author: EDWIN A. LOMBARD, Judge.

text:
    George CHITTENDEN and Roberta Kay Chittenden v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Gina Doisy.
    No. 2003-CA-0681.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 21, 2004.
    Rehearing Denied May 28, 2004.

      Robert H. Matthews and Pauline M. Warriner, Hearin & Warriner, LLC, New Orleans, LA, for PlaintiffiAppellee.

      Darryl J. Carimi, Carimi Law Firm, Me-tairie, LA, for Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

This case arises from an ongoing dispute between an attorney and his former client over the recovery of interest expended on loans secured to fund litigation. The attorney appeals the trial court’s finding that the client overpaid interest and is entitled to a 'reimbursement. For the following reasons we affirm.

FACTS AND PROCEDURAL HISTORY

On June 19, 1992, George Chittenden (“Chittenden”) retained Carimi (“Cari-mi”) to handle a personal injury claim that arose from an automobile accident. Chittenden signed a contingency fee contract that authorized Carimi to secure a bank loan (line of credit) to “[pay] the costs and expenses necessary to prosecute” the tort claim. The contract between Carimi and Chittenden clearly reflects that Chittenden agreed “that the full amount of the interest charged on such loans will be reimbursed to Attorneys ... out of the funds received on this claim.” A specific interest rate was not written in the contract.

12Carimi advanced the necessary funds to pursue Chittenden’s case as well as funds for living and medical expenses. On January 2, 1994, the Chittendens terminated the client-attorney relationship and hired new attorneys. Chittenden’s new counsel later settled the suit for $1.35 million. Carimi intervened in the proceedings to protect his right to the legal fees he was owed, together with a claim for reimbursement for funds advanced and interest expended on loans Carimi made pursuant to his contract with Chittenden. In response to the intervention, Chittenden paid Cari-mi $46,162.54 in reimbursement for costs and funds advanced, but he refused to pay $40,859.25 in interest charges.

After conducting an evidentiary hearing, the trial court awarded Carimi interest in the sum of $40,859.25 and allowed him to remove this amount from the court registry. Carimi withdrew these funds and paid Chittenden’s interest charges attributable to him on Carimi’s line of credit.

Chittenden perfected a devolutive appeal from the trial court’s ruling. This court upheld the trial court and found that “neither Darryl J. Carimi nor his law firm has violated any rules of professional conduct in making advances to the plaintiffs and in passing along that portion of the interest attributable to the plaintiffs on the line of credit with the banks.” Chittenden v. State Farm Mut. Auto. Ins. Co., 98-2919, p. 10 (La.App. 4 Cir. 12/15/99), 748 So.2d 641, 647.

Subsequently, Chittenden filed a writ of certiorari before the Louisiana Supreme Court. In Chittenden v. State Farm Mut. Auto. Ins. Co., 00-0414 (La.5/15/01), 788 So.2d 1140, the Court affirmed our decision, and concluded that Carimi did not violate the Rules of Professional Conduct. However, the Court did find that “Carimi’s system of payment created a situation where interest was compounded and the clients [Chittenden] were then paying interest on interest Lpreviously accrued.” Chittenden, 2000-0414 at p. 8, 788 So.2d at 1147. The Court further held that “[b]e-cause Chittenden did not agree that interest would be compounded, he is only obligated to pay simple interest to Carimi.” Chittenden, 2000-0414 at p. 15, 788 So.2d at 1151. The Court remanded the matter for the trial- court to determine the correct amount of interest that was owed.

On remand, the trial court appointed a Special Master to calculate the amount of interest owed to the law firm and report his findings. Peter J. Butler, a lawyer and certified public accountant, was appointed to serve as Special Master. He issued a report finding that the method used by the Carimi firm in computing the interest owed amounted to a compounding of interest, rather than simple interest on the monies advanced. Thus, the Special Master found that the firm was overpaid interest in the amount of $ 20,022.55.. Additionally, he found that the law firm should be ordered to repay the Chittendens this amount with legal interest from August 28, 1998. On July 31, 2002, the trial court adopted the Special Master’s report.

Subsequently, Carimi filed a motion for new trial objecting to the Special Master’s findings of fact and law. On October 29, 2002, the trial court granted Carimi’s motion for new trial. After considering the pleadings, law and arguments, the trial court denied Carimi’s objection to the Special Master’s report and adopted the same on January 3, 2003.

Carimi perfected this appeal assigning the following as error:

1) The trial court erred when it adopted the Special Master’s Report since the Special Master failed to analyze the ledger sheets which showed payments to third parties for interest on the credit line that were paid under the performance of the contingency . fee contract.
|42) The trial court erred when it failed to correct the Special Master’s assumption that the interest charged by Carimi Law Firm was compound interest.
3) The trial court erred in failing to recognize that Louisiana law allows for one loan document to refer to a different instrument that expressly states that the amount of interest on the loan instead of expressly stating the amount of interest in the first document.
4) The trial court erred when it failed to allow Carimi Law Firm to recover interest from the dates that he expended money on Chittenden’s behalf because the Supreme Court required the use of legal interest due to the fact finding that the interest rate was not in writing. -
5) The Report of the Special Master is in error in that it requires “Darryl J. Carimi” to return interest paid.

LAW AND ANALYSIS

In the first assignment of error, Carimi alleges that the trial court erred in adopting the Special Master’s report because it failed to award interest from the dates that he expended money on Chittenden’s behalf. Carimi argues that the Special Master failed to properly analyze the data in the exhibits submitted by both Carimi and Chittenden. Thus, according to Cari-mi, the Special Master’s improper analysis led to 'an erroneous conclusion that a reimbursement is owed to Chittenden.

Appellate courts may not. set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Further, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Id. As stated in ESCO, “[i]n applying the manifestly erroneous — clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual | ^issues de novo.” Id. at 844. Thus, if the trial court’s decision is reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though the appellate court would have weighed the evidence differently.

In this case, there is no evidence that the trial court was manifestly erroneous in accepting the Special Master’s findings. The only task the Special Master was charged with was determining the amount of “simple legal interest” owed by Chittenden to Carimi. The report indicated that the Special Master analyzed evidence submitted by both parties and concluded, after applying simple interest calculations, that Chittenden actually overpaid Carimi. We find that this determination was reasonable. Thus, the trial court’s conclusion to adopt the Special Master’s report was not manifestly erroneous.

The Supreme Court remanded the case to the trial court solely for the calculation of simple interest owed on the monies borrowed to fund the litigation. Their conclusion that Carimi’s interest calculation constituted compound interest and that the rate of legal interest is the applicable rate is definitive (i.e., res judicata). Accordingly, assignments of error 2, 3 and 4 are not properly before us and we decline to consider them.

Carimi’s fifth assignment of error questions his personal liability for the overpaid interest. La. C.C. Art.2057 provides:

In case of doubt that cannot be otherwise resolved, a contract must be interpreted against the obligee and in favor of the obligor of a particular obligation.
Yet, if the doubt arises from lack of a necessary explanation that one party should have given, or from negligence or fault of one party, the contract must be interpreted in a manner favorable to the other party whether obligee or obligor.

Because the signed agreement between the parties is ambiguous as to whether Chittenden contracted with Carimi individually or with the Carimi law Infirm, this ambiguity must be resolved against Carimi as the obligee. Thus, Chittenden should be allowed to recover the overpaid interest from either Carimi individually or his law firm.

CONCLUSION

Based on the forgoing, the judgment of the trial court adopting the Special Master’s report is affirmed.

AFFIRMED.

      . It is difficult to determine from the signed agreement whether Chittenden retained Darryl J. Carimi or the Carimi Law Firm. At times Carimi is mentioned and at other times the word, Attorneys, is used. Chittenden, 2000-0414 at p. 1, n. 1, 788 So.2d at 1143.


source: Caselaw Access Project

author: DENNIS R. BAGNERIS SR., Judge.

license: Public Domain

text:
    In re HARVEY TERM LITIGATION.
    No. 2004-C-0168.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 21, 2004.
    Order Granting Rehearing for Clarity May 28, 2004.

      T. Allen Usry, Usry, Weeks &' Matthews, New Orleans, LA, and Henry T. Dart, Covington, LA, for Plaintiffs-Respondents.
    Caleb H. Didriksen, Diane R. Cosenza, John Ruskin, Ronald J. Ventola II, Didrik-sen Law Firm, New Orleans, LA, for Alpha Technical Services, Inc.
    Thomas E. Balhoff, Judith R. Atkinson, Carlton Jones, III, Roedel, Parsons, Koch, Blache, Balhoff & McCollister, Baton Rouge, LA, for Intracoastal Tubular Services, Inc.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY).
   DENNIS R. BAGNERIS SR., Judge.

Alpha Technical Services, Inc. (Alpha) seeks review from the overruling of its exceptions of no cause of action for injunc-tive relief and punitive damages, and of its exception of prematurity. Alpha further seeks review from the overruling of its exception of no cause of action as to ITCO’s purported cross claim for punitive damages. We grant this writ in part solely to address Alpha’s exception of no cause of action for punitive damages; in all other respects, the writ application is denied.

FACTS

The petition, as amended, alleges that the named plaintiffs and the members of the putative class action suffered damages as a result of oilfield pipe cleaning operations conducted on property owned by several members of the Grefer family from 1958 to 1992. The Grefers previously sued entities responsible for the contamination of their property and were awarded a substantial judgment. The petition alleges that the pipe cleaning operations created Technologically Enhanced Radioactive Materials (TERM), and other toxic and or hazardous materials which both contaminated the Grefer Tract and by virtue of airborne particulates drifted into the surrounding neighborhoods. They allege that the contaminated Grefer | ..Tract continues to emit radiation and contaminate ground water and surface runoff which flows into the surrounding neighborhoods.

The petition seeks compensatory and punitive damages, remediation of the contaminated areas, medical monitoring, as well as injunctive relief in the form of remediation of the Grefer tract.

DISCUSSION

No Cause of Action for Punitive Damages:

Alpha contends that the petition fails to state a cause action under now repealed Civil Code Article 2815.3 for punitive damages.

Louisiana Civil Code article 2315.3 provides:

In addition to general and special damages, exemplary damages may be awarded, if it is proved that plaintiffs injuries were caused by the defendant’s wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances. As used in this Article, the term hazardous or toxic substances shall not include electricity.

The article was repealed by Acts 1996, 1st Ex.Sess., No. 2, § 1, effective April 16, 1996. The repeal was given prospective application only.

In order to obtain an award of exemplary or punitive damages, the plaintiff must satisfy four elements:

1) The defendant’s conduct must be wanton or reckless.
2) The defendant’s wanton or reckless conduct must create a danger to the public.
3) The defendant’s wanton or reckless conduct must occur in the storage, handling, or transportation of hazardous or toxic substances.
4) The plaintiffs injury must be caused by the defendant’s wanton or reckless conduct consisting of all of these elements.

Billiot v. B.P. Oil Co., 93-1118, p. 25-26 (La.9/29/94), 645 So.2d 604, 617-618, reversed on other grounds, Adams v. J.E. Merit Cons., Inc., 97-2005 (La.5/19/98), 712 So.2d 88.

Furthermore, in order to state a cause of action for exemplary damages, the plaintiff must plead facts which establish their cause of action during the effective period of article 2315.3. See Bulot v. Intracoastal Tubular Services, Inc., 1998-2105, p. 4-5 (La.App. 4 Cir. 2/24/99), 730 So.2d 1012, 1015.

Paragraph X of the petition, which purports to establish the wanton disregard for public safety element of the cause of action states as follows:

From at least 1997, when the Grefer’s (sic) filed a lawsuit against ITCO, ALPHA, TUBULAR and the Oil Companies, ITCO and ALPHA knew of the foregoing phenomenon and knew that components of the pipe scale posed a serious health risk to humans, but did not inform the public in general, and the plaintiffs in particular, of this hazard.

As argued by Alpha, Paragraph X fails to specifically allege that Alpha was aware of the danger that its pipe cleaning operations posed during the time that art. 2315.3 was in effect. Paragraph X simply suggests that Alpha may have been aware sometime prior to 1997.

Plaintiffs suggest that the allegations contained in paragraph X read together with the allegations contained in paragraph XVI are sufficient to establish the necessary temporal limits of the claim. Paragraph XVI of the amended petition states:

During the period of the effective dates of Civil Code Article 2315.3, Defendants were guilty of willful, wanton and reckless disregard for public safety in the storage, handling and transportation of toxic, hazardous, and/or radioactive substances, entitling plaintiffs to recover exemplary damages in addition to their compensatory damages.

Plaintiffs fail to recognize that Louisiana uses fact pleading and that conclusory allegations are insufficient. Montalvo v. Sondes, 93-2813, p. 6(La.5/23/94); 637 So.2d 127, 131 (La.1994). By reciting the language of the article, the paragraph simply states a legal conclusion.

It is unclear why the plaintiffs failed to amend the petition to allege knowledge during the applicable time periods. Nevertheless, plaintiffs maintain that the phrase “from at least 1997” coupled with a recitation of article 2315.3 is sufficient to convey the allegation that Alpha knew of the dangers posed by its pipe cleaning operations during the operable time period. It does not.

Therefore, we find the trial court erred in overruling Alpha’s exception of no cause of action for punitive damages, and we order the trial court on remand to give plaintiffs leave to amend. Accordingly, the case is remanded to the trial court for further proceedings consistent with this opinion.

WRIT GRANTED IN PART; JUDGMENT OF THE TRIAL COURT OVERRULING THE EXCEPTION OF NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IS REVERSED; REMANDED.

\ REHEARING APPLICATION GRANTED FOR CLARITY

On April 21, 2004, this Court rendered the following writ disposition in the above captioned matter: WRIT GRANTED IN PART; JUDGMENT OF THE TRIAL COURT OVERRULING THE EXCEPTION OF NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IS REVERSED; REMANDED.

On May 31, 2004, relator Alpha Technical Services, Inc. filed an application for rehearing alleging that although this court reversed the trial court’s ruling with respect to the plaintiffs claims for punitive damages, the judgment was unclear as to the no cause of action exception filed by Alpha to the cross-claim for punitive damages by ITCO.

For clarity, we find that Alpha’s Exception of No Cause of Action as to ITCO’s Cross Claim is denied as Alpha has an adequate remedy on appeal.


author: SYLVIA R. COOKS, Judge.

text:
    STATE of Louisiana v. Charles Edward WHITE.
    No. 2003-1535.
    Court of Appeal of Louisiana, Third Circuit.
    April 28, 2004.
    Kendrick Guidry, Assistant District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Michael Ned, Public Defender’s Office, Edward K. Bauman, Appellate Counsel, Lake Charles, LA, for Appellant, Charles Edward White.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and OSWALD A. DECUIR, Judges.
   SYLVIA R. COOKS, Judge.

STATEMENT OF THE CASE

Charles Edward White, age twenty-eight, was convicted by a jury of sexual battery in violation of La.R.S. 14:43.1. The victim was fourteen years old at the time of the incident. White was sentenced to serve four years at hard labor without benefit of probation, parole or suspension of sentence, with credit for time served. White was ordered to comply with the sex offender registration laws. White filed this appeal asserting insufficiency of the evidence and excessiveness of sentence. For the reasons assigned below, we affirm the conviction and sentence of the Defendant.

STATEMENT OF THE FACTS

The record reflects every Sunday a group of friends, adults and children, would meet in Drew Park in Lake Charles to role-play and re-enact events from the Renaissance period. This group included close friends. The victim, L.V., was the sister of a member of the group, and White was a member of the group. On December 31, 2000, a party was planned after the event at the home of L.V.’s sister, Michelle. Because there was no room in Michelle’s vehicle for L.V., White offered to drive her to the party. White and L.V. drove to his residence to make punch for the party. Once inside White’s home, L.V. testified she watched television while White was on the telephone. They went into the kitchen and made spiked punch. White gave L.V. spiked punch and she drank some of it. After the punch was made, several members of the group stopped at White’s home looking for Michelle. After they left, L.V. sat on the floor and watched television while White used the computer. • White then sat down beside her and began fondling her breasts and vagina. He then disrobed her and raped her. Three days after the incident, L.V. wrote a letter to her mother and told her she had been raped. Her mother took her to a physician, Dr. Scott RBergstedt for a physical examination. The examination revealed L.V.’s hymen was intact, but she had “areas of mild erythema and bruising of the lower labia on both sides, and this was as well as the posterior four-ehette.” Dr. Bergstedt testified the events related to him by L.V. were compatible with his physical findings.

LAW AND DISCUSSION

Sufficiency of Evidence

The Defendant, White, was convicted by a jury of sexual battery, in violation of La.R.S. 14:43.1, which provides in relevant part:

Sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse, of the offender, where the offender acts without the consent of the victim, or where the other person has not attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender ...

Under the statute, the State must prove beyond a reasonable doubt White touched the anus or genitals of L.V. using a part of his body and L.V. was under fifteen years old. This court articulated the standard for reviewing a claim of insufficient evidence:

When the issue of sufficiency of eyidenee is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in .the light most favorable to the prosecution, any rational trier. of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

| State v. Touchet, 03-10, p. 4 (La.App. 3 Cir. 6/4/03), 847 So.2d 746, 748.

To satisfy its burden of proof, the State produced the testimony of Dr. Scott Bergstedt, who performed the physical examination of L.V. Dr. Bergstedt testified L.V. related the incident to him in the examination room. He noted his physical exam was consistent with L.V.’s statement regarding the details of the incident. Dr. Bergstedt testified L.V. had “areas of mild erythema and bruising of the lower labia on both sides and this as well as the posterior fourchette.” White asserts the fact that L.V.’s hymen was intact contradicts a finding of sexual battery. However, Dr. Bergstedt noted the fact that the hymen was intact was not conclusive evidence that no sexual intercourse occurred. He related that “dry humping” could occur wherein there is actual penetration without going deep into the vágina and without the tearing of the hymen. Dr. Bergstedt testified this type of penetration is usually not very painful and does not result in bleeding. He testified that “dry humping” will typically cause erythema, bruising and redness, which is what he found when he examined L.V. Additionally, Dr. Bergstedt testified the bruising of the vaginal area heals in one to four weeks.

The State produced the testimony of Carolyn Hargrave, a licensed professional counselor for the Rape Crisis Outreach Center. Ms. Hargrave testified delayed reporting of rape is common in cases of child sexual abuse.

The State produced the testimony of the victim, L.V. L.V. related the incident at trial. She also testified she did not report the incident immediately for fear of getting in trouble. The testimony of the victim alone is sufficient to support the elements of sexual battery. State v. Schexnaider, 03-144, p. 9 (La.App. 3 Cir. 6/12/03), 852 So.2d 450, 457. However, in this case, the jury considered the testimony of all witnesses and made a credibility determination. The jury also | (¡concluded the medical evidence corroborated the testimony of the victim. Accordingly, we find the evidence sufficient to support the jury’s verdict of sexual battery.

Excessiveness of Sentence

White contends the sentence imposed by the trial court is constitutionally excessive. Alternatively, White contends his trial counsel was ineffective in failing to file a motion to reconsider his sentence. Under La.Code Crim.P. art. 881.1, a defendant has thirty days following the imposition of sentence to make or file a motion to reconsider sentence. The failure to make or file a motion to reconsider sentence precludes a defendant from raising on appeal any objection to the sentence. State v. Prudhomme, 02-0511, p. 15 (La.App. 3 Cir. 10/30/02), 829 So.2d 1166, 1176, writ denied, 02-3230 (La.10/10/03), 855 So.2d 324. In order to prove ineffective assistance of counsel, White must establish a reasonable probability but for his defense counsel’s error, his sentence would have been different. State v. Prudhomme, 829 So.2d at 1177. We will examine the record to determine whether there exists a reasonable probability the trial court would have imposed a lesser sentence.

Under La.R.S. 14:43.1(C), a person convicted of sexual battery “shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years.” In this case, White was sentenced to serve four years at hard labor. Prior to sentencing, the trial court articulated his reasons for imposition of the sentence:

It’s difficult to decide how much time to impose on you, Mr.. White. Your — your violation is in the category as very, very egregious. Having a sexual relationship with a child is — extremely offensive to society. Moreover, you were in a position of confidence in that child. I remember the child’s testimony how she thought about you, how she felt comfortable with you, that she went to get a ride home with you, ended up at your house. Whether or not she willingly went to your house — probably did, she had no reason to believe she was not in a safe |7situation. And — and she was attacked.

The trial judge stated he imposed a “mid-range sentence. That is not maximum sentence. And — and that’s the — I consider a reasonably, lenient sentence..."

In order to decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court ttí particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-0562 (La.5/30/03), 845 So.2d 1061.

The trial court found significant the fact that the victim testified she trusted the Defendant, felt comfortable with him and felt she was in a safe environment when he brought her to his residence. Additionally, the Defendant was a twenty-seven year old married man and the victim was only fourteen at the time of the attack. Family members testified the victim was a introverted, inexperienced and awkward child who was just beginning to be comfortable in this group of friends. The Defendant robbed her of her innocence causing her to further withdraw into her own world.

A brief review of similar cases indicates the trial court’s sentence of four years is not unreasonable or excessive. See State v. Smith, 34,325 (La.App. 2 Cir. 12/20/00), 775 So.2d 640 (first offender, sexual battery with fourteen year old, sentenced to five years hard labor); State v. Hubb, 97-304 (La.App. 5 Cir. 9/30/97), 700 So.2d 1103(first offender, sexual battery, sentenced to seven years hard labor); State v. Toups, 546 So.2d 549 (La.App. 1 Cir.1989) (sexual battery of five year old, sentenced to eight years hard labor). Our review of the trial court’s reasons for sentencing, and similar felony cases, lead us to conclude it is unlikely the trial court would have reduced the Defendant’s sentence had his counsel made or filed a timely motion to reconsider sentence. Therefore, we find the Defendant has not shown a reasonable probability but for the defense counsel’s error, his sentence would have been different. Accordingly, we find this assignment of error without merit.

DECREE

Based on the foregoing review of the evidence, we affirm the conviction and sentence of Charles Edward White.

AFFIRMED.


author: |,COOKS, Judge.

text:
    John YEAGER v. ALLSTATE INSURANCE COMPANY and Terenthia Jaswar Adams.
    No. 2003-1609.
    Court of Appeal of Louisiana, Third Circuit.
    April 28, 2004.
    Phillip G. Hunter, Heidel A. Schneider, Hunter & Morton, Alexandria, LA, for Plaintiff/Appellee John Yeager.
    Michael T. Johnson, Valerie M. Thompson, Johnson & Siebeneicher, Inc., Alexandria, LA, for Defendant/Appellant Allstate Insurance Company, Terenthia Jaswar Adams.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and OSWALD A. DECUIR, Judges.
   |,COOKS, Judge.

STATEMENT OF THE FACTS

On June 1, 2001, John Yeager was driving his 1996 Nissan XE pickup truck on Highway 71 in Pineville. He stopped at a red light and was rear-ended by a vehicle driven by Terenthia Jaswar Adams. Ms. Adams was insured by Allstate Insurance Company. Allstate stipulated to liability. Immediately following the accident, Mr. Yeager presented to the emergency room of Rapides General Medical Center complaining of pain in his back. He was treated for his back injury by Dr. Vincent Mallory at the LSU Family Practice Center, by Dr. John Cobb, an orthopedic surgeon and by Dr. Babson Fresh, a neurologist. On July 2, 2001, Dr. John Cobb ruled out a herniated disc and recommended physical therapy for Mr. Yeager’s bilateral lumbar spine pain. On July 23, 2001, Dr. Fresh examined Mr. Yeager and found tenderness in the midline at the T12-L1 level. He determined the injury was a thoracolumbar strain with residual pain. The “[Ijength of time to full recovery [was] not determinable.” The record reflects Mr. Yeager underwent physical therapy at the Louisiana Physical Therapy Clinic during the months of July and August 2001. He remained under the primary care of Dr. Vincent Mallory. Mr. Yeager testified from October 2001 to December 2001 he was in constant pain at night. Mr. Yeager, whose job was to cut and haul firewood, experienced decreased stamina, and pain with over exertion. During this time period, he was not able to lift or cut and deliver firewood. He testified prior to his accident he was able to cut and haul firewood all day. After the accident he was restricted to a four to five hour workday. Mr. Yeager testified his father, a retired physician, prescribed pain and sleep medication for him during these interim months when the pain prevented him from functioning during the day and sleeping at night. Mr. Yeager testified he currently experiences a “dull pain” in his | slower back as a residual from the accident. Mr. Yeager incurred $4,566.00 in medical expenses. No claim was made for lost wages. The trial court awarded $19,000.00 in general damages. Allstate filed this appeal asserting the amount awarded by the trial court was excessive. We disagree and affirm the decision of the trial court.

LAW AND DISCUSSION

In his reasons for judgment, the trial court stated:

Coverage was stipulated. After carefully considering the testimony of Mr. Yeager, which the court finds to be completely credible, in particular his residual damages that he testified, that he still suffers pain today, but not to the extent that he had, his medical specials were forty-five hundred and sixty six dollars ($4,566.00), and those are awarded. After reviewing Dr. Cobb’s report and the ... all the medical that was submitted, Dr. Mallory’s narrative, as well as Dr. Culvert’s, the court finds that the appropriate general damage award in connection with this matter is nineteen thousand dollars ($19,000.00). The court awards that, plus the medical specials mentioned earlier, plus all costs of this proceeding.

The trial court found Mr. Yeager a credible witness and Allstate presented no evidence to refute his testimony regarding the degree and length of time he experienced pain associated with the accident. The medical evidence corroborates the testimony of the plaintiff. Credibility determinations are factual issues to be resolved by the trier of fact and should not be disturbed on appeal absent manifest error. Lasyone v. Kansas City Southern R.R., 00-2628 (La.4/3/01), 786 So.2d 682. Further, a trial court is afforded wide discretion is determining awards and will not be reversed on appeal absent a finding of manifest error. In reviewing an award of general damages, the appellate court reviews the exercise of discretion by the trial court. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70. We find no abuse of discretion on the part of the trial court in awarding'Mr. Yeager $19,000.00 in general damages. Accordingly, we affirm the judgment of the trial court.

RDECREE

Based on the foregoing review of the record, we affirm the decision of the trial court. All costs of this appeal are assessed to Allstate Insurance Company.

AFFIRMED.


author: I,COOKS, Judge.

text:
    Ken SMITH d/b/a B & K Music v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT.
    No. 2003-1450.
    Court of Appeal of Louisiana, Third Circuit.
    April 28, 2004.

      Rick J. Norman, Woodley, Williams, Boudreau, Norman, Brown & Doyle, L.L.C., Lake Charles, LA, for Plaintiff-Appellee Ken Smith.

      Ronald J. Bertrand, Rayne, LA, for Defendant/Appellant State of Louisiana, DOTD.
    Court composed of SYLVIA R. COOKS, MARC T. AMY and ELIZABETH A. PICKETT, Judges.
   I,COOKS, Judge.

This appeal arose from Ken Smith’s compensation claim against the State of Louisiana, Department of Transportation & Development (hereafter DOTD) for the inverse condemnation of his business location.

Ken Smith owned B & K Music in Kinder, Louisiana, which was located at the intersection of Highway 165 and Highway 190. The Town of Kinder owned the land where the building was located. Mike Unkel leased the land from the Town for $400.00 per year, and had been doing so for approximately forty years. Unkel owned the building located on the property and subleased the property and building to Smith for $200.00 per month. This arrangement had been ongoing for nearly twenty years. The lease between Unkel and Smith provided Smith could lease the property for as long as he desired.

With the opening of the Grand Casino Coushatta nearby, traffic on Hwy. 165 substantially increased. The State determined Hwy. 165 needed widening. To accomplish this end, the State deemed it necessary to expropriate the land where B & K Music was located.

DOTD’s appraiser valued the building on the site at $34,500.00. The building had been appraised years earlier at $24,000.00. Despite the amount of its appraisal, DOTD offered Unkel $208,000 for the building. Smith received an eligibility letter from DOTD, notifying him that he might be eligible for an award because of the expropriation. Smith was informed by DOTD he would have to move from the land in 90 days. Attempts by Smith and DOTD to find another location on Hwy. 165 were unsuccessful. Eventually, he was forced to renovate and move into a building he owned, located well off of Hwy. 165.

As a tenant, Smith was then entitled to seek moving expenses, the expenses of | ¡.reestablishing his business, reimbursement for improvements, loss of leasehold advantage and loss of business attributable to a new location.

According to Smith, when the DOTD mistakenly agreed to pay Unkel $208,000 for the building, it then “attempted to mitigate its damages by insisting that Smith get his just compensation from Unk-el.” Unkel refused. Smith argued DOTD then devised a plan where “in an attempt to avoid paying Smith any compensation, the DOTD would ignore its own regulations and would stonewall Smith. Unkel, in turn, would attempt to evict Smith. If Unkel were successful, the DOTD would take the position that Smith, as a former tenant, was not entitled to any compensation.”

Smith filed a lawsuit in November 1999 against DOTD. There were disputes as to DOTD’s compliance with producing all required documents to Smith. Although the trial court found DOTD did not “fully and accurately respond to plaintiffs discovery requests” and “said failure to produce directly affected plaintiffs ability to present its case and/or to cross-examine DOTD’s witnesses,” the trial court could not determine whether the failure was “an act of omission or commission by DOTD.” Thus, the trial court did not sanction DOTD as requested by plaintiff.

The jury found DOTD did “take or damage Ken Smith’s property or business without compensating him fully for his loss,” and awarded Smith $15,260.00, which consisted of $10,000.00 for cost of relocation, $4,760.00 for moving expenses, and $500.00 for loss of improvements. The jury did not make awards for loss of leasehold advantage, loss of business, or loss of opportunity. Smith filed a Motion for Judgment Notwithstanding the Verdict (JNOV) because of the jury’s failure to make those awards.

The trial judge denied the JNOV with respect to the loss of business and loss of opportunity arguments. However, finding the “evidence and the reasonable Isinferences point so strongly in favor of plaintiff on the issue of leasehold advantage that reasonable persons could not arrive at a contrary verdict,” the trial court granted that portion of the JNOV. Both DOTD’s and Smith’s experts established the leasehold advantage (which was defined as the difference between the contract rent less the market rent) was $1,000.00 per month. While defendant’s expert testified that the lack of a specific term of lease made it impracticable to value the future leasehold advantage, Smith’s expert testified the leasehold advantage for five years was $56,027.00 and $100,647.00 for ten years. Accordingly, the trial court awarded Smith $100,647.00 for leasehold advantage. A judgment was prepared reflecting the jury’s verdict plus the JNOV. The judgment also awarded Smith $78,428.00 in attorney fees, $12,742.75 in expert witness fees and $5,290.64 in expenses.

DOTD appealed the trial court’s judgment, arguing the JNOV awarding $100,647.00 for leasehold advantage was improperly granted and the trial court’s award of $78,428.00 in attorney fees was an abuse of discretion. Smith answered the appeal and argued the jury and trial court erred in not awarding damages for loss of business, loss of opportunity and inconvenience. He also alleged the trial court erred in failing to sanction DOTD for failure to produce requested documents. Lastly, Smith requested attorney fees for the work necessitated by this appeal.

ANALYSIS

We note the jury’s decision that DOTD took Ken Smith’s property without fully compensating him is not at issue in this appeal. The parties are disputing the damage and attorney fee award conclusions made by the jury and trial judge.

I. The Motion for JNOV.

The trial court granted Smith’s Motion for JNOV in part, awarding $100,647.00 for leasehold advantage, and denied it in part, refusing to award Smith | ¿damages for loss of business and loss of opportunity. DOTD contends the trial court erred in granting the JNOV on the issue of leasehold damages and Smith asserts the trial court and jury erred in not making awards for loss of business and loss of opportunity.

La.Code Civ.P. Article 1811 establishes the authority for a JNOV. It provides that a JNOV may be granted on the issue of liability or on the issue of damages or on both. The Louisiana Supreme Court in Davis v. Wal-Mart Stores, Inc., 00-445 pp. 4-5 (La.11/28/00), 774 So.2d 84, 89, discussed the standard to be used in determining whether a JNOV has been properly granted:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.
The standard of review for a JNOV on appeal is a two part inquiry. In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether or not to grant the motion. After determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review.

(Citations Omitted).

The trial court granted the JNOV with respect to the issue of leasehold advantage finding the evidence pointed so strongly in favor of Smith on this issue that reasonable men could not reach a different conclusion. After reviewing the record, we agree. The testimony at trial was without dispute that Smith possessed a leasehold [^advantage over the subject property. Both Smith and DOTD’s expert testified there was a leasehold advantage of $1,000.00 per month. There was also uncontradicted testimony that the ongoing lease of the building by Smith from Unkel was in effect a lifetime lease. The only testimony that mitigated against awarding Smith damages for a leasehold advantage was DOTD’s expert statement that any amount Smith spent on repairing/renovating the location would reduce the amount of the leasehold advantage. The trial court noted in his reasons for judgment that “the only way that the leasehold advantage could have no value, would have been for the jury to have believed that the cost of repair/renovation would have equaled or exceeded the value of the leasehold advantage.” There was no testimony presented at trial to infer that significant repair or renovations were anticipated or necessary. Therefore, we find no error in the trial court’s grant of the JNOV on the issue of leasehold advantage.

Smith argues the trial court erred in not granting the JNOV on the issues of loss of business and loss of opportunity. We find the trial court’s written reasons accurately set forth a valid basis for denying awards for loss of business and opportunity and we adopt them as our own:

Loss of Business:
Evidence at trial showed that following the relocation of plaintiffs business, sales actually increased. While plaintiff attempted to discredit the testimony, for purposes of the instant motion, the Court is required to view the evidence in a light most favorable to DOTD.
Accordingly, considering this evidence in a light most favorable to DOTD, the Court finds that the Motion for JNOV, as it pertains to “Loss of Business”, has no merit.
Accordingly, the motion for JNOV, as it related to the issue of “Loss of Business”, must be denied.
Loss of Opportunity:
Evidence at trial regarding loss of opportunity was limited and speculative. The jury chose to disregard it and made no award for “Loss | fiof Opportunity”.
Considering this evidence in a light most favorable to DOTD, the Court finds that the Motion for JNOV, as it pertains to “Loss of Opportunity”, has no merit.
Accordingly, the motion for JNOV, as it related to the issue of “Loss of Opportunity”, must be denied. •

II. Damages for Inconvenience and Value of Improvements.

Smith argues the jury erred in not awarding damages for inconvenience. Initially, we note Smith in his Motion for JNOV contended “the jury failed to award any damages for leasehold advantage, loss of business or loss of opportunity, all of which were proved at trial.” No request was made in Smith’s JNOV motion for damages for inconvenience. Although this failure does not prevent Smith from asserting on appeal that the jury erred in not awarding damages for inconvenience, our review of the record does not reveal the jury manifestly erred in not awarding such damages.

Smith also alleges he lost the value of his improvements when DOTD purchased them from Unkel. He notes in brief “[i]t is assumed the jury failed to award Smith the value of his improvements because the trial court informed the jury that Smith had pending a separate suit for the improvements pending against Unkel.” DOTD has attached a judgment from Smith’s suit against Unkel which awarded him $38,384.12 in damages for the value of his improvements. Therefore, we decline to award Smith any further damages on this issue.

III. Expert Witness Fees and Litigation Expenses.

The trial court’s judgment awarded $12,742.75 in expert witness fees and $5,290.64 in litigation expenses. DOTD argued below that Smith did not include a request for expert witness fees in its motion to set attorney fees. The trial court found 17D0TD did not object to the issue being addressed during the hearing on the motion, and found the pleadings were thus expanded to properly place that issue before the court. We agree. DOTD contends the issue of expert witness fees never arose at the hearing, but our review of the record indicates counsel for Smith discussed the fact that his firm contracted directly with the experts in question and paid them directly for their services.

DOTD also argues the expert witness fees in question should not be awarded because the jury “totally rejected” the opinions of Smith’s experts. The trial court found the opinions of the experts were necessary in support of Smith’s case and found the fees requested were reasonable. We note that Smith was successful in obtaining a verdict from the jury finding DOTD wrongfully took his property without just compensation and a corresponding award for damages which was subsequently increased with the JNOV. Therefore, considering the trial court’s great discretion in fixing expert witness fees we will not disturb the award. See Este’ v. State Farm Ins. Cos., 96-99 (La.App. 3 Cir. 7/10/96), 676 So.2d 850; Trans Louisiana Gas Co. v. Heard, 629 So.2d 500 (La.App. 3 Cir.1993). We also find no abuse of discretion in the trial court’s award of $5,290.64 in litigation expenses. While DOTD argues these expenses are duplicative and “should already be taxed as costs of court,” it does not confirm whether the expenses were in fact so taxed or otherwise identify in the record where the duplication occurred.

TV. Attorney Fee Award.

DOTD argues the trial court erred in rendering an attorney fee award ($78,-428.00) that is in excess of one-third of the amount awarded by the jury. Accordingly, DOTD asserts the award for attorney fees should have been at the most, $5,086.67, which is one-third of the jury’s $15,260.00 damage award. Initially, we [snote this amount does not reflect the additional $100,647.00 awarded to Smith for leasehold advantage in the JNOV.

La.R.S. 13:5111(A), which was applied by the trial court, controls the issue of attorney fees in inverse condemnation cases. Rivet v. State, DOTD, 01-961 (La.11/28/01), 800 So.2d 777. La.R.S. 13:5111(A) provides as follows:

A. A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state, of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as a part of the costs of court, such sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceeding. Any settlement of such claim, not reduced to judgment, shall include such reasonable attorney, engineering, and appraisal fees as are actually incurred because of such proceeding. Actions for compensation for property taken by the state, a parish, municipality, or other political subdivision or any one of their respective agencies shall prescribe three years from the date of such taking. [Emphasis added].

DOTD argues the fees were not actually incurred because if Smith did not prevail in his lawsuit, he would not have been liable for legal fees. However, Smith did prevail and an award of attorney fees is mandatory. The contract between Smith and his counsel provided, in part, that the. “Attorney is to receive as compensation for his services an amount equal to the greater of (33 Wo) of the total award (net, after expenses) collected or the attorney fees awarded by the court, and collected, if any.” (Emphasis added.) Under La.R.S. 13:5111(A), the amount awarded by the trial court must, be reasonable.

In State, DOTD v. Williamson, 597 So.2d 439, 441-42 (La.1992) the Louisiana Supreme Court set forth the factors to be considered in reviewing an award of attorney fees:

Courts may inquire as to the reasonableness of attorney fees as part of their prevailing, inherent authority to regulate the practice of law.... Factors to be taken into consideration in determining the ^reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and (10) the court’s own knowledge.

In his Ruling on Plaintiffs Motion to Set Attorney’s Fees, the trial court applied the Williamson factors to the facts of this case, and concluded:

1. The plaintiff prevailed in his claim for damages for inverse condemnation of his business location.
2. Even though plaintiff and plaintiffs counsel entered into a contingency fee agreement, the relevant language of the agreement fixes the attorney’s fees owed by plaintiff to plaintiffs counsel as those “attorney fees awarded by the court.”
3. The responsibility incurred by the attorney was substantial. The contingency fee agreement underscores this assumed responsibility.
4. The importance of the litigation to the client was extraordinary. Indeed, the object of the taking was an irreplaceable business location.
5. The issues involved in this inverse condemnation action appear to have been more involved than those of an “ordinary” inverse condemnation action (i.e. the alleged conspiracy between DOTD and Mike Unkel, issues relative to the purported overpayment made to Mr. Unkel by DOTD, issues relative to ownership of leasehold improvements, issues concerning the leases and the history of the dealing between lessors and lessees, and issues related to leasehold advantage).
6. The attorneys for plaintiff and defendant were quite knowledgeable about the issues involved in this matter.
7. The attorneys for plaintiff and defendant were exceedingly well-prepared and skillfully presented their respective client’s cases to the jury.
8. The claimed number of hours expended by plaintiffs counsel appear to be reasonable.
9. The hourly rate charged by plaintiffs counsel for his time, his associate’s time, and administrative time are reasonable.

Based on his findings, the trial court found the $78,428.00 in attorney fees requested |inby plaintiffs counsel was reasonable. The trier of fact has great discretion in awarding attorney fees and such an award will not be disturbed absent manifest error. Picard v. Vermilion Parish School Bd., 00-1222 (La.App. 3 Cir. 4/4/01), 783 So.2d 590, writ denied, 01-1346 (La.6/22/01), 794 So.2d 794; Poirrier v. Otis Eng’g Corp., 602 So.2d 207 (La.App. 3 Cir.1992); Gravolet v. Board of Com’rs for Grand Prairie Levee Dist., 95-2477 (La.App. 4 Cir. 6/12/96), 676 So.2d 199. We also note, in Louisiana Resources Co. v. Noel, 499 So.2d 1016 (La.App. 3 Cir.1986), this court found La.R.S. 19:8 (which gives the trial court the authority to grant attorney fees in expropriation cases) authorizes the award of reasonable attorney fees and not a specific percentage based on the compensation awarded. We further noted the legislature chose not to put a ceiling on attorney fees in such cases, other than that they be reasonable. As Smith notes, if there is no ceiling on attorney fees in an expropriation case brought by the public body, there likewise should be no ceiling when the public body does not follow its own rules and necessitates a public citizen to file an inverse condemnation suit. Accordingly, we will not disturb the trial court’s award of attorney fees.

FV. Trial Court’s Denial of Motion for Sanctions Against DOTD.

Smith contends the trial court erred in not imposing sanctions based on DOTD’s failure to produce all relevant documents.

Immediately after suit was filed, Smith served DOTD with a request for production of all documents “of any nature involving in any way the building owned by Mike Unkel and leased by Ken Smith.” DOTD produced certain documents, and refused to produce others based on La.Code Civ.P. art. 1424, which exempts from production documents prepared “in anticipation of litigation.” Smith then filed a Motion to Compel the documents DOTD would not produce. The trial court B, performed an in camera inspection, after which it ordered DOTD to produce certain appraisal reports it withheld.

Days before trial, plaintiffs filed another Motion to Compel, seeking production of DOTD’s “Just Compensation Letter,” delivered to Unkel, and a “Summary Statement” which included the identification of improvements made by Smith. DOTD contends it voluntarily complied with the second Motion to Compel and forwarded the requested documents to Smith.

On the second day of trial, a witness for DOTD made reference to an appraisal review sheet, which it turns out was never forwarded to Smith. The trial court immediately issued an instanter order for the production of the appraisal review sheet.

Smith argues months after trial, it finally received a “smoking gun” memorandum dated March 10, 1999, which directly contradicted DOTD testimony at trial. The memorandum, sent to DOTD’s appraiser, stated as follows:

I understand that Unkel is in the process of evicting Smith — Should we hold we (sic) & pay everything to Unkel[?]

Smith argues had he been provided this memo in advance of trial, he could have discredited DOTD’s testimony that it did not delay in furtherance of a conspiracy.

Although the trial court found DOTD did not “fully and accurately respond to plaintiffs discovery requests” and “said failure to produce directly affécted plaintiffs ability' to present its case and/or to cross-examine DOTD’s witnesses,” the trial court could not determine whether the failure was “an act of omission or commission by DOTD.” Thus, it did not impose sanctions against DOTD.

It is well settled that a trial court has much discretion in selecting appropriate sanctions for failure to comply with discovery orders, and its decision will not be disturbed absent an abuse of that discretion. See La.Code Civ.P. art. 1471; Le-Jeune v. Lafayette Tower Service, 94-1240 (La.App. 3 Cir. 4/5/95), 653 So.2d 112; Payne v. Green, 2000-1655 (La.App. 4 Cir. 8/30/00), 769 So.2d 650. It should be noted during trial, counsel for Smith reserved his right to pursue sanctions against DOTD after the trial. He also indicated to the trial court that he did not want a mistrial, because he felt it would be contrary to his client’s interests. Counsel for Smith also opposed DOTD’s request to continue the trial date, although it would have provided additional time for discovery. In regard to the “smoking gun” memo, the trial court apparently did not find its non-disclosure warranted sanctions. Considering, the jury came to the conclusion that DOTD took Ken Smith’s property improperly, we cannot say the trial court abused its discretion in refusing to sanction DOTD.

V. Additional Attorney Fees.

In its answer, Smith requests additional attorney fees be awarded for prosecuting this matter through appeal. Counsel for Smith states he has spent numerous hours and paid $1,101.95 in expenses since trial, which includes briefing and hearings on. sanctions, attorney fees, JNOV and appeal. We will award $10,000.00 in additional attorney fees for the work performed post-trial.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. The judgment is amended to award Ken Smith an additional $10,000.00 in attorney fees for the work performed post-trial. All costs of this appeal are assessed against defendant-appellant, DOTD.

AFFIRMED, AS AMENDED.


author: I,WOODARD, Judge.

text:
    STATE of Louisiana v. Mark Edward BLAKE.
    No. 03-1465.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 2004.

      Michael Harson, District Attorney, Ted L. Ayo, Assistant District Attorney, Lafayette, LA, for State/Appellee.
    Peggy J. Sullivan, Monroe, LA, for Defendant/Appellant Mark Edward Blake.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and MICHAEL G. SULLIVAN, Judges.
   I,WOODARD, Judge.

On appeal, we consider whether the evidence presented at trial was sufficient to support the Defendant’s conviction on two counts of sexual battery. We also determine whether his trial counsel was ineffective. We affirm.

* * * * *

On April 21, 2001, Mark Edward Blake, who was thirty-eight years old at the time, committed a sexual battery on two children, a five-year-old girl and a seven-year-old girl, at their grandmother’s home. Their grandmother was dating the Defendant when this incident occurred. Sometime afterwards, these girls, who were sisters, told their mother that the Defendant rubbed their breasts, vagina, and anus with his hands, rubbed his penis on their legs, and forced them to touch his penis with their hands. The older child also accused him of kissing her and sticking his tongue in her mouth.

On May 1, 2001, the parents of these two children reported this to the police. Two days later, on May 3, 2001, Dr. Powlin Manuel examined the children and found no evidence of trauma to their genitalia. However, he noted that one of the victims complained of “burning with urination” and had “redness” in the “external genitalia” area.

On July 27, 2001, the trial court charged the Defendant, by bill of information, with two counts of sexual battery in violation of La.R.S. 14:43.1. He waived formal arraignment on September 20, 2001 and entered a plea of not guilty.

On August 19, 2003, this matter came to trial. A jury convicted the Defendant as charged. On September 3, 2003, the trial court sentenced him to five years on each count with each sentence to run consecutively.

On August 21, 2003, the Defendant filed a motion for post verdict judgment of acquittal or, in the alternative, for a new trial. Without a hearing, the trial court denied this motion on August 29, 2003.

On appeal, the Defendant asserts that: (1) the evidence was insufficient to support a conviction for sexual battery; (2) his sentence constitutes an excessive sentence under the facts and circumstances of this case; (3) the trial court did not adequately comply with La.Code Crim.P. art. 894.1 and did not sufficiently articulate 12a basis for the sentences imposed; (4) by failing to file a “Motion to Reconsider Sentence,” his trial counsel was ineffective; and (5) the trial court failed to inform him of the delays for application for post-conviction relief.

sfc * *

ERRORS Patent/Assignment of Error No. 5

According to La.Code Crim.P. art. 920, we must review all appeals for errors patent on the face of the record. We found one. In addition, we note that the sentencing minutes require correction.

The Defendant contends that the trial court did not advise him of the time period for filing an application for post-conviction relief as La.Code Crim.P. art. 930.8 provides. The sentencing minutes indicate that the trial court informed him of this time period, but the sentencing transcript does not. Furthermore, we note that the sentencing transcript indicates that his sentences are to be served without benefit of parole, probation or suspension of sentence; however, the sentencing minutes do not contain this restriction.

‘When there is a conflict between the transcript and the minutes, the transcript prevails.” Thus, we remand this case for correction of the sentencing minutes so that they are consistent with the transcript — ’the Defendant will serve his sentences without benefit of parole, probation or suspension of sentence. Also, we direct the trial court to inform him of Article 930.8’s provisions by sending him appropriate written notice within ten days of the rendition of this opinion, and to file in the record written proof that the Defendant received this notice.

| ¡¡Sufficiency op the Evidence

The Defendant contends that the evidence was insufficient to support a conviction for sexual battery.

Regarding sufficiency of the evidence, this court has held:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review.[]

The trial court charged the Defendant with and found him guilty of two counts of sexual battery in violation of La.R.S. 14:43.1, which states, in pertinent part:

A. Sexual battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.

Accordingly, to convict the Defendant, the State must prove that: (1) the victims were younger than fifteen years old; (2) the Defendant was at least three years older than the victims; and (3) the Defendant touched the anus or genitals of the victims with any part of his body. The fact that both of the victims were under the age of fifteen when this incident occurred is undisputed. It is further undisputed that the | ¿Defendant is more than three years older than both of them. Therefore, the State, only, needed to prove that the touching element was satisfied beyond a reasonable doubt.

A victim’s testimony, alone, is sufficient to prove the elements of an offense. Regarding witness testimony, we acknowledged:

The trier of fact may accept or reject, in whole or in part, the testimony of any witness. The fact that the record contains evidence which conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient. Thus, in the absence of internal contradictions or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient to support the requisite factual conclusion.[ ]

This court further held:

Absent internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony is sufficient to support a defendant’s conviction of a sex offense, even where the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense. Additionally, this court has affirmed convictions, where the defendant was convicted of a sex offense, based solely on minor victims’ testimonies.[]

The Defendant agrees that normally the testimony of a minor victim is sufficient to prove commission of the offense but asserts that, in this instance, the victim’s testimonies are inconsistent. Specifically, he contends that they were inconsistent on when the inappropriate behavior began, when and whom the victims told of the incident, and who was present when the incidents occurred.

In State v. Giddry, this court held: “Although a victim’s testimony is contradictory, it can support a conviction of sexual battery if it is clear with respect to the |Belements of sexual battery.” Here, the victims’ testimonies regarding the elements of sexual battery are consistent. Any inconsistencies in their testimonies merely relate to their credibility.

According to the Defendant, the victims’ mother’s hatred of him fueled these allegations. To support his claim, he called multiple witnesses at trial who testified that the victims recanted.

The State called the victims’ stepmother as a rebuttal witness. She testified that the victims sleep at her home every other weekend. Also, she confirmed their mother’s claim that both girls have had trouble sleeping since these incidents occurred. She further pointed out that the victims’ cousins, Candice and Jerry, were not telling the truth when they testified that they were at her house when they heard the victims say the incidents never occurred because neither Candice nor Jerry had been at her house while the victims were there.

The Defendant also admitted in evidence letters that he claims the victims wrote to him. Some of these letters contain what appears to be recants of their allegations against him. When asked about the letters, one victim stated that she recognized the letters and that the handwriting was hers but stated twice that her grandmother made her write them.

In State v. Holley, the defendant presented evidence that the victim had recanted her story on several occasions. In Holley, like in the instant case, the record contained at least three letters, in which the victim wrote that she either lied about the incident or suggested that it did not happen; however, she testified that she wrote the notes because she thought that her mother wanted her to write them. Ultimately, the Holley court chose to affirm the trial court’s acceptance of the victim’s version of events.

“It is the province of the trier of fact to accept or reject, in whole or in part, the testimony of the witness.” In State v. Guidry, when the jury accepted part of the witness’ testimony and rejected other parts, we found that it “properly exercised its fact-finding role, weighing the testimony of the witnesses.” Therefore, given the | (;mandate that we should not second guess the fact finder’s credibility determinations beyond a Jackson sufficiency review, and viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found that the State proved the elements of sexual battery beyond a reasonable doubt. Therefore, this assignment of error lacks merit.

Ineffective Assistance of Counsel

The Defense never filed a “Motion to Reconsider Sentence” and neither the Defendant nor his counsel orally objected to the sentences at the sentencing hearing. According to La.Code Crim.P. art. 881.1, a defendant has thirty days following the imposition of sentence to make or file a “Motion to Reconsider Sentence.” When the record indicates that the Defense neither made nor filed an objection regarding sentencing, the defendant is precluded from appealing his sentence.

Therefore, the Defendant’s excessive sentence claim is barred under Article 881.1. However, given that there is sufficient evidence in the record to address the ineffective assistance of counsel issue, we will review whether there was a reasonable probability that the trial court would have reduced his sentence had his trial counsel made or filed a motion to reconsider his sentences.

When presented with an ineffective assistance of counsel claim, we have reasoned:

Failure to file a motion to reconsider the sentence does not necessarily constitute ineffective assistance of counsel. Nevertheless, the defendant may have a basis to claim ineffective assistance of counsel when the [sic] he can show a reasonable probability, but for defense counsel’s error, his sentence would have been different. Furthermore, in State v. Francis, 99-208 (La.App. 3 Cir. 10/6/99), 748 So.2d 484, writ denied, 00-0544 (La.11/13/00), 773 So.2d 156, this court stated:
A claim of ineffective assistance of counsel is properly raised in an application for post conviction relief. This allows the trial judge an opportunity to order a full evidentiary hearing on the matter. However, where the 17record contains evidence sufficient to decide the issue and the issue is raised by an assignment of error on appeal, it may be considered.
Since we find that the record contains sufficient evidence to address this ineffective assistance of counsel issue, we will determine whether there was a reasonable probability that the defendant’s sentence would have been reduced had defense counsel made or filed a motion to consider his sentence.[]

We further held that the accused cannot prove an allegation of ineffectiveness without a specific showing of prejudice. Whether or not a defendant received ineffective assistance of counsel is a two-part inquiry. First, we must determine whether the trial court would have reduced the Defendant’s sentences upon the filing of a “Motion to Reconsider Sentence.” Second, we must determine whether the sentences were excessive.

Possible Reduction of Defendant’s Sentences

At the sentencing hearing, the trial court stated:

The court really has no benefit of any information on which to base the sentence, other than what was heard at the trial. There’s certainly no question the court considers the offense a serious one as does the law. I do not have any indication or any reason to believe that this is the kind of crime under these particular circumstances that would call for a minimum sentence. Nor do I feel that the circumstances are the most egregious that this court can envision with regard to sexual battery to warrant the maximum.
I feel that a fair sentence under the circumstances would be somewhere in the mid-range between minimum and maximum. For that reason, I will, pursuant to the jury verdict in this case, in Docket No. 37666, on each of the two counts of sexual battery, I sentence you Mr. Blake to serve a term of imprisonment at hard labor for a period of 5 years on each count, without benefit of probation, parole, or suspension of sentence, to run consecutive with the other, and consecutive with any other sentences he’s presently serving.

|sAt this hearing, the State alluded to at least two other felonies on the Defendant’s rap sheet. The State did not have the certified minutes of these felony convictions, so the trial court declined to consider them when sentencing the Defendant.

The trial court gave what it thought was a “fair sentence.” It also heard the testimony at trial and based its sentencing decision on that evidence. The sentence imposed was a midrange sentence. As such, it is unlikely that the trial court would have reduced his sentences even if the Defendant’s trial counsel would have made or filed a “Motion to Reconsider Sentence.” Thus, we find that the Defendant failed to show a reasonable probability that the trial court would have reduced his sentence had his trial counsel made or filed a “Motion to Reconsider Sentence.”

Excessive Sentences

Appellate courts must use the following standard when reviewing excessive sentence claims:

Article 1, § 20 of the Louisiana Constitution of 1974, prohibits “cruel, excessive, or unusual' punishment.” A sentence which falls within the statutory limits may nevertheless be excessive under the circumstances. To constitute an excessive sentence this court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than needless imposition of pain and suffering. The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion.[]

To decide whether'a sentence makes no meaningful contribution to acceptable penal goals or shocks the sense of justice:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar |flcrimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”3 ]

A trial court must look at the particular circumstances of the case and the defendant’s background in order to impose a sentence suited for him. On review, the issue is not whether another sentence would have been more appropriate; rather, it is whether the trial court abused its discretion.

In this case, the trial court sentenced the Defendant to five years on each count, and it ordered that these sentences run consecutively. These sentences are in the midrange — between the minimum and maximum.

In State v. Morgan, the defendant fondled two children on two separate occasions while he was supervising the children in his home. The victims were a twelve-year-old female and an eleven-year-old mentally-disabled female with the mental age of a five or six-year-old. The defendant pled guilty to two counts of sexual battery and received ten year sentences on each charge. The sentences were to run concurrently. Pursuant to a plea agreement, the state agreed to dismiss two other charges of sexual battery and two charges of indecent behavior with a juvenile. We held that these sentences did not constitute an abuse of discretion by the trial court.

In light of our previous holding and based on the particular circumstances of this case, we hold that, indeed, the Defendant’s sentences are not even close to being excessive.

Consequently, even if Defendant’s trial counsel had filed a “Motion to Reconsider Sentence,” we would have deemed his sentences appropriate under the circumstances. He was, therefore, not prejudiced by his trial counsel’s failure to file this motion.

| inThus, this assignment of error is mer-itless.

CONCLUSION

We affirm the Defendant’s conviction and sentence, but we remand this case to the trial court for correction of the sentencing minutes. Also, it is directed to inform the Defendant of La.Code Crim.P. art. 930.8’s provisions by sending appropriate written notice to him within ten days of the rendition of this opinion, and it must file in the record written proof that he received this notice.

AFFIRMED and REMANDED.

      . State v. Guillory, 00-00386, p. 19 (La.App. 3 Cir. 11/2/00), 773 So.2d 794, 805, writ denied, 00-3334 (La. 11/9/01), 801 So.2d 362.

      . See State v. Fontenot, 616 So.2d 1353 (La.App. 3 Cir.), writ denied, 623 So.2d 1334 (La.1993). See also State v. Courtney, 99-1700 (La.App. 3 Cir. 5/3/00), 761 So.2d 112.

      . State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27.

      . State v. J.B., 94—213 (La.App. 3 Cir. 10/5/94), 643 So.2d 402, writ denied, 94-2734 (La.6/30/95), 657 So.2d 1020.

      . State v. Hongo, 625 So.2d 610, 616 (La.App. 3 Cir.1993), writ denied, 93-2774 (La. 1/13/94), 631 So.2d 1163 (citations omitted).

      . State v. Darbonne, 01-39, pp. 3-4 (La.App. 3 Cir. 6/6/01), 787 So.2d 576, 579, writ denied, 02-0533 (La. 1/31/03), 836 So.2d 64 (footnote omitted).

      . 95-254, p. 4 (La.App. 3 Cir. 11/2/95), 664 So.2d 698, 699-700.

      . 01-0254 (La.App. 3 Cir. 10/3/01), 799 So.2d 578.

      . Id.

      . Guidry, 664 So.2d at 700.

      . Id.

      . 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.

      . See State v. Prudhomme, 02-0511 (La.App. 3 Cir. 10/30/02), 829 So.2d 1166, writ denied, 02-3230 (La.10/10/03), 855 So.2d 324.

      . Id. at 1177 (citations omitted).

      . State v. Reed, 00-1537 (La.App. 3 Cir. 3/6/02), 809 So.2d 1261, writ denied, 02-1313 (La.4/25/03), 842 So.2d 391.

      . State v. Walker, 96-112, pp. 3-4 (La.App. 3 Cir. 6/5/96), 677 So.2d 532, 534-35, writ denied, 96-1767 (La. 12/6/96), 684 So.2d 924 (citations omitted).

      . State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-0562 (La.5/30/03), 845 So.2d 1061 (citations omitted).

      . State v. Dorthey, 623 So.2d 1276 (La.1993).

      . State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

      . 97-997 (La.App. 3 Cir. 2/4/98), 706 So.2d 1084.