author: |, CARAWAY, J.

text:
    Marcus D. ROBERT and Mary Ann Sharp, Plaintiffs-Appellees, v. Claude R. NELSON, Yellow Checker Cab Co. of Shreveport and Bossier City, Inc. and North American Fire & Casualty Insurance Company, Defendants-Appellants.
    No. 36,541-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.
    James Paul Doherty, Jr., Opelousas, for Appellants.

      David C. Turansky, Shreveport, for Ap-pellees.
    Before BROWN, CARAWAY and HARRISON (Pro Tempore), JJ.
   |, CARAWAY, J.

The automobile accident in this case occurred when the defendant changed lanes of travel and was struck in the rear of his vehicle by the plaintiffs vehicle. The defendant was held solely at fault and now contests the trial court’s finding. Alternatively, the defendant argues that if he was negligent, he was only partially negligent and a portion of the fault should have been assigned to the plaintiff. For the following reasons, we affirm the trial court’s ruling.

Facts

On the evening of November 5, 2000, the plaintiff, Marcus D. Robert, was traveling northward on Jewella Avenue, a four-lane street located in the City of Shreveport, in a car owned by his grandmother, Mary Ann Sharp. Robert was an employee of Pizza Hut and was in the process of making a delivery. He was in the left northbound lane and was driving at a speed of approximately 40 miles per hour. As he entered the intersection of Jewella and Jackson Street, a taxi-cab, owned by Yellow Checker Cab Company of Shreveport and Bossier City, Inc. (“Yellow Checker”) and driven by Claude Nelson (“Nelson”), changed lanes from the right northbound lane to the left northbound lane and directly into the path of Robert.

Nelson did not use his turn signal and, according to the testimony of a pedestrian witness, was approximately one car length ahead of Robert when he abruptly changed lanes. The streets were wet because it had just rained | ¡>and that portion of Jewel-la was on a downhill slope. As a result, Robert collided with the taxi, causing damage to the rear of the taxi and the front of Sharp’s car. The damage to the taxi was greatest on the left rear side of the vehicle.

Robert and Sharp instituted the present suit against Nelson, Yellow Checker, and its insurer, American Fire And Casualty Insurance Company, for damages arising from Robert’s personal injuries and the property damage to Sharp’s car. There was only one independent witness to the accident, the pedestrian, Christopher Stewart, who testified at trial. Stewart was waiting to cross Jewella Avenue when the accident occurred.

Nelson was never served with process and did not appear at trial. After Nelson’s statements to a police officer and insurance adjuster were allowed into evidence, the trial court held the record open in order to obtain Nelson’s testimony, but the parties were not able to locate Nelson. The trial court gave extensive reasons for judgment, found Nelson to be totally at fault, and awarded Robert $4,500 in general damages, $1,119.87 in medical expenses, and $529.20 in lost wages. The trial court further awarded Sharp $1,259.16 in damages for the loss of her car. The defendants appeal, claiming that Robert should be assessed fault for the accident.

Discussion

A reviewing court cannot disturb the factual findings of a trial court absent abuse of discretion or manifest error. Powell v. Regional Transit Authority, 96-0715 (La.6/18/97), 695 So.2d 1326; Rosell v. ESCO, 549 So.2d 840 (La.1989); State v. Baxter, 33,188 (La.App.2d Cir.5/10/00), 759 So.2d 1079. To reverse the trial court’s factual findings, the appellate court must find from the record that no reasonable factual basis exists for the findings and must determine that the record establishes the findings as clearly wrong or manifestly erroneous. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993). Additionally, the allocation of fault is a factual determination and subject to the trial court’s great discretion. Hughes v. Bossier Parish School Board, 32,225 (La. App.2d Cir.10/29/99), 745 So.2d 816.

The defendants argue that a following motorist is charged with a duty of great care in regards to a preceding motorist. Louisiana Farm Bureau Mut. Ins. Co. v. Regal Ins. Co., (La.App. 3d Cir.3/6/02), 809 So.2d 1280, citing Nesbit v. Travelers Ins. Co., 218 So.2d 396 (La.App. 2d Cir.1969). This duty is derived in large part from La. R.S. 32:81(A), which states:

The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.

That statute has been interpreted as requiring a following driver to maintain a sufficient distance from a preceding vehicle to avoid a collision under conditions that should be reasonably anticipated; and, if there is a collision, there is a rebut-table presumption that the following motorist has breached the standard of conduct prescribed by La. R.S. 32:81(A). Daigle v. Mumphrey, 96-1891 (La.App. 4th Cir.3/12/97), 691 So.2d 260. Nevertheless, as noted in Raymond Through Raymond v. Deaton, 423 So.2d 724, 728 (La. App. 1st Cir.1982), this rule and presumption was intended to cover the Rsituation where the vehicle has been lawfully proceeding within the same lane as the following vehicle and a rear-end collision occurs as a result of the following motorist’s failure to maintain a safe distance or to keep a proper lookout.

Because of Nelson’s change of travel lanes, other statutes have application. La. R.S. 32:79 prescribes the following duty:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply.
(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

Additionally, La. R.S. 32:104 provides that a change of lanes by the driver must be indicated by a turn signal and made with reasonable safety. Thus, the applicable rule from these two statutes is “a motorist who attempts to change traffic lanes on a multiple-lane highway must ascertain before turning that the maneuver can be made safely without endangering normal overtaking or oncoming traffic.” Barnett v. Guillot, 294 So.2d 907, 909 (La.App. 2d Cir.1974); Raymond, supra.

We recognize that with different circumstances, under this state’s comparative fault regime, both drivers’ negligent actions in violation of the above statutory provisions can combine to cause this kind of accident. Nevertheless, in this case, the trial court accepted the testimony of the pedestrian witness and Robert which clearly indicated that Robert was not given enough time to react to Nelson’s abrupt change of lanes into the path |Bof his vehicle. The trial court also noted that the damage to Nelson’s vehicle indicated that he had not fully made it into Robert’s lane of traffic, further indicating that Robert did not have time to avoid the accident. Likewise, the defense emphasis on the second-hand reports of the accident by the police officer and insurance adjuster is misplaced. The trial court, who obviously would have preferred to hear Nelson’s first-hand account, was presented with two conflicting accounts of the accident and could accept the reasonable version of the occurrence presented by Robert and Stewart. Finally, the trial court was not manifestly erroneous in placing no fault for the accident upon Robert because of the highway conditions surrounding the accident. Robert’s speed in relation to the wet roadway and nighttime conditions was not clearly shown to have been unreasonable and a contributing cause of the accident.

In conclusion, Nelson was under a legal duty to keep his vehicle in his lane of travel until he was able to ascertain that it was safe for him to move into the left northbound lane. We conclude, therefore, that he breached that duty and the trial court was not manifestly erroneous in concluding that Nelson was completely at fault.

Costs are to be assessed against the defendants.

AFFIRMED.

      . The record does not indicate the posted speed limit for Jewella Avenue. However, a police officer testified that Mr. Robert's speed was approximately equal to the posted speed limit.


source: Caselaw Access Project

author: pKOSTELKA, J.

license: Public Domain

text:
    Wilbert ROBERTSON, et al., Plaintiff-Appellant, v. CADDO PARISH, LOUISIANA, et al., Defendant-Appellee.
    No. 36,540-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.
    Rehearing Denied Jan. 23, 2003.

      Wilbert Robertson, In Proper Person.
    Richard P. Ieyoub, Attorney General, Marry E. Hunley, Assistant Attorney General, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Catherine Estopinal, Assistant District Attorneys, for Appellee.
    Before CARAWAY, PEATROSS and KOSTELKA, JJ.
   pKOSTELKA, J.

From a judgment granting exceptions of no cause and no right of action in favor of the State of Louisiana and the Parish of Caddo (collectively referred to herein as “defendants”), Wilbert Robertson (“Robertson”) appeals. We affirm.

Facts

Robertson and fifteen other plaintiffs (collectively referred to herein as “plaintiffs”) seek a declaratory judgment decreeing La.C.Cr.P. art. 413(B), as it read prior to its 1999 amendment, unconstitutional due to the alleged racially discriminatory method of selecting grand jury foremen in Caddo Parish, Louisiana. The relevant facts leading up to the filing of the subject exceptions and previous history of this matter are set forth in Robertson v. Ieyoub, 34,776 (La.App.2d Cir.11/16/01), 799 So.2d 863. On February 27, 2002, after this previous appeal, defendants filed exceptions of no right and cause of action and prescription urging that plaintiffs had no right or cause of action to challenge the constitutionality of La.C.Cr.P. art. 413(B) via declaratory judgment. When, on March 26, 2002, the trial court granted defendants’ exceptions of no right and cause of action, this appeal ensued.

Discussion

The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition. It questions whether the law provides a remedy to the plaintiff against the defendant for the complaints set forth in the petition. Hall v. Zen-Noh Grain Corp., 2001-0324 (La.04/27/01), 787 So.2d 280; Miller v. Seven C’s Properties, LLC, 2001-543 (La.App. 3d Cir.11/21/01), 800 So.2d 406, writ denied, 2001-3309 (La.03/08/02), 811 So.2d 878; Stelly v. Ieyoub 2001-0755 (La.App. 3d Cir.10/31/01), 799 So.2d 1206. All well-pleaded allegations must be assumed as true, and any doubt is to be resolved in favor of the petition. Id. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the reviewing court should subject the case to de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. McCoy v. City of Monroe, 32,521 (La.App.2d Cir.12/08/99), 747 So.2d 1234, writ denied, 2000-1280 (La.03/30/01), 788 So.2d 441.

After de novo review of the record before us, we find no error in the trial court’s determination that Robertson has failed to state a cause of action.

Robertson seeks a declaration of the unconstitutionality of La. C.Cr.P. art. 413(B), prior to its 1999 amendment, as it applied to his March 20, 1986 indictment and resulting conviction for aggravated rape and burglary. Specifically, he has maintained that “when [the][s]tate court system allowed the appointment of grand jury forepersons it g[a]ve them authority to vote for an indictment against the plaintiffs and in favor of the prosecution.” Further, Robertson alleged that “the integrity of their decisions depended upon the integrity of the process used to select the grand jurors. And that ^process was infected with racial discrimination, to the extent, doubt is cast over the fairness of all subsequent decisions, in particular, with regard to injury caused to [plaintiffs.” For such relief, however, we find declaratory judgment unavailable.

We first note that in 1999, the Legislature amended Article 413(B) to remove the grand jury foreman selection power from the judge, in favor of a random selection. See complete explanation in State v. Langley, 95-1489 (La.04/03/02), 813 So.2d 356. Prior to its 1999 amendment, the article called for the district court to select one person from the grand jury venire to serve as the foreman of the grand jury. Accordingly, Robertson now seeks a determination of the constitutionality of a provision which no longer exists. Specifically, Robertson seeks this relief based upon the past application of that repealed provision to his 1986 indictment and conviction. Although couched in terms of a prayer for declaratory relief, we can interpret Robertson’s request as nothing other than an effort to obtain a reversal of his conviction based upon the alleged illegality of the previous Article 413(B). The law is clear that a suit for declaratory judgment is an appropriate means of testing the constitutionality of a statute or applicability of an ordinance in which there is an actual controversy between the parties. It is available to test the validity of a criminal ordinance where a criminal prosecution has not yet begun. Liberto v. Rap ides Parish Police Jury, 95-456 (La.App. 3d Cir.11/02/95), 667 So.2d 552; Vonderhaar v. Parish of St. Tammany, 633 So.2d 217 (La.App. 1st Cir.1993). See also, Olan Mills, Inc. of Tennessee v. City of Bogalusa, 225 La. 648, 73 So.2d 791 (1954). Louisiana courts have consistently held that declaratory relief is available to decide a justiciable controversy, meaning a presently existing, actual and substantial dispute, but the courts are not empowered to render advisory opinions on moot or abstract issues of law. American Waste & Pollution Control Co. v. St. Martin Parish Police Jury, 627 So.2d 158 (La.1993). Obviously, these purposes abide in actions contesting both criminal and civil ordinances. In the criminal context, the courts have found these purposes met only where an individual falls within a class which is threatened with prosecution under an allegedly unconstitutional statute, not after the prosecution has begun. Extending this reasoning to the present facts, we also conclude that declaratory judgment is unavailable to test the constitutionality of a repealed criminal statute as applied to a 1986 indictment and the resulting conviction. Clearly, any threat of prosecution or even application of the statute to Robertson or any other individual no longer exists. Certainly, therefore, the repeal of the provisions Robertson seeks to declare unconstitutional in these civil proceedings eliminated any threat of its use and thus any “active” interest or rights Robertson may have possessed in having it declared unconstitutional. Accordingly, no resolution of a justiciable controversy could possibly be served by a declaratory judgment. Moreover, at the time of his prosecution, Robertson possessed viable remedies at law via a motion to quash the grand jury indictment and/or post-conviction relief. Whether or not he took advantage of such 15relief at that time is not revealed by the record before us. Nevertheless, the law is clear that a defendant must assert an equal protection claim regarding the composition of grand juries in a pre-trial motion to quash or he waives any complaint in that regard. Deloch v. Whitley, 96-1901 (La.11/22/96), 684 So.2d 349; State v. Lee, 340 So.2d 180 (La.1976); State v. White, 193 La. 775, 192 So. 345 (1939); State v. Robinson, 32,794 (La.App.2d Cir.03/01/00), 754 So.2d 311, writ denied, 2000-0989 (La.03/23/01), 787 So.2d 1008. If he failed to file appropriate pretrial motions, Robertson clearly has no cause of action via declaratory judgment, because he has waived his right to complain. If appropriate motions were filed, Robertson has no remedy in a civil action, but rather through criminal proceedings. See, La.C.Cr.P. art. 930.8 and discussion in State v. Divers, 34,748 (La.App.2d Cir.06/22/01), 793 So.2d 308, writ denied, 2001-2544 (La.08/30/02), 823 So.2d 937.

For these reasons, we find that a declaratory judgment is unavailable to Robertson. The situation presents no existing, actual and substantial dispute for which such a remedy would be appropriate.

We finally mention that the courts of this state have analyzed Caddo Parish’s procedure for selecting a grand jury foreman from the years 1971-1991 and in those cases found no unlawful discrimination in the selection of grand jury foremen. See, State v. Davis, 92-1623 (La.05/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994) (discussion contained in unpublished appendix); State v. Davis, 626 So.2d 800 (La.App. 2d Cir.1993), writ denied, 93-2945 (La.02/25/94), 632 So.2d 762; State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993).

Therefore, we find that Robertson has failed to state a cause of action for declaratory judgment. Because we so find, it is unnecessary that we address the no right-of-action ruling. The judgment of the trial court is affirmed at Robertson’s costs.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, PEATROSS, KOSTELKA, and MOORE, JJ.

Rehearing denied.

      . The trial court declined to rule on the prescription exception, finding it had been mooted by its ruling on the other exceptions.

      . While the original suit was filed by fifteen other plaintiffs who initially sought to have the claims certified as a class action, the record shows that plaintiffs failed to follow the certification procedure set forth in La. C.C.P. art. 592. Accordingly, the case has not been certified as a class action. Therefore, because only Robertson has appealed, it is proper that we solely address his claims.

      . For example, our limited research reveals the issue of discrimination in the selection of the grand jury foreperson to have been a heavily litigated and debated issue prior to Robertson’s indictment in 1986. See generally, Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979); Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977).


author: h HARRISON, Judge Pro Tempore.

text:
    John EVANS and Diane Evans, Plaintiffs-Appellants, v. STATE FARM GENERAL INSURANCE COMPANY, Defendant-Appellee.
    No. 36,539-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      John Michael McDonald, Shreveport, for Plaintiffs-Appellants.
    Tutt & Bordelon By: Charles G. Tutt, Shreveport, Jennifer P. McKay, for Defendant-Appellee.
    Before WILLIAMS, KOSTELKA and HARRISON (Pro Tempore), JJ.
   h HARRISON, Judge Pro Tempore.

The plaintiffs, John and Diane Evans, appeal a judgment rejecting their claim for fire insurance proceeds against State Farm General Insurance Company (“State Farm”) on the basis of arson. The district court found that State Farm proved, by a preponderance of the evidence, that Mr. Evans was a principal in the arson. For the reasons expressed, we affirm.

Factual background

The structure at issue was a small camp house near Lake Bistineau in Doyline, Louisiana, which the Evanses bought in August 1994 for $19,000. Someone was building a new and larger Jim Walter camp house next door. Thinking this would better suit their needs, the Evanses bought the new one in October 1994 by paying $1,000 to the owner and assuming her monthly note of $180. Neither of these camp houses was the Evanses’ principal residence; they were living in a mobile home north of Shreveport, but after October 1994 they were paying notes and insurance on two camp houses.

Although the new camp house was not finished inside, the Evanses moved their belongings to it and attempted to rent the old one. They had two very unsatisfactory tenants, the first of whom damaged the place and the second left without paying several months’ rent. By August 1995, the old camp house was vacant again, and John Evans (hereinafter, “Evans”) testified that he began moving furniture back into it.

Earlier, in June 1995, the Evanses filed for Chapter 13 bankruptcy. They denied that they were in financial straits, but they had some $32,000 in unsecured credit card debt (trial testimony suggested that much of this waspincurred at a casino in Bossier City). They did not list the old camp house as an asset in their bankruptcy filings. However, they entered a reorganization plan whereby they paid the principal on all but two of their unsecured debts.

The Evanses’ neighbor, Danny Lowrey, had lived next door to their old camp house for over 20 years. The record depicts him in a rather unfavorable light, with an old criminal record and a spotty work history of fixing TVs and trucks. On occasion, Evans had asked him to watch his property while he was working offshore; he had a key to the old camp house. During one of their conversations, according to Lowrey, Evans offered him money to burn down the old camp house.

Lowrey testified that one day while they were standing in their adjacent yards and talking, Evans remarked to him, “It sure would be nice if it [the old camp house] wasn’t there when we got back.” Lowrey thought Evans was joking, but he testified that Evans offered him $1,000 to torch the structure. Lowrey added, “At the time, $1,000 looked pretty d* * * good.”

Lowrey testified that he performed the arson with the help of a friend, Tommy Caskey, whose truck he had just repaired. Lowrey testified that he drove Caskey’s truck to the old camp house; Caskey sat in the cab while Lowrey fetched some diesel fuel and rags out of the bed of the truck, used Evans’s key to enter the front door, and started a small fire in the northwest bedroom. He then got back in the truck and drove off with Caskey. The old camp house was destroyed by the fire on December 8,1995.

|sLowrey further testified that when Evans returned from his job offshore, he gave him 10 hundred-dollar bills. The Fire Marshal verified that Lowrey used two of these to make a down payment on a car about 14 days later.

Evans resolutely denied that he ever made the offer or paid any money to Low-rey. However, as a result of the Fire Marshal’s investigation, both men were charged with arson in Webster Parish. At the time of trial in June 2000, neither man had been tried.

The third man in the transaction, Cas-key, was too ill to testify at trial. In a statement to the Fire Marshal, however, he said he was standing nearby when Evans approached Lowrey about committing arson; he overheard the proposition. He was fairly adamant that at the time, Evans was wearing cutoff jeans and that the amount offered was $2,500. Caskey also said he saw Lowrey unloading some furniture from the old camp house prior to the fire, but he did not report this to the police.

Lowrey did not recall that Caskey was present when Evans made his criminal proposition. He admitted, however, that Caskey might well have overheard it because voices carry well over the water. Lowrey never paid Caskey any of the arson proceeds. Lowrey also denied stealing any furniture from the old camp house.

For his part, Evans denied that he even knew Caskey, or that the man was standing around on any occasion while he (Evans) was talking to Lowrey. Evans also insisted (and called two character witnesses to verify) that he never wore blue jean shorts, or short pants of any kind. As noted, | ¿Evans steadfastly denied any involvement in the fire.

The State Fire Marshal found that the fire originated in the northwest bedroom and that an accelerant such as fuel oil had been used. He found no evidence of forced entry to any door or window. He also found that the furnishings in the structure were “sparse,” consisting of two old TVs, two sofas, and a mattress on a floor in the bedroom.

The Evanses filed a claim for the full value of the policy, $33,025, including content coverage of $11,683. State Farm denied it on grounds that Evans committed arson. The Evanses filed this suit. Prior to trial in June 2000, the parties stipulated that arson had occurred. The only issue was whether Evans was involved in the crime.

At trial, fact witnesses gave the testimony summarized above. The Deputy State Fire Marshal, Jim Alexander, stated that Lowrey and Caskey had no reason to burn the place unless they were getting paid to do so, whereas Evans had a financial gain in collecting insurance on a camp house that he no longer needed. Evans contends that both Lowrey and Caskey were disreputable persons and unworthy of belief; nevertheless, he utilized the portion of Caskey’s statement about seeing Lowrey steal furniture from the old camp house. Evans’s theory was that Lowrey started the fire to conceal his sloppy burglary.

The district court rendered written reasons for judgment in January 2002. Commenting that the case was “extremely close,” the court found that State Farm proved Evans was a principal in the arson. The court cited the following factors as determinative: (1) Lowrey’s sworn statement that he | ¡¡was paid for and burned the structure at Evans’s request; (2) the Ev-anses’ financial condition immediately before the fire, establishing a motive; (3) the numerous inconsistencies in their various valuations of the property; and (4) the pending bankruptcy proceedings.

The Evanses have appealed, urging by one assignment of error that the district court was plainly wrong to find that Evans was involved as a principal in the arson, and in finding that his bankruptcy filing and overall financial condition established a motive for the crime.

Applicable law

The State Farm Homeowners Policy includes the following endorsement with respect to intentional acts: “If you cause or procure a loss to property covered under this policy for the purpose of obtaining insurance benefits then this policy is void as to you.”

The burden of proof for an insurer asserting the defense of arson is stated in Sumrall v. Providence Washington Ins. Co., 221 La. 633, 60 So.2d 68 (1952):

Inasmuch as the defense is arson, the burden rested upon the insurer to establish, by convincing proof, that the fire was of incendiary origin and that plaintiff was responsible for it. It is well settled that the insurer need not prove its case against a plaintiff beyond a reasonable doubt; it suffices that the evidence preponderates in favor of the defense. Proof, of course, may be and invariably is entirely circumstantial. And, in these instances, a finding for defendant is warranted where the evidence is of such import that it will sustain no other reasonable hypothesis but that the claimant is responsible for the fire.
Considering that plaintiff was in dire financial circumstances and that he alone, according to the evidence, would benefit by the fire, there can be no doubt that defendant has established he had a motive for destroying the property. And motive, plus the incendiary nature of the fire, would, in the absence of believable rebuttal | (¡evidence, be sufficient to sustain the affirmative defense pleaded by the insurer.

In the more recent case of Rist v. Commercial Union Ins. Co., 376 So.2d 113 (La.1979), the court reiterated that the insurer asserting the defense of arson “need not prove its case beyond a reasonable doubt; it suffices that the evidence preponderates in favor of the defense.” See also, Childs v. Zurich American Ins. Co., 476 So.2d 403 (La.App. 2 Cir.), writ denied, 479 So.2d 920 (1985), and citations therein. When circumstantial evidence is used, the facts as a whole must exclude other reasonable hypotheses with a fair amount of certainty; it need not negate all other possible causes. Christensen v. State Farm Mutual Auto. Ins. Co., 552 So.2d 1377 (La.App. 5 Cir.1989), writ denied, 558 So.2d 572 (1990).

As with all other factual findings, the district court’s findings as to the defense of arson are entitled to great weight and will not be reversed in the absence of manifest error or unless they are clearly wrong. Childs v. Zurich American Ins. Co., supra; Economy Auto Salvage Inc. v. Allstate Ins. Co., 499 So.2d 963 (La.App. 3 Cir.), writ denied, 501 So.2d 199 (1986). When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the fact finder’s findings. Lasyone v. Kansas City Southern R. Co., 00-2628 (La.4/3/01), 786 So.2d 682.

Discussion: Proof of motive

The Evanses urge that the district court was plainly wrong in two respects. First they contest the finding that their bankruptcy filing and overall financial condition established a motive for the crime. They contend 17that by accepting a Chapter 13 reorganization, they agreed to pay off 100% of their unsecured debt, and successfully completed the plan. They also cite a comment by State Farm’s own investigator, Bobby Kerr, who remarked on cross examination that when the Evanses filed for bankruptcy, they were not in deep financial need. This evidence, in their view, defeats the essential element of showing that they were in “a dire financial condition” and warrants reversal. In support they cite Fontenot v. Hanover Ins. Co., 473 So.2d 145 (La.App. 3 Cir.), writ denied, 475 So.2d 1109 (1985).

Admittedly, the Evanses’ financial condition was not as catastrophic as in Summrall or Childs, supra. However, State Farm was only required to show a motive for destroying the property. The Evanses were unable to explain how they ran up so much credit card debt; they obviously felt the situation was serious enough for bankruptcy relief. They omitted the old camp house from the bankruptcy schedule of real property and listed household goods, for both camp houses and their trailer in Caddo Parish, as worth only $700. However, their fire insurance claim alleged the contents of the old camp house were worth over $17,000, and they sought full contents coverage of $11,683. From these facts, the district court could certainly find that the Evanses had a financial motive in destroying the old camp house.

Moreover, despite his isolated remark that the Evanses were not in “deep” financial need, the Deputy Fire Marshall concluded there was a financial motive for the arson. Notably, he testified that the contents of the gutted structure were “sparse.” As the amount of the claim greatly exceeded |sthe value of the contents, the district court could find a financial motive.

For these reasons, we perceive no manifest error in the finding of a motive to commit arson. We note that Fontenot v. Hanover Ins. Co., supra, cited by the Evanses, involved a de novo review of record evidence, and did not declare the jury’s verdict plainly wrong. Applying the proper standard, we find no manifest error. Childs v. Zurich American Ins. Co., supra.

Credibility issues

The Evanses next contend the district court was plainly wrong to accept the testimony of Tommy Caskey, either in its substance or to corroborate that Evans paid Lowrey to burn the old camp house. They contend that everything about Caskey’s testimony is suspect and unworthy of belief. In particular, the Fire Marshall was determined to “nail” Evans while taking no action against Cas-key, thus providing a motive for Caskey to lie. The Evanses’ hypothesis is that Lowrey committed the arson to conceal a sloppy burglary of the old camp house; they submit this is at least as reasonable as State Farm’s theory that Evans paid Lowrey to burn it. If the theories are in equipoise, they urge, they should win. Economy Auto Salvage Inc. v. Allstate Ins. Co., supra.

We have closely reviewed this conflicting evidence. Lowrey and Caskey had credibility problems, but like the district court we cannot conceive why they would have torched their neighbors’ property unless there was a financial incentive. The theory that Lowrey committed a burglary of the old camp house does not seem reasonable; based on their bankruptcy schedules, the Evanses apparently had little movable property | flthere, and they never reported a burglary. Moreover, the only direct evidence of a burglary is the testimony of Tommy Caskey, whom the Evanses brand as completely unworthy of belief.

We are mindful of the district court’s superior position to assess the witnesses’ credibility. Lasyone v. Kansas City Southern R. Co., supra. In light of the conflicting and perhaps irreconcilable evidence, we cannot say the district court’s decision to credit Lowrey and Caskey was unreasonable. The court’s interpretation of this record was not plainly wrong.

Conclusion

For the reasons expressed, the judgment is affirmed. Costs are assessed to the appellants, John and Diane Evans.

AFFIRMED.


author: LBROWN, C.J.,

text:
    Rebecca R. SIMMONS, et ux., Plaintiffs-Appellants v. Jerry W. KING, Sr., et al., Defendants-Appellants.
    No. 36,537-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      A. Richard Snell, for Plaintiff-Appellant.
    Lunn, Irion, Salley, Carlisle & Gardner, Shreveport, for Defendant-Appellant.
    Before BROWN, CARAWAY and HARRISON (Pro Tempore), JJ.
   LBROWN, C.J.,

Plaintiff, Rebecca Simmons, tripped and fell on a cross-tie that had been laid across a pedestrian walkway by the owner/operator of a truck stop/casino. The trial court found Mrs. Simmons to be free from fault and awarded damages to her and her husband, Thomas Simmons. Defendants, Jerry and Patricia King, d/b/a/ Longwood General Store and Truck Stop, have appealed. Plaintiffs answered the appeal seeking ah increase in the damage award. We affirm.

Facts

On the evening of January 18, 1997, Rebecca and Thomas Simmons, along with Roger and Patricia Reeves, went to the Longwood General Store and Truck Stop in Blanchard, Louisiana, to eat. Night falls fast in winter, and it was dark when they left. Mrs. Simmons, who was recovering from back surgery, carefully proceeded down the steps located at the front of the store, using the aid of the railing on her right side and holding the arm of Mrs. Reeves with her left hand. Mrs. Simmons’s brother, Roger Reeves, and her husband, Thomas Simmons, followed. At the foot of the steps, they turned right and proceeded towards their car along a paved walkway. Mrs. Simmons tripped and fell over a railroad cross-tie lying across the path and which had been bolted to the asphalt. Mrs. Simmons suffered multiple fractures of her pelvis.

Discussion

Unreasonably Dangerous Condition/Risk of Ham

Both negligence and strict liability theories require proof that the defendant had custody of the thing causing the injury, that it contained a 12defect, that is, a condition creating an unreasonable risk of harm, and that the defective condition caused plaintiffs injury. La.C.C. art. 2317. Plaintiffs are further required to prove that defendant knew or should have known of the vice or defect. Specifically, La.C.C. art. 2317.1 states:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Mr. King designed and manually participated in the construction of his store. Not only did he know that the cross-tie was laid across the walkway, it was his decision to put it there. Knowledge is not an issue; rather, defendant argues that the cross-tie did not present an unreasonable risk of harm.

A determination of whether a thing presents an unreasonable risk of harm should be made “in light of all relevant moral, economic, and social considerations.” The unreasonable risk of harm criterion entails a myriad of considerations and cannot be applied mechanically. Consequently, the findings of the jury or trial court are afforded great deference and thus, a reviewing court may only disturb the lower court’s holding upon a finding that the trier of fact was clearly wrong or manifestly erroneous. Celestine v. Union Oil Co. of California, 94-1868 (La.04/10/95), 652 So.2d 1299; Boyle v. Board of Supervisors, Louisiana State University, 96-1158 (La.01/14/97),3 685 So.2d 1080; Reed v. Wal-Mart Stores, Inc., 97-1174 (La.03/04/98), 708 So.2d 362.

Mr. King testified that he placed the cross-tie across the walkway to cause water to flow off to the side rather than “flowing underneath and standing underneath my building.” The cross-tie served no other purpose or utility.

The Kings contend that the trial court made the inaccurate conclusion that the cross-tie presented an unreasonable risk of harm “without any architectural or engineering testimony or evidence whatsoever.”

The placement of a four inch high cross-tie directly in a walking path does not require scientific, technical, or other specialized knowledge to ascertain whether it presents an obstacle which creates an unreasonable risk of harm. See La.C.E. art. 702; Ramp v. St. Paul Fire & Marine Ins. Co., 263 La. 774, 269 So.2d 239 (1972).

The Kings argue that the cross-tie Mrs. Simmons fell over was painted yellow; however, upon examination of photographs entered into evidence, we observe that the cross-tie was clearly brown and Mr. King reluctantly testified that at the time of Mrs. Simmon’s accident, the cross-tie was a brownish black color. Thus, the cross-tie did not contrast with the color of the asphalt pavement underneath it. Furthermore, Mr. King admitted that he painted it yellow after Mrs. Simmons tripped and fell.

The Kings argue that the trial court erroneously rejected their testimony and that of Yvonne Williams,' a waitress at the store, that there was ample lighting. They testified that there were two 100-watt bulbs on |4either side of the store’s front door and a fan which had four 100-watt bulbs connected to it on the ceiling of the porch. Additionally, they stated that there was a string of Christmas lights hung along the eaves of the porch.

The porch was elevated about three feet above the surface of the walkway with a railing along its edge. Mr. King testified that the porch was eight feet wide and was ten to 12 feet in height. The two 100-watt bulbs were located close to the ceiling on either side of the front door to the store which was eight feet from the steps and the four 100-watt bulbs in the fan were located on the ceiling, which is at least ten feet above and several feet from the edge of the porch. There were no lights on the ground to illuminate the walkway. At best these lights would cast shadows on the ground.

As far as the decorative string of lights along the eaves of the porch, the trial court stated:

Certainly seven-watt Christmas bulbs which are 12 feet up or higher are not going to be adequate to illuminate the ground. They are decorative, perhaps somewhat festive, and they serve the purpose of attracting patrons, but they do not illuminate the ground area such as the walkway at the point of this cross-tie at night. The fact that a long term waitress knows the cross-tie is there and the owners know the cross-tie is there does not mean that an unsuspecting patron would see it.

| ¡¡There is no dispute in this case that Mrs. Simmons tripped and fell on the cross-tie in the walkway and that her fall caused her injuries. She had not consumed any alcohol that night, and she was walking slowly and cautiously, holding onto the arm of her sister-in-law. This cross-tie was elevated approximately four inches above the ground. It was situated in an area specifically designated for store patrons to walk upon when going from the store to the parking lot. It was the same color as the pavement. There were no warning signs, and the lighting only cast shadows across this path at night. The sole purpose of the cross-tie, which was permanently bolted down into the asphalt, was to divert the flow of water. The risk of harm, i.e., the risk of a patron falling and receiving injury, significantly outweighs the social utility of diverting the flow of water. See Boyle, supra. In light of this evidence, we cannot say that the trial court was manifestly erroneous or clearly wrong in finding that the cross-tie created an unreasonably dangerous condition.

Comparative Fault

The Kings argue that the trial court erred in failing to assess any liability to Mrs. Simmons in this accident. However, an appellate court may only reallocate fault if it finds that the trial court was clearly wrong or manifestly erroneous in its allocation of fault, even if the court of appeal would have decided differently had it been the original trier of fact. Hebert v. Brown Bottling Group, 98-0924 (La.10/30/98), 719 So.2d 1043; Clement v. Frey, 95-1119, 95-1163 (La.01/16/96), 666 So.2d 607.

| fiStore patrons are not required to maintain an unwavering gaze down at the ground while walking. Likewise, a conversation need not be curtailed simply because one is walking at the same time. As the trial court noted and the evidence established, Mrs. Simmons was walking with meticulous caution on the night of the aeci-dent. She was holding on to Mrs. Reeves with her left arm until Mrs. Reeves left to get the car just prior to the time she tripped over the cross-tie. There was inadequate lighting, no warning signs, and the cross-tie itself was almost as dark as the asphalt under it. Accordingly, we cannot say that the trial court erred in assessing no fault on the part of Mrs. Simmons.

General Damages

The trial court awarded Mrs. Simmons $100,000 in general damages and $358.70 in medical specials. Both parties appeal quantum.

In November 1995, Mrs. Simmons underwent extensive back surgery. The procedure involved a decompression of the spinal canal and the installation of two titanium rods with screws attached to the spine. This surgery was performed by Dr. John Regan, an orthopedic surgeon at the Texas Back Institute in Plano. Mrs. Simmons’ rehabilitation was expected to take at least 18 months. Her fall at the Long-wood General Store occurred approximately 14 months after her surgery.

Immediately after the fall, Mrs. Simmons felt pain in her right side. Five days following the fall, she was still experiencing pain and sought medical attention from Dr. Don Burt, an orthopedic surgeon. Dr. Burt |7examined her and ordered x-rays, which revealed a pubic bone fracture. He prescribed pain medication. For approximately two months, Mrs. Simmons was bedridden. Eight months after the accident, on September 5, 1997, she sought medical attention from her surgeon, Dr. Regan, who found that Mrs. Simmons actually had multiple fracture sites. Specifically, he testified by deposition that she had sustained a fracture of that part of the pelvic bone called the pelvic ramus, at the superior and interior part of it in two locations on both sides. He also found that Mrs. Simmons was suffering from sa-cro iliac pain as well as osteoporosis. On September 8, 1997, Mrs. Simmons revisited Dr. Burt, who performed a “recheck” examination and reviewed Dr. Regan’s notes. Mrs. Simmons has since suffered from varying levels of pain.

In the instant case, we take cognizance of the length of time Mrs. Simmons was bedridden and the fact that she languished in pain for a considerable duration of time. We also note her testimony that she still experiences intermittent pain. Her pelvis was fractured in multiple locations, her healing process has been arduous, and her recovery from the previous back surgery lengthened.

General damages involve mental or physical pain and suffering, inconvenience, loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitively measured in monetary terms. Fergins v. Caddo Parish School Board, 31,729 (La. App.2d Cir.03/31/99), 736 So.2d 943. There is no mechanical rule for determining general damages; the facts and circumstances of each case control. Id.

When damages are insusceptible of precise measurement, much discretion is left to the trial court. This discretion is great, even vast, so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Only if an award is first found to be inadequate or excessive on the facts of the particular case may the appellate court refer to the awards in similar cases. Greene v. Fox Crossing, Inc., 32,774 (La. App.2d Cir.03/01/00), 754 So.2d 339, writ denied, 00-0944 (La.05/26/00), 726 So.2d 1108.

We do not find that the trial court was manifestly erroneous or clearly wrong in its award. Nor do we find, however, that the trial court’s award should be augmented. As previously noted, an award for general damages is insusceptible of precise measurement; accordingly, we do not find that the trial court abused its vast discretion.

Loss of Consortium

Thomas Simmons maintains that the trial court’s award of $5,000 for his loss of consortium is inadequate. In general, a claim for loss of consortium has seven elements: (1) loss of love and affection; (2) loss of society and companionship; (3) impairment of sexual relations; (4) loss of performance of material services; (5) loss of financial support; (6) loss of aid and assistance; and (7) loss of fidelity. Brandao v. Wal-Mart Stores, Inc., 35,368 (La. App.2d Cir.12/19/01), 803 So.2d 1039, writ denied, 02-0493 (La.04/26/02), 814 So.2d 558. To be compensable, it is not necessary for a claim for consortium to include damages from each type of loss. Brandao, supra. The operative question is whether the trial court abused its discretion in finding that Mr. Simmons was entitled to $5,000 for loss of consortium.

Although Mrs. Simmons was improving prior to the fall at Longwood store, we note that due to her prior back surgery, many of Mrs. Simmons’ activities had already been curtailed. In fact, the trip to the Longwood store was her first outing following her back surgery. Obviously, the fall at the Longwood store extended Mrs. Simmons’ recovery; however, we can not say that the trial court’s consortium award was an abuse of discretion.

Conclusion

For the reasons set forth above, the judgment of the trial court is AFFIRMED. Ail costs are assessed to defendants, Jerry and Patricia King d/b/a Longwood General Store and Truck Stop.

AFFIRMED.

      . In a separate assignment of error, Mr. and Mrs. King urge that the trial court erred in “finding that plaintiff's brother, a fireman, was a lighting expert, without any evidentiary basis[.]” Mr. Reeves testified that it was "dark" and that there was no light shining on the walkway where the cross-tie was located. His testimony was based upon his own perceptions on the evening of the accident and aided the trial court in discerning how much light was present on the walkway where the cross-tie was located on the night in question. Perhaps most important is the fact that the trial court never referred to Mr. Reeves as an expert, and noted that his opinion was only adduced as lay testimony.

      . Dr. Burl testified that this is the bone directly below the hip. The pubic bone is located in the lower part of the pelvis about four inches below the hip socket and the hip joint.


author: | t STEWART, J.

text:
    ARK-LA-MISS TIMBER COMPANY, INC., Plaintiff-Appellee v. Paul B. WILKINS, Defendant-Appellant.
    No. 36,485-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      McLeod Verlander, by Robert P. McLeod, Jr., Donald C. Douglas, Jr., Monroe, for Appellant.
    Cook, Yancey, King & Galloway, by Bernard S. Johnson, Shreveport, William P. Buckley, for Appellee.
    Before STEWART, PEATROSS and KOSTELKA, JJ.
   | t STEWART, J.

Ark-La-Miss Timber Co., Inc., (“ALM”), filed this suit for partition of 1,286 acres of land in Caldwell Parish. ALM and Paul B. Wilkins are co-owners of the property. Wilkins filed a reconven-tional demand to be recognized as separate owner of a log cabin located on the property. The trial court found in favor of Wilkins with regard to ownership of the cabin, but ordered that the property be partitioned by licitation. Wilkins appeals those portions of the judgment ordering partition by licitation and ordering him to pay all costs. In answer to the appeal, ALM seeks reversal of the finding that Wilkins owns the cabin. For the reasons expressed herein, we amend the trial court’s judgment, and affirm as amended.

FACTS

In 1983, Wilkins, Judge Ronald L. Lew-ellyan, and Quinton May purchased 1,286 acres of land in Caldwell Parish from International Paper for a total price of $525,000. Lewellyan and Wilkins later bought out May’s share, and Lewellyan transferred his share to ALM, a land and timber management company of which he is president and sole shareholder. Consequently, Wilkins and ALM co-own the entire acreage, which is described as follows:

The SW 1/4 of the SW1/4; E]é of SW 1/4; Sfc of SE 1/4 of Section 15, T 14 N, R 2 E;
The NE 1/4; NE 1/4 of NW 1/4; NE 1/4 of SE 1/4 of Section 22, T 14 N, R 2 E; The SW 1/4 of NE 1/4; S}£ of NW 1/4; S of Section 23, T 14 N, R 2 E;

[¡.The E 1/2; Efc of NW 1/4 of Section 26, T 14 N, R 2 E. For purposes of this opinion and consistent with the testimony and evidence at trial, references may be made to the east half and the west half of the property.

The property is located in the Castor Creek flood basin. It is traversed by creeks and consists of bottomland hardwood areas and swampy areas. It is subject to flooding during rainy periods. Much of the land, particularly in the eastern half of the property, can be reached only by four-wheeler. The land is used primarily for recreational purposes, such as hunting and fishing, and for timber production. After purchasing the property, the parties sold timber, which was thinned or select cut from throughout the property, for $175,000.

In 1988, Wilkins built a log cabin on a ridge located on the west half of the property. Wilkins also had water and utilities connected to the cabin at his own expense. The cabin was regularly used by Wilkins, Lewellyan, and others over the years. At the time of trial, Wilkins was living in the cabin with his family.

The only legal route of access to the property is by way of a logging road built by International Paper in 1970. This road runs onto the west half of the property and then forks to the northwest and southeast. The northwest fork goes to the cabin and can generally be used for vehicular travel; the southeast fork goes into the east half of the property and includes a series of bridges built by the co-owners over the years. These bridges support four-wheeler travel only. The northwest fork has been better maintained over the years than the southeast fork, which has fallen into | ¡¡some disrepair due to areas and culverts that have been washed out and other areas that have become overgrown with foliage. The parties have regularly accessed the east half of the property by way of a private road owned by Plum Creek Timber Company. The Plum Creek road is located off Louisiana Highway 4 and runs into the northeast section of the property. However, the parties do not have any legal right to use this road, and Plum Creek denied a request by Wilkins made prior to trial to furnish a right of way.

The legal dispute arose when ALM filed a petition seeking a judicial partition. In answer, Wilkins stated that he too desired judicial partition of the co-owned property. He also asserted a reconventional demand to be recognized as separate owner of the cabin. The court appointed an expert, Merlin Smith, to survey the property and timber thereon and to provide a report as to his views on an equitable division of the property. Smith submitted his report to the court, but this report was not submitted as evidence at trial. Wilkins also commissioned Smith to perform a timber cruise of the property. The data from the cruise was used by Wilkins’ expert appraiser to come up with a proposed equitable division of the property for trial purposes.

After two days of testimony, the trial judge took the matter under advisement, while indicating that he was leaning toward partition by licitation due to concerns about adequate access to the east half of the property and the existence of the cabin on the west half of the property. The trial judge ordered the parties to file post-trial briefs. On October 26, 2001, | ¿after the matter had been submitted for a decision, Wilkins filed a motion to reopen the case and supplement the record with additional proposed divisions based on information already in the record to address the trial judge’s concerns regarding adequate access. The trial judge denied the motion in a written ruling on October 30, 2001, in which he explained that he did not express his concerns to the parties for the purpose of soliciting additional evidence, but in an effort to have them address these concerns in their post-trial briefs and in light of the evidence presented at trial.

On November 20, 2001, the trial judge rendered written reasons for judgment. The trial judge recognized Wilkins’ separate ownership of the cabin. The trial judge noted that Wilkins built and paid for the cabin. In addition, the trial judge found no clear understanding between the parties as to any conveyance of an ownership interest in the cabin. In accordance with expert testimony, the trial judge valued the improvement at $69,500. While noting partition in kind to be favored under the law, the trial judge concluded it could not be done in a manner equitable to both parties. Two factors complicated a partition in kind. First was the presence of a road for vehicular access and a utility right of way on the west half of the property only. Second was the location of the cabin on the west half, the ownership of which necessitated a sale of the entire property and compensation of the cabin’s value to its owner from the proceeds. The trial judge concluded that use of the same road by owners of the west half and east half would not be feasible due to problems that would arise in maintaining the road. A judgment in accordance with these reasons was rendered on January 7, |s2002, ordering partition by licitation with proceeds of the sale to be attributed first to costs of the sale, then to payment of the value of the cabin to Wilkins, and then to be divided equally between ALM and Wilkins. Costs were assessed against Wilkins.

Wilkins filed a motion for a new trial contending that the property could be divided in kind with both parties having equal access and utilities, that the trial judge erroneously considered the separate ownership of the cabin in its analysis, that the judgment failed to appoint a notary as required by La. C.C.P. art. 4605, and that the judgment improperly assessed all costs to him. The trial judge granted the motion as to the notary issue and appointed a notary as required by law. The motion was denied as to all other issues raised. Wilkins then appealed the merits of the partition by licitation, the denial of the motion to supplement the record, and the assessment of costs to him. ALM answered the appeal to assert error as to the recognition of Wilkins’ separate ownership of the cabin.

DISCUSSION

Ownership of the Cabin

ALM argues that the trial court erred in failing to consider the presumption of La. C.C. art. 491 and the numerous exhibits showing payments over the years, including a one time payment of $10,000, of expenses associated with repair and maintenance of the cabin. ALM contends that the presumption and evidence requires reversal of the trial court's finding that Wilkins owns the house. We disagree with this contention.

| fiLa. C.C. art. 804 provides, in relevant part, “Substantial alterations or substantial improvements to the thing held in indivisión may be undertaken only with the consent of all the owners.” La. C.C. art. 491, referred to by ALM, sets forth the general principle that buildings or other constructions permanently attached to the ground may belong to a person other than the owner of the ground, but are presumed to belong to the owner of the ground absent a filed instrument evidencing separate ownership. However, a more specific provision governs ownership of improvements. La. C.C. art. 493 provides, in relevant part, “Buildings, other constructions permanently attached to the ground, and plantings made on the land of another with his consent belong to him who made them.” Comment B of the Revision Comments of 1979 states:

(B) Buildings, other constructions permanently attached to the ground, and plantings made on the land of another with his consent, as by a lessee, a coowner, a purchaser under a contract to sell, or a precarious possessor, belong to him who made them. Such separate ownership may be asserted toward third persons when it is evidenced by an instrument filed for registry in the conveyance records of the parish in which the immovable is located.

This provision governs ownership of the cabin between the co-owners, since the cabin was built by Wilkins with the consent and knowledge of ALM. Moreover, the testimony of the parties supports the factual conclusion that Wilkins is sole owner of the cabin.

Wilkins built the cabin in 1988. He testified that he asked Lewellyan if he had any objections to him building a camp on the land, and Lewellyan had none. Nothing in Lewellyan’s testimony disputes this claim. Accordingly, we find that Wilkins built the cabin with co-owner consent.

|7WiIkins testified that he built the cabin at his own expense and spent about $78,000 on construction and an additional $4,000 getting utilities to the site. Wilkins was involved in every phase of construction and was on the building site everyday. Both Wilkins and Lewellyan agreed that they met with another individual to select a building site that would not flood. However, Wilkins adamantly denied that he ever discussed granting Lewellyan or ALM an ownership interest in the cabin.

Wilkins testified that once the cabin was built, he gave keys to Lewellyan and others to use the cabin as they pleased. One individual with access to the cabin was Buddy Eikert. According to Wilkins, Ei-kert regularly used the cabin and paid two-thirds of the expenses associated with maintenance from 1989 through 1993. During this time, Lewellyan also used the cabin, but did not pay any of the expenses. Sometime in 1993, Eikert and Lewellyan had a falling out, so Eikert was no longer allowed on the land co-owned by ALM and Wilkins. Wilkins then began forwarding bills to Lewellyan with requests that he pay half of the expenses, such as insurance payments, utilities, and upkeep on the cabin. Thereafter, Wilkins and Lewellyan, through ALM, divided expenses associated with the cabin.

Lewellyan admitted that he paid no part of the costs associated with building the camp or establishing utility services. Nevertheless, he claims that Wilkins intended the camp to belong to both of them, despite the lack of any documentation showing an ownership interest on the part of either Lewellyan or ALM. Lewellyan used the camp and had a bedroom which he Isfurnished. However, Lewellyan could not show that he contributed toward any expenses until 1993.

Lewellyan claimed that his ownership of the cabin derived from discussions wherein Wilkins mentioned giving him an additional forty acres due to his help in securing a case from which Wilkins made a substantial amount of money. Wilkins admitted discussing the possibility of giving Lewel-lyan an extra forty acres, possibly in the event of a partition, in gratitude for the case from which he profited. However, Wilkins denied that this possibility had anything to do with the cabin and testified that the discussion regarding the forty acres had not been mentioned in about fifteen years.

Lewellyan also bases his ownership claim on a $10,000 payment made by ALM to Wilkins in October 1996. However, nothing in the record relates this payment to the purchase of an ownership interest in the cabin. While Lewellyan testified that he believed the payment to be a settlement of all issues relating to cost and ownership of the cabin, the totality of the testimony indicates that the payment was to settle expenses associated with maintenance of the cabin and work done on the property.

Based on the evidence presented, we find no error in the trial court’s recognition of Wilkins’ separate ownership of the cabin. Wilkins built the cabin at his own expense and allowed others to use and enjoy it. In return, those using the cabin contributed to expenses associated with its maintenance. Neither the expenses paid by ALM since 1993 nor the [flpayment of $10,000 establishes ownership of the cabin on the part of ALM or Lewellyan. This assignment of error by ALM is without merit.

Partition of the Property

Unless otherwise provided by law or a juridical act, no one may be compelled to hold a thing in indivisión with another, and a co-owner has a right to demand partition of a thing held in indivisión. La. C.C. art. 807; McNeal v. McNeal, 98-1586 (La.App. 3d Cir.3/31/99), 732 So.2d 663. The law generally favors partition in kind unless the property is indivisible by nature or cannot be conveniently divided. La. C.C.P. art. 4606; Devco Inc. v. Richey, 30,319 (La.App.2d Cir.2/25/98), 707 So.2d 161; Marsh Cattle Farms v. Vining, 30,156 (La.App.2d Cir.1/23/98), 707 So.2d 111, writ denied, 98-0478 (La.4/24/98), 717 So.2d 1167. Property cannot be conveniently divided when the division would result in a diminution of its value, or loss or inconvenience to one of the owners. Devco Inc. v. Richey, supra; Marsh Cattle Farms v. Vining, supra; Birdwell v. Jeffery, 486 So.2d 1094 (La.App. 2d Cir.1986). In kind division shall be decreed when “the thing held in indivisión is susceptible to division into as many lots of nearly equal value as there are shares and the aggregate value of all lots is not significantly lower than the value of the property in the state of indivisión.” La. C.C. art. 810.

The party seeking partition by licitation bears the burden of proving that the property cannot be divided in kind. Marsh Cattle Farms v. Vining, supra; Birdwell v. Jeffery, supra. In addition, whether immovable property should be divided in kind or by licitation is a question of fact to be decided 110by the trial court. Marsh Cattle Farms v. Vining, supra; Loupe v. Bybee, 570 So.2d 31 (La.App. 3d Cir.1990), writ denied, 572 So.2d 94 (La.1991).

ALM sought partition by licitation. Wilkins sought partition in kind. Accordingly, the burden was on ALM to prove that the property could not be partitioned in kind. To meet this burden, ALM presented testimony to show that the property could not be partitioned in kind due to differences in the western and eastern halves which would preclude division into lots of nearly equal value and would result in a diminution in value and inconvenience to the owners. Wilkins produced evidence to prove that the property could be divided into lots of nearly equal value. It is apparent from the reasons for judgment that the trial judge determined that the property could not be conveniently divided due to inadequate vehicular access and the location of utilities and the cabin on the west half of the property. We cannot say that the trial judge was clearly wrong or manifestly erroneous in making this factual determination.

The evidence establishes that there is one route of legal access to the property. This is by way of a logging road built by International Paper in 1970. Testimony established that parts of the road and some culverts have been washed out. Where the road forks, the road along the western fork is suitable for some vehicular travel, but the road along the eastern fork is not. A series of creeks flows through the east section of the property. Wilkins and others built a series of bridges along the eastern fork of the road; however, these bridges are only suitable for use by four-wheelers. |n Moreover, many of the bridges are in need of repair, and the road is practically impassable during times of heavy rainfall.

The divisions proposed by Wilkins at trial placed the entirety of the road leading to the fork in the western half of the property. As such, the owner of the western half would possibly be compelled to grant a right of passage to the owner of the eastern half as provided in La. C.C. art. 694. Furnishing a right of passage would not necessarily alleviate the inconvenience of access associated with an in kind division. In Hughes v. Heirs of Cain, 268 So.2d 149 (La.App. 1st Cir.1972), writ refused, 271 So.2d 259 (La.1973), the court found division in kind to be inconvenient where landowners would acquire remote areas inaccessible except by crossing another’s property. The court concluded that the situation would result in economic loss, inconvenience, and legal difficulties. Also, in Doescher v. Powers, 447 So.2d 1171 (La.App. 3d Cir.1984), the court rejected an in kind division that would have required one owner to grant a right of way to the other owner. The court concluded that dividing the property so as to require a right of way would be an inconvenience to the owners that would prevent a partition in kind. The trial judge in the case sub judice concluded that it would not be feasible for the owners to use the same road due to problems that would certainly arise regarding routine maintenance and expenses. We agree.

Additionally, we find no error in the trial court’s denial of Wilkins’ motion to reopen and supplement the record with additional proposed divisions to address the access issue. This was a matter within the trial |12court’s discretion, and we find no abuse of that discretion in this instance. Our review of the proffered evidence shows that the proposed divisions, would make the International Paper road the property line up to the fork. However, this would not alleviate the inconvenience that would result from the parties sharing the road, nor would it address the fact that the party receiving the west half of the property would have vehicular access, whereas the party receiving the east half would be largely limited to travel by way of four-wheelers on a road that has not been maintained.

In addition, utility lines are currently available only to the cabin located on the west half of the property. These were added by Wilkins when he built the cabin. Wilkins’ separate ownership of the cabin is also a factor properly considered by the trial court in determining whether property cannot be conveniently divided. When property is divided in kind, lots of equal or nearly equal value are determined by experts and then drawn by chance by the co-owners. Neither the judge nor the experts can allocate a specific part to one of the owners. Tri-State Concrete Company v. Stephens, 406 So.2d 205 (La. 1981), Marsh Cattle Farms, supra. Under this procedure, Wilkins, who was living in the cabin with his family at the time of trial, would not be ensured of receiving the lot on which his cabin is located. His rights would then have to be determined under the Louisiana Civil Code articles pertaining to accession as it relates to immovables. In Loupe v. Bybee, supra, a residence on the property to be divided was a factor in finding that the property was not subject to division in kind. As stated in Loupe v. Bybee, supra:

11sIt is not necessary to produce proof of the indivisibility of property in kind in order that it might be partitioned by licitation where the record shows that the nature and condition of the property is such that it cannot be conveniently divided in kind. Kilbourne v. Hosea, 19 So.2d 279 (La.App. 1st Cir.1944).

Conflicting expert testimony was also presented to the trial court. ALM presented the testimony of Robert W. Lowe, Jr., who qualified as an expert real estate appraiser. Lowe’s opinion was that the property could not be divided in kind or in equal value due to the presence of the utilities and cabin on the west half of the property and access issues, including the absence of legal access on the east side of the property and the condition of the International Paper road. Merlin Smith, who was the court appointed expert and who was hired by Wilkins to conduct a timber cruise, opined that the property could not be divided in kind without some diminution in value. Finally, Don Lockard, an expert real estate appraiser who testified on behalf of Wilkins, was of the opinion that the land could be divided into two parcels of nearly equal value. Lock-ard did not believe access and improvements to be factors that would significantly impact the market value of the property. It is within the trial court’s broad discretion to determine the effect and weight of expert testimony. Williams v. City of Monroe, 27,065 (La.App.2d Cir.7/3/95), 658 So.2d 820, writ denied, 95-1998, 95-2017 (La.12/15/95), 664 So.2d 451, 452. By concluding that the property could not conveniently be divided in kind, the trial court obviously gave greater weight and effect to some of the expert testimony. This was within the trial court’s discretion.

|! Considering the conflicting expert testimony and other evidence at trial, we can find no error in trial court’s determination that the property cannot be partitioned in kind. As such, we affirm the trial court’s judgment ordering partition by licitation.

Costs

Generally, the party cast in judgment is taxed with costs of the proceedings; however, the trial court may assess costs against the parties in any equitable manner, and its assessment will not be disturbed absent an abuse of discretion. La. C.C.P. art.1920; Cajun Elec. Power Coop. v. Owens-Corning Fiberglass Corp., 616 So.2d 645 (La.1993); Hunter v. Bossier Medical Center, 31,026 (La.App.2d Cir.9/25/98), 718 So.2d 636.

The trial court assessed all costs against Wilkins. While we recognize the trial court’s discretion in doing so, we are compelled to find an abuse of discretion in this instance. Two issues, ownership of the cabin and partition of the property, were presented to the court for x-esolution at trial. Wilkins prevailed as to the ownership issue, whereas ALM obtained a judgment ordering that the property be partitioned by licitation. Both issues involved significant amounts of testimony and documentary evidence. Therefore, we do not find the assessment of all costs against Wilkins to be an equitable judgment. Accordingly, costs will be divided equally between the parties.

CONCLUSION

For the reasons discussed, the judgment of the trial court is affirmed except as to that part of the judgment assessing all costs against Wilkins. That portion of the judgment is hereby amended to divide costs equally | ^between the parties. Costs associated with this appeal are also assessed equally between the parties.

AMENDED IN PART, and AFFIRMED AS AMENDED.


author: B STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Joseph L. JAMES, Appellant.
    No. 36,493-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, for Appellant.
    Richard Ieyoub, Attorney General, James M. Bullers, District Attorney, Robert Randall Smith, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS and STEWART, JJ.
   B STEWART, J.

The defendant, Joseph L. James, was found guilty as charged of theft in violation of La. R.S. 14:67. The trial court adjudged him to be a third felony offender and imposed the maximum sentence of four years at hard labor for the middle grade theft by this third felony offender. The trial court ordered the sentence to be served consecutive to any other sentence or parole violation the defendant was then serving and imposed the sentence without benefit of probation, parole, or suspension. The defendant challenges the sufficiency of the evidence supporting his conviction and argues that his sentence is excessive. We affirm the defendant’s conviction, and we amend the sentence to delete the restriction on parole eligibility and affirm as amended.

FACTS

On April 7, 2001, the defendant entered Tubbs Hardware and Rental in Bossier City, Louisiana, hid a nail gun under his shirt, and exited the store with the merchandise. Alicia George, a cashier in the store, observed the defendant’s entry and observed him exiting the store with the nail gun under his shirt. George notified Don Tubbs, the owner of the store. Tubbs observed the defendant walking briskly through a vacant lot between the store and another business. Tubbs apprehended the defendant and detained him until a police officer arrived. The defendant had the nail gun in his possession when Tubbs apprehended him. Officer M.D. Wells of the Bossier City Police Department arrived at the scene and observed Tubbs and the defendant in a grassy lot on the north side of the store. The nail gun was on the ground beside the defendant. Officer Wells issued the Miranda 12warnings to the defendant. The defendant then admitted to entering the store, taking the nail gun from a shelf, concealing it under his shirt, and exiting the store without paying for the merchandise.

DISCUSSION

The defendant contends that the evidence was not sufficient to support his conviction because the state failed to prove beyond a reasonable doubt that the value of the nail gun exceeded $300. We find no merit in this contention.

Although the record does not reflect that the defendant filed a motion for post-verdict judgment of acquittal pursuant to La.C.Cr.P. art. 821, we will consider sufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

La. R.S. 14:67 provides that theft is the misappropriation or taking of anything of value which belongs to another. To convict, the prosecution must prove beyond a reasonable doubt: (1) a misappropriation or taking, (2) of anything of value, (3) which belongs to another, (4) with the specific intent to deprive the other permanently of whatever is taken or misappropriated. State v. Pittman, 368 So.2d 708 (La.1979). Sentences for theft are based upon the value of the property stolen. The state alleged the nail gun was valued between three hundred and five hundred dollars. The only issue as to the sufficiency of the evidence is the value of the nail gun.

The testimony of the owner-victim of the stolen property as to the property’s value is sufficient to establish its value. The owner does not have to be an expert, nor need he be qualified as an expert at valuation. His 13testimony is admissible so long as he does not claim to lack knowledge of the value. State v. Dilworth, 358 So.2d 1254 (La.1978); State v. Kennerson, 97-391 (La.App. 3d Cir.10/8/97), 702 So.2d 860, writ denied, 97-2850 (La.3/27/98), 716 So.2d 884; State v. Jordan, 522 So.2d 1179 (La.App. 4th Cir.1988); State v. Bruce, 556 So.2d 129 (La.App. 5th Cir.1990), writ denied, 561 So.2d 114 (1990).

The standard of appellate review for a sufficiency of the evidence claim 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 v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The defendant argues only that the state failed to prove the nail gun had a value in excess of $300 as required for his middle grade theft conviction. The value of the nail gun was proven by the testimony of its owner, Don Tubbs. Tubbs testified that the nail gun was purchased by him for use in the rental department of his store. When this incident occurred, the nail gun was new and had never been used. Tubbs testified that on the day of this incident, the wholesale cost of the nail gun was $393.45. He further testified that on the day of trial, he could replace the nail gun through a sale at a dealer’s price of $329.95. Tubbs testified on cross examination that he has been in business for twenty-one years and that he knows the value of tools. The defense elected not to present any evidence.

| ¿The evidence proves beyond a reasonable doubt that the defendant, without permission, took property valued at over three hundred dollars from another person with the intent to permanently deprive that person of the use and benefit of the stolen property. Tubbs, although not qualified as such, was an expert in the valuation of tools due to his years of experience in the hardware and rental business. He stated the value of the nail gun to be $393.45 on the date of the theft. Tubbs’ testimony was admissible and sufficient to establish the value of the stolen nail gun. We find that the state met its burden in this matter and that the defendant’s assignment of error regarding the sufficiency of the evidence has no merit.

The defendant also argues that his sentence is excessive, that the trial court did not take into account the factors set forth in La.C.Cr.P. 894.1, and that the trial court erred in imposing the sentence without benefit of parole. The trial court adjudged the defendant to be a third felony offender, and this is not at issue on appeal. Therefore, the defendant faced a sentence of sixteen months to four years. The trial court imposed the maximum sentence.

A two-pronged test is used by the reviewing court to determine whether a sentence is excessive. The record must show that the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual [ basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly reflects an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied 521 So.2d 1143 (La.1988).

Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

The trial court reviewed a PSI report and noted the defendant’s extensive history of property offense charges dating back to 1991. The defendant had been convicted of forgery and theft and had been given probation. This probation was revoked in 1996. The criminal history |fiincluded a misdemeanor conviction for theft in 1993. Two months later, the defendant was again arrested on another misdemeanor theft charge and was sentenced to jail. In 1994, he committed four counts of burglary, pled guilty, and was sentenced to nine years on each count concurrently. He was released on parole, but was again arrested for theft and possession of drug paraphernalia and subsequently found guilty on those charges. For these reasons, the trial court found the maximum sentence to be appropriate for this defendant.

Although the defendant complains that the trial court did not discuss his personal history, the trial court was obviously aware of those factors through information in the PSI report which addressed the defendant’s family and educational history. At the time of sentencing, the defendant was thirty years old. He has a lengthy history of theft-related convictions and easily is within the class of offenders for whom the maximum sentence is appropriate. The record supports the sentence. Accordingly, we find that the defendant’s argument regarding excessiveness of the sentence lacks merit.

However, we do agree with the defendant’s assertion that the trial court erred in imposing sentence without benefit of parole. La. R.S. 15:529.1(G) provides that sentences imposed under the habitual offender provisions are to be imposed “without benefit of probation or suspension of sentence.” As such, it was not within the trial court’s authority to impose the sentence without benefit of parole, and the sentence is not legally correct. See State v. Miller, 96-2040 (La.App. 1st Cir.11/7/97), 703 So.2d 7698, writ denied, 98-0039 (La.5/15/98), 719 So.2d 459. We now amend and correct the sentence by striking the restriction on parole eligibility.

CONCLUSION

For the reasons stated, we affirm the defendant’s conviction for theft in violation of La. R.S. 14:67. We amend his sentence to delete the provision denying the benefits of parole eligibility, and affirm as amended.

CONVICTION AFFIRMED.

SENTENCE AMENDED, AND AFFIRMED AS AMENDED.