author: 1,THOMAS F. DALEY, Judge.

text:
    Clarence BARNES v. BECHTEL GROUP, INC. and Industrial Underwriters.
    No. 03-CA-1484.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 13, 2004.
    Darleen M. Jacobs, A1 Ambrose Sarrat, Jacobs & Sarrat, New Orleans, LA, for Plaintiff/Appellee.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendants/Appellants.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and THOMAS F. DALEY.
   1,THOMAS F. DALEY, Judge.

Defendant, Bechtel Group (Bechtel), appeals the trial court’s judgment that found claimant, Clarence Barnes (Barnes), entitled to permanent and total disability benefits. On appeal, Bechtel argues that the trial court applied the wrong burden of proof to Barnes’s claim. Bechtel argues that Barnes did not meet his burden of proving entitlement to permanent and total disability benefits by clear and convincing evidence and unaided by any presumption of disability. After reviewing the evidence and applicable law, we affirm.

Barnes was injured in an on the job accident on July 20, 1992, while employed by the Bechtel Group as a welder. Barnes injured his back while moving a desk. He was 37 years old at the time. Diagnostic studies revealed a bulging disc at L5-S1. After a course of conservative treatment and physical therapy failed to provide pain relief, Barnes underwent lumbar fusion and laminectomy surgery on May 5, 1994, at Ochsner Clinic. The surgery was deemed successful and it appears that Barnes enjoyed relief from back pain for a period of time, but his pain returned.

|aMr. Barnes has not worked since his injury in 1992. The parties stipulated that Bechtel paid Barnes benefits for temporary total disability for at least 520 weeks. Thereafter Bechtel apparently discontinued Barnes’s benefits or reduced them; the record is not clear.

On appeal, Bechtel argues that the trial court erred in relying on Dr. Jose Ferrer’s opinion that Mr. Barnes was permanently and totally disabled. Bechtel argues that Barnes’s burden of proof to show permanent and total disability is by clear and convincing evidence. They argue that the trial court applied the wrong burden of proof, because Dr. Ferrer’s use of those terms is not in accord with the legal definition of permanent and total disability, which is found in LSA-R.S. 23:1221. Bechtel argues that the legal definition of permanent and total disability excludes someone who can work, but works in pain. They also argue that Dr. Ferrer was merely speculating on the amount of time that claimant might miss from work due to back pain. Bechtel notes that Dr. Robert Applebaum, an orthopedist who saw Barnes, felt that Barnes could return to light duty work, and thus contends that claimant failed in his burden of proof.

A claimant’s burden of proof for permanent and total disability benefits is found in LSA-R.S. 23:1221(2)(c): which states:

... compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

Sometime after his surgery at Ochsner in 1994, Barnes moved to Mississippi, where he was treated by a series of doctors for back pain. Barnes was treated by Dr. William Warner in Jackson, Mississippi, for most of the entire year of 1997. He first saw Dr. Warner for back pain following a motor vehicle |4accident. Dr. Warner found that from an orthopedic standpoint, Barnes’s surgical result was excellent, as all the hardware remained in place. Dr. Warner prescribed physical therapy, but it appears that Barnes did not attend all of the recommended appointments, though the records do not indicate a reason. Dr. Warner’s records end in December of 1997, when he discharged Barnes, finding maximum recovery from treatment. Dr. Warner found that light work not requiring lifting was possible, but did not recommend Barnes’s return to pipefitting.

In 1998, Barnes treated with Dr. Jose Ferrer of the Street Clinic in Vicksburg, an orthopedic surgeon. Dr. Ferrer began treating Mr. Barnes in 1998 and treated him up to the time of trial. Both Dr. Ferrer and Dr. Robert Applebaum, another orthopedist who saw claimant in 1995 and 2003, agreed that Barnes was not a candidate for additional surgery. Dr. Ferrer opined that Mr. Barnes was permanently disabled from any type of work due to the fact that he would have predictably recurring attacks of severe back pain that would require him to miss too much work to be a reliable employee.

At trial of this matter, the depositions of Drs. Ferrer and Applebaum were submitted. Dr. Ferrer was of the opinion that Mr. Barnes could not return to work at all and was 100% permanently and totally disabled, due to recurring attacks of severe back pain, in addition to serious physical restrictions and limitations. Dr. Ferrer chronicled the history of his treatment of Barnes. Since late 1999, Barnes’s treatment consisted of periodic series of epidural injections of steroids, which afforded him good but not total relief of pain for up to six months. The injection series can only be repeated every six months. Dr. Ferrer stated that Mr. Barnes received a very good result from the injections, but did not receive total pain relief.

Barnes received his first series of injections in December of 1999. Dr. Ferrer’s records showed that Barnes returned to him in April of 2000 with increased pain after a period of relief. Dr. Ferrer prescribed pain medications until |fithe next series of injections could be performed in late May of 2000. At that time, Dr. Ferrer told Barnes he was totally and permanently disabled. This series of injections provided Barnes with relief until approximately May of 2001, at which time a new series of injections was started. After the third injection in August of 2001, Barnes reported doing well. He returned to Dr. Ferrer in January of 2002 reporting an increase in pain, whereupon another series of injections was ordered for March of 2002. Barnes reported in August of 2002 that his pain was back. He was prescribed pain medication until another series of shots began in October of 2002. After his third shot of the series in November 2002, Barnes reported feeling “much better.” Barnes returned again in April of 2003 reporting an increase in pain and stating that the functional capacity examination had aggravated his back pain.

Dr. Ferrer expected that Mr. Barnes’s future condition and treatment would follow this predictable pattern and render him an unreliable employee. He testified that even with the relief provided by the injections, Mr. Barnes was not at a “functional level.” Dr. Ferrer felt that Barnes’s pain attacks would leave him absent from work from 1-2 months over a six month period, and that this would be a lifelong problem. His diagnosis was failed back syndrome with no more surgery indicated. He said that the only treatment left to Barnes was of his symptoms (pain). Dr. Ferrer did state, however, that sedentary work was not likely to worsen Mr. Barnes’s condition. Dr. Ferrer did not feel that Mr. Barnes was malingering.

Mr. Barnes reported that his pain relief with the injections was around “50%.” In between injection series, Dr. Ferrer would prescribe Barnes pain medication to take on an as needed basis. Barnes testified at trial that he needed to take pain medication almost every day, which conflicted with his deposition testimony that when the injections provided him with relief, he needed pain medication only several times a month.

| fiClint Delong, the rehabilitative counselor who worked with Mr. Barnes, testified at length regarding the job services he provided to Mr. Barnes. Mr. Delong also submitted questionnaires to Drs. Ferrer and Applebaum regarding their opinions of Mr. Barnes’s condition, and the results of these questionnaires were also admitted into evidence. Dr. Ferrer’s responses mirrored his deposition testimony; he found that Barnes’s prognosis was poor, that he had reached maximum medical improvement in 1995 and that no further surgery was indicated. He found that the highest physical demand level that plaintiff might be able to return to work would be sedentary, but he did not feel that plaintiff would ever be able to return to work. Dr. Ferrer gave Mr. Barnes a 100% disability rating.

In his deposition, Dr. Applebaum related that he saw plaintiff in September of 1995. At that examination, the doctor found that plaintiff could perform moderate work and assigned him a 10-15% impairment of the whole body. Dr. Applebaum saw Mr. Barnes again in February of 2003 and obtained an updated medical history, specifically of his treatment for the last several years with Dr. Ferrer. Dr. Applebaum felt that his examination of Barnes showed minimal physical findings with a lot of complaints. As in 1995, he found no evidence of nerve root irritation. He was surprised to learn that Barnes had not attempted to go back to work from 1995 until 2003. While Dr. Applebaum agreed that Barnes experiences some pain, he found no objective findings to prevent Barnes’s return to light to moderate duty work. Dr. Applebaum’s questionnaire to Clint Delong was not completed, but it indicated his opinion that Barnes could return to sedentary/light duty work.

We find, after reviewing the evidence and case law, that we find no manifest error in the trial court’s conclusion that Mr. Barnes is permanently totally disabled. As claimant’s treating physician, his opinion is entitled to greater weight than Dr. Applebaum’s, who saw Mr. Barnes only twice.

17Pefendant contends that Dr. Ferrer’s diagnosis of Mr. Barnes as totally and permanently disabled does not conform to the legal definition of permanently and totally disabled as found in LSA-R.S. 23:1221. We disagree. Dr. Ferrer specifically found that even the epidural steroid injections did not raise Barnes to a functional level. His deposition testimony and medical records indicate that he did not feel this was a question of Barnes being able to work though while in pain; he felt that Barnes’s pain would be too great for him to work, and these periods would occur predictably and regularly so often as to preclude realistic gainful employment, also given the substantial physical restrictions Dr. Ferrer found.

Defendant compares this case to Reed v. Direct Installers, 95-1684 (La.App. 4 Cir. 1/31/96), 669 So.2d 529, which we distinguish on the facts. Reed, like Barnes, suffered an on-the-job back injury and underwent a lumbar laminectomy. Unlike Mr. Barnes, however, Reed’s surgeon, Dr. Schuhmacher, released him to work with some restrictions, and actually approved several jobs that a rehabilitation specialist identified for him. Reed then consulted with Dr. Manale, at Dr. Schuhmacher’s suggestion, who ordered a functional capacity examination, which concluded that Reed could return to work, with restrictions, for no more than six hours per day. After receiving the FCE report, though, Dr. Manale wrote to the insurance adjustor recommending “all might be served best by declaring the patient totally and permanently disabled rather than continuing to exhaust ourselves and the patient and try and get him ‘back to work.’ ”

The court found that while Dr. Manale’s comments might indicate his opinion that Reed might never be able to hold a job for long because of the physical problems he would inevitably experience should he return to work, those comments were not sufficient to prove by a preponderance of the evidence that [ sReed would never again be able to engage in any gainful occupation. We further note that these events in Reed’s case took place within two years of his injury, and after his treating physician and an FCE both showed that he could return to some form of work. Also, Dr. Manale’s comments are directly opposed to the conclusions of the FCE that he ordered.

In Mr. Barnes’s case, he received 520 weeks of disability benefits (which is approximately 10 years) and never returned to work. In addition, Dr. Ferrer diagnosed him with failed back syndrome in 1998, noting that his previously good result from the surgery had deteriorated, has continued to treat him since, and has chronicled a lengthy treatment course that, nonetheless in Dr. Ferrer’s opinion, has failed to bring Mr. Barnes to a functional level. Dr. Ferrer, who has had the benefit of a long association with Mr. Barnes, has stated to this court’s satisfaction, by clear and convincing evidence, that Mr. Barnes’s condition is permanent and that he is unable to engage in any gainful occupation.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . This court notes that the claimant’s burden of proof in a permanent total disability case under R.S. 23:1221 (2)(c) is by clear and convincing evidence, and not by a preponderance of the evidence, as stated by the Reed court. Both Mr. Barnes and Mr. Reed were injured in 1992, after the statute was revised in 1983 to raise the burden of proof.


source: Caselaw Access Project

author: 1, WILLIAMS, Judge.

license: Public Domain

text:
    BOBBY AND RAY WILLIAMS PARTNERSHIP, L.L.P., Plaintiff-Appellant v. THE SHREVEPORT LOUISIANA HAYRIDE CO. L.L.C., et al., Defendant-Appellee.
    No. 38,224 CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 21, 2004.

      William D. Dyess, Baton Rouge, Counsel for Appellant.

      Jerald R. Harper, Counsel for Appellee, Foundation of Arts, Music and Entertainment of ShreveporL-Bossier.
    William Lanigan, Shreveport, Counsel for Appellee, Louisiana Hayride Co., L.L.C., Warwick Production, Inc., Margaret Lewis Warwick, Alton Warwick.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   1, WILLIAMS, Judge.

The plaintiffs, Bobby and Ray Williams Partnership, L.L.P. and Bobby Williams, individually, appeal a judgment in favor of the defendants, The Shreveport Louisiana Hayride Company, L.L.C., Warwick Productions, Inc., Margaret Warwick, A. Alton Warwick (collectively referred to as “War-wicks”) and Foundation of Arts, Music and Entertainment of ShreveporL-Bossier (“FAME”). The district court granted the defendants’ exceptions of no cause of action and awarded attorney fees to FAME. For the following reasons, we affirm.

FACTS

This case involves a dispute over the right to use the trademark “The Louisiana Hayride,” which was the name of a weekly radio program featuring country music performers playing on stage at the Municipal Auditorium in Shreveport, Louisiana. The Hayride music shows were sponsored and broadcast by local radio station KWKH from approximately 1948 to 1960. The Louisiana Hayride gained a reputation as a springboard for the successful careers of many performers, including Elvis Presley, Johnny Cash, Hank Williams and George Jones.

After a period of inactivity, the successor in interest to KWKH, David Kent, used the name “Louisiana Hayride” to identify live music stage shows he produced in Bossier Parish. In 1985, Kent registered the trademark “The Louisiana Hayride” with the Louisiana Secretary of State. In 1987, Kent sold his interest in Hayride assets, including the right to use the trademark, to Louisiana Hayride Productions, Ltd. (“LHP”), which used the property as security for a loan. LHP went out of business and defaulted on the loan.

12Subsequently, Bobby and Ray Williams Partnership (“Williams Partnership”) purchased the defaulted promissory note from the bank and seized the assets of LHP. In April 1992, Williams Partnership bought the seized assets in a sheriffs sale. In May 1992, the secretary of state assigned the registration of the “Louisiana Hayride” trademark to Williams Partnership.

During the late 1950s, Margaret Lewis had been a performer in the KWKH Louisiana Hayride shows. After working as a songwriter in Nashville, she returned to Shreveport in 1981 to marry A. Alton Warwick. In 1988, she began using the trademark Louisiana Hayride in connection with the “Louisiana Hayride Band,” which performed in music revues that were produced by Warwick. In January 1992, Warwick performed with her Louisiana Hayride Band in a “Louisiana Hayride Show” at a state tourism event in Lafayette, Louisiana.

In 1993, Warwick applied to the United States Patent and Trademark Office (“USPTO”) to register the trademark “The Shreveport Louisiana Hayride” along with the derivative marks. In May 1995, Warwick received federal registration of this mark for use with entertainment services in the nature of a musical revue. Subsequently, Margaret and Alton Warwick formed the Shreveport Louisiana Hayride Company, L.L.C. (“SLH”). In 1995, after receiving a “cease and desist” letter from Williams Partnership regarding their use of the Louisiana Hayride mark, the War-wicks filed suit in federal court against Williams Partnership and Bobby Williams alleging trademark infringement. In July 1997, the parties signed a settlement |sagreement, which was incorporated into a consent judgment providing that the War-wicks and SLH “shall retain all their rights” to their previously registered United States trademark known as “The Shreveport Louisiana Hayride.” The judgment further ordered that Williams Partnership shall have the exclusive right to a federally registered trademark “The Louisiana Hayride” for entertainment products only, as defined in the judgment, “subject to [a] concurrent use agreement” between Williams Partnership and SLH. However, the parties did not execute a concurrent use agreement.

In 1997, Margaret Warwick was one of the founders of FAME, a non-profit corporation formed to create an historic music district in Shreveport. In May 2002, the plaintiff, Williams Partnership, filed a petition for a temporary restraining order against the defendants, the Warwicks and FAME. Plaintiff sought to enjoin the performance of a “Louisiana Hayride Show” produced by Warwicks and scheduled in connection with a music conference sponsored by FAME. Proceeds from the concert were to benefit FAME. In its petition, plaintiff alleged that it possessed the exclusive right to use the Louisiana Hayride trademark and that the Warwicks and FAME were acting together in the commission of unfair trade practices. The district court denied the application for a temporary restraining order.

Subsequently, FAME filed an exception of vagueness of the petition and peremptory exceptions of no cause and no right of action. The Warwicks also filed exceptions of no cause and no right of action and filed a reconventional demand seeking damages for plaintiffs alleged interference with their use of the trademark the Shreveport Louisiana |4Hayride. In July 2002, the district court sustained the War-wicks’ exception of no cause of action and allowed plaintiff fifteen days to amend the petition. Plaintiff filed an amended and supplemental petition adding Bobby Williams individually as a party plaintiff and alleging that the Warwicks and FAME had infringed the plaintiffs’ trademark rights and violated the Unfair Trade Practices and Consumer Protection Act by producing a music show with a deceptively similar trade name and using FAME as an “alter ego” to solicit funds for the gain of the Warwicks.

FAME again filed an exception of vagueness and the Warwicks filed an exception of no cause of action. The district court sustained these exceptions and again gave plaintiffs fifteen days to amend the petition. After the plaintiffs filed a second amended petition, the Warwicks and FAME filed exceptions of no cause and no right of action. In March 2003, the district court rendered judgment granting the exceptions of no cause of action and dismissing the plaintiffs’ complaint with prejudice. FAME filed a motion for attorney fees alleging that the plaintiffs had acted in bad faith in filing the lawsuit. Finding that plaintiffs had not acted in good faith in pursuing the lawsuit against FAME, the court rendered judgment awarding attorney fees of $18,332.50 to FAME. The plaintiffs appeal the judgments.

DISCUSSION

The plaintiffs contend the trial court erred in granting the exceptions of no cause of action filed by defendants. Plaintiffs argue that their petition sufficiently stated a cause of action against the defendants for unfair and deceptive trade practices by alleging that defendants had infringed on the 1 Kplaintiffs’ right to use the Louisiana Hayride trademark and that the Warwicks had improperly benefited from proceeds paid to the non-profit corporation FAME.

The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy upon the facts alleged in the pleading. Everything on Wheels Subaru,, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993); Western Development Group, Inc. v. Shlosman, 32,343 (La.App.2d Cir.9/22/99), 744 So.2d 197. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. Thus, the court reviews the petition and accepts well-pleaded allegations of fact as true and the issue at trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Everything on Wheels, supra. Generally, an exception of no cause of action must be overruled unless the allegations of the petition exclude every reasonable hypothesis other than the premise of the defense, or unless the plaintiff does not have a cause of action under any evidence admissible under the pleading. Western Development Group, supra; Succession of Fragala, 28,663 (La.App.2d Cir.9/27/96), 680 So.2d 1345.

The term “trademark” means any name, symbol, device or any combination thereof adopted and used by a person to identify goods made or sold by him and to distinguish them from goods made or sold by others. LSA-R.S. 51:211(A). A trade name is a word, name, symbol, device or any combination thereof used by a person to identify his business or occupation | (¡and distinguish it from others. LSA-R.S. 51:211(D). A trademark shall be deemed to be “used” in this state (1) on goods when placed thereon or their containers or on the affixed labels and such goods are sold or distributed in this state, and (2) on services when it is used or displayed in the sale or advertising of such services performed in this state. LSA-R.S. 51:211(H).

A mark by which goods or services of any applicant for registration may be distinguished shall not be registered if it consists of or comprises a mark which so resembles a mark registered in this state, or a mark or trade name previously used in this state by another and not abandoned, as to likely cause confusion, mistake or to deceive when applied to the applicant’s goods or services. LSA-R.S. 51:212(6). Subject to the statutory limitations, any person who adopts and uses a mark or name in this state may file with the secretary of state an application for registration of that mark or name. LSA-R.S. 51:214.

Any person who shall use without the consent of the registrant any reproduction, copy or imitation of a mark registered with the state in connection with the sale or advertising of any goods or services, or where such use is likely to cause confusion or mistake as to the origin of such goods or services, shall be liable in a civil action by the owner of such registered mark for any and all remedies provided under the law. LSA-R.S. 51:222. Any owner of a registered mark may file suit to enjoin the use, display or sale of any imitations thereof and the court may grant injunctions to restrain such use or display. LSA-R.S. 51:223.

However, the mere registration of a trademark confers only 17procedural rights and does not create or confer substantive proprietary rights of ownership in the mark. Substantive rights in the mark arise only from the use of the mark and not from registration. Givens Jewelers Inc. v. Givens, 380 So.2d 1227 (La.App. 2d Cir.1980).

The Louisiana Unfair Trade Practices and Consumer Protection Act (“LUT-PA”) provides that unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful. LSA-R.S. 51:1405. The language of this legislation is broad and does not specify particular violations. Thus, what constitutes an unfair trade practice is to be determined on the facts of each case. Monroe Medical Clinic, Inc. v. Hospital Corp. of America, 522 So.2d 1362 (La.App. 2d Cir.1988). Under LUTPA, an unfair act is conduct which offends established public policy and which is unethical, oppressive, unscrupulous or substantially injurious to consumers or business competitors. Monroe Medical Clinic, supra.

Any person who suffers an ascertainable loss of money or movable property as a result of unlawful trade practices may bring an action individually to recover damages. LSA-R.S. 51:1409. This language has been held to confer a private right of action to consumers and business competitors. Monroe Medical Clinic, supra.

In the original petition, plaintiffs alleged that they purchased the rights to the trademark “The Louisiana Hayride” in a sheriffs sale and that the state registration of the mark was assigned to them in May 1992. They alleged that their use of the trademark in commerce was shown by their | ^licensing of photographs of Hayride performers and of banners in 1992, their renewal of the state registration of the mark in 1995 and their execution of a series of “option contracts” from 1993 to 1995 allowing third parties the opportunity to use recordings of Hayride shows.

Plaintiffs alleged that their rights to use the trademark have been infringed by the Warwicks’ acts of registering the “Shreveport Louisiana Hayride” mark with the USPTO and using the Louisiana Hayride name in advertisements for live concerts such as the May 2002 show, thereby creating confusion in the entertainment industry and among the public regarding ownership of the trademark. The plaintiffs assert that they have the right to exclusive federal registration of the mark for entertainment products under the federal consent judgment. Plaintiffs further alleged that the Warwicks committed unfair trade practices by creating the non-profit corporation FAME to obtain state grants and charitable contributions which were used for the economic benefit of Warwicks’ commercial interests.

In their first amending petition, plaintiffs basically reiterated their allegations that the Warwicks’ use of the Louisiana Hayride trademark had damaged plaintiffs by diminishing the value of the mark and that Warwicks’ use of FAME as an “alter-ego” to solicit funds for their private gain, in violation of LSA-R.S. 51:1901, constituted an unfair and deceptive trade practice. In the second amending petition, plaintiffs reasserted their allegation that the operations and management of the Warwicks and FAME were indistinguishable because the entities shared office space and telephone lines, such that the Warwicks improperly benefited from funds of 19the nonprofit corporation.

Plaintiffs alleged that FAME and War-wicks published brochures and advertisements for the music show and conference stating that the proceeds would benefit FAME, but failed to disclose the relationship between the entities or to specify the amount of the proceeds that FAME would receive and that their failure to make such disclosures constituted an unfair trade practice. Plaintiffs further alleged that the use of the Louisiana Hayride trademark by FAME and Warwicks made them “competitors” with respect to the plaintiffs’ rights in the trademark.

Pursuant to Louisiana law, substantive property rights in a trademark arise from use of the mark, not merely from registration of the trademark with the state. In their petitions, the plaintiffs’ only allegations regarding their use of the trademark involve licensing agreements or option contracts allowing others to use items related to the Louisiana Hayride shows or broadcasts, such as photographs, banners and audio or video recordings. The plaintiffs have not alleged that they placed or displayed “The Louisiana Hayride” trademark on any goods they were selling or services they were performing in this state as required to demonstrate use of the mark pursuant to LSA-R.S. 51:211(H).

Accepting as true the plaintiffs’ contention that the federal consent judgment gave them the right to use the trademark with respect to “entertainment products,” the allegations in their petition fail to show that they have acted to satisfy the requirement that the trademark be used in commerce. Without such use, plaintiffs have not alleged a property right in|inthe trademark. Consequently, after considering the petition and the applicable law, we conclude the plaintiffs have failed to state a cause of action for trademark infringement against either the Warwicks or FAME.

Unfair Trade Practices

The plaintiffs argue that their petition states a cause of action under LUTPA by alleging that the Warwicks infringed on their right to use the Louisiana Hayride trademark, that the Warwicks created FAME to obtain financial contributions which were improperly used for the private economic benefit of the Warwicks, and by alleging that the Warwicks failed to comply with the provisions of LSA-R.S. 51:1901 et seq. regarding the solicitation of charitable contributions. Initially, we note that because plaintiffs have not sufficiently alleged trademark infringement, that issue cannot be the basis for a claim of unfair trade practices.

Pursuant to the statute concerning deceptive trade practices in soliciting charitable contributions, a commercial co-ven-turer is defined as any person who is regularly engaged in trade or commerce other than the solicitation for charities and who conducts a charitable sales promotion or advertises that a portion of revenue will be donated to a non-profit entity. LSA-R.S. 51:1901(8). In conducting a charitable sales promotion, the commercial co-venturer shall disclose the actual dollar amount or percentage per unit of goods or services purchased that will benefit the charity, if the amount has been determined. If the actual dollar amount or percentage cannot be determined prior to the start of the promotion, the co-venturer shall disclose an estimated amount or percentage in each 11T advertisement. LSA-R.S. 51:1901.2.

It shall be unlawful for any organization claiming to sell goods or services for charitable purposes to engage in unfair or deceptive practices. LSA-R.S. 51:1905. Violation of any provision of this statute shall constitute an unfair trade practice under LUTPA. LSA-R.S. 51:1909.1.

In their petition, plaintiffs allege that the Warwicks acted as a commercial co-venturer in advertising that revenue from the May 2002 show would be donated to a non-profit entity, but failed to disclose in the advertisement for the show either the actual or estimated dollar amount or percentage of sales that would benefit FAME, a violation of Section 1901.2.

The record contains an advertisement for the May 2002 music show that includes the statement, “This show is produced as a benefit to the FAME Foundation for the preservation and restoration of Shreveport’s Music History.” However, the advertisement does not provide any estimate of the dollar amount or percentage of sales that will benefit FAME.

This lack of disclosure appears to violate Section 1901.2 and would constitute an unfair trade practice under LUTPA, which provides that a person who suffers an ascertainable loss of money or property as a result of an unfair trade practice may bring an action for damages. However, the plaintiffs have not alleged that this lack of disclosure has caused them an ascertainable loss of money or property. Nor does their petition specify any particular instance in which FAME funds were improperly applied for the benefit of the Warwicks or explain how the plaintiffs were harmed thereby. Consequently, the plaintiffs’ petition does not state a cause of action for |1gunfair trade practices against the Warwicks or FAME. The assignment of error lacks merit.

Attorney Fees

The plaintiffs contend the district court erred in granting FAME’S motion for attorney fees. Plaintiffs argue that they are not liable for attorney fees because there were sufficient grounds to support their claim under LUTPA and they acted in good faith.

Upon a finding by the court that an action filed pursuant to LUTPA was groundless and brought in bad faith or for purposes of harassment, the court may award reasonable attorney fees to the defendant. LSA-R.S. 51:1409. This provision is penal in nature and is subject to reasonably strict construction. Coffey v. Peoples Mortgage & Loan of Shreveport, Inc., 408 So.2d 1153 (La.App. 2d Cir.1981). The court has discretion in determining whether to award attorney fees under the statute. Hill Wholesale Distributing Co., Inc. v. Howat & Son, 27,936 (La.App.2d Cir.1/24/96), 666 So.2d 1252.

In his deposition, Bobby Williams testified he first became concerned that FAME’S funds were used to increase the Warwicks’ profits upon learning that the non-profit corporation shared office space and phone lines with the Warwicks. However, Williams stated that he did not attempt to contact anyone on FAME’S board of directors about his concerns. Williams acknowledged that although plaintiffs’ petition alleged that FAME had violated a state statute and that he had signed the verification of the petition, he could not specify which acts of FAME were unlawful.

[ 1sWilliams testified that he did not talk with any witnesses who possessed knowledge of FAME’S activities and did not do any further investigation to support the allegations of the petition. He could not point to any evidence of impropriety by FAME other than the advertisements for the music shows produced by the War-wicks.

After reviewing this record, we cannot say the district court erred in finding that the plaintiffs acted in bad faith in filing this lawsuit against FAME without adequate investigation or foundation to provide a reasonable basis for the allegations in their petition. Consequently, the district court did not abuse its discretion in awarding attorney fees to FAME. Plaintiffs have not appealed the amount of the award. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the district court’s judgments are affirmed. Costs of this appeal are assessed to the appellants, Bobby and Ray Williams Partnership, L.L.P. and Bobby Williams individually.

AFFIRMED.


author: hDREW, J.

text:
    STATE of Louisiana, Appellee v. Hernando Cortez HALEY, Appellant.
    No. 38,258-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 22, 2004.

      Louisiana Appellate Project, by Kenota Pulliam Johnson, Counsel for Appellant.
    Paul Joseph Carmouche, District Attorney, J. Thomas Butler, Lea R. Hall, Jr., Assistant District Attorneys, Counsel for Appellee.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   hDREW, J.

At bench trial, Hernando Cortez Haley was convicted of aggravated burglary. After adjudication as a third felony habitual offender, he was sentenced to serve 30 years at hard labor, without benefit of suspension of sentence or probation. We affirm his conviction and sentence.

FACTS

In the morning hours of July 16, 2002, the defendant, plus Marcus Antonio Haley and Cedric Deon Gibbs, approached the home of Danny and Bonnie Wilburn in Shreveport. One man knocked at the door. The Wilburns’ 14-year-old grandson, Chase, looked through the peephole and did not recognize the black male standing outside. The young teen noticed a black Caprice, with dark tinted windows, in the driveway. Chase went to the kitchen to call his grandmother to ask if she had sent anyone to the house. The doorbell began ringing constantly. When he was unable to reach his grandmother by phone, he attempted to call 911, but the perpetrators began to break down the front door. He ran out the back door, making haste in the rain to his grandparents’ sandwich shop, a short distance away.

When Chase arrived at the store, he told his grandmother that someone was breaking into her home. She immediately called 911 and asked the people at a neighboring business to call her husband. Then she and her grandson returned to her home where they observed a black car with dark tinted windows pulling out of the driveway. They obtained the tag number and continued following the vehicle around the neighborhood until Mrs. Wilburn noticed a police unit headed toward her home. She turned | aaround to meet the law officer at her home, where she described the vehicle and told the officer what items were missing from her home.

Meanwhile, using the information provided by Mrs. Wilburn, other officers made a felony stop. Defendant, who was seated in the right-rear passenger seat, bolted from the car. After a brief foot chase, he and his comrades were caught. Following conviction, adjudication and sentencing, defendant filed motions for modification of judgment and for reconsideration of sentence. The trial court denied both.

DISCUSSION

Sufficiency of Evidence

The defendant contends that:

• He was not involved in the burglary of the Wilburns’ home.
• The state failed to prove the elements of aggravated burglary.
• The state failed to show that he unlawfully entered the Wilburns’ residence, or that he armed himself while in the residence, or that someone was home at the time of the crime.
• Although he was in the vehicle when it was stopped by police, the reason he fled was because of outstanding warrants for unpaid parking tickets.
• His conviction should accordingly be set aside, as no one could place him at the scene of the crime and there was no physical evidence linking him to the crime, rendering the state’s case lacking as per the test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The state argues that:

• Any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
• Our jurisprudence does not require a person to be present in an inhabited dwelling at the time of the unauthorized entry.
|p* Stealing loaded weapons in the home satisfies the “arming himself’ element of aggravated burglary.
• A person may be a principal to this offense even though he did not personally have possession of the weapon used in the commission of the crime.
• The' trier of fact, in a credibility call, disbelieved the defendant’s incredible story that his co-defendants picked him up within three or four minutes between the crime and the stop.
• The evidence as a whole leads to the conclusion that all three perpetrators actively participated in the crime.

Applicable law

La. R.S. 14:60 provides, in part:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.

Being inhabited does not mean someone has to be present at the time of the burglary; “inhabited” does not mean “occupied.” State v. Hall, 35,151 (La.App.2d Cir.9/26/01), 796 So.2d 164, 167, citing, State v. Powers, 344 So.2d 1049 (La.1977); and State v. Hicks, 286 So.2d 331 (La.1973).

The second tier of requirements may be satisfied by a perpetrator who is armed at the time of the offense, OR a perpetrator who arms himself (steals a dangerous weapon) during the offense, OR commits a battery upon a person while entering, leaving, or while inside the premises. State v. Hall, supra.

|4La. R.S. 14:24 states in pertinent part:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

There is no requirement that an indictment explicitly name the accused as “principal.” That the accused is indicted for the offense itself, and not charged as an accessory after the fact, irrefutably evidences that he is charged as a principal. State v. Peterson, 290 So.2d 307 (La.1974).

Our law on sufficiency is well settled.

| aApplication of law to facts

To obtain a conviction of aggravated burglary here, the state had to prove that the defendant (1) made an unauthorized entry into the Wilburns’ home, (2) with the intent to commit a theft therein, and (3) armed himself therein. The state proved these elements, with the benefit of overwhelming direct and circumstantial evidence.

Chase identified various items taken, as well as the car and its license plate number. He provided the opening facts of this opinion.

Bonnie Wilburn, Chase’s grandmother, testified that:

• Her sandwich shop is located about a block and a half from her home.
• Chase burst through the door very upset, wet from the rain, telling her that someone was breaking into the house.
• She called 911, then ran next door and asked the folks to call her husband.
• She and Chase left the store and drove home.
• She saw a car leaving her driveway, which they followed.
• She called out the license plate number twice while Chase wrote it down.
• The tinted windows kept her from counting the passengers.
• She and Chase followed the car to the neighborhood Albertsons, where the vehicle made a right on Mansfield Road.
• At that point, she turned around to meet the police at her home.
• She gave the police the license plate number and a description of the vehicle.
• One of the officers immediately put out an all-points bulletin for the vehicle.
| The perpetrators had taken out her Direct T.V. system, her surround sound, her VCR, her telephone answering machine, Chase’s Play Station, a rifle, and a gun rack.
• The front door looked as if it had been kicked or beaten open.
• She observed shoe prints on the door.
• She was able to clearly identify the vehicle in question.

Danny Wilburn, Bonnie’s husband and Chase’s grandfather, testified that:

• He is employed with the Caddo Parish Sheriffs Office.
• He saw the defendant being arrested on Linwood Avenue.
• The defendant in court was the same individual who was arrested that day.
• He thought one of the weapons taken during the burglary was loaded.
• He identified his property, including weapons, in photos taken of the property seized from the defendant’s vehicle.

Through the cumulative testimony of Lt. Kenneth Jackson, Corporal Scroggins, Officer McConnell, and Sgt. Wilson, the state proved that:

• The suspects’ vehicle was under constant observation either by the victims or authorities, except for about four minutes of the chase, which would have given the vehicle time to travel 4.5 miles (the distance between where the suspects’ vehicle was last seen by the victims until it was observed by Lt. Jackson).
• From then on, Jackson never lost sight of the vehicle, which he could see contained three occupants.
• Jackson identified at trial the photographs of the suspects’ vehicle as the same vehicle he followed and which bore the same license plate number.
• After a brief chase, Jackson coordinated a felony stop, along with Sgt. Wilson, Corporal Scroggins, Officer McConnell and Corporal Walls.
17* They all saw the defendant bail out of the suspects’ vehicle.
• Officer McConnell pursued the defendant on foot, jumping fences and running through private lots, before ultimately apprehending him.

Detective Goodwin identified the suspects’ vehicle, which bore the reported license plate number. He identified the trunk’s contents, including weapons. In particular, he identified a 12-gauge shotgun and ammunition.

The trial court apparently found the state’s witnesses to be credible, and a reviewing court accords great deference to the finder of fact’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, supra.

Although none of these witnesses placed the defendant at the crime scene, circumstantial evidence proved that he actively participated in the burglary, to-wit:

• his flight,
• his location on the back seat where much of the stolen property was found,
• the victims’ identification of the car as the same car parked in the driveway before the burglary occurred and the same car seen leaving the crime scene minutes later, after the burglary had taken place, and • the compressed time frame between the crime and the apprehension.
La. R.S. 14:24 states in pertinent part: All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

| sHere, the evidence shows that the defendant was involved in the burglary as a “principal.” Whether or not he personally kicked in the Wilburns’ front door, or personally stole a gun, this defendant was actively involved in the burglary.

Furthermore, it is highly unlikely that only one person could have stolen the numerous items taken from the residence in this time span. Once inside the home, the intruders stole many items, including firearms and ammunition. Stealing a dangerous weapon satisfies the element of “arming himself.” See, State v. Hall, supra.

The extremely unlikely alternative hypothesis given by the defendant (that the co-defendants picked him up after the crime, but before arrest) is unbelievable, even with a willful suspension of disbelief. Such an unlikely event would have had to occur within the three- to four-minute span that the suspects’ vehicle was out of sight of the victims or police authorities. That two escaping criminals would stop and pick up a hitchhiker during the pursuit is a suggestion unworthy of belief. The trial court correctly found this crime was proven beyond a reasonable doubt.

Adjudication as a third felony offender

In order to enhance a sentence with a prior guilty plea, the state bears the burden of proving the guilty plea was constitutionally taken, and, to meet its burden, the state must introduce a contemporaneous record of a Boykin examination which demonstrates the guilty plea was free and voluntary and which includes a waiver of the three constitutional rights specified in Boykin — right to jury trial, right to confront his accusers, and |9privilege against self-incrimination. State v. Shelton, 621 So.2d 769 (La.1993). Appellate counsel argues that although the state proved the defendant was the same person identified in the two predicate felony convictions from 1996, the evidence presented was nevertheless insufficient to support a finding that the prior guilty pleas were free and voluntary, and obtained in compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

The state submitted a certified copy of the bill of information, a certified copy of the court minutes, and a certified copy of the transcript for both the May 31, 1996, Simple Burglary conviction and the October 24, 1996, Unauthorized Entry of an Inhabited Dwelling conviction. Accordingly, the defendant’s vague argument on this point is meritless, as he failed to present any evidence in opposition to the state’s evidence or show any specific defects in his prior guilty pleas. The evidence submitted is amply sufficient to sustain the adjudication as a third felony offender.

Sentencing Errors

The defendant argues that the trial court administered him an excessive sentence after not adequately complying with La. C. Cr. P. art. 894.1. He argues that during sentencing, the trial court stressed the hardship caused to the victims in this case and gave minimal consideration to his personal information. He contends that the record contains an insufficient factual basis and offers no explanation for the sentence imposed. The defendant contends that the 30-year hard labor sentence |! (¿without benefit of suspension of sentence or probation should be vacated and set aside.

The state argues that:

• The defendant’s sentence is not excessive.
• The defendant has waived his right to challenge the trial court’s compliance with La. C. Cr. P. art. 894.1 since he failed to raise this issue in his motion to reconsider sentence.
• Nonetheless, taking into account that the defendant had a sentencing range exposure of up to 60 years, his 30-year sentence is not excessive.
• The trial court had a firm understanding of the facts and circumstances surrounding this offense and this defendant.
• The sentence is appropriate and clearly individualized for this defendant and the offense he committed.

The law on excessiveness is clear.

|nWe find that the trial court adequately-complied with La. C. Cr. P. art. 894.1. by considering:

• the defendant’s age of 24 years,
• his educational background of being a high school dropout,
• his employment history,
• his marital status (single, with one dependent child),
• various drug treatment programs attended by the defendant,
• therapy classes attended by the defendant,
• a letter from the defendant, and
• his participation as a speaker to a teen group about incarceration.

The trial court also reviewed the PSI of the defendant, which revealed his two 1996 convictions for simple burglary and unauthorized entry of an inhabited dwelling (the same convictions utilized in the habitual offender proceeding).

In addition, the court considered a 1998 DeSoto Parish plea bargain for the crime of illegal possession of stolen things in a misdemeanor amount (the defendant had been arrested for three felonies), and noted other felony arrests.

The trial court knew of the defendant’s lengthy criminal history and the facts of this case. The sentencing exposure ran from 20 to 60 years, |12without benefit of suspension of sentence ot probation. La. R.S. 15:529.1. This mid-range, 30-year hard labor sentence, to be served without benefit of suspension of sentence or probation, is quite reasonable under these facts. This sanction is in proportion to the crime and does not at all shock the sense of justice. This defendant earned every day of this punishment. We affirm in all respects.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . Please note the disjunctive here.

      . 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, supra; State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writs denied, 2000-3070 (La.10/26/01), 799 So.2d 1150, 2001-2087 (La.4/19/02), 813 So.2d 424. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.
      A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.
      In cases involving a defendant's claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of mis-identification in order to carry its burden of proof. State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008 (on rehearing), writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.
      When circumstantial evidence forms the basis for the conviction, such evidence must exclude every reasonable hypothesis of innocence. The appellate court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events; rather, when evaluating the evidence in the light most favorable to the prosecution, the court determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia, supra. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

      . When a defendant’s motion for reconsideration urges merely that the sentence is excessive, he is relegated only to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993).
      The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.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 shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). 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.), 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.

      A timely motion to reconsider sentence that fails to challenge the trial court's alleged failure to comply with La. C. Cr. P. art. 894.1, merely raising the issue of excessiveness of sentence, relegates the defendant exclusively to a claim of constitutional excessiveness. See State v. Mims, supra.

      The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The second prong of the test is whether the sentence imposed is too severe depending 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, supra; State v. Bonanno, supra.


author: I ¡¿SUSAN M. CHEHARDY, Judge.

text:
    Judy M. THIBODEAUX, As Curator for Her Interdicted Mother, Anna C. Melancon. v. STONEBRIDGE, L.L.C. d/b/a Stonebridge Convalescent Center.
    No. 03-CA-1256.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.

      Richard C. Trahant, Kenneth L. Tolar, Metairie, LA, for Plaintiff-Appellant, Judy M. Thibodeaux, as Curator for Her Interdicted Mother, Anna C. Melancon.
    Stephen M. Pizzo, Christopher Landry, Blue Williams L.L.P., Metairie, LA, for Defendant-Appellee, Stonebridge, L.L.C. d/b/a Stonebridge Convalescent Center.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   I ¡¿SUSAN M. CHEHARDY, Judge.

Anna C. Melancon (hereafter “Melan-con”) appeals the damage award in this suit against Stonebridge, L.L.C. d/b/a Sto-nebridge Convalescent Center (hereafter “Stonebridge”). We amend and affirm as amended.

Melancon, an elderly interdict with Alzheimer’s disease and dementia, appears through her curator, Judy M. Thibodeaux (hereafter “Thibodeaux”), who is also her daughter. On May 9, 2001 Melancon was a resident of Stonebridge, a nursing facility. On that date she was injured when a Stonebridge employee ran into her with a metal food cart and knocked her down. Melancon received no medical attention for eight to ten hours after the incident, when she was x-rayed and found to have a broken hip that required surgical repair and post-surgical therapy. Subsequently her health deteriorated. By the time of trial, approximately two years after the accident, she was unable to walk, was confined to a bed and/or a geriatric chair, and had suffered repeated decubitus ulcers.

The case was tried in a bench trial over the course of two separate days (March 18 and April 10, 2003). At the start of the trial Stonebridge stipulated to liability. Hence, the only issue for decision by the' court was damages.

Melancon sought special damages for medical bills totaling $261,285.29 and general damages for her hip injury, for her physical problems that developed later, [sand for the decubitus ulcers. Melancon presented testimony from her daughter/curator, Thibodeaux, and four physicians. The parties presented a number of joint exhibits, consisting mostly of voluminous medical records. Stonebridge called no ■witnesses.

On May 12, 2003 the trial court issued a judgment in favor of Melancon, with incorporated reasons for judgment. The court awarded Melancon damages in the amount of $236,632.15, consisting of $150,000.00 for general damages and $85,632.15 for special damages. In addition, the court found Melancon entitled to attorney’s fees, including interest on the attorney’s fees, under the Nursing Home Residents’ Bill of Rights law, and to costs. The court awarded $70,000.00 for the attorney’s fees and costs, without itemization.

The court rejected Melancon’s claims for special damages for hospitalizations in September 2002 and January 2003, as well as her claims for general damages for her decubitus ulcers. The court found Melan-con failed to show a causal relationship between those incidents and the May 9, 2001 accident made the basis of this suit.

Melancon has appealed. On appeal she asserts the trial court committed manifest error when it failed to award her certain general and special damages despite unre-butted medical testimony establishing her entitlement to these damages. Melancon contends the trial court’s findings regarding these elements of damage are wholly unsupported by the record.

^EVIDENCE

Judy M. Thibodeaux

Thibodeaux testified that Melancon was 78 years old at the time of trial. Melancon had been admitted to the Alzheimer’s unit at Stonebridge in July 2000 because she had become disoriented, forgetful, apt to engage in unsafe behavior at home, and prone to wander around the neighborhood. According to Thibodeaux, except for the Alzheimer’s disease Melancon had no physical problems when she was admitted to Stonebridge. Thibodeaux said Melan-con was very active at Stonebridge: “She thought she was at work and she’d help with everyone. She took care of people for the nurses.” She had no problems moving around.

On May 9, 2001 at approximately 10:00 a.m., Thibodeaux received a call advising that Melancon had an accident and needed x-rays. Thibodeaux went to Stonebridge, where she found Melancon sitting at a table in the recreation area. Thibodeaux observed that Melancon was in pain; she wouldn’t move, but would suddenly start yelling, “Oh, it hurts, don’t move me.”

Thibodeaux sat at the table with Melan-con for hours. No medication was administered to Melancon, who kept crying out with pain. Nursing home personnel eventually moved Melancon to her bed, although she cried about the pain during the process. Thibodeaux was told that paperwork had to be done before Melancon could be taken to the hospital.

Thibodeaux said it was approximately eight hours from the time she was called until Melancon was taken to the hospital emergency room. During that period Me-lancon was neither seen by a physician nor received any pain medication. Thibodeaux discovered Melancon had sustained a fractured hip, in | Kwhich the ball of the joint broke off the femur. Melancon underwent surgery by an orthopedic surgeon, Dr. James Todd, the next day.

Melancon was in the hospital for several weeks following the surgery, including time in the rehabilitation area, where she received physical therapy. Thibodeaux said Melancon was in pain both in the post-surgery hospital stay and also during her rehabilitation process.

Thibodeaux said when Melancon was released to return to the nursing home, she was not walking on her own except when someone held her by a strap around her waist. She was in a wheelchair or in bed; when she attempted to get out of either the bed or the chair she was in obvious pain. She did not realize she had had a broken hip. She was supposed to continue physical therapy at the nursing home.

When Melancon returned to Stonebridge on May 25, 2001 she was placed in the skilled nursing facility rather than in the Alzheimer’s unit, due to the need for further physical therapy. During the time she was in the skilled nursing unit, Thibo-deaux discovered on several occasions that Melancon had been left sitting in her bed in urine, without underwear or diaper. Although Thibodeaux visited Melancon every day, she never observed anyone doing rehabilitation with Melancon. The majority of the time Melancon was just sitting in bed. In addition, Melancon had staples at the surgery site that were supposed to be removed within two weeks, but Thibo-deaux noticed that the staples had been left in and skin was almost growing over them. Thibodeaux also noticed that Me-lancon suffered whenever she moved.

Dissatisfied with the care Melancon was receiving, Thibodeaux removed Melancon from Stonebridge in July 2001 and transferred her to another nursing home, Mea-dowcrest Living Center.

| ¿Thibodeaux said that when Melancon was moved from Stonebridge, she was not walking freely on her own. Thibodeaux said she never saw Melancon using a walker after the surgery while she was at Stonebridge.

At Meadowcrest Living Center Dr. Charles Simonson was assigned to treat Melancon, although Thibodeaux later asked that a different doctor treat Melan-con. Thibodeaux testified that Melancon never regained her balance and never was able to walk as she had prior to her hip break. At the time of trial Melancon was unable to stand or walk. Thibodeaux said Melancon still tries to get up to walk, because she doesn’t realize she had a broken hip, and they have to stop her. “She’d walk and she’d drag, would have to hold onto something.”

Thibodeaux was aware that Melancon has fallen several times at Meadowcrest Living Center. She testified that initially at Meadowcrest Living Center Melancon would be placed in a wheelchair or with a walker, but “you could tell by the way she was walking that she should not have been walking.” Eventually Melancon began spending more time in bed. Thibodeaux said she only knows Melancon is in pain if she moans; Thibodeaux then will tell the nurses, who will give Melancon medication.

Melancon fell on September 9, 2002 at Meadowcrest Living Center and was taken to the hospital. Thibodeaux said the whole side of Melancon’s face down to her neck was bruised and swollen, and her nose was broken. According to Thibo-deaux, Melancon was unresponsive to questions so it could not be determined how much pain she felt.

17Melancon was in West Jefferson Advance Care, a rehabilitative care center, from September through December 2002, then returned to Meadowcrest Living Center. Thibodeaux said that since then Me-lancon had gone downhill, was more incoherent, and no longer walked on her own at all. She had a bed sore on her hip and was either in bed or in the geriatric chair all the time.

Dr. James Todd

Dr. James Todd, the orthopedic surgeon who operated on Melancon’s hip following her fall at Stonebridge, testified as an expert witness. Dr. Todd said Melancon had a femoral neck fracture in the right hip resulting from her fall on May 9, 2001. He briefly related the procedure for the surgery, which involved removal of the femoral ball, smoothing the area of the fracture, then attaching a prosthesis to replace the ball and repairing the stabilizing soft tissue over the hip.

Dr. Todd saw Melancon one month and one week after her surgery and found that “historically, she was doing quite well.” She was able to walk in excess of 100 feet using her walker and she was sitting comfortably in her wheelchair. She had some discomfort on internal and external rotation of the hip, which is one of the complications seen after this type of surgery. She also had chondrolysis (erosion of the acetabulum or cup in which the femoral ball fits), which Dr. Todd believed was what was causing her pain.

Dr. Todd said her hip joint surgery should improve arthritic problems in the area, because making the replacement component fits better more congruent than the ball that has been removed. The surgery not only fixes the hip, but also allows a more comfortable range of motion and more activities. Dr. Todd agreed, however, that due to Melancon’s age and injury, it could be anticipated that she would have problems after the surgery. He said common complications following | sendoprosthetic replacement are chondro-lysis or acetabular erosion, dislocation, infection, component loosening, as well as other medical problems associated with surgery in general, such as blood clots, pneumonia, heart attack, and stroke.

Dr. Todd said he last saw Melancon in June 2001, when she was still in her post-surgery convalescent period. He thought she was doing quite well at that time. He had not seen records following her progress since then, so he was unable to discuss her condition after that date.

Asked to review the medical records from Meadowcrest Living Center, Dr. Todd stated that the records noted “repeated patient falls” and “repeated patient injury” and listed dates for a couple of falls. Dr. Todd noted that statistically, a majority of elderly persons who have hip surgery never regain the baseline activity. In addition, there is more of a risk for unfavorable outcome in patients with Alzheimer’s.

Dr. Patrick Stumpf

Dr. Patrick Stumpf, an expert in the field of family medicine, testified he treated Melancon from February 1997 until she entered Stonebridge in July 2000. He first suspected she had Alzheimer’s in September 1998 and she was diagnosed with Alzheimer’s in November 1999. She was in fairly good health for a person her age, other than the Alzheimer’s dementia. Dr. Stumpf said Alzheimer’s disease is a condition where the cognitive functions of the patient’s brain are impaired, leading to loss of ability to concentrate, loss of memory, and things of that nature. In some patients it can lead to loss of ability to ambulate.

Dr. Stumpf was not aware of any problems with Melancon’s hip while she was his patient. During the three-year period in which he treated her, there was only one report of a fall, when Melancon tried to climb into a baby bed and it |3collapsed. Dr. Stumpf said he received a telephone call about the incident and was told she sustained a gash in her leg, but she was not brought to see him.

Dr. Stumpf stated that having Alzheimer’s does not place a patient at particular risk for falling, nor does it mean the patient’s general health is going to deteriorate quickly. He has seen many Alzheimer’s patients who remain healthy for a long time. He said Alzheimer’s is a progressive, incurable disease and in many cases leads to the patient being unable to ambulate, even where the patient has not had hip fracture or problems with other broken bones.

Dr. Stumpf said Melancon had large calluses on the bottom of her feet that impaired her walking at times. However, he did not recall her having problems walking. He agreed that an elderly patient with moderate-to-severe Alzheimer’s who becomes non-ambulatory as the disease progresses could develop pressure sores. He said anyone who becomes non-ambulatory for any reason is prone to develop pressure sores, if they’re not turned and mobilized on a regular basis. On the last occasion he saw Melancon, to fill out the form for her admission to Stonebridge, she had a lesion on the bottom of her left foot; however, he did not know what caused it.

Dr. Michael Russo

Dr. Michael Russo, an expert family practice physician, first treated Melancon in August 2000 when she was a resident of the Alzheimer’s unit at Stonebridge. At that time, other than Alzheimer’s, she had an easily reducible hernia, and some peripheral vascular disease, but otherwise was fairly functional for a person of her age. Her only problems were those normal for a 76-year-old woman. He did not note her to be a particular fall risk. She had some mild arthritis, but no major problems. At one point between her admission to Stonebridge and the |inaccident in May 2001, she developed pneumonia, but otherwise was “pretty healthy.”

Dr. Russo said that Stonebridge personnel called him when the accident with the food cart occurred. He told them to arrange for x-rays. The Stonebridge records indicate the accident occurred at 8:45 a.m. He admits it was nine hours and 50 minutes before Melancon was admitted to the emergency room. He admits that her medical record does not indicate she was given any pain medication during that entire time, but says no nurse informed him that Melancon was in excess pain. He said that if the patient is in pain, usually a nurse will call and request a pain medication.

Dr. Russo admitted that in Melaneon’s situation it was an “abhorrent” amount of time for someone with a broken hip to be deprived of any type of pain management. He said he was called about Melancon two times that day: once that she’d fallen, when he ordered x-rays; the second time when he was informed that the x-rays showed she had a broken hip and he gave the order to send her to the hospital emergency room. He said if he had been alerted to the fact she was in pain, he would have ordered medication for her.

Dr. Russo said that broken hips are a cause of morbidity in older patients, that an elderly person who has had a broken hip usually goes into a downward spiral, and that even when they do well after the surgery, they still suffer long-term problems. He could not recall any patient he has ever treated over the age of 70 who had a broken hip and surgery and made a full recovery. He stated, “It’s usually a major setback in their progression.”

Dr. Russo said he last saw Melancon fairly close to the time of the accident, after which she passed out of his care, and he was unable to say what happened to her after that. He said that during the time he was treating Melancon, her | n Alzheimer’s was relatively stable in the moderately advanced stage. He noted that Alzheimer’s primarily starts with recent memory disturbances and eventually progresses to problems with bowels, bladder, ambulation, and appetite. People stop eating and become less mobile and eventually become bed-bound. He’s seen patients do that even without hip fractures. Once they become non-ambulatory they are more prone to development pressure sores, simply because of immobility.

Dr. Russo testified that Melancon was treated for pneumonia in November 2000 and again in March 2001, which was probably a recurring infection. Asked how pneumonia affects a 76-year-old Alzheimer’s patient, Dr. Russo says physical strains can make deterioration more rapid. His review of the records for Melancon’s March 15,. 2001 treatment indicates she was in delirium pneumonia and was place under “supervised sedation,” but he says it’s very unusual to sedate someone who is in respiratory distress, unless the person is out of control in their behavior. That would be a serious medical condition.

Dr. William Long

Dr. William Long, an expert in the field of family practice, testified he treated Me-lancon beginning in November 2002 at Meadowcrest Living Center and was still her treating physician at the time of trial. She was doing relatively well on his first visit with her, although she was apparently bed-bound. She had recently been released from the Advance Care unit at West Jefferson Hospital after having had treatment for a pressure sore on her ankle, which required a skin graft. It was a Stage TV decubitus ulcer, which is as bad as such a sore can be.

Dr. Long said decubitus ulcers are related to the patient’s being on a particular area for too long a time. They develop pressure over bony areas, which compromises the circulation; eventually, the skin breaks down and forms ulcers, | ^commonly known as bed sores. The fact that Melancon had developed these ulcers indicated she had been immobile for a period of time. The Meadowcrest Living Center records had no notation of the first three stages of the development of the ulcer that required the skin grafting.

However, Dr. Long said, the Meadow-crest Living Center records show there was concern about Melancon’s mobility and ambulation when she was admitted. In addition, there are notes indicating the possibility that Melancon may had falls or injuries during the period between her admission to Meadowcrest Living Center and when Dr. Long began seeing her. There also is a note that in April 2002 Melancon was “totally in wheelchair.”

Dr. Long said these possible falls, injuries, and immobility would be contributed to by Melancon’s hip surgery. In addition, notes regarding Melancon’s pain establish she was still having pain due to the left hip arthroplasty five months after the surgery. The notes indicate that in April 2002 Me-lancon was most in a wheelchair, but was able to ambulate at times without assistance. A note in May 2002 indicated that Melancon required maximum assistance with activities of daily living, which would include bathing, brushing her teeth, cleaning herself, and eating; in addition she ambulated per wheelchair and walked without it at times.

Dr. Long agreed the hip fracture would make Melancon less mobile and it was more probably than not a causative factor in the immobility that resulted in the decu-bitus ulcers. He said it also was more probable than not that the hip surgery contributed to Melancon’s declining physical condition. He admitted he would be surprised if an elderly patient of Melan-con’s age who recovered fully from hip surgery without any adverse effects.

On cross examination Dr. Long testified that Alzheimer’s usually causes problems with memory and behavior, but can begin to cause problems with bowel |13and bladder incontinence, problems getting around and ambulating, and can lead to disorientation, confusion and agitation. In severe cases it will progress to the point where the patients are non-ambulatory. Such patients become bed-ridden and are more prone to develop decubitus ulcers.

Questioned about various notes throughout the Meadowcrest Living Center records, dating back to when Melancon was first admitted there, Dr. Long stated they indicate Melancon was able to move about and ambulate without assistance through April 2002. He said anytime somebody elderly has had a fractured hip and has Alzheimer’s, there are going to be some problems in the future, even if the person is able to get up and move. The fracture will still contribute to difficulties with mobility. The patient is not going to get back to the same level as before she broke her hip. He felt both the Alzheimer’s disease and the hip fracture contribute to Melan-con’s being non-ambulatory.

Meadowcrest Living Center Records

The medical records from both Stone-bridge and Meadowcrest Living Center, from the time Melancon returned to Stone-bridge until Dr. Long assumed her care in November 2002, indicate that Melancon was ambulatory by July 17, 2001. The notes document that Melancon had episodes of wandering and that she had a WanderGuard monitoring bracelet placed on her so the staff could track her whereabouts. She had a fall on September 24, 2002 that left her with an unspecified decline in her physical health; the note indicates a decline in wandering and decline in social interaction.

The MDS (Minimum Data Set) information sheets appearing at intervals in the records indicate a gradual decline in Me-lancon’s ability to move around and care for herself. On July 17, 2001 she required no help from staff to move around 114in her bed, to transfer from bed to chair to wheelchair or standing position, to move around in her room or in the corridor, and to use the toilet. She needed some help with eating and personal hygiene and help in getting dressed. The MDS noted she did not use any assistance to ambulate.

The MDS dated October 16, 2001 showed that Melancon required supervision for walking in room or corridor or around the unit and in eating. She required limited assistance with dressing, toilet use and personal hygiene.

The MDS of January 17, 2002 showed Melancon was beginning to require supervision and a person to assist her with walking in her room, the corridor, and around the unit.

The MDS dated April 16, 2002 indicated Melancon was still independent with bed mobility, but now required limited assistance with all other activities except toilet use, for which she was totally dependent.

Curiously, the MDS dated July 16, 2002 indicated that Melancon was still independent with bed mobility, but required only supervision for walking in her room and the corridor, that she still required limited assistance with other activities, and still totally dependent for toilet use. It indicated she did not use any assistance (walker, etc.) while walking.

The MDS on September 22, 2002 indicated Melancon continued to be totally dependent for toilet use, totally independent for bed mobility, required one person to assist her with moving from bed to chair, etc., to move around the unit, to dress, to eat, and with personal hygiene. There was a notation that Melancon did not walk in room or in corridor during the past seven days and that the wheelchair had become her primary mode of transportation.

None of the MDS forms mention any formation of decubitus ulcers. This indicates a lapse in the note-taking procedure, because it is documented that [ ^Melancon had to be removed from Meadowcrest Living Center for treatment of a Stage IV decubitus ulcer from September to December 2002.

We note, separately, the time gap in physician testimony between Dr. Russo and Dr. Long. After Melancon was moved to Meadowcrest Living Center, she was treated by Dr. Charles Simonson from approximately July 2001 until November 2002, when Thibodeaux requested a different physician. The reason for the request was that Thibodeaux had learned that Dr. Simonson was the medical director not only of Meadowcrest Living Center, but also of Stonebridge, and by then Melancon was engaged in litigation with Stonebridge. Neither party called Dr. Simonson to testify.

ACTION OF THE TRIAL COURT

In the reasons for judgment, which were included within the judgment, the trial court set out the following analysis of Me-lancon’s general damages:

The Court heard testimony and reviewed the medical records filed as evidence and does find that plaintiff is entitled to general damages in the amount of $150,000.00. Most compelling to this Court was the testimony and documentation of the way plaintiff was treated by the defendant immediately after the accident, in particular the fact that she did not receive medical treatment for a period of eight to ten hours.
It is important to note that in assessing general damages this Court reviewed the entire record and evidence submitted and noted that the purpose for Mrs. Melancon’s admittance into a convalescent home was to prevent her from harming herself and others as well as her failing health. Mrs. Thibodeaux, plaintiffs daughter, testified her mother was in the habit of wandering out of her residence and into neighboring areas. There was also testimony that Mrs. Me-lancon injured herself climbing into a baby’s crib. Basically, and unfortunately, Mrs. Melancon is on a downward spiral and it becomes difficult to effectively prove a causal link from a past accident and occurrence to a present condition. In addition to the dementia related to Alzheimer’s, Mrs. Melancon constantly battled upper respiratory problems as well as other health issues throughout her admittance |ifito Stone-bridge Convalescent and the Meadow-crest Living Center.

The trial court found Melancon was entitled to special damages for the admission and associated costs of Meadowcrest Hospital, as well as the professional charges of Dr. Todd and the cost of rehabilitation warranted by the accident of May 9, 2001. The total for those three items was $85,632.15.

The other bills consisted of $8,277.65 to Meadowcrest Hospital for treatment of injuries from a fall on September 9, 2002, $152,839.49 to West Jefferson Advance Care for treatment of a decubitus ulcer on Melancon’s ankle, and $14,536.00 to West Jefferson Medical Center for treatment of a decubitus ulcer on Melancon’s left hip. In denying any awards for these items, the court stated:

The records from Meadowcrest Living Center indicate that the plaintiff was found lying on the floor in another resident’s room injured. The plaintiff could not advise what occurred and there were no witnesses identified in the records.
It was documented that plaintiff, due to her mental state, had a habit of wandering and being abusive to other residents and staff of Meadowcrest Living Center. It was documented that plaintiff wandered to the extent that the staff had to put an instrument on her to record her movements. It was also recorded that plaintiff would go into other residents’ rooms and handle their belongings. The Court further took notice of the testimony of witnesses in the trial who stated the plaintiff made a remarkable recovery from the injury ... of May 9, 2001.
For the foregoing reasons, this Court finds that the plaintiff failed to show a causal link between the accident of May 9, 2001 and the injury and treatment as a result of the occurrence of September 9, 2002.

With regard to the medical bills arising from Melancon’s admission to West Jefferson Advance Care on January 8, 2003, the court found:

A review of these records show plaintiff was transported from Meadowcrest Living Center to West Jefferson Advance Care after she was found lethargic by |17Meadowcrest Living Center staff. The diagnosis provided by the treating physician was that the plaintiff was suffering dehydration and malnutrition. A decubitus ulcer was also treated while admitted for the main illness.
The Court finds that the plaintiff failed to show a causal link between the accident of May 9, 2001 and plaintiffs subsequent dehydration and malnutrition. In fact the Court heard testimony that these types of illnesses were associated with Alzheimer’s.

Finally, with regard to the assertion that several decubitus ulcers from which Me-lancon has suffered are related to her 2001 hip injury, the court found:

Plaintiff also requested the court to consider the development of decubitus ulcers as a result of plaintiffs lack of ambulation due to the accident of May 9, 2001. A reading of the medical records submitted as evidence shows that the plaintiff had a decubitus ulcer prior to the accident of May 9, 2001. A decubi-tus ulcer was noted on her medical chart prepared by Dr. Russo and sent to Sto-nebridge Convalescent Home by fax on December 11, 2000. In addition records showed plaintiff ambulated frequently, to the point that the home had to put a monitoring device on her to keep track of her. This Court also heard testimony that these ulcers were a common occurrence in plaintiffs condition with the illnesses she suffered.
In regards to the decubitus ulcers, plaintiff has failed to establish causation to the accident of May 9, 2001.

LAW AND ANALYSIS

Melancon points out that, contrary to the trial court’s statement in the reasons for judgment, none of the witnesses ever said that Melancon had made a remarkable recovery. The judge’s statement that witnesses said Melancon had made a “remarkable recovery” was clearly wrong; no witness said that or anything close to it.

Melancon points out that Dr. Long’s un-rebutted medical testimony linked the de-cubitus ulcers to the hip injury and that Stonebridge called no medical witness to controvert Dr. Long’s opinion. According to Melancon, she has incurred |isnearly $170,000.00 in medical costs for treatment of the decubitus ulcers alone, outside of Meadowcrest Living Center, and Dr. Long related these to her broken hip.

Melancon also contends that the trial court committed manifest error in failing to award her greater general damages, because the court ignored unrebutted testimony establishing her right to such damages. First, Stonebridge left her without medical care or pain medication for a period of 10 hours before she was taken to the emergency room and during that period she was screaming in pain. Second, she contends the immobility caused by her failure to return to her former state of health after the hip surgery cause her to suffer “gruesome and disfiguring” decubitus ulcers for which she has required extensive treatment.

Melancon contends that unrebutted, un-contradicted or unrefuted medical testimony must be accepted by trial courts as conclusive of establishing medical causation, even in situations where the unrebut-ted medical testimony conflicts with the testimony of lay witnesses. Likewise, Me-lancon argues, trial courts are not permitted to disregard unrebutted medical testimony in limiting a Melancon’s damages when the testimony compels the award of greater damages.

A defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993). The defendant is liable for the harm it causes even though under the same circumstances a normal person would not have suffered that illness or injury. Lasha, 625 So.2d at 1006.

When the defendant’s tortious conduct aggravates a pre-existing condition, the defendant must compensate the victim for the full extent of the aggravation. Id. A tortfeasor is liable not only for the injuries which he causes directly to the tort victim, but also for additional suffering caused by inappropriate medical treatment. |19M The defendant is liable for the aggravation during treatment of plaintiffs injuries, even where such aggravation is due to the negligence of another, so long as plaintiff exercised reasonable care in selecting those in whose care he placed himself. Id.

Thus, when there is no evidence that a plaintiff was at fault in placing himself in physicians’ care, the trial court commits legal error in denying plaintiff recovery from the defendant based on the theory that his subsequent injury was caused by a source different than the original tortfea-sor.

“There can be, and frequently is, more than one cause of a particular injury. A party’s conduct is a cause-in-fact of harm to another whenever it is a ‘substantial factor’ in bringing about that harm.” Saden v. Kirby, 94-0854 (La.9/5/95), 660 So.2d 423, 428.

A trial court’s finding of fact may not be reversed absent manifest error or unless clearly wrong.... The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.
Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. [Citations omitted.]

Miller v. Clout, 03-0091, p. 6 (La.10/21/03), 857 So.2d 458, 462.

With respect to the amount of damages awarded, however, the standard is not manifest error, but abuse of discretion:

[T]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular |2ocircumstances that the appellate court should increase or reduce the award.

Miller, 03-0091 at p. 7, 857 So.2d at 463, quoting Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993).

We conclude the trial judge was clearly wrong in basing the general damage award on his belief that Melancon had made a “remarkable recovery,” as noted above. As detailed in the factual section of this opinion, Melancon did not make a remarkable recovery; rather, from the time of the accident her condition began a marked downward spiral. It is true, as the judge noted, that Melancon’s pre-exist-ing Alzheimer’s disease and other pre-ex-isting conditions make it impossible to prove her subsequent problems were solely the result of the accident made the basis of this suit.

Nevertheless, it is well established that “a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct.” American Motorist Ins. Co. v. American Rent-All, Inc., 579 So.2d 429, 433 (La.1991).

At trial of this matter Melancon was unable to speak for herself to describe her injuries or to inform the court of the pain she suffers and the disability that remained and increased after her surgery. She is part of that growing portion of our populace sliding into a deepening twilight in their last years, those for whom others must be their mouthpieces. Locked within their own minds, these citizens — our grandparents, our parents, someday ourselves — must depend on others to sense the needs they cannot express for themselves. Confused and sometimes agitated, in their minds their world is different from our reality. They must rely on others to interpret their sometimes contradictory, sometimes bizarre behavior, and they need others to protect them.

121 The trial court erred in holding that Melancon’s “downward spiral” could not be effectively proven to have a causal link to the accident on May 9, 2001. In fact, none of the physicians who testified said or even implied that Melancon had recovered from her hip injury. We believe the subsequent falls she suffered were not separate intervening causes of her problems, but rather resulted from the weaknesses created by the original fall.

Accordingly, we find the trial court abused its discretion in the amount awarded as general damages. The effects of Melancon’s severe hip fracture lasted beyond the initial recovery period. Although ultimately her Alzheimer’s disease would have resulted in loss of the ability to walk, nevertheless we find it clear that her hip injury accelerated that process, as well as producing greatly increased suffering.

Taking into account all the factors, including Melancon’s age when the accident occurred; the length of time she was hospitalized; the surgical procedures; the length of time she was bedridden; her total recovery time, especially considering that she never regained her former statement of health, but rather continued declining, we find that the lowest reasonable amount of general damages that should have been awarded was $400,000.00. See Southern v. Lyons, 97-19, p. 7 (La.App. 3 Cir. 5/28/97), 696 So.2d 128, 132-133, writ denied 97-1729 (La.10/13/97), 703 So.2d 617.

ATTORNEY FEES

This suit was brought not only in tort but also under the Nursing Home Residents’ Bill of Rights Law (henceforth, “NHRBRL”), La.R.S. 40:2010.6-40:2010.9. La.R.S. 40:2010.9 permits civil enforcement of the law and allows the injured party to recover not only damages but also attorney’s fees from the | ^defendant nursing home. As noted previously in this opinion, the trial court awarded $70,000.00, which the court stated was for both attorney’s fees and costs.

Melancon asserts that if this Court increases the damages award, the attorney’s fee award should be increased proportionately. Even if there is no increase in the damages, however, Melancon complains that the amount awarded was significantly less than the amount provided in the contingency fee contract, although the trial court indicated it was relying on the contract.

The contingency fee contract provides for a fee of thirty-three and one-third percent any settlement, award, compromise or other recovery if the matter is concluded prior to filing suit and for a fee of forty percent of any settlement, award, judgment, compromise or other such recovery obtained during or after any trial or appeal.

Melancon points out that subtracting the recoverable costs ($6,798.73) from the trial court’s combined attorney’s fees/costs award ($70,000.00) would leave her with an attorney fee of $63,201.27, far lower than the amount her attorney is entitled to recover under the contingency fee contract.

In Short v. Plantation Management Corporation, 99-899, pp. 32, 34 (La.App. 1 Cir. 12/27/00), 781 So.2d 46, 65, 66, an action against a nursing home alleging negligence and violations of the NHRBRL, the first circuit affirmed the “significant sum” of $238,813.94 in attorney fees, based on a 33-]é% contingency fee contract between the plaintiff and her counsel. The court ruled that the award of attorney fees was reasonable, where there was a general damages award of $650,000, the contingency fee contract provided for 33-^% of total amount of damages collected, and the causes of action were intricately intertwined, in that the [^defendant’s negligent failure to adequately provide medical care caused the plaintiffs injuries and simultaneously violated the provisions of the NHRBRL.

Here, as in the Short case, the causes of action are intricately intertwined. Stonebridge’s initial tort — the injury to Melancon through its employee’s negligence — was compounded by the lengthy delay in getting her pain relief and treatment for her injury. Those actions also were simultaneous violations of the NHRBRL.

We find the trial court abused its discretion in reducing the attorney’s fee award so drastically from the percentage stated in the contingency fee contract. As' stated in Short, “The attorney fee is a penalty designed to make the plaintiff whole and to aide in preventing neglect or abuse of those confined to a nursing home. Basing the award on what the plaintiff is contractually obligated to pay is a reasonable approach.” Short v. Plantation Management Corp., 99-0899 at p. 34 (La.App. 1 Cir. 12/27/00), 781 So.2d at 66.

Considering the increase in damages we award, the new gross amount of the judgment is $492,430.88. We have reviewed the record in light of the factors courts must consider in determining attorney’s fees and we find that $150,000.00 is an appropriate amount.

DECREE

For the foregoing reasons, the judgment is amended to increase the general damages award to $400,000.00, making the total amount awarded for damages li>4$485,632.15 and to award attorney’s fees in the amount of $150,000.00. As amended, the judgment is affirmed. The defendant-appellee, Stonebridge, L.L.C. d/b/a Stonebridge Convalescent Center, is cast with all costs for the trial and the appeal.

AMENDED AND AFFIRMED AS AMENDED.

      . The $1,000.00 discrepancy between the sum of the two damages awards ($235,632.15) and the total listed in the judgment ($236,632.15) apparently is an error in calculation or addition, but Stonebridge has not sought review of it.

      . La.R.S. 40:2010.8 and 40:2010.9.

      . One month after the judgment was rendered, Stonebridge made an offer of judgment in the amount of $311,102.08 and Stone-bridge deposited the funds into the registry of the court. Melancon subsequently filed an ex parte motion to withdraw the funds from the court registry. There was some skirmishing because Stonebridge wanted the judgment clarified to specify the amount attributable to costs and the amount attributable to attorney's fees, but apparently that dispute was resolved. Stonebridge has stated in pleadings and in its appellate brief that it is satisfied with the judgment in the amount of $311,102.08.

      . Some time after this lawsuit was instituted, Thibodeaux learned that Dr. Simonson was the medical director of both Meadowcrest Living Center and Stonebridge. She asked that Melancon be treated by a different doctor because of the apparent conflict of interest due to this suit against Stonebridge.

      . "The hospital” refers to Meadowcrest Hospital, a different entity than Meadowcrest Living Center.

      . The case was decided by a five-judge panel in which three members disagreed on various issues, resulting in a majority opinion on liability authored by Fitzsimmons, J., and a separate majority opinion on the issue of attorney's fees authored by Weimer, J.

      . Those factors are: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment would preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and the length of time of professional relationship with the client; (7) the experience, reputation and ability of the lawyer or lawyers performing the service; and (8) whether the fee is fixed or contingent. City of Baton Rouge v. Stauffer Chemical Co., 500 So.2d 397, 400 (La.1987).