author: | ¡WALTER J. ROTHSCHILD, Judge.

text:
    Carol VICKNAIR and Harold Vicknair v. BOH BROS. CONSTRUCTION CO., L.L.C., Frank Ryals and Parish of Jefferson.
    No. 03-CA-1351.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      A.J. Rebennack, The Caluda And Re-bennack Law Firm, Metairie, LA, for Carol Vicknair and Harold Vicknair, Plaintiffs/Appellees.
    H.F. Foster, III, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, LA, for Boh Bros. Construction Company., L.L.C., Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and WALTER J. ROTHSCHILD.
   | ¡WALTER J. ROTHSCHILD, Judge.

The plaintiffs, Carol and Harold Vick-nair, filed suit against several defendants, alleging that they sustained damage to their home, located at 533 Elise Lane in River Ridge, as a result of construction work that took place on the street behind their home, Sauve Road. They assert that the work of the defendants, which was an emergency sewer repair, resulted in a cracked slab, cracked ceiling, and cracked walls in their home. Several defendants were dismissed prior to trial, including Brown, Cunningham, and Gannauch (“BC & G”), which was the engineering firm hired by Jefferson Parish. On August 11, 2003, the matter proceeded to trial against the remaining defendants, Boh Bros. Construction Company, L.L.C. (“Boh Bros”) and the Parish of Jefferson.

After presentation of the plaintiffs’ case, both defendants moved for judgments of involuntary dismissal. The trial court granted an involuntary dismissal in favor of Jefferson Parish, dismissing it from this lawsuit. However, the trial court denied Boh Brothers’ motion, and trial against this defendant continued and concluded on August 13, 2003. On August 14, 2003, the trial court rendered a judgment in favor of the plaintiffs and against Boh Bros, for | s$50,000.00. It is from this judgment that Boh Bros, appeals. For the reasons which follow, we reverse.

FACTS

In the summer of 1997, Jefferson Parish contracted with Boh Bros, to perform an emergency sewer repair on Sauve Road. At trial, Harold Vicknair testified that in June of 1997, construction began on Sauve Road behind his fence and yard. He stated that heavy machinery was used and this machinery was labeled with the name, “Boh Bros.” During the construction, he observed the workers pounding the sheet pilings in the ground close to his fence, and he contends that this activity made a great deal of noise and caused his entire house to shake. Mr. Vicknair indicated that the driving of the sheet piling occurred for about a week, and on one occasion, it caused a ceiling fan in the home to become dislodged and tilted.

Approximately two weeks after the installation of the sheet piling, Mr. Vicknair started noticing damage, including cracks in the ceiling of the kitchen area, which was an addition to the house. There was a small stress crack in the ceiling prior to this construction, but it was minor compared to the cracks after the construction. Mr. Vicknair also noticed that there were cracks in the flooring and walls, and the cabinets and bi-fold doors would not close. He stated that the home was in excellent condition when he and his wife purchased it in 1995, and it had no structural problems or damage prior to the construction work.

Mr. Vicknair testified that he contacted Boh Bros, about the damage approximately one month after the work was completed. Jeffrey Clement, who is a claims manager for Boh Bros., and Donald Abadie, who was a superintendent on the job, came out on behalf of Boh Bros, to view the damage and investigate the complaint. According to Mr. Vicknair, Mr. Clement said that Boh Bros, would take care of the problem, but they did not.

|4CaroI Vicknair testified that she and her husband bought the home on Elise Lane in 1995 and it was in excellent condition, with no structural problems. In the summer of 1997, she was at home babysitting several children when the road construction began behind her home. She witnessed “huge machines” driving sheet piling into the ground, and this equipment was labeled with “Boh Bros.” She stated that this “pile driving” affected her home. She noticed white powder from the ceiling on the floor and a ceiling fan became dislodged during this activity. During the driving of the sheet piling, the chandeliers and the china in her cabinet would shake. She complained to the workers about the pounding of the piling with a backhoe, because it scared the children.

Mrs. Vicknair testified that there was no apparent damage to her home prior to the construction, but approximately 3 weeks to a month after the work, she noticed cracks in the ceiling, walls, and floors. She admitted that there was a stress crack in the ceiling of the kitchen area prior to the construction, but she stated that it was a very minor hairline crack and not an “opening” prior to the construction.

Brett Todd testified that he was the Director of the Sewerage Department for Jefferson Parish at the time of this job. After being notified of possible sewerage problems on Sauve Road, he went to the site and saw that the road had collapsed in one area. On behalf of Jefferson Parish, he hired Boh Bros, to do the construction necessary to fix the problem and BC & G to inspect the job. There were no written plans or specifications for this job, because it was an emergency repair. He stated that it was Boh Bros.’ responsibility as the contractor to determine the means and methods of construction for this job.

Donald Abadie, who is a representative of Boh Bros, and a superintendent on this job, testified that BC & G told them how to install the sheeting, what machines to use, and how far to dig, because they were in charge of the job. Boh Bros, relied on BC & G to make sure that the work would not cause any damage. | sThere were no written plans, but Boh Bros, followed verbal instructions from BC & G. He stated that the steel sheeting was installed using a vibratory hammer, and the wood sheeting was driven using a backhoe. After the Vicknairs complained to Boh Bros., he went with Jeff Clement to their home and did not notice much damage, except a crack by the kitchen/dining area.

Richard Avent is a structural engineer who testified for the plaintiffs. He visited the Vicknair home in May 2002 and saw a large crack in the ceiling and some cracks in the slab. He noticed that the slab of the kitchen addition was settling downward and beginning to separate from the rest of the house. He stated that the location where the kitchen addition meets the house is a weak area, and if problems were to occur, they would occur at that location. He viewed photos from 1995 of the crack in the ceiling and stated that the crack was very minor at that time.

Based on Dr. Avent’s inspection of the premises and his discussion with Mrs. Vicknair in which she described the vibrations, he believes that the slab settled and moved a great deal. He believes that the Vicknairs would have noticed the cracks if they had been present prior to the construction. Dr. Avent stated that when sheeting is installed using a backhoe, the sheeting is hit with the backhoe when it reaches a hard spot in the ground, and this can shake a home. He opined that the cracks occurred fairly suddenly, and the probable cause of the cracking was the work done during the sewer repair, particularly the driving of the sheet piling. He testified that the cracks were not caused by settlement, because settlement is a slow process and these cracks opened over a short period of time. The appearance of large cracks over a short period of time indicates that an outside disturbance was the likely cause of the cracks.

Charles Iglesias is a licensed architect who assembles pricing and costs for renovation work. After inspecting the premises and performing a level survey, Mr. | filglesias opined that the cracking damage was caused by a sudden change or violent act. He saw pictures of the 1995 crack and stated that it was a stress crack, but he related the current problems with the Vieknairs’ home, such as the cracked and shifted slab and the ceiling cracks, to the driving of the sheet pilings in 1997. He opined that it would cost approximately $80,000.00 to repair the damage to the home.

Dan Moliere, formerly an inspector for BC & G, was called to testify. He was assigned to the emergency sewer repair on Sauve Road. It was BC & G’s job to see that the work was being done properly and in accordance with general construction procedures. BC & G informed Boh Bros, of what was necessary to make the repairs and they complied with these instructions. However, BC & G did not tell Boh Bros, how to drive the sheet piling or how far to dig.

Mr. Moliere stated that the steel sheeting was started with a backhoe and then pushed and vibrated down. The wood sheeting was installed by putting a bucket on the backhoe and pushing down the sheeting, but he stated that they did not “beat” on the sheeting. When the wood pilings would hit a hard spot, they would “tap” on it with the backhoe. Boh Bros, employees operated the backhoe and pushed the sheeting into ,the ground.

Richard Dubus is an engineering inspector for Jefferson Parish. He inspects pipe laying and repairs for the Sewerage Department. He was at the site of the emergency sewer repair on Sauve Road every day from June 19, 1997 until July 3, 1997. He stated that the backhoe shoved some of the sheeting down, but there was no pounding when the sheeting was put in place. He testified that BC & G was the engineering firm on the project and they decided what needed to be done, but Boh Bros, was the contractor and they decided the means and methods for doing the job, including how to install the sheet piling and what equipment to use to drive it into the ground.

17Evan Conravey worked as a foreman for Boh Bros, on the Sauve Road sewer repair. BC & G told them what to do and they complied. He stated that the steel sheeting was set with a vibratory hammer and the wood sheeting was driven with a trackhoe. A backhoe was also used to drive the sheeting and the bucket of the machine would shove it into the ground. They sometimes had to tap on the sheeting with the bucket of the machine, but they did not pound it.

Jeffrey Clement is a claims manager for Boh Bros. He received a complaint from Mrs. Vieknair and went to her home to investigate. He saw a crack in the ceiling and took a picture of it. He did not tell the Vieknairs that Boh Bros, would take care of the damage, because the investigation was not completed.

Fred Vanderbrook, a mechanical engineer, was called to testify. He stated that he reviewed pictures and depositions, and he visually inspected the Vieknairs’ home and took elevation measurements. He stated that the kitchen was an addition to the home and was on an additional slab that was not tied to the original house. The major crack in question is at the intersection of the kitchen addition and the original house, which is the same place as the crack in the 1995 photographs. The elevation measurements showed that the main house was essentially level, but the kitchen addition was tilted 1 lk inches downward to the right.

Mr. Vanderbrook stated that wood sheeting is normally pushed in with a baekhoe bucket, but any significant hammering would damage the wood. He opined that the energy from the vibration of the sheet piling, whether caused by the vibratory hammer or the baekhoe, would not create sufficient vibrations to damage the Vicknairs’ home. He believes that the cracks were caused by common ground settlement due to differences in the foundation type between the main house and the addition. He also believes that normal consolidation of the soil, along with shrinkage of the soil during periods of drought, led to the downward movement of the addition and caused cracks. He opined that the ongoing settlement of the | skitchen caused the crack that was present in 1995 to enlarge as the settlement continued.

Mr. Vanderbrook admitted that an addition with a different foundation than the main house could be more prone to damage from sheet driving or construction, but he does not believe that the work done by Boh Bros, could have caused the damage in this case.

Charles Hedges was accepted as an expert in civil engineering, specializing in geotechnical aspects of engineering and vibrations that may emanate from construction. He looked at the soil conditions in River Ridge and examined the Vick-nairs’ home. The focus of the visit was the crack in the ceiling of the kitchen area and he stated that the pictures showed this to be the same crack that was present in 1995. He stated that the bucket of a baekhoe is sometimes used to install sheeting, but this would not have damaged the Vicknairs’ property. He stated that the vibrations from passing cars would be equal or greater to the vibration created by Boh Bros, during construction, and the possibility of damage from either would be very small. If the damage to the house was caused by vibrations from the construction, he would expect damage to be present in different areas of the house and it would appear instantly, not over 3 weeks or a month. He stated that where the kitchen was added to the original house was the weakest point in the ceiling, and the original 1995 crack would become wider over time due to consolidation of the soil.

DISCUSSION

Mr. and Mrs. Vicknair testified that although there had been a small stress crack in their ceiling since 1995, the crack became much larger and other cracks appeared after the sewer repair work took place. The plaintiffs’ experts believed that the damage to the Vicknairs’ home was caused by the repair work of Boh RBros. However, the defendant’s experts opined that the damage was caused by settlement or consolidation of the soil.

The effect and weight to be given to expert testimony is within the broad discretion of the trial judge. Lanasa v. Harrison, et al., 02-26 (La.App. 4 Cir. 8/7/02), 828 So.2d 602, 605, writ denied, 02-2512 (La.11/27/02), 831 So.2d 286. Where the testimony conflicts, the factfin-der’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal. Hammock ex rel. Thompson v. Louisiana State University Medical Center in Shreveport, et al., 34,086 (La.App. 2 Cir. 11/1/00), 772 So.2d 306, 312.

In its reasons for judgment, the trial court indicated that it believed the plaintiffs’ experts that the cause of the damage was the repair work performed by Boh Bros. Considering the record before us, we find that the trial court’s conclusion was reasonable. However, even if Boh Bros.’ work caused the damage, Boh Bros, argues that it is not responsible for the damage to the Vicknairs’ home, because it was not negligent or strictly liable. We agree.

In the plaintiffs’ petition, they argue that the defendants, including Boh Bros., were negligent by improperly driving pilings, failing to exercise reasonable care, failing to safeguard the plaintiffs’ home, and by engaging in construction and other activity that caused damage to the plaintiffs’ home and property. However, the testimony at trial reveals that Boh Bros, was not negligent.

Dan Moliere is a former inspector for BC & G, and he was assigned to the emergency sewer repair on Sauve Road in 1997. He testified that BC & G determined what work had to be done on the project and told Boh Bros, what they had to do. He stated that Boh Bros, complied with the instructions from BC & G. He further stated that the method used by Boh Bros, to install the sheeting was the standard method used in the industry. He indicated that Boh Bros.’ work was done in accordance with standard construction techniques, and BC & G would have Imstopped the work if they believed that it could have caused any damage to nearby property. He stated that there was no time for vibration studies because it was an emergency job, but he did not believe that such studies were necessary. To his knowledge, there was nothing in this job that created a hazard to anyone or any property damage, and he was not aware of any complaints during the job. He believes that the work was properly done by Boh Bros.

Brett Todd was the Director of the Sewerage Department for Jefferson Parish at the time of this job. He was notified of a sewerage problem on Sauve Road and, when he arrived at the site, he found that the road had collapsed. In order to protect the public, he ordered an emergency repair of the road and hired Boh Bros, to fix the problem. BC & G, an engineering firm, was hired to inspect the job and an engineering inspector was at the site while the repair took place.

Mr. Todd testified that Jefferson Parish had a working relationship with Boh Bros, for years, and Boh Bros, had previously performed this type of work without complaints. He stated that the engineering inspector would shut down the job if he believed it was a detriment to the public. He testified that Jefferson Parish had no reason to believe that the work would cause damage to the property and he knew of no reason for Boh Bros, to believe that their work was hazardous.

Richard Dubus, an engineering inspector for Jefferson Parish, was at the work site every day. He testified that nothing different was done in this sewer repair than any other sewer repair. The work performed by Boh Bros, was in accordance with standard construction techniques. He stated that there were no complaints about Boh Bros.’ work during the job, and there was no reason to believe that the work would create a hazard or cause damage to property. He did not think that vibration monitoring or soil boring was necessary.

Evan Conravey worked as a foreman for Boh Bros, on this project. He testified that they complied with the instructions of the engineers and used standard Inequipment to install the sheet pilings. He was at the site each day and was not aware of any complaints about Boh Bros.’ work. He testified that there was no reason to believe that the work was hazardous or could cause damage to nearby property.

Fred Vanderbrook, a mechanical engineer, testified that this was a simple repair job and he did not believe that Boh Bros, had any reason to believe that their work would cause damage to property. Charles Hedges, a civil engineer, also testified that he was not aware of any reason for Boh Bros, to believe that their work would cause damage to property.

Donald Abadie also testified on behalf of Boh Bros, with regard to this issue. However, the trial court did not believe that he was a credible witness, so we will not consider his testimony on this issue.

In order to prevail in a negligence action, the plaintiff has the burden of proving by a preponderance of the evidence both negligence of the defendant and that the damage was caused by the defendant’s fault. State Farm Mutual Automobile Insurance Co., et al. v. McCadney, 01-900 (La.App. 5 Cir. 12/26/01), 806 So.2d 776, 778-779. Although the trial court found that the damage to the Vicknairs’ home was caused by Boh Bros.’ work, the testimony produced by the plaintiffs did not establish that Boh Bros, was negligent in its performance of the work on this project. To the contrary, the testimony was clear that Boh Bros, complied with the instructions of the engineers and standard construction practices and techniques. Although there were no written plans in this case, the testimony revealed that the engineers, BC & G, gave Boh Bros, verbal instructions regarding what needed to be done, and Boh Bros, followed these instructions. The testimony also indicated that there was no reason to believe that the work performed by Boh Bros., in accordance with the instructions from BC & G, could cause damage to property or create a hazard. Considering the testimony, evidence, and pertinent hiJaw, we find that the plaintiffs did not establish that Boh Bros, was negligent in performing their work on the emergency sewer repair.

The plaintiffs argue that negligence is not required in order to find Boh Bros, liable, because they contend that the work performed by Boh Bros, is considered “pile-driving” per Lombard v. Sewerage and Water Board of New Orleans, et al., 284 So.2d 905 (La.1973), and pile-driving is ultrahazardous activity for which strict liability applies. However, a review of the Lombard case reveals that the work performed in that case is distinguishable from the work in this case. In Lombard, although sheet pilings were driven and some of the equipment was the same as in this case, additional work was performed that would constitute pile-driving. In addition to the sheet piling, the construction workers in Lombard used a steam hammer mounted on a skid and rollers to drive round, wooden, supporting pilings into the ground, and the court stated that they were “driven to the desired depth below the surface with a punch.” This type of work was not performed in the case before this court. Furthermore, several witnesses, including the plaintiffs’ own expert, Richard Avent, testified that there was no “pile-driving” performed in this case. Therefore, we find that the ultrahazardous activity of pile-driving did not occur in the present case.

We must now consider whether the work in this case constitutes ultrahaz-ardous activity, even though it is not pile-driving. In order for an activity to be considered “ultrahazardous,” it must be capable of causing injury to others despite the exercise of due care. Burton v. Conoco Offshore, Inc., et al., 93-599 (La.App. 5 Cir. 2/9/94), 631 So.2d 1374, 1377. However, if an activity can be conducted without a high degree of risk of injury by exercising due care, then it is not ultrahazardous. Davis v. Insurance Company of North America, et al., 94-698 (La.App. 1 Cir. 3/3/95), 652 So.2d 531, 537, unit denied, 95-0840 (La.5/5/95), 654 So.2d 334.

113The testimony at trial reveals that the work performed by Boh Bros, did not create a high risk of injury. There was no evidence of damage to other homes in the area and the testimony of several witnesses indicated that there was no reason to believe that the work would cause damage to property. Accordingly, we find that the work performed by Boh Bros, in this case was not ultrahazardous, and Boh Bros, is not strictly liable for the damage to the Vicknairs’ home.

We do not disagree with the trial court that the emergency sewer repair caused the unfortunate damage to the plaintiffs’ home. However, we cannot hold Boh Bros, liable where the evidence does not establish that Boh Bros, was negligent, and the activity was not ultrahazardous. Accordingly, we are compelled to reverse the trial court’s judgment in favor of the plaintiffs and against Boh Bros.

Considering our finding that Boh Bros, is not liable for the damage to the plaintiffs’ property, it is unnecessary for us to address the remaining assignments of error asserted by Boh Bros. Further, we note that Jefferson Parish was the owner and “proprietor” of the property where the work occurred, and the owner of property may be held strictly liable, pursuant to LSA-C.C. art. 667, under certain circumstances. However, Jefferson Parish was dismissed from this lawsuit and this ruling was not appealed by either party. Therefore, we cannot review whether Jefferson Parish would have been held liable in this case.

DECREE

For the reasons set forth above, we find that Boh Bros, is not liable for the damage in this case, and we reverse the judgment of the trial court.

REVERSED.


source: Caselaw Access Project

author: | .CLARENCE E. McMANUS, Judge. 11 DALEY, J.,

license: Public Domain

text:
    Mario SCRAMUZZA v. RIVER OAKS INC., d/b/a River Oaks Hospital and ABC Insurance Company.
    No. 03-CA-959.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      Jacob J. Amato, Jr., Kelly A. Hum-phreys, Amato & Creely, Gretna, LA, Counsel for plaintiff-appellee-2nd appellant.
    David A. Bowling, Wilson, Bowling & Kraus, New Orleans, LA, Counsel for defendant-appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and CLARENCE E. McMANUS.
   | .CLARENCE E. McMANUS, Judge.

Plaintiff, Mario Scramuzza, filed suit against defendant, River Oaks, Inc., for injuries to his arm that he sustained while attempting to transport a patient from the hospital owned and operated by defendant, River Oaks. Following trial, the jury returned a verdict finding that Mr. Scramuz-za’s injuries were caused by an unreasonably dangerous condition that existed on the hospital property. The jury further concluded that the parties were equally at fault for the injuries and thereafter awarded damages. Both parties filed post trial motions for judgment notwithstanding the verdict, alternatively seeking new trial or additur/remittitur. The trial court denied those motions, and both parties appealed. For the following reasons, we amend the trial court judgment to reduce the award of past medicals to $32,184.44 and assess court costs equally between the parties; and as amended, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

In May 2000, plaintiff, Mario Scramuzza, was employed as a paramedic with East Jefferson General Hospital. During that time, he and his partner | ¡¡responded to a call to pick up a patient at River Oaks Psychiatric Hospital and transport that patient to another medical facility. Upon arriving at River Oaks, plaintiff contends his partner entered the facility and was told by the receptionist to drive to the side of the building where another River Oaks’ employee would direct them to park. As they drove around, they saw someone, later identified as Gilbert Worthy, motioning for them to pull their ambulance onto the grass near a side entrance and a sidewalk close to one of the buildings. The two paramedics did as they were instructed and parked their vehicle on the grass close to the exit and the sidewalk. They went inside the building to assess the patient, a rather nervous, three-hundred pound man complaining of chest pains. They proceeded to wheel the patient on a stretcher from the hospital exit to the sidewalk and onto the grass toward the ambulance. As they attempted to maneuver through the grass to the back of the ambulance, the patient began shifting on the stretcher and the stretcher began to fall. Plaintiffs partner, John Martindale, had one hand on the stretcher as he tried to open the ambulance door with his other hand and plaintiff was on the other end of the stretcher. Plaintiff tried to catch the patient and keep him and the stretcher from falling to the ground by balancing the stretcher against his body and extending his left arm under the stretcher. Plaintiff was unsuccessful, the stretcher toppled, fell onto his left arm, and the patient fell to the ground. Plaintiff suffered a ruptured bicep tendon to his left arm which resulted in one surgery to reattach the tendon and another to remove a bone spur in his forearm. As a result he has permanent damage to and deformation of his left arm.

Plaintiff filed suit against River Oaks alleging the general negligence of River Oaks’ employees due to their instructions and alleging strict liability for the dangerous condition created by the unevenness of the grass, and the failure to maintain a safe premises as major causes of the accident. Plaintiffs employer, |4East Jefferson Hospital, intervened in the suit for reimbursement of workers’ compensation and medical benefits paid to plaintiff.

A jury trial was held on October 21, 22 and 23, 2002. Plaintiff and his partner testified at trial that neither of them inspected the grass prior to entering the building because the urgency of the call dictated to them that their primary responsibility was to get to the patient and assess his condition. They noticed the elevated sidewalk and that the ground was slightly inclined. Other than that, the ground just looked like grass. Plaintiff parked where he did because East Jefferson discourages backing up the ambulance, and he observed trees and drainage equipment that he thought presented potential parking problems in his rearview mirror. Plaintiff believes the accident occurred because the grass was uneven.

Plaintiffs treating physicians testified that plaintiff was not a malingerer; he followed instructions but was anxious to get back to work. Both physician’s testified that there is some permanent disability to plaintiffs left arm and that future surgery is a possibility.

Plaintiffs expert, Thomas Butcher, an EMT instructor for the Medical Center of Louisiana, testified that an EMT’s duties are to arrive at the scene, assess the patient, determine the problem, administer competent treatment, monitor and transport the patient to a hospital. He noted there is no prohibition against parking on grass. However, EMTs should avoid driving on grass if possible. He pointed out that stretchers are generally designed to roll on grass. He would not have second guessed where to park at River Oaks. He had no opinion as to the design of River Oaks Hospital. He did not inspect the hospital grounds. He opined that plaintiff did not do anything wrong in this case.

River Oaks’ expert, Dawna Orgeron, City of New Orleans Emergency Medical Services Manager, testified that plaintiff could have backed up to the exit. She opined that the stretcher toppled because plaintiff pushed it. while his partner |Hwas trying to open the door of the ambulance; the patient was restless and moving on the stretcher; and the stretcher was not balanced. She toured River Oaks and did not see anything wrong with the grass. She agreed that the best place to park was as close to the patient as possible.

River Oaks’ employee, Gilbert Worthy, testified that he made the decision for the paramedics to drive around to the side entrance. The patient was very anxious and did not want to be wheeled to the front entrance. He waved at them to let them know which door to come to. They did not ask him where to park.

After deliberation, the jury attributed fifty percent fault to plaintiff and fifty percent fault to River Oaks. It awarded $25,000.00 for past, present and future physical pain and suffering; $35,000.00 for past medical expenses; and $55,000.00 for past and future lost wages for a total of $115,000.00. The jury did not award damages for past, present and future mental anguish and emotional distress or loss of enjoyment of life. The trial court’s final judgment, signed December 12, 2002, stated that the jury found an unreasonably dangerous condition existed on the property, the condition caused plaintiffs injuries and damages, but that plaintiff was negligent in causing the accident. The judgment recited the jury’s percentage of fault and assessment of damages and awarded court costs to plaintiff.

Thereafter, plaintiff filed a rule to tax costs, seeking expert witness fees. Plaintiff also filed a motion for JNOV, or in the alternative for a new trial to prevent a miscarriage of justice, and requested addi-tur, contending that the jury verdict was too low and was contrary to the law and evidence. Specifically, he argued that, once the jury found a dangerous condition existed on River Oaks’ property, it should have eliminated comparative fault and should have assessed damages. Plaintiff asserted the verdict was inconsistent because the jury’s quantification of fault should have been based on the existence of the dangerous condition which was the cause in fact of the accident. Additionally, plaintiff |fimaintained that the jury must not have understood that the damage award would be reduced by fifty percent after its assessment of comparative fault. Plaintiff also argued that the jury’s assessment did not factor in East Jefferson’s intervention seeking reimbursement of $38,926.67 in compensation and medical benefits paid on plaintiffs behalf and that the failure to award damages for mental anguish, emotional distress and loss of enjoyment of life was erroneous. Plaintiff did not articulate why he should receive these damages.

River Oaks filed an opposition to plaintiffs rule for costs and an opposition to plaintiffs request for a JNOV. It contended that plaintiff should pay at least half of the costs at issue because he was found to be fifty percent at fault. River Oaks opposed plaintiffs JNOV, arguing that reasonable jurors could have reached a different verdict in this case. It maintained that the jury did not err in assessing the comparative fault of plaintiff because his actions were a substantial factor in causing his injury and there was sufficient evidence of his fault. Moreover, the jury properly completed the verdict form as written, and plaintiff did not object to the form. Additionally, it argued there was no evidence that the jury did not understand plaintiffs recovery would be reduced based on his percentage of fault. Plaintiff did not object to a jury instruction that explained the effect a finding of comparative fault would have on the damage award. Further, plaintiff made the jury aware of East Jefferson’s intervention and explained it would receive $38,926.67 of any amount it awarded him. River Oaks argued that the jury was not legally required to consider the intervention when setting the damage award. Rather, the damage award should reflect the total amount of damages plaintiff suffered irrespective of any third-party claims to the proceeds. It also argued that plaintiff failed to present evidence of mental anguish, emotional distress or loss of enjoyment of life and is therefore not entitled to damages for those alleged injuries. It further argued that plaintiff is not entitled to a new trial because the jury verdict |7was not clearly contrary to the law and evidence, nor did plaintiff set forth specific grounds to justify a new trial. Moreover, because plaintiff did not offer any evidence that the jury award was inadequate, his motion for additur was properly denied.

River Oaks also filed a motion to amend the judgment, or alternatively to vacate the judgment, or alternatively, for a JNOV, new trial or remittitur. It asserted that the jury erroneously found an unreasonably dangerous condition based on plaintiff and his partner, John Martin-dale’s, testimony that the grass had a slight incline but that they could not identify any particular holes or defects in the ground. River Oaks noted that at the time of the accident Martindale did not have both hands on the stretcher. Moreover, River Oaks maintained that the jury did not make a finding of negligence. Rather, the verdict was based on its conclusion of an unreasonably dangerous condition on the property which was not substantiated by expert testimony. River Oaks sought a remittitur arguing that the jury award of $55,000.00 for past and future wages -is too high because plaintiffs lost wages through trial were $15,710.63. River Oaks pointed out that shortly after surgery, plaintiff returned to work full-time at full pay. River Oaks also noted that evidence of plaintiffs medical and special damages totaled $32,184.44; yet, the jury awarded $35,000.00. River Oaks further noted that the trial court’s final judgment made no ruling in favor of any party, did not provide an award amount either for damages or court costs. Nor was there a deduction from the damage award for plaintiffs comparative fault.

After a hearing, the trial court denied both parties’ motions for JNOV, new trial and/or remittitur and additur, stating that neither party made a sufficient showing as to why the jury verdict should be upset. The trial court awarded plaintiff $2,700.00 in expert witness fees and reimbursement for his court costs. The trial court granted River Oaks’ motion to amend the judgment which was |ssigned on January 27, 2003. The judgment was amended to state that the total due plaintiff damages were $115,000.00, subject to a fifty percent reduction based on the jury’s conclusion that plaintiff was comparatively negligent. It rendered judgment against River Oaks in the amount of $57,500.00 plus interest, with $19,463.34 of that amount payable to intervenor, East Jefferson, and the remaining $38,036.67 payable to plaintiff. River Oaks filed a motion for a suspensive appeal from the January 27, 2003 judgment. Plaintiff filed a motion for a devolu-tive appeal also from the January 27, 2003 judgment.

DISCUSSION

We must first address River Oaks’ motion to dismiss Mr. Scramuzza’s devolu-tive appeal. River Oaks moved for a sus-pensive appeal in this case before Mr. Scramuzza filed his motion for a devolutive appeal. In its motion to dismiss Mr. Scra-muzza’s appeal, River Oaks argues that La.C.C.P. art. 2133 required Mr. Scramuz-za to effect his appeal in this case by answering the River Oaks appeal rather than by filing a separate appeal. River Oaks further contends that Mr. Scramuz-za’s appeal seeks review of post trial rulings that are only subject to review under our supervisory jurisdiction.

La.C.C.P. art. 2133 provides that “[a]n appellee shall not’ be obliged to answer the appeal unless 'he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant.” But neither the Louisiana Code of Civil Procedure nor the jurisprudence has ever recognized the answer to an appeal established by Article 2133 as the exclusive procedural device for an appellee to seek modification, revision or reversal of a final judgment. While an appellee may seek' appellate review by answering another party’s previously filed appeal within the delays established by Article 2133, that appellee may also seek that same review by filing a separate cross-appeal under Article 2121 of the Louisiana Code of Civil Procedure, within the delays allowed | flby Article 2123 for a suspensive appeal or Article 2087 for a devolutive appeal. And citing La. C.C.P. art. 2133, this Court has acknowledged that it is precluded from reviewing a party’s requested relief when that party neither answers an appeal nor cross-appeals. Gottsegen v. Diagnostic Imaging Services, 95-977, p. 8 (La.App. 5 Cir. 3/13/96); 672 So.2d 940, 944, writ denied, 96-0707 (La.4/26/96), 672 So.2d 909. Moreover, although River Oaks is correct that the assignment of error in Mr. Scra-muzza’s appellate brief requests review of a nonappealable post-trial judgment, the substance and argument in that brief clearly demonstrate Mr. Scramuzza’s intention to seek relief the judgment on the merits in this case. Mr. Scramuzza’s appeal should therefore be considered. See Brister v. Continental Ins. Co., 30,429, p. 3 (La.App. 2 Cir. 4/8/98); 712 So.2d 177, 180. Accordingly, River Oaks’s motion to dismiss Mr. Scramuzza’s devolutive appeal is denied.

Turning now to the merits of these cross-appeals, we first consider defendant River Oaks’ claims of manifest error in the jury’s finding that an unreasonably dangerous condition existed at the River Oaks Hospital and in the jury’s finding that any condition at River Oaks Hospital caused plaintiffs injuries.

Two theories of liability are available in Louisiana to a plaintiff claiming injury caused by a thing’s condition. The first theory is negligence, under Articles 2315 and 2316 of the Louisiana Civil Code, and the second theory is strict liability under Article 2317 of the Louisiana Civil Code. Under both theories, the plaintiff has the burden of proving that the thing’s condition presented an unreasonable risk of harm, or was defective, and that this condition was a cause-in-fact of the plaintiff’s injuries. Both theories employ the duty-risk analysis on a case by case basis. Schreiber v. Jewish Federation of Greater New Orleans, 02-0992 (La.App. 4 Cir. 1/29/02), 839 So.2d 51, writ denied 03-0613 (La.6/6/03), 845 So.2d 1089. The plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, that the defendant owed a duty of care to the plaintiff, that the ^requisite duty was breached by the defendant, and that the risk of the harm was within the scope of the protection afforded by the duty breached. Daye v. General Motors Corp., 97-1653, p. 7 (La.10/30/98); 720 So.2d 654, 659.

Under the duty-risk analysis, the initial inquiry to determine if a party may be held liable is cause-in-fact. The plaintiff must prove that the alleged defect in the thing was a cause-in-fact of the plaintiffs harm. A party’s conduct is a cause-in-fact of the harm if it was a substantial factor in bringing about the harm. For example, the act is a cause-in-fact in bringing about the injury when the harm would not have occurred without it. While a party’s conduct does not have to be the sole cause of the harm, it is a necessary antecedent essential to an assessment of liability. Whether an action is the cause-in-fact of the harm is essentially a factual determination that is usually left for the factfinder. Lasyone v. Kansas City Southern R.R., 2000-2628 (La.4/3/01), 786 So.2d 682.

A trial court’s findings of fact will not be disturbed unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Syrie v. Schilhab, 96-1027 (La.5/20/97); 693 So.2d 1173, 1176. Where two reasonable views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). The issue to be resolved by the reviewing court is not whether the trier of fact is right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Syrie, supra.

The reviewing court must give great weight to factual conclusions of the trier of fact. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be, disturbed upon review, even though-the appellate' court may feel that its own evaluations and inferences | nare as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La.4/3/02), 816 So.2d 270, citing Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973).

River Oaks argues that the jury erred in finding an unreasonably dangerous condition existed on the hospital property. It notes there was no expert testimony to identify a defect in the grass at issue. River Oaks points out that plaintiff and his partner could not identify any holes or defects. Rather, they testified that it just looked like grass.

In this case, the jury found an unreasonably dangerous condition existed on River Oaks’ property and that condition was a cause in fact of plaintiffs injuries. The record demonstrates that both plaintiff and his partner testified that the sidewalk was elevated from the grass and that the ground was slightly inclined. The jury accepted this testimony as sufficient evidence of an unreasonably dangerous condition existed on River Oaks’ property. Based on our review of the record, we find no manifest error in that conclusion.

Both the plaintiff and the defendant challenge the jury’s apportionment of fault in this case. The plaintiff argues that once the jury found River Oaks was at fault for the unreasonably dangerous condition on its premises, it should have moved down the jury interrogatory form and assessed damages without apportioning fault to plaintiff. The defendant contends that the evidence presented at trial showed that the plaintiff was totally responsible for his own injuries.

In Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967, 974 (La. 1985), the Louisiana Supreme Court identified the factors to consider in |12weighing the degree of fault assigned by the jury. Those include whether the conduct resulted from inadvertence or involved awareness of the danger, how great a risk was created by the conduct, the significance of what was sought by the conduct, the capacities of the actors, whether superior or inferior, and any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Estevez v. Baron, 02-326 (La.App. 5 Cir. 10/16/02), 828 So.2d 725.

In this case, the evidence shows that plaintiff and his partner were instructed by a River Oaks’ employee to pull their ambulance on the grass near an exit closest to the patient. Although this may not have been the optimal place to park, plaintiff followed the employee’s instructions. Plaintiff’s training (that he must assess this potentially critical patient as soon as possible) dictated his actions in this case. Based on our review of the evidence, we find no manifest error in the jury’s apportionment of fault.

Plaintiff and defendant also challenge the damages awarded by the jury in this case. Plaintiff argues that the damages were too low because he missed 125 days of work; he is unable to perform his job as he did prior to this accident, and he is permanently disabled and disfigured as a result of his injuries. Additionally, plaintiff argues that the jury committed legal error and rendered an inconsistent verdict by failing to award damages for mental anguish and loss of enjoyment of life in light of the assessed damages.

Under this state’s jurisprudence, the term “general damages” refers to that category of damages which may not be fixed with any degree of pecuniary exactitude, but which involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle which cannot be measured definitively in terms of money. Corbello v. Iowa Production, 02-0826 (La.2/25/03), 850 So.2d 686, 713. In particular, the | ^jurisprudence of this state has recognized that damages for non-pecuniary loss, such as mental anguish, are actual or compensatory in nature. Id. Whether a jury verdict is inconsistent because it awards special damages and does not award general damages, is an issue to be decided on a case by case basis. See generally, Wainwright v. Fontenot, 774 So.2d at 76.

However, he presented no evidence to support his assertion that he is entitled to damages for mental anguish or loss of enjoyment of life, and the jury concluded that such an award was not appropriate. After reviewing the record, we find that determination does not constitute legal error or render the verdict inconsistent.

The assessment of quantum, or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, 74. The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Id.

In this case, the record supports the award for past, present and future physical suffering and for past and future lost wages. The evidence adduced at trial indicates that plaintiff suffered a traumatic injury to his left arm that required two surgeries, that he missed at least 125 days of work and that he suffered permanent disability and disfigurement to his left arm, despite River Oaks’ argument that the jury award for lost wages exceeds actual lost wages. However, the parties stipulated that medical expenses totaled $32,184.44. Therefore, we find merit in River Oaks’ claim that the award for medical expenses should be reduced from $35,000.00 to that amount.

Defendant also appeals the trial court’s assessment of one hundred percent of the court costs against it when plaintiff was found to be fifty percent at fault. Pursuant to La.Code Civ. P. art. 1920, the party cast in judgment is generally 1 i4taxed with costs; however, the trial court has the discretion to assess costs of a suit in any equitable manner. Sallinger v. Robichaux, 98-2160 (La.App. 1 Cir. 6/23/00), 762 So.2d 761, 764, writ denied, 2000-2189 (La.1/5/01, 778 So.2d 598), rehearing denied, 00-2269 (La.2/9/01), 785 So.2d 24, reconsideration denied, 00-2189 (La.2/9/01), 785 So.2d 25. The trial court is afforded great discretion in awarding costs and an award of costs must be affirmed in the absence of an abuse of discretion. Gunn v. Robertson, 02-831 (La. App. 5 Cir. 12/30/02), 836 So.2d 643, 645. Likewise, the fixing of expert fees is within the discretion of the trial court and that award will not be disturbed on appeal unless there is an abuse of discretion. Id. The trial court’s oral reasons for judgment indicate that although each party was found liable in this case, defendant should bear all of the court costs and expert witness fees because plaintiffs injury was the result of his presence on defendant’s property. Here, the jury did not find one party to be prevailing; instead, fault was apportioned. This being so, we will apportion court costs as follows: fifty percent to plaintiff and fifty percent to defendant. We decline to disturb the trial court’s award of expert witness fees to plaintiff finding no abuse of discretion with that award.

CONCLUSION

Based on the foregoing, we amend the judgment of the trial court to reduce the award of past medicals to $32,184.44 and its assessment of court costs. The assessment of trial court costs is amended to tax plaintiff, Mario Scramuzza with fifty percent of the costs and defendant, River Oaks with fifty percent of the costs. Each party is to bear their own costs for this appeal.

AFFIRMED AS AMENDED.

DALEY, J., dissents.

11 DALEY, J.,

dissents:

I respectfully dissent from the majority’s position that plaintiff Scramuzza proved that the grassy lawn contained an unreasonably dangerous condition that caused his accident. The theory presented to the jury was that the lawn contained a defect that posed an unreasonable risk of harm or dangerous condition giving rise to liability. However, the grassy lawn was not shown to have any defect, nor could plaintiff identify any defect therein, or state a cause of the accident related to the lawn, other than it had some unevenness that is to be expected in a grassy surface.

A defect is a condition that creates an unreasonable risk of harm to persons on the premises. Lee v. Magnolia Garden Apartments, 96-1328 (La.App. 1 Cir. 5/9/97), 694 So.2d 1142 (cites omitted) However, not every minor imperfection or irregularity will give rise to liability. The defect must be of such a nature as to constitute a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances.

Though the lawn was not as perfectly flat as the adjacent cement walkway, plaintiff did not show that it had any characteristics other than those expected from a grassy lawn. The slight unevenness in its contours were not shown to be atypical or irregular for a lawn. Plaintiff failed to present evidence that showed this lawn had any defect. Plaintiff failed to identify any defective condition in this lawn. Nor did he present expert | ¿witness testimony regarding the condition of the lawn. Neither could Scramuzza exactly pinpoint why the stretcher tipped. The photographs in the record show the lawn, at the point where Scramuzza parked, as a very wide open space free from landscaping or other obstructions. The grass stopped exactly at the edge of the cement walkway and was trimmed very short. Looking at all the evidence, there is not any credible evidence that that lawn posed a risk of unreasonable harm, or that the lawn caused this accident.

I note that liability in this case did not rest upon the alleged instructions given by the River Oaks employee about where Scramuzza should park his ambulance. Defendant’s expert, Ms. Orgeron, noted that ambulance drivers like Scramuzza are trained to roll the stretcher over various terrains in emergency situations. And Or-geron testified that Scramuzza himself was in charge of where he parked the ambulance, and was responsible for that safety, notwithstanding his assertion that he was “directed” to park on the grass by a River Oaks employee who waived him over and pointed to the ground. The pictures of the lawn and sidewalks show that Scramuzza could have parked his ambulance in such a way that the stretcher need never have left the cement before being loaded.

Scramuzza’s testimony and that of his rider, Martindale, show, as highlighted in River Oaks’s brief, that it was the negligence of the two EMTs that caused the accident. They were rolling the patient, who weighed over 300 pounds and was restless with pain, on the stretcher over the grass. Scramuzza kept rolling while Martindale stopped in order to open the ambulance door, causing the weight of the patient to shift, which in turn caused the patient to fall on the ground and Scramuz-za to stretch out his arm to catch him.

| ¡¡For these reasons, I would reverse the judgment of the trial court and dismiss plaintiffs demand, and case plaintiff with costs.


author: hSUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Anthony DARENSBOURG.
    No. 03-KA-1468.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      Margaret Smith Sollars, Louisiana Appellate Project, Thibodaux, LA, for Appellant, Anthony Darensbourg.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Thomas J. Butler, Appellate Counsel, Nancy A. Miller, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and SUSAN M. CHEHARDY.
   hSUSAN M. CHEHARDY, Judge.

On May 8, 2003, the Jefferson Parish District Attorney filed a bill of information charging defendant, Anthony Darens-bourg, with one count of distribution of cocaine, in violation of La. R.S. 40:967(A), and one count of distribution of counterfeit cocaine, in violation of La. R.S. 40:967(A)(2). On May 9, 2003, defendant was arraigned and entered a plea of not guilty.

On August 14, 2003, defendant waived his right to a jury trial. That day, the State proceeded to trial against defendant on count one of the bill of information, distribution of cocaine. The trial judge found defendant guilty as charged.

On October 8, 2003, the trial judge sentenced defendant to twenty years at hard labor without the benefit of parole, probation or suspension of sentence. That same day, the State filed a multiple bill of information alleging defendant to be a fourth felony offender. Defendant denied the allegations of the multiple offender |3bill. Finally, defendant filed a motion for appeal, which was granted by the trial court on October 8, 2003.

Facts

On November 12, 2002, Agent Allen James of the Jefferson Parish Sheriffs Office was working undercover on the Westbank of Jefferson Parish in the Nell Court area of Terrytown. Agent James was driving a vehicle that was equipped with video recording equipment.

That afternoon at about 4:30 p.m., Agent James approached a black male and asked for “two twenties.” The man told Agent James to “hold one,” left the area, and then returned with two rocks of cocaine. The man, later identified as defendant, gave Agent James the two rocks of cocaine and took $40.00 from Agent James. The transaction was videotaped and played at trial.

Approximately two and a half weeks after the transaction, Agent James identified defendant in a photographic lineup. At trial, Agent James identified defendant as the person that sold him the cocaine.

In his only assignment of error, defendant argues that the trial court erred in allowing the State to re-open its case after the State rested. Defendant specifically | ¿argues that the trial court erred in allowing the State to introduce evidence after the prosecutor stated, “I believe the State would rest now....” Defendant maintains he was entitled to a directed verdict because the State rested without introducing the cocaine, which was necessary to prove an element of the crime. Defendant contends the trial court did not have the discretion to reopen the State’s case after it has rested.

After the State’s last witness testified, the prosecutor stated: “Your Honor, I believe the State would rest now — I’m sorry, we would first offer, introduce into evidence State’s Exhibits 1, 2, 3 & 4. And then we would rest.” The trial judge allowed the evidence to be admitted. Defense counsel then objected and moved for a directed verdict on the basis “that the evidence was not admitted prior to her resting.” The trial court denied defendant’s motion for a directed verdict. The trial judge, noting that no part of defendant’s case had begun, stated that he had the discretion to allow the State to introduce evidence and noted that the State requested that the evidence be introduced before defendant began his case.

Under La.C.Cr.P. art. 765(5), the trial court possesses the discretion to reopen the evidence at any time before closing arguments and allow additional evidence to be taken. State v. Dauzart, 99-3471 (La.10/30/00), 769 So.2d 1206, 1208; State v. Celestine, 443 So.2d 1091, 1096 (La.1983), cert. denied, 469 U.S. 873, 105 S.Ct. 224, 83 L.Ed.2d 154 (1984). There is no legal prohibition against the State reopening its case to submit additional evidence as long as it does so before closing arguments. State v. Matthis, 00-0219 (La. App. 4 Cir. 11/29/00), 775 So.2d 558, 563, writ denied, 00-3552 (La.11/9/01), 801 So.2d 358, citing State v. Pickrom, 31,987 (La.App. 2 Cir. 5/5/99), 732 So.2d 800.

In brief, defendant relies on State v. Collier, 438 So.2d 652 (La.App. 2 Cir.1983), in support of his position that the trial court cannot allow the State to reopen its case to prove an essential element of the offense charged after the State rests. In | sCollier; the State presented two witnesses but did not offer any evidence with respect to the existence of a dedicated or recorded subdivision. The State rested at which time the defense moved for a judgment of acquittal asserting the State failed to prove an essential element of the offense and specifically pointed out its deficiency. The State then moved to reopen the case to offer additional evidence. The trial court allowed the State to reopen its case at which time the State introduced the subdivision plat. Our brethren on the Second Circuit Court of Appeal held “that it is error to allow the State to reopen its case in a bench trial to prove an essential element of the offense charged after the State has closed, and after the defendant has moved for a judgment of acquittal.” Id. at 655.

Conversely, in State v. Hight, 35,621 (La.App. 2 Cir. 3/1/02), 810 So.2d 1250, 1258, writ denied, 02-1181 (La.11/22/02), 829 So.2d 1036, the Second Circuit found no error when the trial court allowed the State to present additional testimony after it had rested. In Higkt, the State indicated it would rest and then immediately asked the trial court about putting on one more item of testimony from a police officer. The Second Circuit found defendant was not prejudiced by the reopening of the State’s case. The court explained that the State had rested only momentarily before reopening its case and the defense’s first witness had not yet been called for questioning.

Defendant’s reliance on Collier is misplaced. We find that, like Eight, the State rested only momentarily before its case was reopened for additional evidence and defendant had yet to move for a judgment of acquittal. Based on the foregoing, we find that the trial court did not abuse its discretion in allowing the State to introduce evidence after it rested.

Finally, we have reviewed the record for errors patent, according to La. C.Cr.P. art. 920. Defendant was sentenced to twenty years without the benefit of parole, probation or suspension of sentence for the distribution of cocaine, a | ¿violation of La. R.S. 40:967(A). The penalty for a violation of La. R.S. 40:967(A) ranges from two to thirty years of imprisonment, but only the first two years is without benefit of parole, probation or suspension of sentence. La. R.S. 40:967(B)(4)(b). Thus, the imposition of the entire sentence without benefit of parole, probation, or suspension of sentence was illegal.

Also, the transcript does not reflect that defendant was advised of the two-year prescriptive period for filing post-conviction relief as required by La.C.Cr.P. art. 930.8. State v. Miller, 02-729 (La.App. 5 Cir. 12/30/02), 836 So.2d 614, 618, writs denied, 03-0200 (La.10/10/03), 855 So.2d 326, and 03-0503 (La.10/10/03), 855 So.2d 329. Accordingly, we remand for re-sentencing in accordance with La. R.S. 40:967(B)(4)(b) and compliance with La. C.Cr.P. art. 930.8.

AFFIRMED AND REMANDED.

      . Defendant was not tried for distribution of counterfeit cocaine, which was count two of the bill of information, on August 14, 2003. Further, the record is unclear as to the status of that charge. Importantly, that charge is not the subject of this appeal.

      . In its appeal brief, the State notes that defendant's motion for appeal, which was filed after original conviction and sentence but before multiple offender adjudication, may be premature, citing State v. Williams, 02-852 (La.App. 5 Cir. 1/29/03), 839 So.2d 348, 357, citing, State v. Balser, 96-443 (La.App. 5 Cir. 11/14/96), 694 So.2d 351, 354. We note that this case is in a different procedural posture than Williams. In this case, the record does not reflect that a hearing has been held on the multiple offender bill of information. In State v. Gilbert, 99-2338 (La.2/4/00), 758 So.2d 779, 779-780, the Louisiana Supreme Court held that:
      An appellate court ... may not dismiss a timely and properly filed appeal on grounds that the district court may vacate sentence and resentence the defendant on a pending multiple offender bill under La. R.S. 15:529.1. La.C.Cr.P. art. 916(8) vests jurisdiction in the district court to resentence the defendant as a multiple offender despite a pending appeal and thereby allows for prompt disposition of all issues related to punishment not only in the district court but also in an appellate court which otherwise has jurisdiction over the case. If the court of appeal has notice of a pending multiple bill and wishes to avoid piecemeal litigation, it may delay disposing of the appeal, direct the district court to expedite the hearing on defendant's multiple offender status, and, if necessary, exercise its authority under La.C.Cr.P. art. 914.1(C) to designate additional portions of the proceedings below as part of the appellate record for review, at any time before finality of its decision on the merits. La.C.Cr.P. art. 922.
      See also State v. Simmons, 00-1037 (La.App. 5 Cir. 2/28/01), 781 So.2d 821, 826-827.