a subsequent addendum.

Following trial on the merits, the trial court rendered judgment in favor of plaintiff and against defendant, declaring that plaintiff has validly exercised its five-year renewal option under the lease between the parties, ordering defendant to grant the renewal option and denying defendant’s rule for eviction. In reasons for judgment, the trial court found that plaintiff fully complied with the deposit and requirements of the lease because the deposit was tendered within the first year of lathe lease. Having found that plaintiff complied with the renewal provisions of the lease, the court found that plaintiff is entitled to injunctive relief to prevent eviction because its alleged non-compliance with the renewal provisions was the defendant’s primary reason for seeking the plaintiffs eviction.

The trial court also rejected defendant’s allegations regarding its additional grounds for eviction based on violations of the written terms of the lease. The court stated that plaintiff countered defendant’s claims with its own claims of broken verbal promises made by defendant to plaintiff. The court evaluated the credibility of the witnesses and found that the plaintiffs witnesses, proprietors Erica Lee and Henry Lee, were credible whereas defense witnesses Chinli Lee and John Loftin were not. The trial court found that the testimony of those two defense witnesses was contrived to obtain the results they desired.

The defendant now appeals the trial court judgment, arguing that the trial court erred in finding that plaintiff validly exercised its option to renew its lease with defendant. It is undisputed that defendant received plaintiffs May 13, 2002 letter informing defendant that it was exercising the first five-year renewal option. It is also undisputed that plaintiff tendered the $25,000.00 security deposit for the renewal term on August 14, 2002. The first year of the lease ended on September 14, 2002. Defendant’s position is that plaintiff was required under the lease to tender the security deposit at the time it gave written notice of its intention to exercise the option. Plaintiffs position is that the deposit was not due until the completion of the first year of the lease because that is when the option would be actually executed.

In the commercial property lease between the parties executed on August 28, 2001, the section entitled “Options” states in pertinent part:

Provided Lessee is not in default under this lease, Lessee shall have the option to extend this lease for two (2) additional five (5) year periods by notifying Lessor by registered mail or certified mail not later than four (4) months prior to the expiration of the then current lease year.

The section entitled “Security Deposit” states, in pertinent part:

The security deposit shall be waived for the term of the first year of the lease. On the date of execution of the first five (5) year option, Lessee shall deposit with Lessor the sum of $25,000.00 to be held as security for the faithful performance by Lessee of Lessee’s covenants and obligations under this lease.

This case turns on the interpretation of the phrase “date of execution” in the section of the lease entitled “Security Deposit.” In Simpson v. Pep Boys-Manny Moe & Jack, Inc., 2003-0358 (La.App. 4 Cir. 4/10/03), 847 So.2d 617, this Court stated the standard of review for a trial court’s decision based on the interpretation of a contract as follows:

The issue of whether or not the language of a contract is ambiguous is an issue of law subject to de novo review on appeal. Orleans Parish School Board v. City of New Orleans, 96-2664 (La.App. 4 Cir. 9/3/97), 700 So.2d 870. “In the interpretation of contracts, the trial court’s interpretation of the contract is a finding of fact subject to the manifest error rule.” Grabert v. Greco, 95-1781, (La.App. 4 Cir. 2/29/96), 670 So.2d 571, 573. In applying the manifest error rule to the trial court’s interpretation, the Court of Appeal may not simply substitute its own view of the evidence for the trial court’s view, nor may it disturb the trial court’s finding of fact so long as it is reasonable. Syrie v. Schilhab, 96-1027, (La.5/20/97), 693 So.2d 1173. In such cases, appellate review of questions of law is simply to jBdetermine whether the trial court was legally correct. Lakeland Anesthesia, Inc. v. CIGNA Healthcare of LA, Inc., 2001-1059, p. 3 (La.App. 4 Cir. 2/6/02), 812 So.2d 695, 697-698, quoting Bartlett Construction Co., Inc. v. St. Bernard Parish Council, 99-1186 (La.App. 4 Cir. 5/31/00), 763 So.2d 94.

Id., pp. 3-4, 847 So.2d at 621.

Furthermore, La. C.C. article 2056 states, in pertinent part, as follows:

In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text.

Witnesses for both plaintiff and defendant testified that counsel for defendant prepared the lease at issue. This fact is undisputed. We find that the lease is ambiguous as to when plaintiff was required to tender the security deposit for the five-year renewal period. This ambiguity in the lease must be construed against the defendant because its counsel prepared the lease. The lease does not include language specifically requiring plaintiff to tender the deposit with the written notice indicating that the renewal option would be exercised. Absent such language, plaintiffs interpretation that the “date of execution” of the option did not occur until the completion of the first year of the lease is a reasonable one. Accordingly, plaintiffs tender of the security deposit prior to the end of the first year of the lease was timely.

For the reasons stated above, we affirm the trial court judgment.

AFFIRMED.

McKAY, J., dissents with reasons.

h McKAY, J.,

dissents with reasons.

I respectfully dissent from the majority opinion and would reverse the trial court’s judgment in this case.

The lease at issue provides for an initial term of one year. During that initial term no security deposit is due. If the lessee wished to extend the lease then it must have provided a $25,000.00 security deposit at the time that it exercised that right. On May 13, 2002, the lessee stated that it was exercising its right to renew but failed to tender the security deposit until August 14, 2002. Accordingly the option to renew was not validly exercised. The trial court’s ruling that no security deposit was due at the time the lessee stated that it was exercising its renewal option is contrary to the plain language of the lease.

      . Genghis Khan, Inc. is incorrectly spelled Genghis Kahn, Inc. in the petition and caption of this case.


text:
    JACKSON AVENUE FOUNDATION, INC. v. Eric LASSAIR, Telejacks and Things, Inc. and Angela Coleman.
    No. 2003-CA-1759.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 2004.

      Louis R. Koerner, Jr., Koerner Law Office, New Orleans, LA, for Plaintiff/Appellant, Jackson Avenue Foundation, Inc.
    Thomas Corrington, The Corrington Law Firm, New Orleans, LA, for Defendants/Appellees, Eric Lassair, Telejacks and Things, Inc. and Angela Coleman.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge LEON A.CANNIZZARO, JR.). .
   LEON A. CANNIZZARO, JR., Judge.

This case involves an appeal from the trial court’s dismissal of a motion to hold certain parties in contempt for violating a consent judgment previously rendered by the trial court., The plaintiff is appealing, the dismissal of the motion.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

At a tax sale, Jackson Avenue Foundation, Inc. (the “Foundation”), a non-profit organization chartered to protect the architectural heritage of Jackson Avenue in New Orleans, Louisiana, acquired a lot and the improvements located at 938M2 Jackson Avenue. The Foundation acquired the property for the purpose of selling it to a third party who would restore the property in furtherance of the Foundation’s mission, the preservation of historic Jackson Avenue buildings.

The Foundation decided to allow the property to be sold to Betty Jefferson, who owned the house and lot next door to the property, or her nominee. One of the potential purchasers of the property found by Ms. Jefferson admitted that he wanted to acquire the property to build a parking lot. This use of the property, which would have entailed the demolition of the improvements on the lot, was unacceptable to the Foundation, and it refused to sell the property to that purchaser.

Ms. Jefferson then nominated Eric Las-sair, Telejacks and Things, Inc., and Angela Coleman as potential purchasers of the property. Mr. Lassair, on behalf of Tele-jacks, Ms. Coleman, and himself, represented to the Foundation that he was a contractor and that they wanted to purchase the property for the purpose of renovating it. A contractor’s lien affected the property as a result of an aborted renovation project. Mr. Lassair, however, agreed on behalf of Telejacks, Ms. Coleman, and himself that they would defend the property against the lien.

In consideration of Mr. Lassair’s representations, the Foundation sold the property to him, Telejacks, and Ms. Coleman for a reduced purchase price. A check was given to the Foundation for the purchase price less a.small deposit that had already been paid, but the check was returned by the bank on which it was drawn, because there were insufficient funds to pay the check.

The Foundation then filed suit against Mr. Lassair, Telejacks, and Ms. Coleman for damages and for an injunction prohibiting the demolition of the improvements on the property. The trial court entered a judgment enjoining Mr. Lassair, Telejacks, Ms. Coleman, and anyone acting on their behalf from damaging, demolishing, and removing materials from the property. The trial court further ordered that the property be secured from damage, demolition, theft, and vandalism. Subsequently, the trial court held Mr. Lassair and Tele-jacks in contempt of court for violating the preliminary judgment by failing to prevent vandalism and the theft of architecturally important items from the property.

After Mr. Lassair and Telejacks were found to be in contempt of court, the trial court learned at a subsequent hearing that the property had been sold to Archie Jefferson, who had transferred the property to First Rate Investment Services, L.L.C., a limited liability company of which Mr. Jefferson was the general manager. The trial court then ordered that First Rate be made a party to the proceedings.

Ultimately, Mr. Lassair, Telejacks, Ms. Coleman, First Rate, and Mr. Jefferson entered into certain stipulations that formed the basis of a consent judgment rendered by the trial court. The consent judgment stated that the parties to the stipulations were permanently enjoined from “undertaking any action or failing to take any action in violation of the terms and provisions stated in the Stipulations.” The petition originally filed by the Foundation was dismissed by the consent judgment.

Among the stipulations to which the parties agreed in the consent judgment was a stipulation that no later than a stated date, First Rate would begin renovating the property in accordance with a proposal approved by, or pursuant to the directions of, the Historic Commission. The parties agreed that the restoration would retain the original facade and use the original materials to the extent feasible so that the property’s historic nature could be maintained.

The stipulations in the consent judgment further provided that the terms and provisions of the stipulations were binding on the heirs, successors, assigns, and transferees of the Foundation, Mr. Lassair, Ms. Coleman, Telejacks, and First Rate and that all of the parties were permanently enjoined from taking or failing to take any action that would violate the stipulations. Additionally, Mr. Jefferson personally guaranteed the performance of all of the obligations of First Rate under the stipulations.

After the consent judgment was rendered, the improvements located on the property were demolished. The Foundation then filed an amended petition against Mr. Lassair, Telejacks, Ms. Coleman, Mr. Jefferson, Ms. Jefferson, and First Rate. In the amended petition, the Foundation sought (1) rescission of the sale of the property plus damages in an amount that would permit the property to be restored in accordance with the consent judgment, (2) damages, including attorneys’ fees, suffered by the Foundation as a result of fraud allegedly committed by the defendants named in the amended petition in demolishing the building on the property rather than restoring it, and (3) enforcement of the consent judgment.

The Foundation subsequently filed a motion to hold the defendants named in the amended petition in contempt of court and for sanctions and damages for the willful violation of the consent judgment. Finally, the Foundation filed a motion to compel discovery.

After a hearing on the Foundation’s motions was held, the trial court denied the motion for contempt and dismissed the remaining claims urged by the Foundation. The trial court also denied as moot the Foundation’s motion to compel discovery.

The trial court judge gave the following reasons for her judgment: (1) she took judicial notice of a lawsuit that had been filed by the City of New Orleans against First Rate for its violation of historic district ordinances that required prior approval from the Historic Commission for the demolition of the building on the property; (2) the City was seeking the same relief as the Foundation was in the instant suit; (3) the Foundation, as a former owner of the property, failed to show a real or actual interest in the property; and (4) the Foundation did not claim to act in any representative capacity with respect to the Historic Commission.

DISCUSSION

Violation of the Injunction

In this case the trial court rendered a consent judgment that “permanently enjoined [the Foundation, Mr. Lassair, Tele-jacks, Ms. Coleman, First Rate, and Mr. Jefferson] from undertaking any action or failing to undertaking [sic] any action in violation of the terms and provisions stated in the Stipulations.” The Stipulations included the following provisions:

19.
No later than March 1, 2001, First Rate shall commence renovations of the Property either in accordance with an HDLC [Historic Commission] approved proposal or in accordance with HDLC’s directions for the renovations. The restoration will ^maintain its facade and use the original materials to the extent feasible, thereby maintaining the historic nature of the Property. Said renovations shall proceed in accordance with plans and specifications and a schedule approved by the HDLC and the City of New Orleans, Department of Safety and Permits. First Rate, at its sole cost and expense shall provide for the maintenance of a suitable security fence and other structures until the construction for the restoration....
24.
That Mr. Archie L. Jefferson intervenes herein and does hereby personally guarantee the performance of all obligations undertaken by First Rate.

It is undisputed that First Rate did not begin the restoration of the building located on the property no later than the stipulated deadline. At the hearing on the motion for contempt brought by the Foundation, Mr. Jefferson justified the violation of the injunction to begin restoration by the deadline in the following testimony:

Essentially, Your Honor, I was going to — at the time when I purchased this property, I also had an agreement to purchase the property next door. Because my sister could not find suitable housing in her district, she had to remain in her property. And my wife and I had to purchase another piece of property.
So, we were incurring a lot of expenses of renovation on both places. And we just did not have it to start at that time.
And before we could do anything else, it was damaged. (Footnote added.)

Eldon Huner, Jr., the senior building inspector for the Historic Commission, was qualified by the trial court as an expert in “construction renovation and condition of the building.” Mr. Huner testified that he was familiar with the condition of the building on the property at the time that the building was demolished. He testified that the building was structurally sound and was not in danger of falling down. Mr. Huner further testified that the building was demolished the day after a tropical storm had affected the New Orleans area, but he identified photographs of the building that were taken after the storm that failed to show that the building was leaning on the property next door. Mr. Huner also testified that his investigation revealed that the backhoe used to demolish the building on the property was leased prior to the hurricane.

At the contempt hearing, several newspaper articles were admitted into evidence. In one article Mr. Jefferson was quoted as saying that winds associated with the tropical storm caused part of the building on the property to fall on his sister’s house next door and that he, therefore, hired a crew to “pull it off.” He was also quoted as saying that the crew’s efforts caused the remainder of the building to collapse. Therefore, “[w]hen it fell over and started to do damage to other properties, there was nothing left to do.” Another newspaper article stated that Mr. Jefferson “said ... that he bought the property in hopes of tearing it down, buying his sister’s home and having a larger plot of land.” Mr. Jefferson did not dispute the newspaper articles that were entered into evidence.

Because the trial court dismissed the Foundation’s contempt motion and its action for contempt, she did not determine whether there were any violations of the permanent injunction that had been issued by the trial court in the consent judgment. The record shows that evidence was presented to support a finding that First Rate violated the injunction when it failed to begin renovating the property by the agreed upon date and a finding that Mr. Jefferson violated the injunction when he permitted the building on the property to be demolished. Nevertheless, the trial court made no findings of fact on this issue.

Contempt of Court

La. C.C.P. art. 221 provides that contempt of court consists of “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” La. C.C.P. art. 224 provides that “[w]ilful disobedience of any lawful judgment, order, mandate, writ, or process of the court” constitutes constructive contempt of court. La. C.C.P. art. 3611 provides that “[disobedience of or resistance to a ... final injunction is punishable as a contempt of court.” Article 3611 further states that the court may “cause to be undone or destroyed whatever may be done in violation of an injunction, and the person aggrieved thereby may recover the damages sustained as a result of the violation.”

La. C.C.P. art. 225 permits a contempt rule to be tried against a person charged with constructive contempt to be on either the court’s own motion or on the motion of a party to the proceeding. La. C.C.P. art. 227 provides that a court may impose punishment on a person judged- to be guilty of contempt as provided in La. R.S. 13:4611. That statute states in relevant part as follows:

Except as otherwise provided for by law:
(l)The supreme court, the courts of appeal, the district courts, family courts, juvenile courts, and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows:
(b) For disobeying or resisting a lawful restraining order, or preliminary or permanent injunction, by a fine of not more than one thousand dollars, or by imprisonment for not more than twelve months, or both....

In City of Lake Charles v. Parkerson, 347 So.2d 494, the Louisiana Supreme Court discussed contempt of court as follows:

The correctness of a court order or ruling is not contested by deciding to willfully disobey it, without suffering the consequence of that disobedience. Absent a showing of transparent invalidity or patent frivolity surrounding the order, it must be obeyed until stayed or reversed by orderly review.
.... It is only the orders of judicial authorities which must be tested in the courts before deliberate transgression can be excused on an eventual determination that the order was invalid.
... .While it should be sparingly used, the power of courts to punish for contempt is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the judicial process.

347 So.2d at 496-497 (citations omitted)(emphasis added).

In HCNO Services, Inc. v. Secure Computing Systems, Inc., 96-1693 (La.App. 4 Cir. 4/23/97), 693 So.2d 835, this Court stated that “[t]o find a person guilty of constructive contempt, it is necessary to find that he or she violated the order of court intentionally, knowingly, and purposely, without justification.” 693 So.2d at 845. Because the trial court judge found that the Foundation had no standing to raise the contempt issue in this case, she never reached the issue of whether any violation of the injunction contained in the consent judgment met the criterion set forth in the HCNO Services, case.

Remand to the Trial Court

The Foundation was a party to the proceeding in which the permanent injunction was issued. Therefore, as such, under La. C.C.P. art. 225, the Foundation had standing to move the court to consider whether the parties to the consent judgment were guilty of contempt. We, therefore, reverse the trial court judgment, and we remand this case to the trial court.

On remand, the trial court must make factual findings to determine whether or not the permanent injunction was violated. If there was a violation of the injunction, the trial court must determine whether it was committed “intentionally, knowingly, and purposely, without justification.” If the violation was so committed, the trial court must find the offending parties to be in contempt of court and administer appropriate sanctions.

Additionally, on remand, because we find that the Foundation had standing to move the court to determine whether any parties to the permanent injunction were in contempt of court, the trial court must also hear the Foundation’s discovery motions. The information that might be obtained by the Foundation pursuant to discovery might be helpful to the trial court in making its factual determinations on remand.

CONCLUSION

The judgment of the trial court is reversed. This matter is remanded to the trial court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

      . The record reflects that the purchase price was ultimately paid.

      . Ms. Coleman was dismissed from the motion for contempt, because there was no evidence that she had been served with the motion.

      . The formal name of the Historic Commission is the Historic District Landmarks Commission, which is the regulatory agency for local historic districts in New Orleans that are outside of that part of the city known as the Vieux Carre or French Quarter.

      . The property next door was owned by Ms. Jefferson, who is Mr. Jefferson's sister.

      . La. C.C.P. art. 224 provides that “[a] constructive contempt of court is any contempt other than a direct one.” La. C.C.P. art. 222 provides that "[a] direct contempt of court is one committed in the immediate view and presence of the court....”

      . Although the record before us clearly indicates that the injunction was violated twice, it is the province of the trial court to make factual findings, which we are then to review on appeal. Therefore, the trial court should make the initial findings of fact in this case.