author: LWOODARD, Judge.

text:
    Magnolia WILLIAMS v. CITY OF MARKSVILLE, City of Marksville Police Department, and Lawrence J. Bordelon.
    No. 02-1130.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      Darrell Hickman, Noland Hammond, Alexandria, for Magnolia Williams.
    Raymond Brown, Jr., Gold, Weems, Bruser, Sues, & Rundell, Alexandria,for City of Marksville, City of Marksville Police Department, and Lawrence J. Borde-lon.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and ELIZABETH A. PICKETT, Judges.
   LWOODARD, Judge.

Ms. Magnolia Williams appeals the amount of damages the trial court awarded to her, the trial court’s exclusion of evidence relating to her second surgery, and the trial court’s grant of the exception of res judicata, precluding her from re-litigating the City’s Lability in her automobile accident with Officer Lawrence Bordelon. We affirm in all respects.

Ms. Williams and Officer Bordelon, a police officer on duty for the City of Marksville Police Department, were involved in an automobile accident on June 18, 1998. On July 14, 1998, she filed the present suit against him, the City of Marksville and the City of Marksville Police Department (City), and Gulf Insurance Company (Gulf), the City’s insurance provider. She sued the City because Officer Bordelon was in the course and scope of his duty for it when the accident occurred.

Two days after she filed the present suit, Officer Bordelon filed suit against her and her insurer, Safeway Insurance Company (Safeway). Ms. Williams, therefore, had the opportunity to file an exception of lis pendens to have Officer Bordelon’s suit dismissed. When she chose not to except, she assumed the risk that any issues decided in Officer Bordelon’s suit against her would be conclusive in her suit against him, if a judgment in his suit was rendered before a judgment was rendered in hers.

Before the trial court rendered judgment in Officer Bordelon’s suit, Ms. Williams amended her answer to plead specifically the City’s negligence and fault, not based on its status as Officer Borde-lon’s employer, but based on its own negligence in failing to maintain a safe intersection. She did not join the City in the suit but, rather, pleaded its negligence as an affirmative defense under La.Civ.Code art. 2323 and 2324.

After a bench trial, the trial court rendered a judgment on liability in Officer Bordelon’s suit, assessing 80% fault to Ms. Williams and 20% to him. It also 1 ^determined the amount of his damages. It did not assign any fault to the City. Ms. Williams did not appeal the liability allocation in Officer Bordelon’s case.

After this judgment, the City filed an exception of res judicata concerning liability in the present action, Ms. Williams’ suit. She amended her petition to include the allegation against the City based on its failure to maintain a safe intersection. The trial court granted the exception and held a jury trial to determine the amount of her damages based on the already adjudicated apportionment of fault. It excluded all evidence relating to the second surgery on her knees, because she failed to disclose that she had had a second surgery and produced no evidence regarding it until two days before trial, unfairly prejudicing the Defendants and violating the court’s pre-trial order. The jury awarded her $5,500 in damages. Ms. Williams appeals.

We must decide: 1) whether the trial court erred in maintaining the City’s exception of res judicata; 2) whether it erred in precluding evidence related to Ms. Williams’ second surgery; and 3) whether the evidence supported an award of only $5,500.

* * -1!

Res Judicata

“Res judicata is an issue and claim preclusion device found both in federal law and state law.” Before it was amended in 1991, Louisiana law on res judicata was substantially narrower than federal law, however, the amendments expanded the law to include issue preclusion. Technically, both claim and issue preclusion are termed res judicata under our law. However, there is a distinction given in Hudson v. City of Bossier:

| atJnder claim preclusion, a final judgment on the merits precludes the parties from relitigating matters that were or could have been raised in that action. Under issue preclusion or collateral es-toppel, once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties.

(Emphasis added.)

Thus, unlike issue preclusion, claim preclusion is much broader, encompassing a prohibition against relitigation of those matters which, not only, were litigated but, also, of those which could have been litigated. “The purpose of both federal and state law on res judicata is essentially the same; to promote judicial efficiency and final resolution of disputes by preventing needless re-litigation.”

La.R.S. 13:4231 governs res judicata. Subsection (3), which specifically addresses issue preclusion, provides:

(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

(Emphasis added.)

Although our state rules regarding res judicata were recently amended to include issue preclusion, bringing them further in line with the federal rules, unlike the federal rules, our statute still requires mutuality; that is, it is only applicable if the parties to the first and second actions are the same or there is identity of parties.

Since fault in Officer Bordelon’s suit was allocated under La.Civ.Code art. 2323, which was also recently amended, this case presents us with a novel situation. Article 2323, the comparative fault article, was amended in 1996 to include a requirement that the court allocate fault to all entities, whether or not they have been joined as parties, if their alleged fault is relevant to the case. The article states that “the percentage of fault of all persons causing or contributing to [an] injury ... shall be determined, regardless of whether the person is a party to the action or a nonparty[.J’ (Emphasis added.)

UOur supreme court, in Dumas recently reviewed the amendments to Article 2323 and stated:

We find the language of Articles 2323 and 2324(B), as amended by Act 3, is clear, unambiguous, and does not lead to absurd consequences. Article 2323 provides that “[i]n any action for damages ..., the degree of percentage of fault of all persons causing or contributing to the injury, death or loss shall be determined, regardless of whether the person is a party to the action or a nonparty.... The [foregoing] provisions ... shall apply to any claim ... asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.” (Emphasis added.) Thus, this article clearly requires that the fault of every person responsible for a plaintiffs injuries be compared, whether or not they are parties, regardless of the legal theory of liability asserted against each person.

(Citations omitted.)

Thus, even though not formally joined in the suit, for all intents and purposes, even a nonparty is treated as if s/he is a party for the purpose of allocating a percentage of fault to that “party” in order to reduce the percentage of fault allocated to the actual litigants and it stands to reason for purposes of res judicata. However, this does not mean that a nonparty is responsible if cast in judgment since to do so would violate that person’s due process rights by binding the non-party without giving that person an opportunity to be heard.

Thus, while Ms. Williams did not “third party” the City in Officer Bordelon’s suit, when she attempted to use the City’s fault for an allegedly defective intersection as an affirmative defense, in effect, she put the City’s fault in this regard at issue and is precluded from asserting it a second time in another suit. Moreover, Ms. Williams did not appeal the fault allocation in that suit, making it a final adjudication of the City’s fault, even though the trial court did not, specifically, address the City’s fault in its allocation. It is sufficient for res judicata purposes that the pleadings and law 1 vindicate the grounds for the trial court’s judgment. Accordingly, since Ms. Williams pleaded the City’s negligence under Article 2323 and Article 2323 required the trial court to determine the percentage of the City’s fault, we must presume that it found no fault on the part of the City. Indeed, the trial court’s allocation of fault, 80% to Ms. Williams and 20% to Officer Bordelon, accounts for 100% of the fault for the accident. Furthermore, when an issue is raised but not specifically ruled upon, we must presume that the trial court rejected it.

Exclusion Of Evidence Relating To Second Surgery

Ms. Williams complains that the trial court erred when it excluded all evidence relating to her second surgery. We must review this evidentiary ruling to determine if the trial court abused its discretion in this matter.

There was a pre-trial order in effect requiring that the Plaintiff furnish the Defendant with a memo, including, among other things, an itemized list of all damages claimed and a list of exhibits and documents to be introduced, at least twenty days before the trial date. Furthermore, such memos were required to be presented to the court three days prior to trial. This order specifically states that the court, may, in its discretion, exclude any evidence not presented in the required pre-trial memorandums.

Contrarily, Ms. Williams did not honor the order’s timeliness requirement. In fact, she failed to provide the Defendants and the court with any information indicating that she had a second surgery until two days before trial. Once revealed, they requested immediate delivery of evidence relating to that surgery, some of which she provided late in the afternoon on the day before trial. She failed to give any reason for the failure to provide the Defendants with this information timely. Thus, [fithe trial court excluded this evidence based on unfair prejudice to the Defendants by its surprise.

We find that the trial court did not abuse its discretion in excluding this evidence.

Damages

Ms. Williams argues that the jury’s award of only $5,500 in damages is inadequate and that the evidence does not support it because her medical bills since the accident exceeded this amount.

We review the jury’s determination under the manifest error standard and must respect its determination unless it is clearly wrong. After reviewing the record in its entirety, we find that the jury could have reasonably determined that Ms. Williams’ medical bills were incurred, in part, due to a pre-existing condition which her accident with Officer Bordelon did not cause or aggravate. Causation is a question of fact for the jury, which we will not disturb, absent manifest error. Therefore, we maintain the jury’s determination.

CONCLUSION

We hold that Ms. Williams is precluded from re-litigating the City’s liability, because she had already litigated the issue as an affirmative defense, requiring the trial court to determine the City’s liability, if any, at that time. Therefore, based on issue preclusion, we affirm its grant of the City’s exception of res judicata. We find no abuse of discretion in its decision to exclude evidence of her second surgery, nor do we find that the amount of damages awarded was an abuse of discretion. We cast the costs for this appeal on Appellant, Ms. Williams.

AFFIRMED.

      . See La.Code Civ.P. art. 531; see also Fincher v. Insurance Corp. of Am., 521 So.2d 488 (La.App. 4 Cir.), writ denied, 522 So.2d 570 (La.1988).

      . Terrebonne Fuel & Lube, Inc. v. Placid Ref. Co., 95-654, p. 11 (La.1/16/96), 666 So.2d 624, 631.

      . Id.

      . 33,620, p. 7 (La.App. 2 Cir. 8/25/00); 766 So.2d 738, 743, writ denied, 00-2687 (La.11/27/00); 775 So.2d 450.

      . Terrebonne, 666 So.2d at 631.

      . Dumas v. State ex rel. Dep’t of Culture, Recreation & Tourism, 02-563, p. 11 (La.10/15/02); 828 So.2d 530, 537.

      . Id.

      . Richards v. Jefferson County, 517 U.S. 793, 116 S.Ct. 1761, 135 L.Ed.2d 76 (1996); Hudson, 766 So.2d 738.

      . Tolis v. Board of Supervisors of La. State Univ., 95-1529 (La.10/16/95); 660 So.2d 1206.

      . Tolls v. Board of Supervisors of La. State Univ., 94-1444 (La.App. 4 Cir. 5/16/95); 655 So.2d 747, rev’d on other grounds, 95-1529 (La.10/16/95); 660 So.2d 1206.

      . La.Civ.Code art. 2323.

      . Cooks v. Rodenbeck, 97-1389 (La.App. 3 Cir. 4/29/98); 711 So.2d 444.

      . Conques v. Wal-Mart Stores, Inc., 00-619 (La.App. 3 Cir. 2/15/01); 779 So.2d 1094, writ denied, 01-715 (La.4/20/01); 790 So.2d 643.

      . Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993).

      . White v. State Farm Mut. Auto. Ins. Co., 97-1704 (La.App. 3 Cir. 4/29/98); 713 So.2d 618, writ denied, 98-1429 (La.7/2/98); 724 So.2d 741.


source: Caselaw Access Project

author: h SAUNDERS, J.

license: Public Domain

text:
    Donna DESHOTEL v. CAROLYN’S WHOLESALE BAIT & TACKLE.
    No. 02-1148.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.
    Harry Burdette, Lafayette, for Donna Deshotel.
    Debra T. Parker, Baton Rouge, for Carolyn’s Wholesale Bait & Tackle.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and ELIZABETH A. PICKETT, Judges.
   h SAUNDERS, J.

The claimant, Donna Deshotel, appeals a judgment by the workers’ compensation judge (WCJ), granting Defendant’s Exception of No Cause of Action and dismissing with prejudice the claimant’s complaint seeking penalties and attorneys’ fees as a result of Defendant’s failure to pay medical expenses within the thirty day period allowed by La.R.S. 23:1201.

FACTS AND PROCEDURAL HISTORY

On August 21, 2001, Donna Deshotel filed a Form 1008/Petition alleging that she had injured her back, in the course and scope of her employment with Carolyn’s Wholesale Bait & Tackle, by falling over a vat while weighing shiners. During the pendency of that litigation, the parties entered into a Consent Judgment stating that the Defendants would “authorize and pay for the Claimant to undergo epidural steroid injections, physical therapy and aqua therapy; as well as continued office visits with Dr. Raffai” until the new trial date of June 26, 2001. In this Consent Judgement, Ms. Deshotel agreed to waive any and all indemnity benefits from August 20, 1999 to August 18, 2000. On June 26, 2001, a trial on the merits was held on the issue of whether or not an accident had occurred. On September 11, 2001, the trial court ruled in favor of Carolyn’s Wholesale Bait and Tackle, holding that there was no work related accident, that no workers’ compensation benefits were owed to Ms. Deshotel, and that Title 23 did not apply.

On November 7, 2001, Ms. Deshotel filed a Form 1008 “Disputed Claim for Compensation” alleging that a bill for Savoy Medical Center and a bill for Dr. Raffai had not been paid. She sought penalties and attorneys’ fees under Title 23 for the failure to pay these bills within thirty (30) days of written notice. On January 10, 2002, the Defendant filed an Exception of No Cause of Action. The Honorable LSharon Morrow heard oral arguments on April 26, 2002. The judge granted the Defendant’s Exception of No Cause of Action and dismissed Ms. Deshotel’s 1008/Petition with prejudice. Ms. Deshotel appeals that judgment.

DISCUSSION OF LAW

Ms. Deshotel contends that the workers’ compensation judge erred in granting the Defendant’s Exception of No Cause of Action and in failing to award penalties and attorneys’ fees in connection with the Defendant’s failure to pay the medical expenses granted in the Consent Judgment within thirty days. We agree with Ms. Deshotel and find the WCJ erred in granting the Defendant’s Exception of No Cause of Action and that the payment provisions of La.R.S. 23:1201(G) are applicable to the Consent Judgment entered into by the parties.

The supreme court discussed the standard of review for an Exception of No Cause of Action in City of New Orleans v. Bd. of Comm’rs of the Orleans Levee Dist., 93-690, p. 2 (La.7/5/94); 640 So.2d 237, 241. “The purpose of an exception of no cause of action is to determine the sufficiency in law of the petition. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well pleaded facts in the petition must be accepted as true.” The court further clarified the burden of proof as follows:

The burden of demonstrating that no cause of action has been stated is upon the mover or exceptor. In deciding the exception of no cause of action, the court must presume all factual allegations of the petition to be true and all reasonable inferences are made in favor of the non-moving party.
In appraising the sufficiency of the petition we follow the accepted rule that a petition should not be dismissed for failure to state a cause of action unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief.

Id., at p. 28, 253.

For the reasons stated below, we find that La.R.S. 23:1201(G) does apply to the Consent Judgment entered into by the parties during the hearing to determine whether Ms. Deshotel was entitled to workers’ compensation benefits. Because La.R.S. 23:1201(G) applies to the Consent Judgment, and it has not been clearly established that the Defendant paid Ms. Deshotel’s medical bills within the thirty (30) day period allowed in Section 1201(G), the WCJ erred in grating the Defendant’s Exception of No Cause of Action.

La. R.S. 23:1201 provides in pertinent part:

G. If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

The Defendant argues that Section 1201 should not apply to the Consent Judgment because the trial court in the original dispute determined that Ms. Deshotel did not suffer a work related injury. Therefore, the Defendant contends that Title 23 does not apply to the Consent Judgment entered into during that proceeding. Ms. Deshotel, however, asserts that the Consent Judgment was entered into in open court, in the Office of Workers’ Compensation, District 4, during the pendency of a workers’ compensation claim. Therefore, any subsequent claims of the failure of one of the parties to adhere to the Consent Judgment fall within the provisions of Title 23 |4of the Workers’ Compensation Act.

The Consent Judgment was reached in a workers’ compensation court proceeding, presided over by a workers’ compensation judge, and agreed to in the course of an ongoing hearing concerning a claim for workers’ compensation benefits. The circumstances surrounding the consent agreement support the contention of the claimant that the agreement is subject to Title 23’s statutory provisions for payment of workers’ compensation judgments.

Several circuits, including this one, have held that Consent Judgments fall within the final, nonappealable judgments governed by 23:1201(G). See Sanders v. Harrisonburg Nursing Home, 95-114 (La.App. 3 Cir. 5/31/95); 657 So.2d 394, writ denied, 95-1629 (La.10/6/95); 661 So.2d 469, Harrison v. Louisiana State Univ. Med. Ctr., 623 So.2d 707 (La.App. 4 Cir.1993), Geason v. Harmony Constr., 95-367 (La.App. 5 Cir. 11/15/95); 665 So.2d 485. The fact that the claimant ultimately failed in her pursuit of workers’ compensation benefits is immaterial to the validity and enforcement of the consent judgment.

As a result of the WCJ’s granting of the Exception of No Cause of Action, there was never a full hearing on the issue of whether Ms. Deshotel’s medical bills were timely paid by the Defendant. Therefore, the determination of that matter is not properly before us. There is clearly a dispute between the parties as to when written notice was given to the Defendants or their workers’ compensation insurer, Louisiana Workers’ Compensation Company. We remand the matter to the trial court for a full hearing on the issue.

DECREE

For the reasons stated above we reverse the WCJ’s grant of the Defendant’s | ¡¡Exception of No Cause of Action and find that La.R.S. 23:1201(G) applies to the Consent Judgment reached by the parties. Further evidence needs to be heard on the issue of the Defendant’s payment of Ms. Deshotel’s medical bills. We remand this case for further proceedings not inconsistent with this opinion. All costs of this appeal are assigned to the Defendant.

REVERSED AND REMANDED.


author: hDECUIR, Judge.

text:
    Roy FREMIN, Sr., et al. v. CONTINENTAL INSURANCE COMPANY, et al.
    No. 02-1157.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      George E. Cain, Jr., Gary L. Hanes, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, for Louisiana Patient’s Compensation Fund.
    Robert K. Tracy, Attorney at Law, New Iberia, LA, B. Adam Terrell, Weller, Green, Toups and Terrell, L.L.P., Beaumont, TX, for Roy Fremin, Sr., Bonnie Fremin, Mary Fremin Morein, Jacqueline Fremin Pisani and Donald J. Fremin.
    Richard G. Duplantier, Jr., Michael J. Ecuyer, Stephen J. Moore, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Jimmy N. Ponder, Jr., M.D., The Headache and Pain Management Center of the South, AMC Continental Insurance Company.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   hDECUIR, Judge.

In this medical malpractice case, defendants, Continental Insurance Company and Dr. Jimmy Ponder, together with in-tervenor, the Louisiana Patient’s Compensation fund, appeal an adverse judgment of the trial court. Plaintiffs also appeal one finding of the court. For the reasons that follow, we affirm.

FACTS

The trial court’s reasons for judgement provide a succinct recitation of the factual background of this case and we, therefore, adopt it as our own:

This suit was originally brought by Roy Fremin, Sr. and Margaret Fremin, husband and wife. Subsequently, Margaret Fremin died and her children were substituted as parties. Margaret Fremin had a history of multiple back surgeries. She had four surgeries to her back between 1975 and 1986. After the final surgery in 1986, Margaret Fre-min was able to maintain an active lifestyle but suffered chronic right foot pain. During the years from 1986 through 1996, she went through physical therapy and other pain treatments, but her complaints of pain continued. In early 1996, her treating physician, Dr. Sagrera, referred her to Dr. Jimmy N. Ponder, Jr., a pain management specialist. Beginning February 15, 1996, Dr. Ponder began a series of epidural steroid injections into her back. The purpose of these injections were to relieve pain. She had some temporary relief from her pain as a result of several of these epidural steroid injections. However, her pain ultimately returned to her. Dr. Ponder discussed with Margaret Fremin alternative treatment. The alternative treatment he recommended would include the placement of a spine stimulator or an epiduralysis. The purpose of an epiduralysis is to break up scarring and adhesions from the prior surgeries and thus relieve the pain of Margaret Fremin. On April 30, 1996, Dr. Ponder performed an epiduralysis of adhesions on Margaret Fremin. Upon completion of that epiduralysis of adhe-sions, he was of the opinion that it had not served the purpose he desired and he then performed a L5 nerve root block on the right side. Subsequently, Margaret Fremin developed a dense peroneal numbness from S2-3 down, resulting in neurogenic bladder and other complications. Margaret Fremin became incontinent of bowel and bladder, dragged her left leg and foot, and was only ambulatory with the use of a walker. She required assistance for bathing, dressing, going to the toilet, continence, laundry, meal preparation and housekeeping. These disabilities continued until the date of her death. She eventually died of unrelated causes on June 15, 1999. The medical term for the neurologic injury suffered by Mrs. Fremin is “cauda equina syndrome.” Margaret Fremin and Roy Fremin initially sought recovery in this matter. After the death of Margaret Fremin, her children were substituted in her place. The actions brought by Plaintiffs against Dr. Ponder are for lack of informed consent and medical malpractice.

| pAfter trial on the merits, the trial court concluded that there was a lack of informed consent on the part of Mrs. Fremin with regard to the nerve root block, and that a reasonable patient in her position would not have consented to the procedure had she been properly informed of the risk. The trial court awarded $369,757.14 in damages. Defendants lodged this appeal and the LPCF intervened since the judgment exceeded $100,000.00. Plaintiffs also appeal the determination that Mrs. Fremin made an informed consent to the initial epiduralysis.

INFORMED CONSENT

Defendants allege that the trial court erred in finding that Mrs. Fremin did not give informed consent to the nerve block procedure. We disagree.

In order to meet her burden of proof in an informed consent case, a plaintiff must prove the following elements:

1] The existence of a material risk unknown to the patient;
2] A failure on the part of the physician to disclose the risk;
3] That disclosure of the risk would have led a reasonable person in the plaintiffs position to reject the procedure or to choose a different course of treatment; and
4] Injury arising from performance of the procedure.

Brandt v. Engle, 00-3416 (La.6/29/01), 791 So.2d 614.

Defendants focus their argument on element three, alleging that the trial court erred in finding that the plaintiffs had established that a reasonable patient in Mrs. Fremin’s position would have rejected the procedure. Defendants argue that, because the risk of a nerve root block was similar to that of an epiduralysis, was relatively small, and the potential benefit great, that a reasonable patient would have consented under the circumstances. Even if that were true, which we do not find, this case involved other factors. For instance, Dr. Ponder did the nerve root block on the same |3day as the epiduraly-sis. Dr. Ponder himself testified that he normally would do the procedures on separate days. Of more critical importance is the evidence of Dr. David Breznik, a pain management anesthesiologist, asserting that the risks involved with the nerve root block were greatly enhanced by doing the procedure the same day as the epiduraly-sis, particularly the risk of the exact injury suffered in this case.

Dr. Gabor Racz, an anesthesiologist specializing in pain management and author of a text on the subject, testified that performing the procedures back-to-back was not typical. He also indicated that there were additional risks involved in the nerve root block.

Moreover, Drs. Reavill, Racz, Breznik, and even Ponder agreed that the nerve root block was a separate procedure requiring separate consent and that it was not an emergency procedure. Again, all of the doctors except Ponder indicated they would not do a nerve root block without discussing it with the patient and obtaining a separate consent.

After reviewing the record, we find no error in the trial court’s finding that a reasonable patient, faced with the additional risks associated with back-to-back epi-duralysis and nerve root block, would have rejected the block or at the very least postponed in favor of treatment at a later date.

The plaintiffs contend that the trial court erred in finding that Mrs. Fremin gave informed consent to the epiduralysis. Because our findings above are dispositive, this assignment is moot.

QUANTUM

The LPCF alleges that the trial court abused its discretion by awarding excessive damages in this case.

[¿The standard of review for damages was clearly set forth in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-61 (La.1993) (footnote omitted), where the court explained:

In Reck v. Stevens, 373 So.2d 498 (La.1979), this Court commented on appellate review of general damage awards and on the “much discretion” in fixing damages accorded to trial courts by La. Civ.Code art.1934(3)(1870). The decision pointed out that the role of an appellate court in reviewing general damages 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. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.
In Reck, this court disapproved the appellate court’s simply reviewing the medical evidence and then concluding that the award for those injuries was excessive, without taking into consideration the particular effect of the particular injuries on the particular plaintiff. This court further disapproved of the use of a scale of prior awards in cases with generically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the facts and circumstances peculiar to the particular case. The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indem. Co. Of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967). Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1974).

After reviewing the evidence, we find that the trial court did not abuse its “much discretion” in awarding damages in this case. This assignment has no merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to the defendant-appellants.

AFFIRMED.


author: hGREMILLION, Judge.

text:
    STATE of Louisiana v. Berkley J. DIXON.
    No. 02-1265.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.
    Earl B. Taylor, District Attorney, Alisa Ardoin Gothreaux, Asst. District Attorney, Opelousas, LA, for Plaintiff/Appellee, State of Louisiana.
    Paula Corley Marx, Lafayette, LA, for Defendant/Appellant, Berkley J. Dixon.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   hGREMILLION, Judge.

In this case, the defendant, Berkley Dixon, appeals his conviction for attempted simple robbery and the sentence of three years at hard labor, with two years suspended conditioned on three years supervised probation to commence upon his release from incarceration. Defendant challenges both his conviction and sentence in two assignments of error claiming the sentence is illegal because the conviction fails to meet the legal standard of sufficiency of evidence and the sentence exposes him to a term of imprisonment in excess of the statutory maximum.

SUFFICIENCY OF EVIDENCE

In this assignment of error, Defendant challenges the sufficiency of the evidence used to convict him of attempted simple robbery. Pursuant to State v. Hearold, 603 So.2d 731 (La.1992), we shall discuss this assignment of error first. Defendant is accused of attempting to take the wallet of an elderly man, Joseph Car-rón, by reaching into his back pocket. The evidence showed that when Defendant tried to take the wallet, Carrón pushed his hand out of the way and gave the wallet to his friend, Alfred Joseph, III, who is a younger and bigger man than Carrón. According to the testimony, Defendant threatened that he had a gun, but ran when Joseph pulled a bow and arrow from his trunk. Specifically, Defendant claims the evidence was insufficient to identify him as the perpetrator. He claims that neither Carrón nor Joseph positively identified him as the perpetrator.

When a key issue at trial is whether the defendant was the perpetrator of the crime, the State is required to negate any reasonable probability of misidenti-fication in order to carry its burden of proof beyond a reasonable doubt. State v. Smith, 430 So.2d at 45; see also State v. Brady, 414 So.2d 364, 365 (La.1982); State v. Long, 408 So.2d 1221, 1227 (La.1982). The fact-finder weighs the respective | ^credibilities of the witnesses, and this court will generally not second-guess those determinations. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). However, we are mindful that the touchstone of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) is rationality and that “irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.” State v. Mussall, 523 So.2d at 1310.
We have held that independent evidence that a crime has been committed and testimony by a victim or eye-witness generally are sufficient to support a verdict of guilt. See State v. Mussall, 523 So.2d at 1311; State v. Rives, 407 So.2d 1195, 1197 (La.1981).

State v. Bright, 98-398, pp. 22-24 (La.4/11/00), 776 So.2d 1134, 1147-48.

We have carefully reviewed the record and note that both Carrón and Joseph failed to identify Defendant in a photo lineup. Instead, they identified another man who was with Defendant, Daniel Coleman. However, at trial, Joseph identified Defendant as the perpetrator even though he had trouble identifying him in the same photo line-up. Carrón, for his part, testified that Defendant “resembled” the perpetrator.

Coleman has pled guilty in connection with this incident, although he denied any wrongdoing. He also testified at trial and identified Defendant as the perpetrator. Defendant claims, however, that Coleman’s testimony is suspect because he pled guilty in connection with the incident only to “get it over.” Another witness who identified Defendant and placed him at the scene was Chad Carrón, a friend of Coleman and a cousin of the victim. Defendant argues that Chad’s testimony contained internal contradictions and, thus, was not credible.

|aWe find that the evidence was sufficient to prove Defendant committed the attempted simple robbery. As we have noted, the identifications made by Joseph and Carrón were suspect since it appears they identified Coleman’s photo in the photo line-up. Additionally, Carron’s in-court identification of Defendant was weak. However, Coleman and Chad positively identified Defendant as the perpetrator. Joseph also was positive of his in-court identification. The jury heard all the testimony, including the testimony regarding the photo line-up, as well as the testimony by Coleman regarding his involvement in the crime and his friendship with Chad. After hearing this testimony, the jury was able to weigh the respective credibility of the witnesses, and found the witnesses who identified Defendant were credible. The jury’s credibility determinations were rational and we will not disturb their verdict. Accordingly, we hold that the evidence was sufficient to convict Defendant of attempted simple robbery; and this assignment is without merit.

ILLEGALLY EXCESSIVE SENTENCE

In this assignment of error, Defendant claims he received an illegally excessive sentence because he is exposed to a sentence beyond the statutory maximum authorized for attempted simple robbery. This crime carries a maximum term of imprisonment of three and one-half years. La.R.S. 14:27 and 14:65. Defendant was sentenced to three years at hard labor. Two years were suspended (leaving one year to be served in prison), and he was placed on three years supervised probation upon his release from the one-year period of imprisonment. Accordingly, ponce he completes his one-year term of imprisonment, he is to serve three years of supervised probation. If his probation is revoked, he will then be incarcerated for the two year period that was originally suspended. La.Code Crim.P. art. 900(A)(5). Thus, the total period of imprisonment to which Defendant is exposed is three years, which is six months below the three and one-half year maximum term of imprisonment authorized for attempted simple robbery.

Defendant argues, however, that he will be “serving” a sentence of four years. He apparently considers the sentence he will be “serving” as the one year imprisonment followed by three years of probation. Essentially he is arguing that the combined period of incarceration and probation cannot exceed the maximum term of imprisonment that may be imposed for the offense committed. This argument lacks merit.

First, the penalty provision for attempted simple robbery authorizes a maximum term of imprisonment of three and one-half years. As stated above, the term of imprisonment to which Defendant is exposed is three years—one year of imprisonment, plus the two years which were suspended. The three years of probation imposed by the trial court is not considered imprisonment.

When a defendant is sentenced to imprisonment in a state prison, he is placed in the custody of the Louisiana Department of Corrections. State v. Bradley, 99-364 (La.App. 3 Cir. 11/3/99), 746 So.2d 263, citing La.R.S. 15:824(A). Probation, on the other hand, “envisions control by the trial court over the suspended portion of the sentence.” Id. at 267. Thus, the probationary period is not counted toward the maximum term for which a defendant may be imprisoned for an offense.

k Additionally, La.Code Crim.P. art. 893 authorizes a trial court to suspend a sentence for certain felony offenses, in whole or in part, and place a defendant on supervised probation for one to five years. Although there are felony offenses that have maximum sentences of less than five years (i.e., attempted simple robbery), Article 893 does not limit the probationary period for those offenses to the maximum term of imprisonment that may be imposed. Hence, pursuant to Article 893, a trial court may place a defendant convicted of attempted simple robbery on probation for five years even though the maximum term of imprisonment is three and one-half years.

Defendant cites State v. Wagner, 410 So.2d 1089 (La.1982), which can be easily distinguished from the instant case. In Wagner, the defendant was sentenced to six months, the maximum term of imprisonment; the sentence was suspended, and the defendant was placed on two years probation. The supreme court did not find that the trial court’s imposition of a two-year probationary period was illegal, even though the maximum term of imprisonment that could be imposed was only six months. In Wagner, the supreme court found that the imposition of a one-month prison term as a condition of probation was illegal since the maximum term of imprisonment (six months in parish jail) had been imposed as the principal sentence. The trial court suspended the six-month sentence and placed the defendant on probation for two years. The supreme court found that by imposing an additional one-month prison term as a condition of probation, the trial court exposed the defendant to the possibility of serving seven months of imprisonment (one month 1 fibeyond the maximum) in the event his probation was revoked. Thus, the sentence was illegal.

Defendant is in no danger of being incarcerated for a term beyond that authorized by law. If his probation is revoked, he will be required to serve the remaining portion of the sentence that was suspended by the trial court (two years). La.Code Crim.P. art. 900(A)(5). Thus, his incarceration exposure is three years (including the one year that was not suspended), which is six months below the maximum sentence for attempted simple robbery.

For these same reasons, State v. Jones, 477 So.2d 914 (La.App. 4 Cir.1985), another case cited by Defendant, is also distinguishable. See also State v. Diaz, 615 So.2d 1336, 1337 (La.1993), in which the supreme court held, “The district court may not impose a suspended sentence and require the defendant to spend additional time in jail as a condition of probation if the overall effect of the sentence is to expose the defendant to a greater term of imprisonment than provided by the statute he violated.”

Finally, State v. Gaines, 557 So.2d 340 (La.App. 3 Cir.1990), also cited by Defendant, is distinguishable. In Gaines, the trial court suspended the defendant’s five year sentence and placed him on five years supervised probation, with the condition that he serve two years in the parish jail, the maximum term that can be served as a condition of probation. La.Code Crim.P. art. 895(B). The trial court specifically ordered the jail time served as a condition of probation, but did not give the Defendant credit for time served. We found, however, that “a defendant must be given credit for time served before the imposition of sentence not only for a sentence 17that is to be executed, but also for jail time imposed as a condition of probation for a suspended sentence.” Gaines, 557 So.2d at 343. We further noted that since the trial court imposed the maximum term that could be served as a condition of probation (two years) and the defendant had already served six months and two days in the parish jail prior to the imposition of sentence, the defendant would serve more than the two-year maximum if not given credit for time served. Thus, we corrected the sentence by applying the six months and two days served by Gaines prior to the imposition of sentence to the two years imposed as a condition of probation. The concerns addressed by us in Gaines are not present in the case sub judice. As we have said, Defendant was not ordered to serve any period of incarceration as a condition of probation. Additionally, the trial court specifically gave Defendant credit for time served.

Defendant’s total exposure to imprisonment does not exceed the maximum term of imprisonment authorized by law. The fact that Defendant’s incarceration, plus his three year probationary term, exceeds three and one-half years does not render Defendant’s sentence illegal and is authorized by La.Code Crim.P. art. 893. Accordingly, this assignment of error lacks merit.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Although the line-up was introduced into evidence, the State indicated that a photocopy would be substituted for the original. The copy submitted in the record is a photocopy and does not indicate the names of the persons in the photographs. There is no indication as to whether the original listed the names.


author: JjPETERS, J.

text:
    AYMOND PLUMBING & HEATING, INC. v. Leon HARRIS, Jr., et al.
    No. 02-1381.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      Norbert C. Rayford, Louisiana Department of Labor, Office of Employment Security, Baton Rouge, LA, for Defendant/Appellee: Louisiana Department of Labor.
    Gregory R. Aymond, Attorney at Law, Alexandria, LA for Plaintiff/Appellant: Aymond Plumbing & Heating, Inc.
    Edward Larvadain, III, Attorney at Law, Alexandria, LA, for Defendant/Ap-pellee: Leon Harris, Jr.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   JjPETERS, J.

Aymond Plumbing & Heating, Inc. (Ay-mond Plumbing) appeals a trial court judgment dismissing its request for review of a ruling made by an administrative law judge (ALJ) in connection with an award of unemployment compensation benefits to its former employee, Leon Harris, Jr. For the following reasons, we reverse and remand for further proceedings.

Harris worked for Aymond Plumbing from December 1995 through December 14, 2000. On that day, Donald Aymond, vice president of Aymond Plumbing, terminated Harris’ employment with the company. Thereafter, Harris applied for unemployment compensation benefits, and Aymond Plumbing opposed his application. On January 26, 2001, the Louisiana Department of Labor (Department) notified Harris that he was disqualified from receiving benefits because he had been discharged from his employment for cause.

Harris appealed the Department’s determination. However, he failed to appear before the ALJ at his February 28, 2001 hearing in that regard, and the ALJ dismissed his appeal. By a letter received by the ALJ on March 5, 2001, Harris requested that his appeal be reinstated. In his letter, he stated that he failed to appear on February 28, 2001, because of confusion concerning his schedule. The ALJ reinstated the appeal and, on April 9, 2001, held a hearing on the appeal.

At the April 9 hearing, Aymond Plumbing presented documentary as well as testimonial evidence and Harris testified on his own behalf in addition to presenting documentary evidence. After completion of the evidentiary portion of the hearing, the ALJ took the matter under advisement. On April 10, 2001, the ALJ issued written reasons for judgment reversing the Department’s decision and ordering that Harris be awarded unemployment compensation benefits.

LBy correspondence dated April 19, 2001, Aymond Plumbing sought review of the ALJ’s decision by the Louisiana Department of Labor Board of Review (Board of Review). On May 25, 2001, the Board of Review affirmed the ALJ’s decision.

On June 6, 2001, Aymond Plumbing filed a petition in the Ninth Judicial District Court seeking judicial review of Harris’ unemployment compensation claim. In that petition, Aymond Plumbing named both Harris and the Secretary of the Louisiana Department of Labor as party defendants. Aymond Plumbing asserted that the ALJ erred in reinstating Harris’ appeal and in awarding Harris unemployment compensation benefits. Specifically, regarding the procedural aspects of its complaint, Aymond Plumbing asserted in part “that the reopening of said claim by the Administrative Law Judge, contrary to law, constituted an arbitrary and capricious denial of [Aymond Plumbing’s] equal protection rights under the Louisiana Constitution, as well as a violation of statute.” Additionally, Aymond Plumbing asserted in its petition “that the Louisiana Department of Labor operates in such a way as to deny employers of this state equal protection under the laws” and “that it was denied procedural due process by being afforded no remedy to appeal the re-opening of the claim after [Harris] defaulted and was denied benefits initially.”

At a June 3, 2002 hearing, Aymond Plumbing’s attorney stated: “[T]his is not only an appeal of the administrative decision of the Department of Labor in an unemployment compensation claim, it is also seeking the court to declare the current procedures utilized by the Department of Labor to be unconstitutional.” The trial court concluded that any constitutional challenge to the rules and regulations of a state agency must be brought in East Baton Rouge Parish, and, as such, that it had neither venue nor subject matter jurisdiction to hear the issues. By a judgment | Ssigned June 17, 2002, the trial court dismissed Aymond Plumbing’s petition without prejudice. Aymond Plumbing has appealed this judgment.

OPINION

According to the Department, the Board of Review has an internal rule, Rule 113, which provides in part that a claimant may request to have his case reopened upon a showing of good cause for the failure to appear at the original hearing. In fact, the following appeared at the end of the initial dismissal of Harris’ appeal for which he failed to appear: “IF EITHER PARTY FAILS TO APPEAR FOR A HEARING, THE JUDGE MAY, BUT ONLY FOR GOOD CAUSE SHOWN, REOPEN AND RESCHEDULE THE HEARING.”

Under the Louisiana Administrative Procedure Act “[t]he validity or applicability of a rule may be determined in an action for declaratory judgment in the district court of the parish in which the agency is located.” La.R.S. 49:963(A)(1). Furthermore, “La.R.S. 49:963 is a jurisdictional venue provision, vesting exclusive venue in the parish in which the agency is located to determine the validity of an agency’s rules in a declaratory proceedr ing.” Star Enter. v. State, Through Dep’t of Revenue & Taxation, 95-1980—95-1982, p. 11 (La.App. 1 Cir. 6/28/96), 676 So.2d 827, 833, writ denied, 96-1983 (La.3/14/97), 689 So.2d 1383.

Although La.R.S. 23:2 establishes the domicile of the Department as Baton Rouge in East Baton Rouge Parish, the exclusive venue provision of La.R.S. 49:963 is not applicable to “the administrator of the Louisiana Employment Security Law.” La.R.S. 49:967(A). Rather, La.R.S. 23:1634(A) provides in part that “the administrator, or any party to the proceedings before the board of review, may obtain judicial review thereof by filing in the district court of the domicile of the claim-antJ^a petition for review of the decision, and in such proceeding any other party to the proceeding before the board of review shall be made a party defendant.” (Emphasis added.) “ ‘Administrator’ means the secretary of the Department of Labor.” La.R.S. 23:1472(1). Equally important, “[a] challenge to the validity of an administrative rule is a ‘civil matter’ falling under the original jurisdiction of the district courts.” Star Enter., 676 So.2d at 833. Thus, Aymond Plumbing properly instituted its action to challenge the validity of Rule 113 in Rapides Parish, the domicile of Harris. Accordingly, we reverse the judgment of the trial court and remand for further proceedings. Because of our disposition of this matter, we pre-termit addressing at this time Aymond Plumbing’s remaining assignments of err ror.

DISPOSITION

For the foregoing reasons, we reverse the judgment of the trial court that dismissed Aymond Plumbing’s petition, and we remand this matter to the Ninth Judicial District Court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


author: 11 SULLIVAN, Judge.

text:
    STATE of Louisiana v. Graylan GRIFFIN.
    No. 02-1341.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      Michael F. Kelly, Assistant District Attorney, Marksville, LA, for State of Louisiana.
    G. Paul Marx, Attorney at Law, Lafayette, LA, for Defendant: Graylan Griffin.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   11 SULLIVAN, Judge.

On February 26, 2002, Graylan Griffin (Defendant) and four other men were charged with armed robbery, a violation of La.R.S. 14:64. On August 7, 2002, Defendant was tried and convicted by a jury of armed robbery. He filed a Motion for Post Judgment Acquittal and a Motion for New Trial, which were denied. On September 24, 2002, he was sentenced to forty years at hard labor, without benefit of probation, parole, or suspension of sentence with credit for time served. He appeals his conviction and sentence. For the following reasons, we affirm.

Facts

On December 30, 2001, Floyd Lambert, the assistant manager of the Piggly Wiggly store in Bunkie, Louisiana, was robbed as he walked to his truck after closing the store. He carried a money bag containing seven thousand dollars in cash and checks, which he was to deposit at a local bank. As he approached his truck, a man armed with a shotgun jumped up from the bed of the truck and demanded that he give him the money or he would be killed. Mr. Lambert refused, and the man demanded the money a second time. The man jumped out of the truck; at the same time, Mr. Lambert reached for the door handle on his truck. When he did, the man hit him on the head and face several times with the butt of the shotgun, knocking him to the ground. Mr. Lambert testified that he passed out for five to ten seconds. When he looked up, the man had the money bag and was running toward the street. He could not identify the man, who had a knit hat pulled down over his face.

An attorney was appointed to represent Defendant and one of his co-defendants, Tabauchgriek Harrell. Defendant and Mr. Harrell were not tried together.

| ¡.Jonathan Perry, another co-defendant, testified at Defendant’s trial that Defendant was the man with the gun who hit Mr. Lambert and ran off with the money bag. Mr. Perry pled guilty to armed robbery in exchange for a sentence of ten years without benefit of probation, parole, or suspension of sentence on the condition that he provide truthful testimony regarding his co-defendants.

Defendant argues that the attorney was ineffective because the joint representation of himself and Mr. Harrell limited the attorney’s ability to effectively cross-examine Mr. Perry, who is Mr. Harrell’s stepbrother as well as the State’s primary witness. Defendant also argues that his sentence is greater than it would have been had his attorney been able to effectively cross-examine Mr. Perry.

Patent Errors

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Our review did not reveal any errors patent.

Joint Representation by Defense Counsel

Defendant asserts that his attorney’s joint representation of himself and Mr. Harrell resulted in reversible error because the attorney’s effectiveness was impaired. He argues that this joint representation prevented his counsel from vigorously challenging Mr. Perry on his culpability in the robbery as well as the role of the other participants in the robbery. Specifically, Defendant asserts that counsel should have asked Mr. Perry whether Mr. Harrell was the gunman, but could not do so because he also represented Mr. Harrell.

“Multiple representation is not per se illegal and does not violate the Sixth Amendment to the U.S. Constitution (or Article 1, Section 13 of the Louisiana Constitution) unless it gives rise to a conflict of interest. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway [v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) ].” State v. Kirkpatrick, 443 So.2d 546, 552 (La.1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 847 (1984). The timing of a defendant’s objection to multiple representation determines the standard of review for a conflict-of-interest claim. Cuyler, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333. When a conflict-of-interest claim is not raised until after trial, the defendant must prove that an actual conflict resulted from his counsel’s joint representation. Id.

An actual conflict of interest is established when the defendant proves that his attorney was placed in a situation inherently conducive to divided loyalties. State v. Tart, 93-0772 (La.2/09/96), 672 So.2d 116, 126, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996).
If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interests of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client.
Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir.1979), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979), cited in State v. Kahey, [436 So.2d 475, 484 (La.1983) ]. A conflict affects an attorney’s performance when it compromises his choice of defenses and his ability to make free choices. State v. Hughes, [587 So.2d 31, 41 (La.App. 2 Cir.1991), writ denied, 590 So.2d 1197 (La.1992) ].

State v. Lemon, 29,587, 29,588, p. 10 (La.App. 2 Cir.8/20/97); 698 So.2d 1057, 1063.

In State v. Kahey, 436 So.2d 475 (La.1983), the court identified common situations where a conflict of interest exists: one defendant was induced to plead guilty adversely to his interests; a confession of one defendant was introduced into evidence which inculpated the other defendant; testimony of one defendant cleared the other defendant but inculpated himself; one defendant or a witness placed primary blame on the other defendant; one defendant benefitted from compelling the other to 14testify; counsel for defendant also represented a witness for the prosecution, or for the defense; the co-defendants had conflicting defenses, were not equally involved in the crime, or had disparate criminal records; and charges were dismissed against one defendant on the condition that he testify for the prosecution.

“Actual conflicts of interest that adversely affect counsel’s performance must be established by specific instances in the record, and the mere possibility of divided loyalties is insufficient proof of actual conflict.” State v. Castaneda, 94-1118, p. 12 (La.App. 1 Cir. 6/23/95); 658 So.2d 297, 305.

Defense counsel cross-examined Mr. Perry regarding his prior criminal record, his guilty plea, a prior statement that a Piggly Wiggly employee provided him information for the robbery, his role in the robbery, and the role of the other defendants in the robbery. He also attempted to impeach Mr. Perry, cross-examining him regarding a statement he had given the police. Counsel did not cross-examine Mr. Perry regarding Mr. Harrell’s involvement in the robbery. The prosecutor elicited the only information regarding Mr. Harrell from Mr. Perry: Mr. Harrell is his stepbrother and Mr. Harrell drove Mr. Perry and Defendant to the Piggly Wiggly parking lot immediately before the robbery.

As a general rule, it is best to address claims of ineffective assistance of counsel in a post-conviction proceeding in the trial court, which allows an evidentiary hearing to be conducted on the issue. State v. Watson, 00-1580 (La.5/14/02); 817 So.2d 81. We find the record insufficient to allow us to address this issue because it does not indicate whether Mr. Harrell pled guilty or went to trial, whether he would place primary blame for the armed robbery on Defendant, or whether he and j^efendant had conflicting defenses. Accordingly, we decline to address this issue on appeap

Sentencing

Defendant was sentenced to forty years at hard labor without benefit of probation, parole, or suspension of sentence. He contends that the evidence is unreliable for purposes of sentencing and that his relative role in the robbery was not established sufficiently to justify a sentence four times greater than that of the State’s witness, particularly where the evidence does not exclude the reasonable hypothesis that the State’s witness was the gunman.

At sentencing, defense counsel orally objected to the sentence, but did not assign any error. A motion for reconsideration must be based upon a specific ground. La.Code Crim.P. art. 881.1(D). If a specific ground is not alleged, the defendant is precluded “from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” Id. See also State v. Joubert, 97-1093 (La.App. 3 Cir. 2/4/98); 705 So.2d 1295, writ denied, 98-1525 (La.10/30/98); 723 So.2d 973. Accordingly, this assignment is not properly before the court and will not be considered.

Decree

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Defendant’s name is spelled more than one way throughout the record. For this opinion, we use the spelling found in the bill of information.


author: hEZELL, Judge.

text:
    Velma CORBELLO v. COASTAL CHEMICAL CO., INC.
    No. 02-1241.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.
    Frank E. LeMoine, Abbeville, LA, for Plaintiff/Appellee, Velma Corbello.
    Sammie Maurice Henry, Baton Rouge, Egan, Johnson & Stiltner, Baton Rouge, LA, for Defendant/Appellant, Coastal Chemical Co., Inc.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and BILLY HOWARD EZELL, Judges.
   hEZELL, Judge.

This is a workers’ compensation claim for death benefits filed by Velma Corbello, the widow of the late George Corbello. The workers’ compensation judge ruled in her favor, granting death benefits to her and to her minor son. The employer, Coastal Chemical, and the Louisiana Workers’ Compensation Corporation (LWCC) appeal, claiming that the court below erred in finding that Mr. Corbello’s death was related to a motor vehicle accident that occurred during the course and scope of his employment. They also claim that the workers’ compensation judge erred in applying the incorrect burden of proof in the case. We disagree. For the following reasons, we affirm the decision of the workers’ compensation judge.

Prior to his death, Mr. Corbello was employed by Coastal Chemical as a truck driver. Although he had a history of mild hypertension and was a smoker, he had no history of heart problems and was in good health. On September 26, 1996, Mr. Cor-bello was driving on Interstate 55 near Canton, Mississippi. He was in the course and scope of his employment. While traveling through a detour, Mr. Corbello lost control of his 30-ton tractor-trailer rig, causing it to roll over several times. The truck was totaled. Mi'. Corbello was found at the scene hanging out of the open door of his truck, suspended by his seatbelt. He was taken to the Madison County Medical Hospital, where he was treated for his injuries, including lacerations to his scalp. He was released from the hospital and returned home the next day.

About 36 hours after the accident, severe contusions became visible on Mr. Cor-bello’s upper torso. He began to suffer severe pain and was no longer able to do the things he had done before the accident, such as carpentry and playing with his grandchild. He could not stand to have his wife touch his chest due to the pressure and pain. He was prescribed strong narcotic drugs for this pain. Mr. Corbello 1 ¡¡returned to light-duty work on September 30, 1996, then was released to full duty one week later. He was forced to stop taking his pain medication when he began driving the truck again, as federal law prohibits truckers from driving while taking narcotic medications.

On October 31, 1996, Mr. Corbello was making a delivery run for Coastal. Immediately after leaving the customer, he slowly drove off the road and came to a stop. He was found dead in the cab of his truck, apparently due to a heart attack.

His widow, Mrs. Corbello filed this claim for death benefits, alleging that the attack was caused by physical trauma resulting from the September 26, 1996 accident. The workers’ compensation judge agreed. Because she found that the attack was due to physical trauma, she did not apply the clear and convincing evidence burden of proof set out by La.R.S. 23:1201(7)(e), but rather applied the preponderance of the evidence standard in making her ruling. The workers’ compensation judge awarded death benefits to Mrs. Corbello individually, and in the capacity as tutrix of her minor son. From this decision, Coastal and the LWCC appeal.

In their second assignment of error, which we will address first, Coastal and the LWCC claim that the workers’ compensation judge erred in finding that Mr. Corbello’s death was a result of the September 26, 1996 accident. The factual findings of the trial court in a workers’ compensation case are subject to a manifest error or clearly wrong standard of review. George v. Guillory, 00-591 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200. “In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one.” Id. at 1206 (citing Stobart v. State, Dep’t. of Transp. & Dev., 617 So.2d 880 (La.1993)). Additionally, as stated in Mitchell v. Brown Builders, Inc., 35,022, p. 8 (La.App. 2 Cir. 8/22/01), 793 So.2d 508, 515, writ denied, 01-2649 (La.12/14/01), 804 So.2d 636:

It is a well-settled legal principle that the factual findings in workers’ compensation cases are entitled to great weight. Reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable. The trier of fact’s factual determinations shall not be disturbed in the absence of a showing of manifest error. When the trier of fact’s findings are reasonable in light of the entire record, an appellate court may not reverse a choice between two permissible views of the evidence.

In this ease, the workers’ compensation judge heard the testimony of Dr. Emil Laga, a certified forensic pathologist who examined Mr. Corbello’s autopsy report and medical records. He testified that Mr. Corbello had been incorrectly diagnosed as having died from a myocardial infarction. Dr. Laga testified that a traumatic chest injury suffered in the accident caused Mr. Corbello’s untimely death. He stated that the accident resulted in an injury to one of Mr. Corbello’s coronary arteries, and that at the point of this injury, cholesterol built up to the point that Mr. Corbello suffered a 90% blockage in that artery. At some time later, a clot blocked the remainder of the artery, causing the arrhythmia that killed Mr. Corbel-lo. Dr. Laga testified that Mr. Corbello did not have severe arteriosclerosis as indicated in the coroner’s report. This was indicated by the fact that, while there was a 90% blockage in the injured artery, the plaque build up in his other arteries and organs was much lower, 20 to 30%. According to Dr. Laga, had Mr. Corbello suffered from severe arteriosclerosis, the plaque build up would have been much more generalized and spread evenly throughout the body. He further testified that this was supported by the fact that Mr. Corbello had never had any indications of heart problems prior to the accident but suffered severe bruising across his torso and chest pain after the accident. Finally, he stated that auto accident were the most common cause of blunt trauma to the heart.

The workers’ compensation judge also considered Mr. Corbello’s personality. Prior to his death, he was vigilant about monitoring his blood pressure and went to |4the doctor every time he was concerned about his health. She found his complaints after the accident to fit in well with Dr. Laga’s explanation of his death.

The workers’ compensation judge felt that Dr. Laga, due to his vast experience and certification as a forensic pathologist, was more persuasive than the other doctors whose testimony was presented. This evaluation of credibility is reasonable and will not be disturbed. The workers’ compensation judge further found that Dr. Laga’s testimony, in accordance with Mr. Corbello’s prior medical history and personality, indicated that, ultimately, Mr. Corbello’s death was caused by physical trauma suffered during the accident. There is a reasonable factual basis for this finding, therefore, it is not manifestly erroneous.

In their other assignment of error, Coastal and the LWCC claim that the workers’ compensation judge applied an incorrect burden of proof in this case. Appellants argue that this case is controlled by La.R.S. 23:1021(7)(e), which places a strict burden of proof on a claimant seeking workers’ compensation for a “heart-related or perivascular injury.” Section 23:1021(7)(e) provides as follows:

Heart-related or perivascular injuries. A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

Coastal contends the claimant failed to show by clear and convincing evidence that the physical work stress was extraordinary and unusual and the physical work stress or exertion was the major and predominate cause of Mr. Corbello’s heartHrelatedü death. However, the Louisiana Supreme Court in Charles v. Travelers Ins. Co., 627 So.2d 1366 (La.1993), interpreted the scope of La.R.S. 23:1021(7)(e). Particularly relevant to this case is footnote 15 in Charles, wherein the supreme court states:

We think it obvious that La.R.S. 23:1021(7)(e), by its focus on “physical work stress” and preexisting conditions, was not intended to apply to those “heart-related” or “perivascular” injuries which directly result from some physical impact which arises out of and is incurred in the course and scope of employment. For example, “heart-related” under 23:1021(7) (e) would not apply to the injury resulting from the puncture of an employee’s chest and heart by a piece of equipment.
Regarding the scope of “perivascular,” we note it is medically possible for an aneurysm, embolism, or a severe bruise (which is technically an injury to a vessel) to result from a physical impact to a part of the body. For example, the blow of a falling piece of merchandise or equipment on a limb could cause an embolism or aneurysm at the point of impact. These types of injuries would clearly not fall under the scope of La.R.S. 23:1021(7)(e).

Charles, 627 So.2d at 1371. See also Estate of Chaisson v. Judice Dirt & Sand, Inc. 94-393 (La.App. 3 Cir. 11/2/94), 649 So.2d 502.

Louisiana Revised Statute 23:1021(7)(e) creates two classes: (1) a class of workers’ compensation claimants that have suffered “heart-related” or “peri-vascular” injury, illness, or death; and (2) a class of workers’ compensation claimants that have not suffered “heart-related” or “perivascular” injury. Chaisson, 649 So.2d 502. Victims in the former class are required to prove by clear and convincing evidence that the work stress was extraordinary and unusual and that this work stress, and not some other source of stress or preexisting condition, was the predominant and major cause of the injury. Those in the latter class must show that their injury arose out of and in the course of employment only by a preponderance of the evidence. Id. Under Charles, injury to the heart resulting from physical trauma would not fall under La.R.S. 23:1021(7)(e). Therefore, these types of injuries need not be proven by clear |fiand convincing evidence, but rather by a mere preponder-anee of the evidence. Because the injury was a direct result of physical trauma, the workers’ compensation judge applied the correct burden of proof in this case.

For the reasons stated above, the decision of the workers’ compensation judge is affirmed. Costs of this appeal are assessed against the Appellants.

AFFIRMED.


author: |, WOODARD, Judge.

text:
    David K. HEBERT v. P. Charles CALAHAN, et al.
    No. 02-1237.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      Edward P. Landry, Landry & Watkins, New Iberia, LA, for PlaintiffiAppellee, David K. Hebert.
    P. Charles Calahan, P. Charles Calahan, APLC, New Iberia, LA, for Defendants/Appellants, P. Charles Calahan, P. Charles Calahan, APLC, P. Charles Cala-han, Attorney at Law.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and BILLY HOWARD EZELL, Judges.
   |, WOODARD, Judge.

Mr. David K. Hebert retained Mr. P. Charles Calahan’s services to recover excessive legal fees against the law firm of Haik, Minvielle & Grubbs. After successfully recovering $30,000.00 for Mr. Hebert, Mr. Calahan took $12,500.00 in attorney’s fees. After two trials on the merits, the trial court awarded Mr. Hebert $11,500.00 of the legal fees taken. Mr. Calahan appeals. We affirm.

H* ‡ *

During the summer of 2000, Mr. Raymond Gaspard approached Mr. Calahan regarding the representation of his brother, Mr. Hebert, in an excessive legal fee case against the law firm of Haik, Minv-ielle & Grubbs. This firm had represented Mr. Hebert in a Longshoreman’s Harbor Workers’ Compensation dispute. Before speaking with Mr. Hebert, Mr. Calahan began some preliminary research, based on the brother’s interpretation of Mr. Hebert’s case.

Sometime in July, Mr. Hebert approached Mr. Calahan about his claim. Needing additional information, Mr. Cala-han instructed Mr. Hebert to return to Haik, Minvielle & Grubbs to request and gather documentation regarding the nature of the underlying case with Haik and why his legal fees were so excessive. Mr. Hebert returned with several documents after which the parties discussed Mr. Cala-han’s legal fees based on a standard contingency fee agreement. Mr. Calahan proposed that he recover between 40% and 50% of any fees recovered. At that time, Mr. Hebert refused to sign the agreement and did not retain him. Mr. Calahan acknowledges that he did not accept employment. The parties agreed to negotiate the fee at a later time.

Mr. Calahan began some preliminary research to determine if Mr. Hebert had a meritorious or valid claim. In September 2000, Mr. Hebert officially retained his services. Once again, the parties discussed a contingency fee agreement which Mr. Hebert did not sign because he objected to signing the document until the difficulty of the task had been determined. After further negotiation, they agreed that the legal fees would be paid based upon the time Mr. Calahan expended on Mr. Hebert’s case. Mr. Hebert expected Mr. Calahan to simply write a letter on his behalf to the firm.

October 2, 2000, Mr. Calahan faxed a one-page demand letter to the Haik law firm, seeking a refund of the excessive legal fees. Although the law firm 1 ^withheld $36,666.67 in fees, including expenses, under 33 U.S.C. § 928(e), the legal fee was limited to $6,066.27. Mr. Calahan, also, informed the firm of his intent to audit the fees and expenses. Two days later, on October 4, 2000, Haik agreed to settle his claim for $30,000.00, presented Mr. Hebert with a release, and paid him $30,000.00, cash, as reimbursement and/or settlement of the claim. However, immediately before signing the agreement, Mr. Hebert changed his mind, indicating that the recovery should be more and include a penalty or “spanking” fee. After discussing this with Mr. Calahan, he agreed to the $30,000.00 settlement. Subsequently, Mr. Calahan informed him of the $12,500.00 attorney fee for his own services. When Mr. Hebert came into the office to execute the release, he immediately expressed his disapproval of the $12,500.00 fee, asserting that the work was not difficult.

The terms of the fee arrangement between Mr. Calahan and Mr. Hebert were not included in the release. At the time of signing, the parties still had not executed a contingency fee contract. Notwithstanding, Mr. Calahan unilaterally withheld $12,500.00 of the $30,000.00 amount as his fee for services rendered and submitted the remaining $17,500.00 to Mr. Hebert. This matter was, then, submitted to the Louisiana Attorney Disciplinary Board and to the trial court for resolution.

The trial court found that the fee was excessive and ruled that Mr. Calahan could not charge for services performed on Mr. Hebert’s behalf before accepting the case.

Standard op Review

Our standard of review in this case is one of manifest error. It is well settled that an appellate court may not set aside a trial court’s finding of fact absent manifest error. In applying this standard, we must not determine whether the trial court was right or wrong but whether the fact finder’s conclusion was reasonable. Consequently, where there are permissible views of evidence, the factfinder’s choice ^between them can never be manifestly erroneous. Thus, if the trial court’s findings are reasonable, in light of the record, we may not reverse, even if convinced that, had we been sitting as the trier of fact, we would have weighed the evidence differently.

Rules of Professional Conduct

Louisiana Civil Code Article 1983 provides that “[c]ontracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. Contracts must be performed in good faith.” Courts must interpret contracts according to the common intent of the parties. Additionally! “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” Additionally, “Louisiana courts have long approved of the contingent fee contract to compensate attorneys.”

In his first assignment of error, Mr. Calahan argues that the trial court erred in not applying the considerations of the Rules of Professional Conduct in determining whether or not the fee was reasonable. Rules of Professional Conduct, Rule 1.5(a) provides that:

A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
|4(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) Whether the fee is fixed or contingent.

Mr. Calahan asserts that the parties had a contingency fee agreement based upon an oral contract. Rule 1.5(c) provides, in pertinent part:

A fee may be contingent on the outcome of the matter for which the service is rendered except in a matter in which a contingent fee is prohibited by Paragraph (d) or other law. A contingent fee agreement shall be in wyiting and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.

(Emphasis added.) Notwithstanding, Mr. Calahan maintains that the fee was not based upon a percentage taken:

Q. Now, where did you get the $12,500 dollar fee from?
A. That is—
Q. What is the basis of it; where did that amount of figure come from?
A. Out of the air. It wasn’t based on a percentage because it doesn’t equal any even number as a percentage—
Q. About 41 to 42 percent.
A. Just a division of what we felt should have been earned.
Q. Well, you know, a fee according to 1.5 has to be reasonable and there has to be a basis for that fee. So what is the basis for the fee that you have worked on this case for a few weeks?
A. The basis of the fee was, I guess, the amount of recovery. The recovery was in excess of his wildest expectations, and that’s what he felt that him getting the money was worth.

Emphasis’ added.) Mr. Calahan explained:

A. And I just picked out a round nice figure of $12,500, and when he saw $17,500 out of the blue, he was elated. But then he perceived it was too easy on my part. Of course, he doesn’t know exactly what I did. He is illiterate. He is a blue collar worker. Any money that he makes, is hard to come by, and he just thought that it was too easy for me.

(Emphasis added.)

It is obvious from Mr. Calahan’s own words that he did not, even, know what he did to warrant charging thousands of dollars. Generally, collections is not necessarily an extremely difficult field. Mr. Calahan asserted that he expended 100 hours working on Mr. Hebert’s case. However, he could only reconstruct 81 of those hours and did so without the minute detail normally associated with billing. Indeed, the trial court found that he most likely expended only five hours researching and drafting the demand letter. Furthermore, we do not find any evidence that Mr. Calahan’s acceptance of this particular employment precluded him from accepting any other employment. Also, the record contains no significant information concerning Mr. Calahan’s reputation or experience in this particular field.

Moreover, Mr. Hebert and Mr. Calahan did not enter into a written contingency fee agreement as the law dictates. Thus, he was not entitled to 41% of the Mr. Hebert’s recovery. Furthermore, the trial court found that he did not perform 81 hours of work on Mr. Hebert’s claim. Rather, his work was limited to writing a demand letter. Where there are two permissible views of the evidence, the trial court’s choice between them can never be manifestly erroneous. The trial court found that $12,500.00 was excessive. Indeed, we find that this fee is grossly out of proportion with the fees normally associated with writing a demand letter. As there was no agreement concerning how much the legal fee would be or how it would be calculated, we find that the trial court properly found that Mr. Calahan was entitled to $1,000.00 for services rendered. Accordingly, we affirm this part of its judgment.

| ^Exception of PresCRiption

Mr. Calahan asserts that he established a prima facie exception of prescription. He alleges that prescription began to run on or about October 4, 2000, the date that the checks were issued from the attorney trust account and delivered to Mr. Calahan and Mr. Hebert. On October 19, 2001, Mr. Hebert filed a supplemental and amending petition, adding P. Charles Calahan, Attorney at Law, and P. Charles Calahan, Attorney at Law, A Professional Law Corporation as additional Defendants, and alleging that the Defendants were jointly liable, in solido, with Mr. Calahan as an individual. Mr. Calahan contends that the claim against P. Charles Calahan, Attorney at Law, and P. Charles Calahan, Attorney at Law, A Professional Law Corporation, would have prescribed because these parties were not named with Mr. Calahan in the original petition.

La.Code Civ.P. art. 1153 governs the “relating back” doctrine:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

The Louisiana Supreme Court explained the “relating back” component and listed four criteria:

1. The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
2. The purported substituted defendant must have received notice of the institution of the action such that he 'will not be prejudiced in maintaining a defense on the merits;
3. The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
4. The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

|7In the instant case, the amended claim arises out of the claim for excessive legal fees, delineated in the original pleading. It does not substitute defendants. It adds Defendants, P. Charles Calahan, Attorney at Law, and P. Charles Calahan, A Professional Law Corporation, who will not be prejudiced in maintaining a defense on the merits. Since the additional Defendants are solidarity liable for Mr. Hebert’s loss, they knew that, but for the mistake concerning the identify of the proper party Defendant, the action would have been brought against them. Also, the additional Defendants are not wholly new or unrelated Defendants. They are separate entities which Mr. Calahan created to limit his liability. Lastly, this is not a new cause of action which, otherwise, would have prescribed.

Accordingly, we affirm this portion of the trial court’s judgment.

Because of this finding disposes of the issue, we pretermit a discussion concerning the necessity to pierce the corporate veil, which Mr. Calahan raises.

CONCLUSION

Mr. Calahan appealed the trial court’s $11,500.00 award to Mr. Hebert, regarding excessive legal fees, its denial of his exception of prescription, and its ruling that Mr. Calahan, individually, as an attorney at law, and as a professional law corporation, were jointly liable for Mr. Hebert’s loss. For the reasons above, we affirm the trial court’s judgment and assess costs to Mr. Calahan.

AFFIRMED.

      . Rosell v. ESCO, 549 So.2d 840 (La.1989).

      . Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97); 696 So.2d 551.

      . Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

      . La.Civ.Code art.2045.

      . La.Civ.Code art.2046.

      . O’Rourke v. Cairns, 95-3054, p. 4, (La.11/25/96), 683 So.2d 697, 700.

      . Rosell, 549 So.2d 840.

      . Desselle v. Moreauville State Bank, 553 So.2d 1067 (La.App. 3 Cir.1989); writ denied, 558 So.2d 584 (La.1990).

        . Ray v. Alexandria Mall, through St. Paul Property & Liab. Ins., 434 So.2d 1083, 1087 (La.1983).