author: 11 JOHN B. SCOFIELD, Judge.

text:
    Mr. & Mrs. Jonathan CHATELAIN, et al. v. Rodney RABALAIS, et al.
    No. 04-28.
    Court of Appeal of Louisiana, Third Circuit.
    July 7, 2004.

      Daniel G. Brenner, Alexandria, LA, for Defendant-Appellant, Rodney Rabalais.
    Angelo Joseph Piazza, III, Marksville, LA, for Plaintiffs-Appellees, Mr. & Mrs. Jonathan Chatelain, Amanda Chatelain, Alesha Chatelain and Vincent Chatelain.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.
   11 JOHN B. SCOFIELD, Judge.

This is a legal malpractice case filed against Rodney Rabalais, an attorney practicing in Marksville, Louisiana. Plaintiffs had engaged Rabalais to represent them in a tort claim against Patrick Brouillette but before Rabalais filed the lawsuit, the claim against Brouillette had prescribed.

THE TRIAL COURT PROCEEDINGS

The underlying claim against Brouillette arose from an incident which occurred on July 2, 1997. On that date, in the early morning hours, Jonathan and Lauren Cha-telain and their three children, Alesha, Amanda and Vincent, were awakened by the sound of a gun or guns being fired directly into their house. Brouillette, who had wrecked his automobile in the vicinity of the Chatelain home near Marksville, Louisiana, approached the Chatelain home, presumably for the purpose of commandeering a Chatelain vehicle. As he approached, he began shooting at the house. Upon hearing the gunfire, Lauren and the children retreated to the back of the house. Jonathan armed himself and began returning Brouillette’s fire. In the exchange of gunfire, Brouillette was hit, wounded and immobilized, bringing to an end the shooting incident.

Brouillette was arrested, tried and sentenced to jail for the crimes he had committed upon the Chatelains and their property. The Chatelains engaged Rabalais to pursue their civil remedies against Brouil-lette. Rabalais failed to file a lawsuit on or before July 2, 1998, resulting in the case against Brouillette prescribing.

I?Jonathan then engaged the Chatelain’s current attorney to pursue a malpractice claim against Rabalais. On November 24, 1998, a civil action was filed against Raba-lais on behalf of Mr. and Mrs. Chatelain and their three children. Later, Lauren Alesha and Vincent, were allowed to withdraw from the lawsuit. On October 7, 1999, Lauren, Alesha and Vincent petitioned the court to re-enter the lawsuit, but eventually, the renewed claims of Lauren and Alesha were dismissed on the basis of prescription. Vincent was allowed to rejoin the lawsuit. Accordingly, when this matter went to trial, the Plaintiffs were Jonathan, Amanda and Vincent. •

At the trial, Rabalais did not dispute his allowing the Chatelains’ claim against Brouillette to prescribe. The damages claimed by the Plaintiffs fall into two major categories: First, they claim those damages that they would have recovered had they gone to trial against Brouillette; and second, they independently claim damages against Rabalais for the emotional injuries they allegedly sustained as a result of his actions and inactions.

The verdict form submitted to the jury consisted of eleven interrogatories. The jury returned a verdict, finding that as a result of the actions of Brouillette, Jonathan sustained general damages of $45,000.00 and special damages of $5,000.00, and that Amanda and Vincent each sustained general damages of $20,000.00 and special damages of $5,000.00.

The jury also found that Rabalais had deviated below the standard of the care required of an attorney, the jury awarding each Plaintiff the identical amount that had been awarded due to the actions of Brouillette. This resulted in a total judgment of $100,000.00 being awarded to Jonathan and $50,000.00 awarded each to Amanda and Vincent.

|sRabalais moved the court for a judgment notwithstanding the verdict or, alternatively, for a new trial. Both motions were denied. Rabalais suspensively appealed the Judgment of the trial court and Plaintiffs answered the appeal seeking an increase in the damages awarded them.

ISSUES ON APPEAL

Given that Rabalais is not contesting liability, the only issues on appeal are the various elements of damages awarded to the Plaintiffs.

THE DAMAGE ISSUES IN GENERAL

The law provides that “To prove a claim for legal malpractice a plaintiff must prove: (1) there was an attorney-client relationship; (2) the attorney was negligent and (3) that negligence caused plaintiff some loss.” Beis v. Bowers, 94-0178 (La.App. 4 Cir. 01/19/95), 649 So.2d 1094, writ denied, 95-429 (La.3/30/95), 651 So.2d 847, citing Scott v. Thomas, 543 So.2d 494 (La.App. 4 Cir.1989) and Evans v. Detweiler, 466 So.2d 800 (La.App. 4 Cir.1985). See also William E. Crawford, 12 Louisiana Civil Law Treatise — Workers’ Compensation § 15.23 (2000). Additionally, because legal malpractice is a tort, damages for mental anguish may be awarded in a legal malpractice action. Vallier v. Louisiana Health Systems, Inc., 98-834 (La.App. 3 Cir. 12/9/98), 722 So.2d 418, writ denied, 738 So.2d 587 (La.2/26/99); Henderson v. Domingue, 626 So.2d 555 (La.App. 3 Cir.1993), writ denied, 630 So.2d 799 (1/28/94).

One measure of the damages can be the amount the Plaintiffs would have received had the underlying case gone to trial and judgment. In addition, the law also recognizes that the Plaintiffs can also receive an award for the damage arising out of the actions or inaction of their attorney. Beis, 649 So.2d 1094; Henderson, 626 So.2d 555.

|4In this case, Plaintiffs have claimed general and special damages resulting from the injuries they sustained because of the actions of Brouillette. They have also claimed general and special damages based solely on the action and inactions of Rabalais. Hereinafter, we will refer to these two categories of damages as Brouil-lette damages and Rabalais damages.

BROUILLETTE DAMAGES:

After first determining that all of the Plaintiffs suffered damages as a result of the actions of Brouillette on July 2, 1997, the jury then responded to interrogatories 6, 7 and 8 and set forth in dollars the amount to be awarded to each Plaintiff for the general and special damages caused by Brouillette.

Brouillette General Damages:

Rabalais’ primary focus on appeal is that the trial court failed to include on the verdict form Rabalais’ requested interrogatories which would have more expressly addressed Brouillette’s ability to pay. The main thrust of Rabalais’ argument is that 1 sBrouillette’s impecuniosity is such that had the underlying lawsuit gone to judgment, Brouillette would have been able to pay very little, if anything, in satisfying such a judgment. Rabalais, further argues that requiring the Defendant to pay the full face value of any such judgment — -which according to Rabalais, Brouillette could never pay — would result in Plaintiffs receiving a windfall for the damages attributable to the actions of Brouillette. We disagree.

The record reveals that the trial court did not in any way limit or restrict Raba-lais in presenting evidence pertaining to Brouillette’s ability to pay. Even at that, the evidence shows that at the time of trial, Brouillette was gainfully employed and could hardly be classified as a pauper. Of more importance, the trial court adequately instructed the jury that in assessing damages, consideration should be given to Brouillette’s ability to pay. In fact, with the exception of the changing of one word, the instruction given the jury by the court was identical to the instruction proposed by Rabalais. Moreover, counsel for Rabalais was allowed to thoroughly argue this issue in closing arguments with counsel taking that opportunity to fully explain to the jury the instructions on the issue of ability to pay ultimately given by pthe court. Under the circumstances, we are of the opinion the jury was fully and adequately apprised of the issue of Brouil-lette’s alleged inability to pay.

Rabalais also argues that the Brouillette damages awarded by the jury were excessive. Defendant is correct that none of the Plaintiffs suffered any physical injuries as a result of the Brouillette attack. It is also true that the medical treatment received by the Plaintiffs for their emotional distress or injuries was minimal. Moreover, there is no definitive evidence that any of the Plaintiffs will suffer any long term effects from the traumatic episode wrought by Mr. Brouillette.

The circumstances of this case, however, do not neatly fit into a normal damage model. One cannot turn to prior jurisprudence and easily find guidelines for gauging in dollars the horrific ordeal endured by the Plaintiffs in the wee hours of the morning of July 2,1997.

The Plaintiffs were jolted out of deep slumber that morning by the sounds of gunfire and the sounds of bullets and shotgun pellets ripping into their home. As they cringed in the darkness, Amanda and Vincent also began hearing the shouts of their father and Brouillette as they exchanged gunfire, fearing that at any moment their father would be shot.

During the course of this raid on the Chatelain home, none of the Plaintiffs had any idea how many people were involved in the attack. They all had the genuine fear that it could be just a matter of time before the attacker or attackers succeeded in storming into their once peaceful home. They all were facing the grim doorway of death.

While there is no question of Jonathan’s bravery in defending his home and family, there can be no question either that his was a terrifying experience. In order |7for Jonathan to have any hope of successfully firing his weapon at Brouillette, Jonathan necessarily had to expose himself to the gunfire from Brouillette. Jonathan also knew that his wife and children would be essentially helpless if he were to be shot by Brouillette or whomever else might have been out there in the darkness.

The record shows that Jonathan sought help from Dr. Paul Ware, a psychiatrist. Anti-depressants were prescribed. Dr. Ware felt that Jonathan had a mild clinical depression prior to the shooting event, the symptoms of which were increased as a result of the event. Dr. Ware diagnosed dysthymic mood disorder with associated anxiety, and noted that following the incident, Jonathan no longer felt safe. For the first time, Jonathan began locking his doors, putting up motion lights, and he installed an alarm system. He kept a loaded gun next to his bed and was preoccupied with the incident and kept thinking about it over and over again. Jonathan reported difficulty in initiating and doing things. Dr. Ware noted that the incident affected Jonathan’s basic belief system with regard to things such as trust in others. The doctor stated that Jonathan had a marked increase in feelings of sadness, was tired, and was having difficulty functioning when he came for treatment. He noted that marital discords between Jonathan and his wife increased after the incident with the result that the two finally separated. Dr. Ware opined that Jonathan continued to show mild residual effects from the traumatic experience and that Jonathan would need further treatment for approximately the next two years after his visit on June 13, 2000, prior to Dr. Ware’s deposition.

| ¡¡Amanda was treated on one occasion by Dr. John Simoneaux, a clinical psychologist. Dr. Simoneaux’s testimony indicates that Amanda had a variety of other stressors in her life in addition to the shooting event, including discord with her parents, unhappiness with her work and problems with her boyfriend and his family. He concluded that the shooting event had not profoundly affected her. She also saw Dr. Ware a total of four times from April 1999 through June 2003. Dr. Ware testified that he diagnosed Amanda as suffering from adjustment disorder of adulthood with anxiety and depression and some features of post-traumatic stress disorder. He stated that she was particularly affected by her concern for her father, with whom she was close. He also noted that she had started to be more worried and suspicious in her relationship with her boyfriend, and had difficulty concentrating in school. Dr. Ware prescribed an antidepressant medication but Amanda found that the medication caused nausea and took it only once. The doctor felt that she had regained her emotional equilibrium by the last time he saw her.

Vincent also saw Dr. Ware, who opined that Vincent was not as affected by the incident as his father and sister. The doctor testified that when he saw Vincent he had only a mild lingering symptom in that when he was home and he heard an unexpected noise outside he would feel uneasy and the need to check it out. Dr. Ware did not suggest further treatment for Vincent. Vincent was also seen once by Dr. Simoneaux, who found him to be a well-functioning adolescent and saw no need for further treatment.

The agony and anguish suffered by the Chatelains during this brutal invasion of their home are insusceptible to precise measurement. If ever a case was perfectly suited for having damages determined by a jury of one’s peers, this is that case.

|flWe find no error in the award to the Plaintiffs of general damages as a result of the actions of Brouillette.

Brouillette Special Damages:

Under the category of the special damages, the jury awarded each Plaintiff the same amount, $5,000.00. The only special damages proven, or attempted to be proven, were the medical expenses.incurred or to be incurred by the Plaintiffs. These medical expenses related to charges made or to be made by Drs. Simoneaux and Ware.

Special damages, unlike general damages, are susceptible of being established with reasonable mathematical certainty. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70; Myers v. Broussard, 96-1634 (La.App.3Cir.5/21/97), 696 So.2d 88. “Future medical expenses are an element of special damages that must be proven with certainty based on medical testimony concerning the requirement of such expenses and their probable cost.” Netecke v. State, 97-974, p. 15 (La.App. 3 Cir. 4/1/98), 715 So.2d 439, 448; writs granted, 98-1182, 98-1197 (La.6/26/98), 719 So.2d 485, reversed on other grounds, 98-1197 (La.10/19/99), 747 So.2d 489. See also Gagnard v. Zurich American Ins. Co. of America, 02-19 (La. App. 3 Cir. 6/12/02), 819 So.2d 489. Further, to recover medical expenses, whether past or future, a plaintiff must show, through medical testimony, both the existence of the injury and a causal connection between the injuries and the incident of which plaintiff complained. Rhodes v. State, DOTD, 94-1758 (La.App. 1 Cir. 1996), 684 So.2d 1134, writ denied, 97-0242 (La.2/7/97), 688 So.2d 487.

Dr. Simoneaux was engaged to examine the Plaintiffs while Rabalais was still representing them. However, he saw only Amanda and Vincent on one occasion |ineach. His charges were $500.00 for each visit. After current counsel assumed representation of Plaintiffs, counsel arranged for them to be seen by Dr. Ware. Although the record is not as definitive as it could be, it appears that as of the day of the trial Dr. Ware had charged $800.00 for seeing Jonathan, $900.00 for Amanda and $500.00 for Vincent. Dr. Ware testified that he saw no need for any further visits or treatment of Amanda and Vincent. The doctor did say, in his deposition of July 2000, that Jonathan should visit him four or five times within two years of his last visit at a total cost of some $500.00. Jonathan’s testimony at the trial in July 2003, suggests that this additional treatment had been completed at that time.

Accordingly, the only proven specials were $1,300.00 for Jonathan, $1,400.00 for Amanda and $1,000.00 for Vincent. “[T]he manifest error standard controls on the issue of the assessment of special damages. Johnson v. State Through Department of Public Safety and Corrections, 95-0003 (La.App. 1 Cir. 10/6/95), 671 So.2d 454.” Craige v. Broome, 03-0255, p. 11 (La.App. 4 Cir. 2/25/04), 869 So.2d 242, 246. Given the evidence with regard to special damages, it appears that the jury did err manifestly in its award of special damages. As a result, this court must determine the appropriate amount of special damages from a de novo review of the record. Bennett v. State Farm Ins. Co., 03-1195 (La.App. 3 Cir. 3/24/04), 869 So.2d 321.

We find that the record would justify an award of special damages of no more than $1,500.00 for Jonathan, $1,500.00 for Amanda and $1,200.00 for Vincent.

RABALAIS DAMAGES

After completing the interrogatories pertaining to the Brouillette damages, the jury was given additional interrogatories to determine whether Rabalais deviated lubelow the standard of care required of an attorney and, if so, whether the Plaintiffs suffered damages as a result of this deviation. The jury found there was such a deviation and awarded Plaintiffs the identical amount previously awarded due to the actions of Brouillette, including the same amount awarded each Plaintiff for special damages.

Rabalais General Damages:

While we are of the opinion that the jury award for the Brouillette damages is supported by the record, we have great difficulty finding evidentiary support for awarding an amount identical to the Brouillette damages for what Rabalais did or did not do.

li?AbIe counsel for the Plaintiffs points out a number of alleged deficiencies in Rabalais’ representation of the Plaintiffs, both before and after the underlying case had prescribed. Counsel argues that before the case prescribed, Rabalais failed to properly investigate the facts and prepare the case for trial. After prescription had run, counsel complains that Rabalais was slow in advising Plaintiffs of this error; that Rabalais did not timely advise Plaintiffs that Rabalais had actually filed a suit against Brouil-lette, albeit past the prescription date; that Rabalais communicated only with Lauren about his mistake and avoided doing so with Jonathan; and that Rabalais’ letter formally notifying Plaintiffs of his error, was sent more than 90 days after the underlying case had prescribed. While counsel is to be commended for ferreting out these alleged deficiencies, with the possible exception of Jonathan, they did not seem to inflict material emotional distress upon the Plaintiffs.

It is to be noted also that Rabalais never denied his negligence, never was defiant in the defense of himself, and never tried to shift blame to someone else. In his contacts with the Plaintiffs after the case prescribed, as well as during the trial of this case itself, he was contrite and apologetic. This attitude of humility would tend to soothe mental distress rather than engender it.

In his testimony, Jonathan made it quite clear that he was considerably upset with Rabalais. Most of Jonathan’s displeasure centered on the fact that after the case prescribed, Rabalais communicated with Lauren rather than Jonathan. It seems that Lauren and Rabalais had been friends for sometime, both being members of the same Rotary Club. Although there was no evidence of any improper relationship between Rabalais and Lauren, Jonathan indicated that whatever that relationship was, it [^contributed to his divorce from Lauren. Jonathan even suggested that Raba-lais had “sold us out” because Brouillette was related to a political figure in Avo-yelles Parish.

There is no question that Jonathan was very angry with Rabalais and that this anger persisted at least through the trial of this case. Anger is certainly a form of emotional distress. In determining whether emotional distress rises to the level of being compensable in damages, great weight must be given to the medical evidence or testimony on the issue. Importantly, Dr. Ware testified at length about Jonathan’s mild clinical depression and the causes of same. The doctor’s testimony sets forth in detail Jonathan’s emotional difficulties relating to the Brouillette incident. However, nowhere in Dr. Ware’s testimony does he mention any emotional trauma or distress suffered by Jonathan attributable to the actions or in-actions of Rabalais. Not only did Dr. Ware fail to address any emotional trauma suffered by Jonathan caused by Rabalais, no questions were posed to Dr. Ware on this issue by counsel.

While the evidence is slim regarding the injuries to Jonathan resulting directly from Rabalais’ fault, the evidence of emotional injuries to Amanda and Vincent caused by Rabalais is non-existent. Neither Amanda nor Vincent gave any testimony that either had suffered meaningful distress as a result of Rabalais’ fault or negligence. The best they could offer was that neither of them had real contact with Rabalais. Amanda was seen once by Dr. Simoneaux and twice by Dr. Ware. Vincent was seen by Dr. Simoneaux and by Dr. Ware. Neither doctor made mention in his testimony of any difficulties at all suffered by Amanda or Vincent resulting from anything done or not done by Rabalais.

Again, the jury awarded each Plaintiff an identical sum for damages caused by Brouillette and those cause by Rabalais. In comparing the ample evidence of the | uchilling horror of the Brouillette incident with the paucity of evidence relating to emotional injuries caused by Rabalais, we are of the opinion that the jury must have been confused in awarding the same amount in Rabalais damages as the Brouillette damages. While the trial court has a great deal of discretion to determine whether to submit interrogatories to the jury and the exact content and wording of the interrogatories submitted, “Misleading or confusing interrogatories, or interrogatories which do not adequately set forth the issues to be decided by the jury, may constitute reversible error.” Campbell v. Hospital Service Dist. No. 1 Caldwell Parish, 37,876, p. 6 (La.App. 2 Cir. 12/10/03), 862 So.2d 338, 344, writ denied, 869 So.2d 852 (La.3/19/04). However, a verdict based on the interrogatories should not be set aside unless the form prevented the jury from reaching a legally correct verdict. Id. At trial, counsel for Defendant objected to the failure to give his requested interrogatories with regard to ability to pay, but he did not object on the grounds of- the possibility of the jury being confused. Rabalais, however, does make this argument in his brief to this court. “[W]hen jury instructions or interrogatories contain a ‘plain and fundamental’ error ... the contemporaneous objection requirement is relaxed and appellate review is not prohibited.” Campbell, 862 So.2d at 344. In this case, the evidence supports the conclusion that the jury interrogatories and instructions were confusing and thus fundamentally in error.

In addition to the great disparity in the evidence attributable to these two categories of damages, there are other notable factors indicating the confusion of the jury.

11 RFirst, during deliberations the jury sent a message to the court asking for further instructions. Unfortunately, the record does not reveal the specific issue with which the jury was concerned. The record does reflect the trial court and the attorneys discussed this request by the jury at some length, but there is no indication that the jury was ever given a response by the court. Although we do not know the specific nature of the jury’s inquiry to the court, this does suggest that the jury was confused about something.

Second, there is nothing in the interrogatories given to the jury nor in the instructions given the jury by the trial court, explaining the difference between the Brouillette damages and the Rabalais damages. At no time was the jury advised that the Rabalais damages were to be determined and assessed separate and distinct from the Brouillette damages.

Third, it is also telling that the jury awarded the identical amount of special damages caused by Brouillette and by Ra-balais. As indicated above, the only special damages proven were the costs of the medical treatment afforded or to be afforded by Drs. Simoneaux and Ware. Again, these proven medical expenses were considerably less than the special damages awarded by the jury in either the Brouil-lette or Rabalais categories of damages. Also, it is to be reiterated that neither Dr. Simoneaux nor Dr. Ware testified that any of the Plaintiffs’ injuries was caused by Rabalais. To be sure, whatever special damages were proven, they can only be awarded once.

Fourth, in answering the appeal in this case, Plaintiffs seek an increase in the damage award. However, this increase is sought only for the damages caused by Brouillette, there being no request for an increase in the Rabalais damages. At the livery least, this is a strong indication that Plaintiffs themselves see the Brouillette damages as being significantly greater than the Rabalais damages.

We find that the failure to include in the interrogatories, or in the instructions to the jury an explanation of the need to separately calculate the two elements of damages, those arising solely from Brouil-lette’s actions and those arising solely from the actions or inactions of Rabalais, misled and confused the jury. See Campbell, 862 So.2d 338.

As to Amanda and Vincent, the record is totally devoid of any evidence supporting an award to them for the Rabalais damages. Accordingly, we reverse entirely the general damage awards to Amanda and Vincent in the Rabalais damages. Although the award of general Rabalais damages to Jonathan was not supported by medical testimony or evidence, we cannot say there is insufficient lay testimony to support some award to Jonathan in this category. The trier of fact is to be accorded a great deal of discretion in making awards of general damages. Because of this vast discretion an appellate court should rarely disturb an award of general damages. However, if an award beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances, the appellate court will increase the award to the lowest point within the discretion of the court or decrease it to the highest point within the discretion of the court. Adams v. Chenault, 36,729 (La.App. 2 Cir. 1/29/03), 836 So.2d 1193, Pullen v. Ziegler, 562 So.2d 1093,1095(La.App. 4 Cir.1990). We are of the opinion that the highest award justified by the evidence to be awarded to Jonathan for Rabalais general damages would be $5,000.00.

Rabalais Special Damages:

|17The only special damages proven were the medical expenses and future medical expenses addressed above in the discussion of the Brouillette damages. No other special damages were proven and no attempt was made to separate the special damages attributable to Brouillette and those attributable to Rabalais. Accordingly, we reverse the award of special damages to each of the Plaintiffs in the Raba-lais category of damages.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed in part, reversed and rendered in part, the awards to each Plaintiff being as follows:

Jonathan Rabalais:
Brouillette. General Damages: Affirmed $45,000.00
Rabalais General Damages: $ 5,000.00
Brouillette Special Damages: $ 1,500.00
Rabalais Special Damages: $ 00.00
Total: $56,000.00
Amanda:
Brouillette General Damages: Affirmed $20,000.00
Rabalais General Damages: $ 00.00
Brouillette Special Damages: $ 1,500.00
Rabalais Special Damages: $ 00.00
Total: $21,500.00
Vincent:
Brouillette General Damages: Affirmed $20,000.00
Rabalais General Damages: $ 00.00
| xgBrouillette Special Damages: $ 1,500.00
Rabalais Special Damages: $ 00.00
Total: $21,500.00

Costs of this appeal are to be paid one-half by the Appellant and one-half by the Appellees.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

       John B. Scofield, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . At the trial Brouillette, testified that because of his consumption of drugs and alcohol that night, he had no recollection of what had transpired.

      . The completed interrogatories 6, 7 and 8 on the verdict form read as follows:
      ó) In terms of dollars, how much in total damages, if any, did Jonathan Chatelain suffer or sustain, as a result of the actions of Herbert Patrick Brouillette?
      a) General Damages $ 45,000.00
      b) Special Damages $ 5,000.00
      7) In terms of dollars, how much in total damages, if any, did Amanda Chatelain suffer or sustain, as a result of the actions of Herbert Patrick Brouillette?
      a) General Damages $ 20,000.00
      b) Special Damages $ 5,000.00
      8) In terms of dollars, how much in total damages, if any, did Vincent Chatelain suffer or sustain, as a result of the actions of Herbert Patrick Brouillette?
      a) General Damages $ 20,000,00
      b) Special Damages $ 5,000.00

      . Rabalais submitted to the court the following requested interrogatories on the issue of Brouillette’s ability to pay:
      9. Do nine or more of you agree that Herbert Patrick Brouillette could have actually paid the total judgment in number 6, 7 and 8, above?
      YES_ NO_
      10. If your answer to question number 9 was "No”, please state the amount of the total judgment that you believe could have been paid by Herbert Patrick Brouillette.
      $-

      . The instruction given the jury on the ability to pay was as follows:
      It is well settled in our law that the financial ability of a defendant to pay is a circumstance which must be considered in assessing an award for damages, both general and special. When ability to pay is considered, plaintiff may only be compensated to the degree that it does not impose an undue hardship on the defendant. If you award damages you must consider how much of that figure could actually have been paid by Herbert Brouillette. (Emphasis added.)
      The only difference in the actual instruction and the instruction proposed by Rabalais is in the first sentence. The word "considered” was used by the court instead of the word "determined,” as proposed by Rabalais. This difference is immaterial.

      . Dr. Ware's deposition was taken in July 2000 and read into the record of the trial which was held in July 2003. A summary of charges for Dr. Ware’s services shows that all three Chatelain’s continued to see him following his deposition.

      . Interrogatories 9,10 & 11 pertain to the Rabalais damages and, as completed by the jury, read as follows:

        9) If you found in question # 1 that Defendant, Rodney Rabalais deviated below the standard of care required of an attorney, did Jonathan Chatelain suffer any damages as a result of this deviation?
      y Yes No
      If yes, what sum of money would reasonably and fairly compensate Jonathan Chate-lain?
      a) General Damages $ 45,000.00
      b) Special Damages $ 5,000.00
      10) If you found in question # 1 that Defendant, Rodney Rabalais deviated below the standard of care required of an attorney, did Amanda Chatelain suffer any damages as a result of this deviation?

        i

      Yes No
      If yes, what sum of money would reasonably and fairly compensate Amanda Chate-lain?
      a) General Damages $ 20,000.00
      b) Special Damages $ 5,000.00
      11)If you found in questions # 1 that Defendant, Rodney Rabalais deviated below the standard of care required of an attorney, did Vincent Chatelain suffer any damages as a result of this deviation?

        i Yes No
      If yes, what sum of money would reasonably and fairly compensate Vincent Chate-lain?
      a) General Damages $ 20,000.00
      b) Special Damages $ 5,000.00

      . Young v. First Nat. Bank of Shreveport, 34,-214 ( La.App. 2 Cir. 8/22/01), 794 So.2d 128, writs denied, (La. 1/4/02), 805 So.2d 209, 1195, reconsideration granted, writ denied, (La.3/22/02) 811 So.2d 936.


source: Caselaw Access Project

author: | THIBODEAUX, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Cynthia ANDERSON.
    No. 04-80.
    Court of Appeal of Louisiana, Third Circuit.
    July 7, 2004.

      Alex D. Chapman, Jr., Ville Platte, LA, for Defendant/Applicant, Cynthia Anderson.
    Christopher Brent Coreil, District Attorney, Trent S. Brignac, Ville Platte, LA, for Plaintiff/Respondent, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., GLENN B. GREMILLION, and JOHN B. SCOFIELD, Judges.
   | THIBODEAUX, Chief Judge.

On October 14, 2003, the Defendants, Cynthia Anderson and Larry Surratt, were jointly charged by bill of indictment in Evangeline Parish for the murders of Lawrence Cook and Sheila Kirby. Both Defendants filed motions to quash, alleging that the indictment did not indicate the place of commission of the offenses. After a hearing, the trial court issued a ruling denying the motion to quash. The Defendants filed separate applications for writ of review. These two writs were consolidated because they both challenge the trial court’s ruling on the motion to quash.

We deny both writs for the following reasons.

I.

ASSIGNMENTS OF ERROR

The Defendants contend that the State did not prove the elements of the crime occurred in Evangeline Parish as required by La.Code Crim.P. art. 615. Defendant Anderson contends that the grand jury indictment should be quashed and the investigation taken over by the District Attorney’s Office in St. Landry Parish.

Defendant Surratt alleges four assignments of error, all attacking the trial court’s ruling on the motion to quash. First, he contends that the State did not meet its burden of proving Evangeline Parish is the proper venue. Next, Surratt claims the trial court erred in relying on a Mississippi case because in that state, the burden of proof is on the defendant to prove venue is improper. Third, he claims that the evidence proved that Evangeline Parish was not a proper venue. Finally, he contends that the trial judge erred in trying to find a venue. Surratt explains that it is not the trial court’s duty to establish where venue is, but only to determine whether | ^Evangeline Parish is a proper venue. He is of the opinion that St. Landry seems to have “more indicia of being a proper venue,” but he contends that is an issue for a St. Landry Parish court to decide.

II.

FACTS

At the hearing on the motion to quash, the court heard the testimony of two witnesses. Detective Joe Demourelle of the Evangeline Parish Sheriffs Office testified that his office was contacted by the Rap-ides Parish Sheriffs Office about a body floating on the Evangeline Parish side of Bayou Cocodrie. Detective Demourelle explained that Bayou Cocodrie is the parish line. The body was “off of Highway 167 ... near off the side of the bridge which crosses Bayou Cocodrie.... ”

Detective Demourelle testified that two young boys found the body and one of the boys called his father, who worked in Rap-ides Parish. The boy’s father then contacted 911 and was connected to Rapides Parish authorities. According to Detective Demourelle, the Rapides Parish authorities did not go out to the body. Once they determined it was on the Evangeline Parish side, they contacted the authorities of that parish.

According to Detective Demourelle, at the time the body was found, the water was “out the bayou banks” and was floating toward the Evangeline Parish side, approximately thirty to forty feet from the bayou itself. If the bayou had been within its banks, the body would have been on dry land in Evangeline Parish. The body recovered from the bayou was later determined to be that of Larry Cook. The victim’s body had been mutilated and the legs cut off. The legs were not contained in the box with the rest of the body. One week later, when the water receded, officers returned to the area in an attempt to locate the victim’s legs. The Rapides Parish [¡¡Sheriffs Office and Wildlife and Fisheries launched boats and approximately forty minutes into the search, they located another box containing a second body, that of Sheila Kirby. Detective Demourelle testified that he was not involved in the search, so he did not know the exact location where her body was found. Upon being informed that the body had been found, he drove to the area and walked down to the bayou. At that point, the body was on the bank on the Evangeline Parish side. However, he testified that there was no question that the box containing the second body was found floating in Bayou Cocodorie and it was his understanding that the body was found on the Evangeline Parish side. An autopsy indicated that both victims had been shot.

According to Detective Demourelle, on the Rapides Parish side there is a blacktop road that goes down to a boat launch. He confirmed that the road can be reached from Highway 167 and the road parallels the bayou for approximately 200 or 300 yards. There is an area to park vehicles and to launch boats. This location is approximately a mile from Interstate 49. According to Detective Demourelle, the closest boat launch to Interstate 49 is on the Rapides Parish side and that side is more developed than the Evangeline side. Detective Demourelle agreed that there is no vehicular access to the bayou on the Evangeline Parish side; however, he later explained that when the area is dry, one can drive a vehicle and trailer down to the Evangeline Parish side and launch a boat, as authorities did in this case. Detective Demourelle acknowledged that the containers could have either been dropped over the side of the bridge or taken to the boat launch and thrown in at that point. |4Petective Demourelle was asked if the easiest way to the disposal site would be the blacktop road from 167 to the Rapides Parish boat launch. He replied that it would probably be easiest to throw the bodies off the bridge, but if the Defendants were going to use a boat launch area, the only boat launch area would be on the Rapides side.

Detective Demourelle testified that he saw Mr. Cook’s body and he was wearing a tee shirt that said “Catfish Festival” and “Washington, Louisiana.” The last known address of the victims was a trailer in Lawtell, Louisiana, which was the clubhouse of the Banshee Motorcycle gang. Detective Demourelle was told the victims had lived there since the end of October. Before that, they lived in the Morrow area. Both Lawtell and Morrow are in St. Landry Parish. Detective Demourelle testified that to his knowledge, the victims had not lived or worked in Evangeline Parish and did not have any relatives there. He testified that there was no connection between the victims and Evangeline Parish. Detective Demourelle testified that the Evangeline Parish Sheriffs Office did not conduct any investigation at a physical site in that parish except at the scene. Although they checked a house in the Basile area looking for an individual, it was not checked as a site where the victims lived. There was no investigation of any site in Evangeline Parish where the deceased had been reported to have been. He acknowledged that the “totality of the investigation” as to where the victims were just before their deaths was in St. Landry Parish. Additionally, when asked if any element of the crime had occurred in Evangeline Parish, Detective Demourelle responded that it was where the bodies were found.

During the investigation, the victims’ pet dog was found along a bayou in the Morrow area; it had been shot in the head. Detective Demourelle | ¡¡acknowledged that there was a possible connection between this and the murders. Also, there were two chainsaws there that were analyzed as part of the investigation of the case. Neither was found in Evangeline Parish and one of them was found near the bayou where the dog was found. Detective Demourelle was then asked if there was anything that connected the crime to Evangeline Parish and he responded that the bodies had been found there.

At the close of Detective Demourelle’s testimony, the following exchange took place:

Q. Mr., didn’t you, uh, as chief investigating officer, did you give your opinion to the newspaper as to whether or not you thought this had happened in this parish, and a matter of fact you said you did not think that the murders had happened in this parish?
A. Uh, strictly an opinion.
Q. Yes,
A. I said I didn’t think that it happened in this parish.
Q. And is that still your opinion as chief investigating officer of this case?
A. Well, I gonna reserve my opinion unless you let me voice my opinion in the trial.
Q. Ah, well let me just say that was your opinion before....
A. Yes.
Q. Has it changed?
A. Uh, I’ll reserve uh,
Q. Okay, alright, I don’t want to put you on the spot, sorry.

Ronald Davidson was called as a witness by the defense. He is a member of the same motorcycle club of which the victims were members and he had pknown Lawrence Cook for approximately twenty-four to twenty-five years prior to his death. According to Mr. Davidson, Mr. Cook had never lived in Evangeline Parish and he had resided in Lawtell at the clubhouse since October of 2002. Prior to that time, he had lived in Morrow. At the time of his death, Mr. Cook had just gone to work as a disc jockey at Willie’s Campground in Washington. According to Mr. Davidson, most of Mr. Cook’s time was spent in St. Landry Parish. Mr. Cook and Ms. Kirby had a dog that was like their child, and the dog was very dedicated to Mr. Cook. Mr. Davidson testified that he could not imagine them being separated unless something had happened.

Detective Demourelle testified that an autopsy revealed the victims had been shot and that Mr. Cook’s legs had been cut off, but were not in the container with his body. Ms. Kirby’s legs were found in the container in which her body was found. During the course of the investigation, two chainsaws were analyzed. One was found near the bayou where the dog was found. Neither was found in Evangeline Parish. Although it is reasonable to conclude that the victims were shot before their bodies were dismembered, and that chainsaws were used to dismember the bodies, there was no testimony to establish these exact facts. However, in his ruling, the trial judge stated that Detective Demourelle testified that the victims were shot before their bodies were mutilated by having their legs cut off by an instrument, presumed to be a chainsaw, and that there was no evidence linking the chainsaws found in Morrow to the mutilation of the bodies.

At the close of the hearing, the judge took the matter under advisement. Although the State did not know where the crime occurred, the judge did not agree that the Defendants should be released. He relied on a Mississippi Supreme Court case that held that the finding of a dead body in a particular county raises a ^presumption or supports an inference that the crime occurred in that county. The judge denied the motion to quash, noting that a decision to the contrary would invite criminals to commit the “perfect crime” by committing murders in secluded places and dumping the bodies in random locations.

III.

LAW AND DISCUSSION

Louisiana Constitution Article 1, § 16 states in pertinent part:

Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law.

The articles of the Code of Criminal Procedure at issue are 611, 613 and 615. Louisiana Code of Criminal Procedure Article 611 states:

All trials shall take place in the parish where the offense has been committed, unless the venue is changed. If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.

Louisiana Code of Criminal Procedure Article 613 states:

When a river, bayou, lake, water course, or other body of water is the boundary of any parish, the jurisdiction of the court of such parish extends to the middle of such river, bayou, lake, water course, or other body of water.
Finally, La. Code Crim.P. art. 615 states:
Improper venue shall be raised in advance of trial by motion to quash, and shall be tried by the judge alone. Venue shall not be considered an essential element to be proven by the state at trial, rather it shall be a jurisdictional matter to be proven by the state by a preponderance of the evidence and decided by the court in advance of trial.

18An extensive search has revealed no Louisiana cases factually on point. We note that both Defendants cite State v. Gates, 24,995 (La.App. 2 Cir. 1/19/94), 630 So.2d 1345, writ denied, 94-0640 (La.6/17/94), 638 So.2d 1091, in support of their position. Defendant Anderson cited Gates as authority for saying that “the locale where the bodies were found is not listed as an element of a kidnap and murder crime.” Defendant Surratt cites it for his assertion that placing the corpses in boxes and placing them in the river is not an element of murder. Gates is not applicable in this case.

In Gates, the defendant contended on appeal that Bossier Parish was the improper venue for her trial because the crime initially occurred in Caddo Parish. The parties stipulated that the victim was first shot in Caddo Parish in the defendant’s apartment. The victim was then transported to Bossier Parish, where he was shot three more times while in the trunk of the vehicle being used to transport him. The coroner testified that he went to the scene where the body was found, which was in the trunk of a vehicle at the Bossier City dump. He determined that the fatal shot was fired in Bossier Parish while the victim was lying in the trunk after he had been transported to Bossier City. The second circuit, relying on La.Code Crim.P. art. 611, rejected defendant’s argument that there was no proof that a substantial element of the offense occurred in Bossier Parish. Gates lends no guidance in the present case because it is not clear where any of the elements of the crimes occurred.

In State v. Cupit, 508 So.2d 996 (La.App. 2 Cir.), writ denied, 514 So.2d 1174 (La. 1987), the defendant claimed the state did not prove at trial that the offense occurred in Richland Parish. The victim’s body was found on the Richland Parish side of a canal which formed the boundary between Ouachita and Richland Parishes. The defense challenged the venue both before and during the trial. It presented the | ¿testimonies of the Richland Parish coroner, deputy sheriff, and an expert in forensic pathology, each of whom were of the opinion that the victim was killed at another location. At both proceedings, the state presented evidence to prove the victim was killed in Richland Parish, including the defendant’s statement that the offense occurred in that parish and the testimonies of various experts and other witnesses who were of the opinion the crime occurred in Richland Parish. Their opinions' were based on such facts as the lack of blood streaks on the body, the fact the victim’s hand was clutching the grass beneath him, the recovery of a human tooth attached to a jaw bone in the area beneath the body, the blood spatters found on the grass around the body, the condition of the grass around the body, and, finally, the fact that the ground beneath the body was saturated with blood. The second circuit found the defendant’s argument lacked merit considering the ample evidence presented by the state to establish Richland Parish as a proper venue.

In both of the foregoing cases, there was evidence presented to establish where the crimes occurred. Here, there was nothing presented at the hearing that could establish where any element of the crimes occurred. In its brief to this court, the State noted:

Unfortunately there is no evidence to prove where the victims were murdered. There is only the speculation and conjecture of defense counsel that they were murdered in St. Landry Parish.
There is ample evidence to prove that they were murdered and, the State maintains, ample evidence to prove that the defendants committed the murders.

The State further provided the following hypothetical situation for this court’s consideration:

Hypothetically speaking, consider a murderer. showing up at the Lake Charles Police Station with the dead body of a hitchhiker in the trunk of his car, producing 11flthe murder weapon and confessing to the murder. What happens then, if the murderer maintains the murder was not committed in Calcasieu Parish and refuses to divulge where the murder was committed. Furthermore, what if there is no evidence to indicate where the murder was committed.
According to the logic and contentions of the defendants herein, this murderer must be allowed to go free because there is no proper venue for his trial.... In such cases, venue is proper in the parish where the bodies of the victims are initially found.

We recognize that this court is not bound by Mississippi case law; however, the case relied upon by the trial judge offers some guidance on the issue. In State v. Fabian, 263 So.2d 773 (Miss.1972), the trial court held that it did not have jurisdiction over the murder case because it was not shown beyond a reasonable doubt that the shots which killed the victim were fired in Mississippi. The victim’s body was found in Mississippi and he died as a result of two gunshot wounds fired from a pistol In adopting the rule that the finding of a dead body in a county creates a presumption that the murder occurred there, the Mississippi Supreme Court stated:

In other jurisdictions the rule has been announced that the finding of a dead body in a particular county raises a presumption, or supports an inference, that the killing took place there. Another well known presumption is that life, like any other condition, continues until there is evidence to the contrary. We adopt both presumptions as a rule in Mississippi.

In United States v. Rees, 193 F.Supp. 849 (Md.1961) the United States District Court stated:

The evidence justifies the inference that both Mrs. Jackson and Susan were killed at or near the spot where they were buried.
That inference is aided by a number of presumptions. The first is the reasonable presumption, generally recognized, that a person died in the state and country where his body was found. In Breeding v. State, 220 Md. 193, at page 200, 151 A.2d 743, at page 747, the court said: “Finally, the appellant contends that the State failed to prove that the killing took place in Caroline County or in Maryland. It is true that the State of Maryland cannot punish for a crime committed in another state, Bowen v. State, 206 Md. 368, 111 A.2d 844. But venue may be established by circumstantial evidence. The cases hold that the finding of a dead body in a particular county raises a presumption, or supports an inference, that the killing took place there.” Some of the authorities speak in terms of venue, rather than jurisdiction but it is clear that the prosecution must show that the crime was committed in the state as well as in a particular county, and the facts support the inference of the one as well as of the other. See People v. Peete, 54 Cal.App. 333, 202 P. 51, 64; Commonwealth v. Costley, 118 Mass. 1, 26; Hawkins v. State, 60 Neb. 380, 83 N.W. 198; Wharton on Homicide, 3d ed., 1907, pp. 901-2.
There is also the presumption that life, like any other condition, continues until there is evidence to the contrary.

In 22 C.J.S. Criminal Law § 185(17) the rule is stated as follows:

Aside from any statutory provision, the finding of the body in a county would warrant a finding that the murder was committed in that county. One should not be permitted to escape punishment for murder because he is clever enough to conceal the place where the victim was killed or died.
The presumption that death occurs where a body is found coupled with the other evidence heard by the court was sufficient to establish the venue of the crime in Marshall County, Mississippi. The proof of venue was by circumstantial evidence.

Id. at pp. 775-76 (footnotes omitted).

As mentioned previously, Defendant Surratt takes issue with the trial court’s reliance on the Fabian case because the burden in Mississippi is upon the 11?.defendant to prove venue is not proper. In Louisiana, the burden is on the State to establish venue. He notes that the Mississippi Supreme Court found the defendant had presented no evidence and that his motion was properly denied. Additionally, Surratt quotes the Mississippi court as saying, “In the present case, the court correctly overruled the motion of accused because of his refusal to offer any evidence whatever.”

What Defendant Surratt fails to mention is that in Fabian, the trial court inquired into the jurisdictional issue on its own motion after the defendant refused to offer evidence in support of the motion. It is true that the supreme court held that the defendant had the burden of proof and that his failure to provide proof in support of his motion resulted in his motion being properly overruled. However, the supreme court went further, noting that the lower court had, in an exercise of judicial discretion, inquired preliminarily into the question of its jurisdiction. The supreme court held that in such a situation, “the court need only determine that there is relevant and competent evidence supporting the allegations of the indictment with respect to venue and that this evidence is sufficient to warrant submission of the issue to the jury for determination. This is true, of course, where countervailing evidence is offered.” Id. at 775. The court added, “If there is no evidence whatever supporting the allegation of venue, then the court will dismiss the case for that reason without prejudice to try the case in the court having venue.” Id. The supreme court noted the procedure was novel and should be permitted only in exceptional circumstances. It then went on to consider the evidence from the hearing to determine if the lower court erred in holding that the state failed to prove that the victim was killed in Marshall County. In doing so, it adopted the presumption or inference discussed above.

|1sThe Fabian decision is not binding on this court, but its reasoning and conclusion should not be found inapplicable on the grounds advanced by Defendant Surratt.

Bossett v. Walker, 41 F.3d 825 (2 Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995), is a federal case where the court found that the location where the victim’s body was found was the proper venue. The Bossett court held “the jury could reasonably have inferred that McGirth was killed where his body was found.” Id. at 830. The body was discovered in the woods near a state highway in Suffolk County, New York. There was no discussion regarding the location where the crime could have occurred. There was evidence presented that one of the appellants had threatened to kill the victim and after the murder, two of the appellants made incriminating statements concerning their involvement in the crime. The court cited no authority for its finding.

In a civil case, this court has applied the presumption of the continuation of life. In Fontenot v. Southern Farm, Bureau Casualty Insurance Co., 304 So.2d 690 (La.App. 3 Cir.1974), writ denied, 307 So.2d 640 (La.1975), the decedent was struck by a hit-and-run driver and later by a second vehicle as he was lying in the road. One of the issues to be determined was whether the decedent died before being struck by the second automobile. Finding the medical evidence presented in the case inconclusive, this court applied the presumption of the continuation of life in determining that the death resulted from the second accident.

It was not established that any element of the offenses took place in Evangeline Parish. Furthermore, Louisiana law does not address the present situation of when it cannot be determined where the crime actually occurred. “Where the law is silent, it is within the inherent authority of the court to fashion a remedy which will | upromote the orderly and expeditious administration of justice. La.Code Crim.P. art. 17; State v. Edwards, 287 So.2d 518 (La.1973).” State v. Mims, 329 So.2d 686, 688 (La.1976). The venue articles require the prosecution of the case in the parish where the crime has been committed. If the location cannot be determined, it would serve as an injustice to hold that since the State could not establish the exact geographical location of a murder, an accused cannot be tried. The Louisiana Code of Criminal Procedure does not address the factual circumstances presented by this case. Therefore, this court must fashion a remedy which promotes the administration of justice. The testimony indicates both victims were found in Evangeline Parish. Both victims had been shot and their legs cut off. Other testimony was introduced to establish that the victims lived in St. Landry Parish and the pet of one of the victims was found in St. Landry Parish dead from a gunshot wound. However, the crime scene of the murders has not been located. As noted, Defendants raised objections to venue in Evangeline Parish arguing that the State failed to meet its burden of proving that any of the elements of the crime of first degree murder occurred in that parish. There is no question that the bodies were found in Evangeline Parish. There is also no question that the condition of the bodies, when found, indicate that the deceased did not die from natural causes, but in fact met their deaths in a violent manner.

Louisiana Code of Criminal Procedure Article 3 provides that “[w]here no procedure is specifically prescribed by this Code or by statute, the court may proceed in a manner consistent with the spirit of the provisions of this Code and other applicable statutory and constitutional provisions.” While La.Code Crim.P. art. 611 provides generally for venue in criminal cases by placing the burden on the State to prove venue by a preponderance of the evidence, it does not provide for the unique 1^situation where the body of a person is found that is apparently the victim of a homicide in a particular parish, yet there is no evidence of where the offense occurred. Louisiana Constitution Article 1; § 16 provides in part that “Every person charged with a crime ... is entitled to an impartial trial held in the parish where the offense or an element of the offense occurred.” An element of first degree murder is the “killing of a human being.” La.R.S. 14:30. It is obvious in this case that the condition of the bodies of Mr. Cook and Ms. Kirby, found in Evangeline Parish, indicate that they were killed. The trial court could logically infer that Mr. Cook and Ms. Kirby were killed where their bodies were found. Further, pursuant to the authority of La.Code Crim.P. art. 3, it would serve the orderly administration of justice for this court to adopt the presumption that the killing of Mr. Cook and Ms. Kirby occurred in Evangeline Parish, where their bodies, the condition of which indicate foul play, were found and, therefore, venue is proper in Evangeline Parish. To reason otherwise would allow the absurd result of permitting the suspected perpetrators of the murders to escape trial because they had the mental acuity to conceal the place where any acts of the offense occurred.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . After Detective Demourelle’s testimony, defense counsel for Larry Surratt stipulated that the boxes containing the bodies were found on the Evangeline Parish side. Thus, the State presented no further testimony or evidence on this issue.

      . Detective Demourelle was asked if it was “approximately a mile to a mile and a half from Interstate 49,” and he replied, "[y]es, and I’m not sure the exact distance. It's not a very long distance. It might be less than a mile.”


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Larry SURRATT.
    No. 04-57.
    Court of Appeal of Louisiana, Third Circuit.
    July 7, 2004.
    Allen Bruce Rozas, Mamou, LA, Marion B. Farmer, Covington, LA, for Defendant/Applieant-Larry Surratt.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., GLENN B. GREMILLION, and JOHN B. SCOFIELD, Judges.
   THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of State of Louisiana v. Cynthia Anderson, 04-30 (La.App. 3 Cir. 7/7/04), 877 So.2d 336, 2004 WL 1496835, the judgment of the trial court is affirmed.

AFFIRMED.


author: JjWOODARD, Judge.

text:
    Sandres J. GUIDRY, et al. v. DWIGHT MANUEL, INC., et al.
    No. 03-1236.
    Court of Appeal of Louisiana, Third Circuit.
    July 7, 2004.

      Gerald C. deLaunay, Lafayette, LA, for Plaintiffs/Appellees/Appellants Cathy D. Guidry, Guico Specialty Company, Inc., Sandres J. Guidry.
    Charles J. Foret, Briney & Foret, Lafayette, LA, for Defendants/Appellants Dwight Manuel, Inc., Maryland Casualty Insurance Company.
    John O. Kopynec, Roy J. DiVincenti, III, Geraldine Fontenot Roberts, Lindsey J. Leavoy, Owen Arden Neff, Law Offices of Roy J. DiVincenti, III, Baton Rouge, LA, Pride J. Doran, DiVincenti, Fontenot-Rob-erts & Doran, Lafayette, LA, David Shaw, Neal, Stephens & Grace, Metairie, LA, for Defendant/Appellant Maryland Casualty Insurance Company.
    John H. Hughes, Allen & Gouch, Lafayette, LA, for Defendants/Appellees MPW Construction, Inc., Acadiana Architects, LLC, William P. Mills, III.
    James Allen Lochridge, Jr., Voorhies & Labbe) Lafayette, LA, Brent P. Frederick, Breazeale, Sachse & Wilson, Baton Rouge, LA, for Defendant/Appellee Baldwin Redi-Mix, Inc.
    William W. Koetting, Lafayette, LA, Defendant/Appellee in Proper Person.
   JjWOODARD, Judge.

The Plaintiffs appeal the jury’s determinations concerning fault allocation and damages. Defendant and third-party Plaintiff, Manuel, appeals the fault allocation, as well. We affirm the trial court’s fault allocation but increase the damages awarded to $243,970.00.

*****

In May 1998, Sandres J. Guidry and his wife, Cathy, retained Acadiana Architects (Acadiana) to design a building to serve as the new office and warehouse for his company, Guico Specialty Company, Inc., (Gui-co). Guico distributes high pressure products, such as hoses, valves, fittings, and high pressure pumps. When Acadiana finished the plans and specifications for the new building, the Guidrys took bids from different contractors, ultimately hiring Dwight Manuel, Inc. (Manuel) to construct the building. Mr. Manuel subcontracted Baldwin Redi-Mix (Redi-Mix) and Mr. Daniel Popillion, a concrete finisher. Redi-Mix was supposed to deliver concrete of a certain compression strength, specifically described as 3000 pounds per square inch (psi), for the building and 3500 psi concrete for the parking lot. The Plaintiffs became dissatisfied with Manuel’s performance and terminated their contract. They hired MPW Construction, Inc., (MPW) to finish the project. At this point, Redi-Mix had already poured the concrete.

MPW finished construction and Guico began operating out of the new building. However, the concrete started cracking, prompting Mr. Guidry to have it tested. The tests revealed that the concrete’s strength was only approximately 1750 psi. Testimony and delivery tickets revealed that the concrete was diluted with water at the job site, reducing the compression strength. Accordingly, Mr. and Mrs. Gui-dry filed suit against Manuel, Acadiana, MPW, and two individuals associated with Acadiana and MPW, William W. Koetting and William P. Mills. Mr. Guidry’s company, Guico, was also a Plaintiff, alleging that the Defendants disturbed its rights as lessee of the building. Manuel filed a third-party demand against Redi-Mix and Mr. Popillion, the concrete finisher. The Plaintiffs also added a claim against Redi-Mix. Because of an inability to timely serve Mr. Popillion, the trial court severed the claim | ^against him, and he was not a party in this litigation. Nonetheless, the jury was asked to consider whether Mr. Popillion bore any responsibility.

At the end of the Plaintiffs’ case, the trial court directed a verdict in favor of all Defendants except for Manuel and its insurer, Maryland Casualty Company, and Redi-Mix. The jury found Manuel 100% at fault and awarded Mr. and Mrs. Guidry $67,120.00, reduced by $29,120.00 for their failure to mitigate their damages, for a total award of $38,000.00. The jury rejected Guico’s claims. The trial court rendered judgment in accord with the jury’s finding and dismissed Manuel’s third-party demand against Redi-Mix. Manuel appeals, only, the dismissal of its third-party demand against Redi-Mix. Plaintiffs, also, appeal Redi-Mix’s dismissal, as well as the amount of damages and the jury’s failure to recognize Guico’s claims.

* * :|c 4c *

STANDARD OF REVIEW

Negligence or fault determinations, as well as the quantum of damages, are factual determinations which are entitled to great deference. This court must review the jury’s verdict for manifest error. If we find a reasonable basis for the jury’s determinations, we must affirm even though we would have made different determinations had we been the trier of fact.

Redi-Mix’s Liability

Manuel alleges that Redi-Mix breached its oral contract to provide concrete of the designated strength. Alternatively, Manuel claims that the defective concrete is a result of Redi-Mix’s negligence. The Plaintiffs’ claims against Redi-Mix are predicated upon negligence.

There is a reasonable basis in the record for the jury’s determination that Redi-JMix3 did not breach a duty, either in contract or in tort. The record supports that Redi-Mix delivered concrete of adequate strength to the construction site. Thus, Redi-Mix argues that it fulfilled its duty. Contrarily, the Plaintiffs and Manuel argue that Redi-Mix’s duty extended to pouring concrete of adequate strength. However, there was ample testimony that once the Redi-Mix trucks arrive at the job site, the general contractor or his subcontractors are responsible for directing and supervising the pour. While, only, the Redi-Mix employees are authorized to turn the nozzle on the trucks that actually adds the water, even Manuel admitted:

Well, typically, if there is no supervisor on site and it’s just the finishers there, like let’s suppose it’s some other job, and I’m not there, and it’s just the finishers and the concrete truck, well the finisher is going to tell the concrete truck how much water to put. Certainly, the concrete guy not on his own is going to put water. It is true. Those concrete finishers will tell them if they need more or less water.

Nonetheless, Manuel continued to state that on this particular pour, he was not present the whole time and because Mr. Huval, Redi-Mix’s sales representative, was present, he was relying on him to make sure it was a good pour. Thus, Manuel’s testimony implies that even though, typically, the contractor is responsible, Mr. Huval assumed the responsibility in this instance, simply by being present the entire time. However, Mr. Huval testified that he did not direct the truck operators to add any water. Furthermore, Mr. Clint Bishop, Redi-Mix’s owner testified that its sales representatives’ responsibilities were as follows:

They’re there to actually regulate, make sure that the trucks show up, and what happens is they wait for somebody to give them the go-ahead to order the trucks. They call the plant and they make sure that the trucks don’t get lost on the way to the job, they don’t run into any problems getting to the job. From there they make sure the truck gets to the job site. They also monitor them at their washout area to make sure they don’t stand around and goof off, and they get back to the plant so that we have an efficient turn around time, and that we don’t have somebody waiting on concrete.

Additionally, Dr. Jerry Householder, an expert in construction management, structural and civil engineering, testified that the contractor or subcontractors were responsible for determining whether water should be added to the concrete. He further testified:

|4Q. Hypothetically, let’s assume that a general contractor wasn’t there when a pour was being placed. Would the responsibility at that point shift to the concrete supplier?
A. No, not the supplier. It’s never in the line of fire. It shifts to the person who represents the general contractor or the finisher. The finisher is always going to be there, but if the concrete truck rolls up and there’s nobody there, he’s going to turn around and go back. Somebody’s got to be there to accept the delivery.

Accordingly, we find a reasonable basis for the jury’s determination that Manuel was the sole responsible party at the time the water was added to the concrete.

The Plaintiffs and Manuel, also, argued that Redi-Mix used fly ash, an add mixture, in the concrete mix without any authorization. However, testimony revealed that fly ash is regarded as a cementious material that is commonly used in the industry. Furthermore, no witness contended that the mix design Redi-Mix used would have produced less than the specified strength, notwithstanding that the mix design included fly ash.

Manuel orally contracted with Redi-Mix for concrete of 3000 psi and 3500 psi. Manuel argues that the fact that the testing revealed concrete of inadequate strength is proof positive that Redi-Mix breached its contract and the burden shifts to Redi-Mix to prove there was an amendment to the contract.

Breach is a question of fact and we may not disturb a jury’s finding unless there is no reasonable basis for it in the record. Testimony supported that once the trucks arrived at the site, Redi-Mix had fulfilled its contractual duty to deliver concrete of the required strength. In the instant case, the jury could have determined that once the Redi-Mix trucks arrived at the job, the pour was under the supervision and direction of the contractor or subcontractors. The record reasonably supports this determination. Once the duty is placed on the contractor, he has the burden of proving that the addition of water was unauthorized rather than Redi-Mix having to prove that it was, in fact, authorized.

Manuel supports its argument that Redi-Mix should be liable with a similar case from the fifth circuit, Troyer v. Web ster Homes, Inc. In Troyer, the' jury assessed the concrete company with 10% fault. The fifth circuit affirmed this finding, stating that |Bthe concrete company knew that excessive water was being added and that it knew or should have known that the effects of the water would be detrimental to the concrete.

Nonetheless, this does not mandate a finding of liability against Redi-Mix in the case at bar. In Troyer, the fifth circuit found no “clear error” in the jury’s determination, given that, “it was the jury’s province to determine the amount of weight to attribute to their [the concrete company’s employees’] testimony.” Likewise, even though this jury reached a different result, we cannot find clear error it its determination.

Furthermore, Troyer is distinguishable because, in that case, the contractors testified that they knew nothing about concrete and that the concrete representative, in fact, supervised the pour and instructed that the water be added. By the time of trial, the representative whs deceased and, therefore, could not positively rebut this testimony. Here, Mr. Huval testified that he did not direct or supervise the pour, nor did he ask that water be added.

Thus, we find a reasonable basis for the jury’s determination that Redi-Mix was not liable for the defective concrete.

Damages Quantum

The Plaintiffs appeal the jury’s award of only $38,000.00. While we.recognize the trial court’s discretion in assessing damages, a careful review of the testimony in this case leaves no doubt that $38,000.00 is wholly inadequate to compensate the Plaintiffs and, thus, is an abuse of discretion.

Two defense experts testified that the Plaintiffs could repair the existing problems in -the concrete for about $10,000.00. Mr. George Hammitt, the Defendants’ expert in construction management and civil engineering, noted that there were two small areas of concrete that needed to be cut out and replaced with good quality concrete and suggested that the existing cracks, throughout the building, could be sealed with a material called Overcrete. Mr. Jerry Householder, Redi-Mix’s expert in construction management, structural and civil engineering, gave similar testimony and concurred, with Dr. Hammitt’s estimate of $10,000.00 for repairs.

Additionally, Mr. Gene Cope, Defendants’ expert real estate appraiser and consultant, testified that the property’s value, excluding consideration of any possible | ^concrete problems, would be $280,000.00; but considering the known problems with the concrete, he would deduct ten percent of that, or $28,000.00.

Accordingly, on the surface, the jury’s determination that the Plaintiffs incurred only $38,000.00 in damages seems reasonable, particularly in light of the instruction the court gave them:

When a person sustains property damages due to the fault of another, which is what is claimed here, he’s entitled to recover damages including the cost of restoration that has been or may be reasonably incurred or at his election the difference between the value of the property before and after the harm or the damage. If, however, the costs of restoring the property to its original condition is disproportionate to the value of the property or economically wasteful, then damages are measured only by the difference between the value of the property before and after the harm.

Apparently, the jury awarded the $10,000.00 for the repairs the Defendants’ experts suggested, along with $28,000.00 for the diminution in value of the building because of the concrete problems. However, this “repair method” is a superficial one which does not contemplate repairing the actual damage but only addresses the aesthetic problems that were immediately apparent. It leaves the Plaintiffs completely uncompensated for the concrete’s inadequate strength, which is the real problem requiring a remedy. It is unre-futed that the concrete does not meet Lafayette Parish’s standard building codes, which require that the concrete have a minimum PSI of 2500. Simply sealing the cracks cannot bring the concrete up to code and, therefore, does not constitute a “repair” as far as the building regulation laws are concerned. In fact, Mr. Hammitt admitted that if inspectors come to the site and see something is not up to code, they tell you to “fix it.”

Furthermore, Mr. Cope based his estimate of $28,000.00, a ten percent reduction, on the concrete’s visible defects such as “the dark area that I’m sure has been described, that area in the parking lot, and so forth and so on.” Mr. Cope did not take into account the inadequacy of the, concrete’s strength. Indeed, Mr. Cope testified:

Q. What if these purchasers were also told and the cost to bring this slab up to specifications is going to be $200,000.00. Do you think [7at that point they are going to say well let’s just knock ten (10%) percent off.
A. I think they would reject the purchase altogether.

Additionally, while the instruction that the trial court gave the jury is a direct quote from our supreme court’s opinion in Roman Catholic Church of Archdiocese of New Orleans v. Louisiana Gas Service Company, it does not completely set forth the rule of law that case states and applies: “that reasons personal to an owner are often the basis of a property damage award, which exceeds the property’s value before it was damaged.” Specifically, the supreme court stated:

Accordingly, we conclude that, as a general rule of thumb, when a person sustains property damage due to the fault of another, he is entitled to recover damages including the cost of restoration that has been or may be reasonably incurred, or, at his election, the difference between the value of the property before and after the harm. If, however, the cost of restoring the property in its original condition is disproportionate to the value of the property or economically wasteful, unless there is a reason personal to the mmer for restoring the original condition or there is a reason to believe that the plaintiff will, in fact, make the repairs, damages are measured only by the difference between the value of the property before and after the harm. Consequently, if a building such as a homestead is used for a purpose personal to the owner, the damages ordinarily include an amount for repairs, even though this might be greater than the entire value of the building.

The italicized portion of this rule, though pertinent to the case at bar, was omitted from the instruction the trial court gave to the jury. The Guidrys, specifically, tailored the building to house their business, Guico, Inc. Mr. Guidry testified, at length, concerning the special needs of his company which the building was to accommodate.

Furthermore, the court did not buttress its instruction to the jury with the cornerstone of Louisiana damages law, “that the goals of our Civil Code and the |sLouisiana Constitution are to ‘compensate the victim to the full extent of his loss and restore him to as good a position as he held prior to the damage.’ ”

Accordingly, we find that the jury abused its discretion in awarding, only, $38,000.00 in damages to the Plaintiffs. The Plaintiffs’ expert, Mr. Woody Le-Blanc, testified that it would cost approximately $215,690.00 to replace the concrete slab with one of adequate strength. Additionally, Mr. Guidry estimated that he would incur costs of $28,280.00 to maintain a temporary structure to operate his business during the construction. Thus, the total replacement cost is $243,970.00. We find it essential to award the Plaintiffs this amount to properly repair the problem by replacing the defective concrete.

Mitigating Damages

Additionally, Mr. Guidry testified he incurred $29,120.00 in additional cleaning expenses because of the cracks in the concrete. The jury included this amount in its damages award, but reduced the award by the same amount, finding that the Plaintiffs failed to mitigate their damages. Specifically, Mr. Guidry admitted that he was told that filling the cracks with epoxy would prevent the concrete from sprawling and that sealing the cracks would have eliminated the need for the additional cleaning costs. “Injured parties have a duty to mitigate their damages; however, they are only required to act reasonably in minimizing the consequences of their injury.” The Plaintiffs argue that the jury erred in reducing the damages because no one testified that Mr. Guidry acted unreasonably. However, the reasonableness of his actions was a determination best left to the jury.

Finally, the Plaintiffs argue that the jury should have awarded the expenses they incurred to test the concrete and in grinding it down and smoothing it out. However, Mr. Guidry testified that he withheld money he owed Manuel and used it for these purposes. Thus, we cannot say the jury erred in failing to award these costs.

IflGuiCO’S CLAIMS

The only evidence concerning damages to Guico consisted of the extra costs the business incurred for cleaning the cracks in the concrete. The jury did recognize this element of damages. However, it chose to compensate Mr. and Mrs. Guidry, the owners of the building, rather than the business for these particular costs. Aside from these costs, Guico failed to present any evidence of loss of profits or interruption of its business due to the defective concrete. Thus, the jury’s determination is a reasonable one.

CONCLUSION

We amend the trial court’s judgment, increasing the damages awarded the Plaintiffs to $243,970.00. In all other respects, the trial court’s ruling is affirmed. We cast the costs of this appeal against Manuel and its insurer.

AFFIRMED AS AMENDED.

        . See Lirette v. State Farm Ins. Co., 563 So.2d 850 (La. 1990); Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

      . Lirette, 563 So.2d 850.

      . Id.

      . 566 So.2d 114 (La.App. 5 Cir.), writs denied, 571 So.2d 650, 651 (La.1990).

      . Id. at 118.

      . 618 So.2d 874 (La.1993).

      . National Union Fire Ins. Co. v. Harrington, 02-832, p. 26 (La.App. 3 Cir. 4/17/03), 854 So.2d 880, 897 (citing Roman Catholic, 618 So.2d 874 at 879).

      .618 So.2d at 879-80 (emphasis added).

      . Harrington, 854 So.2d at 897 (quoting Roman Catholic, 618 So.2d at 879).

      . LaCombe v. Buras, 00-1145, p. 4 (La.App. 3 Cir. 1/31/01), 778 So.2d 1181, 1185 (citing Al’s Trucking, Inc. v. State Farm Fire & Cas. Co., 98-1542 (La.App. 3 Cir. 5/12/99), 735 So.2d 833, writ denied, 99-1681 (La.9/24/99), 747 So.2d 1122).


text:
    Opal DOWDEN, et al. v. LEEBO’S STORES, INC., et al.
    No. 04-196.
    Court of Appeal of Louisiana, Third Circuit.
    July 7, 2004.
    Russell L. Potter, Stafford, Stewart, & Potter, Alexandria, LA, Daniel G. Brenner, Bolen, Parker, etc., Alexandria, LA, for Defendant/Appellee- — Leebo’s Stores, Inc.
    Kraig Thomas Strenge, Lafayette, LA, for Defendant/Appellant — United Fire & Casualty Insurance Company.
    Scott Westerchil, Leesville, LA, for Plaintiffs/Appellees — -Opal Dowden and W.H. Dowden.
    James Henry Colvin, Sharp, Henry, etc., Homer, LA, for Defendants/Appellees— Shop-A-Lott, Inc., Lott Oil Co., Inc., and Agricultural Excess and Surplus Insurance Co., Inc.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   THIBODEAUX, Chief Judge.

In this case, United Fire & Casualty Insurance Company (United) appeals the granting of a Judgment Notwithstanding the Verdict (JNOV) by the trial judge. The trial judge granted the JNOV after determining that United breached its duty of good faith in dealing with its insured, Leebo’s Stores, Inc. (Leebo’s). We disagree with the trial judge and reverse the judgment.

I.

ISSUES

1) Did the trial judge err in granting the JNOV?

II.

FACTS

On February 15, 2000, Ms. Opal Dowden fell in a hole in the parking lot of a convenient store. She sued Leebo’s, the company which ran the convenient store, and Lott Oil Company, Inc. (Lott Oil), as the owner of the store and lot. Leebo’s had an insurance policy through United. Lee-bo’s did not name the lessor of the premises as a named insured on the policy although it was required to do so. United alleged that the accident was the result of the independent negligence of the lessor and denied coverage to the lessor. Lee-bo’s demanded that United provide the lessor with coverage under the indemnity clause of the lease.

At the outset of this case, the parties were confused as to whether Shop-A-Lott, Inc. (Shop-A-Lott) or Lott Oil was lessor of the property because the two names were used interchangeably. However, the evidence later revealed that Lott Oil owned the gas pumps and supplied gas and diesel to the store, but Shop-A-Lott was the actual lessor of the lot and the store.

1 ¡.Lott Oil filed a cross-claim against Lee-bo’s alleging that the lease agreement obligated Leebo’s to defend, indemnify, and hold it harmless for claims in the lawsuit and that it was Leebo’s duty to maintain the premises. Lott Oil also claimed that Leebo’s was required to, but did not, name it as an additional insured in its insurance policy with United. Shop-A-Lott also filed a cross-claim against Leebo’s demanding indemnity coverage. United hired attorney Russell Potter to represent Leebo’s. Leebo’s also hired attorney Dan Brenner as additional counsel and filed a cross-claim against United alleging that United acted in bad faith by failing to indemnify and defend Leebo’s and by refusing to provide coverage to the lessor. Shop-A-Lott’s and Lott Oil’s cross-claims were settled prior to trial. Leebo’s cross-claim against United was tried before the jury at the same time as the tort suit.

After trial on the matter, the jury ruled in favor of Ms. Dowden. Ms. Dowden has not appealed. The jury also ruled that United had not acted in bad faith and did not award attorney fees, damages, or penalties to Leebo’s on its cross-claim against United. The trial judge granted a JNOV, ruling that United had breached its duty of good faith and awarded attorney fees of $16,319.02. United now appeals the judgment granting the JNOV.

III.

LAW AND DISCUSSION

Judgment Notwithstanding the Verdict

Louisiana Code of Civil Procedure Article 1811 provides the authority for a JNOV. In Davis v. Wal-Mart Stores, Inc., 00-445 pp. 4-5 (La.11/28/00), 774 So.2d 84, 89 (quoting, in part, Smith v. Davill Petroleum Co. Inc., 97-1596, p. 4 (La.App. 1 Cir. 12/9/98), 744 So.2d 23, 26-27), the Louisiana Supreme Court set out the standard for granting a JNOV:

|3A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.
The standard of review for a JNOV on appeal is a two part inquiry. In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether or not to grant the motion. After determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review.

(citations omitted).

After reviewing the evidence, we find the trial court erred in granting the JNOV, as reasonable people could have arrived at the decision reached by the jury.

Review of Evidence

The issue before the jury was whether United was in bad faith for failing to indemnify and provide a defense to Lee-bo’s and the lessor of the store. The jury determined that United was not in bad faith and did not award attorney fees.

As to Leebo’s, the evidence is clear that it was provided with a defense by United. United assigned Mr. Potter to defend claims brought against Leebo’s. Mr. Potter filed answers to Ms. Dowden’s original and amended petitions and defended Lee-bo’s on these claims at trial. He also filed answers to Lott Oil’s and Shop-A-Lott’s claims against Leebo’s. Moreover, Mr. Brenner, Leebo’s additional counsel, | ¿testified that Mr. Potter provided Leebo’s with a complete defense. Mr. Brenner agreed that the only issue that Mr. Potter did not defend was the issue of coverage of the lessor under the insurance policy.

As to Lott Oil and Shop-A-Lott, the evidence shows that on May 11, 2001, United sent a letter to Leebo’s stating that after examining the lease agreement between Leebo’s and Shop-A-Lott, there was no duty to provide a defense or indemnity to Shop-A-Lott because Shop-A-Lott created the hazard that injured the claimant. It claimed that the lessor replaced the gas pumps on the premises, which required breaking up and replacing the concrete in the parking lot where the claimant fell. It concluded that the indemnity language of the lease did not require it to indemnify the lessor for its independent acts of negligence. United also relied on the fact that the lessor was not named as an additional insured, as required by the insurance policy, to deny coverage.

After receiving United’s letter, Leebo’s sent several letters to United regarding evidence on where, it claimed, the accident occurred and urged United to change its position on the issue of coverage. Leebo’s argues that if United had investigated the accident, it would have determined the correct area where the claimant fell and the lessor would have been notified that indemnity and a defense were available to it by operation of the lease. Therefore, the lessor would not have been forced to file a cross-claim against Leebo’s and Leebo’s would not have incurred attorney fees in defending the claims of the lessor. This argument is without merit for several reasons.

First, although Leebo’s requested that United indemnify and defend Lott Oil, Lott Oil was not the lessor under the lease, so it was not entitled to indemnity and a defense. Shop-A-Lott was the actual lessor, but only entered into the suit two |fimonths prior to trial and settled its cross-claim against Leebo’s prior to trial. Furthermore, Leebo’s did not name Lott Oil or Shop-A-Lott as additional insured’s under the lease agreement. Therefore, United had several valid reasons to deny coverage to the lessor, and was not in bad faith for denying coverage. Moreover, the evidence reveals that Mr. Brenner’s defense of Leebo’s was predominantly on the issue of coverage. The cross-claim that Mr. Brenner filed and letters he wrote on Lee-bo’s behalf were all directed toward the issue of coverage of the lessor by United. Generally, an insured can recover attorney fees associated with its defense of the underlying action, but not with its litigation of the coverage issue. Steptore v. Masco Constr. Co., Inc., 93-2064 (La.8/18/94) 643 So.2d 1213. Mr. Brenner’s defense was directed toward getting United to defend and indemnify the lessor, not toward the underlying action. Therefore, he cannot recover attorney fees for this work.

Second, Leebo’s argument that if United had conducted an investigation, it would have discovered the correct hole, is flawed. The record reveals conflicting testimony regarding*which hole caused Ms. Dowden’s accident. The jury did not indicate which hole caused the accident; it simply apportioned the fault among the parties. The jury could have determined that either of the possible holes caused the accident or that repairing the parking lot was the responsibility of all the defendants. For us to determine which hole the jury decided caused the accident is pure speculation.

From this evidence, the jury concluded that United was not in bad faith in dealing with Leebo’s and attorney fees were not warranted. The trial judge granted a JNOV, stating that if United had investigated or simply taken the position that it would defend the lessor, “it is more probable than not there would have been no cross-claim by Shop-A-Lott.” A JNOV is proper when the facts and inferences point Lso strongly and overwhelmingly in favor of one party that reasonable jurors could not arrive at a different verdict. VaSalle v. Wal-Mart Stores, Inc., 01-0462 (La.11/28/01), 801 So.2d 331. The facts and inferences in this case are, at best, conflicting and do not point so overwhelmingly in favor of one party that reasonable jurors could not arrive at a contrary verdict. Therefore, we conclude that the trial judge erred in granting the JNOV.

IV.

CONCLUSION

For these reasons, the JNOV granted by the trial court is reversed and the jury’s verdict is reinstated. All costs of this appeal are assessed to appellee, Leebo’s Stores, Inc.

REVERSED.


text:
    STATE of Louisiana, Applicant, v. Earl C. BENNETT, III, Respondent.
    No. 39231-KW.
    Court of Appeal of Louisiana, Second Circuit.
    July 29, 2004.

      Charles Foti, Attorney General, John Schuyler Marvin, District Attorney, Robert Randall Smith, Assistant District Attorney, for Applicant.
    Whitley Robert Graves, Benton, for Respondent.
    Before GASKINS, MOORE and LOLLEY, JJ.
   WRIT GRANTED AND MADE PEREMPTORY.

The State seeks reversal of a trial court ruling that, for purposes of a prosecution charging DWI, third offense, the fact that the defendant entered guilty pleas to two separate offenses during one court appearance counts as only one conviction.

We reverse the trial court ruling. It is the number of prior convictions, not their sequence, which determines the appropriate designation of a subsequent DWI offense. See State v. Woods, 402 So.2d 680 (La.1981); State v. Vu, 02-1243 (La.App. 5th Cir.4/8/03), 846 So.2d 67. According the writ is granted and made peremptory. The matter is remanded to the trial court for further proceedings.