author: | PATRICIA RIVET MURRAY, Judge.

text:
    Sandra SCOTT v. WALMART STORES, INC.
    No. 2003-CA-0104.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 2, 2003.

      Deidre K. Peterson, Peterson Law Firm, New Orleans, LA, for Plaintiff/Ap-pellee.
    Frank A Flynn, Allen & Gooch, Lafayette, LA, for DefendanVAppellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR.).
   | PATRICIA RIVET MURRAY, Judge.

This is a workers’ compensation case. Wal-Mart Stores, Inc. appeals the award of workers’ compensation benefits, penalties, and attorney’s fees to its former employee, Sandra Scott. For the reasons that follow we reverse.

FACTS AND PROCEEDINGS BELOW

This case arises from a claim for workers’ compensation benefits filed on July 8, 1999, by Mrs. Scott against Wal-Mart for carpal tunnel injuries that allegedly occurred as a result of her duties as a cashier. Wal-Mart answered by denying Mrs. Scott’s allegations, claiming that there was no medical connexity between her injury and her duties as a cashier, thus, she was not injured in the course and scope of her employment. Before trial, Mrs. Scott discharged her original attorney and obtained new counsel. Following the trial, Wal-Mart filed an exception of prescription asserting that the claim had prescribed pursuant to La. R.S. 23:1209.

In June 1996, Mrs. Scott began working as a cashier. Shortly thereafter, she began complaining of bi-lateral wrist pains and began using a wrist brace to ^mitigate her discomfort. In January 1997, Mrs. Scott took a leave of absence from Wal-Mart because of what she described as a mental condition of depression based on stress from work, but no claim for workers’ compensation was made. The leave of absence prompted her to submit an application for short-term disability with her personal disability carrier, ITT Hartford (“ITT”), who accepted the claim and granted benefits until she returned to work in September 1997.

Mrs. Scott first sought treatment for her ongoing wrist pain in 1997. Her efforts culminated in a diagnosis of carpal tunnel syndrome in April 1998 from EMG and nerve conduction tests showing nerve damage in both wrists. Because of her wrist condition, Mrs. Scott took another leave of absence from Wal-Mart on July 1, 1998, and underwent surgery on July 8, 1998. She once again applied for short-term disability benefits from ITT who accepted the claim and granted benefits for six months. When Mrs. Scott did not return to Wal-Mart from her leave of absence on November 1, 1998, as scheduled, her employment was terminated.

Perhaps the most pertinent occurrences during this time period were the communications between the Wal-Mart personnel manager and Mrs. Scott. There were at least two meetings that the record indicates occurred. The first was just prior to June 25, 1998, in preparation of Mrs. Scott taking her leave of absence due to carpal tunnel problems. At this meeting, the personnel manager requested a doctor’s statement for Wal-Mart’s file. With regard to whether Mrs. Scott told the manager before taking her second leave of absence that there was a particular Inactivity at work that brought pain to the wrist, Mrs. Scott’s testified at trial that, “What I did, I talked to [the manager]. I talked to a few other people and expressed to them what my doctor said. There are a lot of things I did not do because my full intention was to come back to the job.” Mrs. Scott also testified that following her diagnosis she informed Wal-Mart that her doctor suggested cashier work could cause carpal tunnel nerve damage in a short amount of time. In fact, the doctor’s statement provided in response to the manager’s request has no indication as to whether or not the diagnosis of carpal tunnel was work related.

The second meeting apparently occurred in August or September 1998, a few months after the first surgery. By this time, Mrs. Scott realized, based on information from an unknown source, that she was not receiving workers’- compensation benefits, but rather short-term disability benefits. In light of this realization, she called the personnel manager and, in her own words, “requested — asked her about the workers’ compensation,” and was provided with an explanation of the difference between the two. Mrs. Scott testified that she responded to the explanation by telling the manager that she “needed to get that.” Mrs. Scott provided contradictory testimony as to whether during the second meeting the personnel manager was aware (or was made aware) that Mrs. Scott was pursuing a workers’ compensation claim as a result of injuries obtained from her cashier duties. At one point in her testimony, Mrs. Scott states that the manager informed her that the first step to begin a claim is to obtain an “applying card.” Yet, in response to another line of questioning, she states that the ^conversation was limited to a discussion of the differences between workers’ compensation and short-term disability.

In December 1998, a few months after her second discussion with the personnel manager, Mrs. Scott had a second wrist surgery and obtained counsel to “take care” of her workers’ compensation claim. Wal-Mart was first formally notified of Mrs. Scott’s alleged work related injury when she filed the claim more than six months later on July 8, 1999, one year and one week from her last day of work at Wal-Mart. At trial in January 2002, only two witnesses testified: Mrs. Scott and her husband. Based on the testimony, evidence introduced, and applicable law, the trial court found that:

• Mrs. Scott’s carpal tunnel syndrome was a direct result of her employment; and
• She was entitled to temporary total workers’ compensation indemnity benefits from the time the injury became disabling requiring surgery until she can earn at least 90% of her pre-injury wages; and
• The exception to prescription was denied as Wal-Mart was aware of Mrs. Scott’s injury and unilaterally placed her on its own disability carrier instead of paying her worker’s compensation benefits to which she was entitled; and
• Wal-Mart failed to controvert Mrs. Scott’s entitlement to workers’ compensation benefits and is thus hable for penalties and attorney’s fees.
From that judgment, Wal-Mart appeals.

DISCUSSION

On appeal, Wal-Mart alleges that the trial court committed manifest error in (i) rejecting its exception to prescription under La. R.S. 28:1209, (ii) finding that Mrs. Scott carried the requisite burden of proof regarding medical connexity | Bbetween her injury and her duties as a cashier, and (iii) finding that Wal-Mart was arbitrary and capricious where there were substantial and legitimate disputes over the extent of work related injury and/or work related disability, if any.

As the claim was filed one year and one week after Mrs. Scott’s last date of employment, Wal-Mart contends that the applicable prescription period had run, and that the claim was thus barred. It also asserts that no interruption of prescription occurred. More particularly, Wal-Mart asserts that the trial court abused its discretion in finding that there was any unilateral action amounting to interruption of prescription on the part of Wal-Mart vis-a-vis Mrs. Scott’s personal short-term disability carrier, ITT, and that Wal-Mart did not induce Mrs. Scott into withholding filing her workers compensation claim until the prescriptive period had run.

Mrs. Scott’s original petition (OWC Form 1008) states the date of her injury as July 8, 1998, the date of her first surgery, which was exactly one year prior to the filing of her claim. Even so, she argues that prescription had been interrupted due to the inaction of Wal-Mart after workers’ compensation benefits were discussed at a meeting between the personnel manager and Mrs. Scott during the respective prescriptive period. Additionally, the trial court’s judgment denying the exception of prescription opines that prescription had been interrupted not only because Wal-Mart was aware of Mrs. Scott’s injury before prescription had run, but also that Wal-Mart had unilaterally put her on disability payments through its disability carrier instead of paying workers’ compensation benefits.

| ^PRESCRIPTION

In keeping with the general intent of the Workers’ Compensation Act, the jurisprudence has liberally construed the time limits for institution of a claim for benefits. Millican v. General Motors Corp., 34,207, p. 1 (La.App. 2 Cir. 11/1/00), 771 So.2d 234, 235, writ denied, 2001-0001 (La.3/23/01), 788 So.2d 426; See, e.g., Glascock v. Georgia-Pacific Corp., 25,677 (La. App. 2 Cir. 03/30/94), 635 So.2d 474, 479; Wesley v. Claiborne Elec. Co-op., Inc., 446 So.2d 857 (La.App. 2 Cir.1984); See generally, 14 H. Alston Johnson, Louisiana Civil Law Treatise: Workers’ Compensation Law and Practice § 384 (3d ed.1994). Thus, prescription statutes, including La. R.S. 23:1209(A), are construed in favor of maintaining rather than barring actions. See, e.g., Taylor v. Liberty Mut. Ins. Co., 579 So.2d 443, 446 (La.1991); Howard v. Trebles, 95-0227, p. 4 (La.App. 1 Cir.02/23/96), 669 So.2d 605, 607. As with any prescriptive period, prescription on workers’ compensation claims may be interrupted or suspended. Millican, 34,207 at p. 3, 771 So.2d at 236; Krieg v. Krieg Bros. Terrazzo Co., Inc., 93-1065 at p. 3 (La.App. 3 Cir. 09/28/94), 645 So.2d 661, 664; Latino v. Binswanger Glass Co., 532 So.2d 960, 962 (La.App. 5 Cir.1988).

Mrs. Scott seeks recovery based on an alleged injury dated July 8, 1998, the date of her first surgery. Her claim was filed on July 8, 1999, one year from the date of her surgery. If the, applicable prescription period began running anytime before July 8, 1998, then her claim prescribed unless the prescription period had been interrupted or suspended.

|7In this instance, the applicable prescription period is proscribed by the final subpart of La. R.S. 23:1209(A) which provides in pertinent part that “when the injury does not result at the time of, or develop immediately after the accident, the limitation [i.e., the barring of claims] shall not take effect until the expiration of one year from the time the injury develops.” La. R.S. 23:1209 A. Where there is no accident or specific occurrence to which the employee’s injury can be attributed, but rather a progression and recurrent manifestation of illness or disability from latent causes which may be attributable in whole or in part to work related incidents, the time of development of the injury for purposes of determining the prescriptive date for the workers’ compensation claim is the date of termination of employment, i.e., the date when the employee finally had to give in to his disability and quit work. Burns v. W.H. Patterson Constr. Co., 310 So.2d 675, 677 (La. App. 1 Cir.1975). An injury may also be considered developed when the employee becomes aware of the significance of the injury, which is typically the time it becomes clear that the employee can no longer perform her duties in a satisfactory manner. See, e.g., Brown v. Caddo Career Center, 28,111, p. 2 (La.App. 2 Cir. 2/28/96), 669 So.2d 712, 713-714; Holcomb v. Bossier City Police Dept., 27,095, p. 3 (La.App. 2 Cir. 8/25/95), 660 So.2d 199, 202; Smith v. Fruehauf Trailer Operations, 27,864, p. 4 (La.App. 2 Cir. 1/24/96), 666 So.2d 1246, 1249. Similarly, the date of medical diagnosis may mark the beginning of the prescriptive period when a true diagnosis notifies a previously unaware injured employee of a disabling condition from a work related accident that could give rise to a workers’ compensation claim and the peremptive period beginning the date of the accident has not already run. See generally Johnson, supra § 384.

Surely, Mrs. Scott was aware of the significance of her injury before her first surgery date in that by then she had a medical diagnosis, a scheduled surgery, a scheduled leave of absence, and an ongoing pain for close to two years. Given the considerations above regarding the interpretation of when an “injury develops” and the commencement of the corresponding prescriptive period, her claim had prescribed no later than July 1, 1999, one week before the claim was filed, and one year after Mrs. Scott’s last day at work for Wal-Mart. Therefore, applying applicable law to the present facts, the claim is barred by La. R.S. 23:1209(A) unless interruption or suspension of prescription occurred.

When interruption occurs, prescription begins anew from the date of interruption. La. C.C. Art. 3466. Mrs. Scott asserts that Wal-Mart’s inaction after workers’ compensation was requested in August or September of 1998 interrupted the prescriptive period by lulling her into a false sense of security and thereby inducing her to withhold filing a suit. Mrs. Scott’s assertion is one of many jurispru-dentially developed ways to interrupt prescription thereby preventing an employer from challenging the timeliness of a claim. See Landry v. Ferguson, 279 So.2d 185 (La.1973); Blanchard v. Tulane Medical Center, 97-1111 (La.App. 5 Cir. 3/11/98), 708 So.2d 1232; Siemssen v. Manpower Temporary Services, 95-80 (La.App. 5 Cir. 5/30/95), 656 So.2d 1115; Johnson, supra § 384.

In order for prescription to be interrupted in this manner, it is not necessary for a plaintiff to show that the employer intentionally misled her as to the nature of the benefits being paid or the time period available for asserting her claim. Millican, 34,207 at p. 3, 771 So.2d at 236; Price v. Gas and Well Operating Service, 267 So.2d 598 (La.App. 3 Cir.1972). However, she must establish that words, action, or inaction induced her to withhold suit until the time for prescription had passed. Millican, 34,207 at p. 3, 771 So.2d at 236; Brown, 28,111 at p. 2, 669 So.2d at 714; Lynn v. Berg Mechanical, Inc., 582 So.2d 902 (La.App. 2 Cir.1991).

In the case at hand, Mrs. Scott relies primarily on two facts to support her claim that there was an interruption of prescription, namely: that Wal-Mart gave no response to her request for workers’ compensation, and that Wal-Mart failed to report her carpal tunnel injury to the Office of Workers’ Compensation. In order for Wal-Mart’s failure to respond to interrupt prescription, Mrs. Scott must show that by doing so they lulled her into a false sense of security and induced her to withhold suit until after the prescriptive period had run. Based on the facts of the case, it seems nothing of the sort occurred. It is clear from her testimony that she was aware she was not receiving workers’ compensation benefits before her second meeting with the personnel manager. She testified that it was that |inrealization that induced her to call the manager in the first place. During the meeting, while Mrs. Scott may have been vaguely requested workers’ compensation, the record shows that the manager made no representations about the nature of the claim or its viability.

In Millican, supra, interruption was found to have occurred because Mr. Milli-can believed he had filed a formal claim (though he had not) and that belief was fostered and encouraged by his employer’s representative telling him to “appeal” her decision denying him benefits. Thus, in Millican, affirmative statements were made which lulled the plaintiff into a false sense of security until after his claim had prescribed.

This case is readily distinguishable. Mrs. Scott was aware of the nature of her payments, i.e., that they were not workers’ compensation benefits, well within the prescriptive period. Like the plaintiff in the La. Supreme Court’s decision in Causby v. Perque Floor Covering, 97-1235 (La.01/21/98), 707 So.2d 23, Mrs. Scott, rather than being lulled in to a false sense of security, was put on notice that she needed to hire an attorney and to file suit within the established prescriptive periods. That the notice was heeded is evidenced by the fact that Mrs. Scott did in fact hire an attorney some six months before her claim would have prescribed to “take care” of her workers’ compensation claim.

As to Mrs. Scott’s argument that Wal-Mart did not report her work related injury in accordance with La. R.S. 23:1306 and therefore her claim should not be dismissed on prescription, the record is extremely vague as to whether Mrs. Scott |never even informed Wal-Mart that she was injured in the course and scope of her employment, notwithstanding the fact that she may have vaguely requested workers’ compensation. Furthermore, in this case, the fact no injury was reported did not inure to the benefit of Wal-Mart to the extent it did to the defendant in Roy v. Ruth’s Chris Steak House, Inc., 525 So.2d 630 (La.App. 3 Cir.1988) in which prescription was found to have been interrupted because the defendant’s noncompliance with La R.S. 23:1306 allowed prescription to run to the detriment of the plaintiff. The fact that no injury was reported did not prejudice Mrs. Smith, who well within the prescriptive period hired an attorney in order to take care of her workers compensation claim. Unfortunately, the attorney she chose delayed filing suit until after prescription had run.

During oral argument before this court, Mrs. Scott’s current counsel requested we resort to equity to consider Mrs. Scott’s claim as timely. While this court has great sympathy for Mrs. Scott’s predicament, the law is clear and we cannot penalize Wal Mart for her former attorney’s failure to protect her rights.

DECREE

Because Mrs. Scott’s claim for workers compensation benefits is prescribed, the judgment awarding benefits and penalties and attorneys fees to her is reversed, with each side to bear its own costs.

REVERSED.

      . The first subsection of La. R.S. 23:1209(A) bars a claim unless filed within one year of the accident. La. R.S. 23:1021 defines "accident” as “an unexpected or unforeseen actual, identifiable precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” Thus, the “accident” as contemplated in the first subpart of La. R.S.' 23:1209(A) is one where the injury is immediately manifested.
      Here, the surgery had been scheduled for months in advance on an injury that had been previously diagnosed as carpal tunnel syndrome. Even with the most liberal application of these rules, the wrist surgery on July 8, 1998 was not an unexpected or unforeseen event, nor was it sudden or violent, and it certainly did not produce Mrs. Scott’s previously diagnosed carpal tunnel syndrome. Hence, the surgery was not an "accident” where an injury was immediately manifested and, therefore, it did not commence the running of prescription.


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of D. M.
    No. 2002-CA-2528.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 2, 2003.

      Richard P. Ieyoub, Attorney General, Darryl W. Bubrig, Sr., District Attorney, Belle Chasse, LA, and Gilbert V. Andry IV, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Peter Barbee, Belle Chasse, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR., Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

STATEMENT OF THE CASE:

On February 14, 2002 the State of Louisiana filed the following petition in the Twenty Fifth Judicial District Court, to wit:

STATE OF LOUISIANA
IN THE INTEREST OF D.M.
(DOB 7/9/86)
P-E-T-I-T-I-O-N
DELINQUENCY
L.R.S.:14:34.1
L.R.S.: 14:67
L.R.S.:14:110
L.R.S.: 40:966
I.
Said minor child is within the jurisdiction of this Honorable Court, in that D.M. is being charged with being a juvenile delinquent on or about January 14, 29, and 30, 2002
Count I
On January 29, 2002, at approximately 6:45 p.m. Committed a battery without the consent of the victim when the offender has reasonable grounds to believe Lthe victim is a police officer acting in the performance of his duty.
Count II
On or between January 29th and 30th, between 6:45 p.m. and 8:59 a.m. Committed theft of a green and white, 21 ft. Skeeter Bay Pro boat valued above $500.00.
Count III
On January 29, 2002, at approximately 6:50 p.m. did commit aggravated escape by intentionally departing from a law enforcement officer or from any place where such person is legally confined when his departure is under circumstances wherein human life is endangered.
Count IV
On January 14, 2002, at approximately 12:30 p.m., did knowing [sic] and intentionally possess a Schedule I controlled dangerous substance to-wit marijuana.
* * *
WHEREFORE, the premises considered, petitioner prays that formal jurisdiction be taken by this Honorable Court and that the Court render such judgments and orders as the Court may deem just, proper and necessary for the safety and protection of the said child.

D.M. denied the allegations of the petition on February 28, 2002 and was granted time to file special pleadings. On March 25, 2002, he filed a motion for the appointment of a sanity commission. According to the minutes of court, after several continuances that motion was disposed of on May 30, 2002 with a stipulation between the state and the juvenile that the members of the commission, in lieu of live testimony, would submit a written report to the effect that the juvenile “is competent and able to stand trial.” The minute entry for May 30, 2002 indicates the juvenile again denied the allegations of the petition and was granted |3an additional fifteen days to file motions and given another date for a motion hearing and a trial date was fixed.

An adjudication hearing was held August 29, 2002, following which the Court ruled:

THE COURT:
Alright. The evidence establishes in this matter that in regards to count 1 of the Bill of Information [sic] charging Second Degree Battery.
The Court finds that at the very least this juvenile was a principle [sic] to the commission of second degree battery and adjudicates him a delinquent in respect to that charge.

On the second count the court adjudicated D.M. a delinquent on the lesser offense of unauthorized use of movables having a value of $1,000.00 or less. As to count three the court found D.M. delinquent for the commission of aggravated escape. The court found no evidence as to distribution of marijuana as alleged in count four and the state immediately announced it would dismiss that matter.

A disposition hearing was held on October 17, 2002 at which D.M. was sentenced to five years in the custody of the Department of Public Safety and Corrections on counts one and three. On count two, the sentence was six months in the Department of Public Safety and Corrections. All sentences were made to run concurrently with each other and he was given credit for the time served.

STATEMENT OF THE FACTS:

D.M. is an adolescent male who was originally arrested for a small amount of marijuana (seeds and stems). While confined in the Plaquemines Parish 14 Juvenile Detention Center, he and another juvenile, L. B., escaped. D.M. was scheduled for a detention hearing the following day.

In June of 1999, D.M. had suffered a life threatening and severe head injury from a motorcycle accident while not wearing a helmet. He was hospitalized for several months due to the motorcycle accident and had to undergo intense speech and physical therapy.

On the day of the escape, January 29, 2002, seventy-five year old Donald Shack-elford was working as a guard in the Plaquemines Parish Juvenile Detention Center. Deputy Shackelford saw D.M. and L.B. in the day room as he walked past them on his way to the laundry room. While his back was turned, he was attacked from behind by the two juveniles. They slammed his head down on the table and knocked him out. Deputy Shackelford had his hearing aid pushed up in his ear and sustained a jaw injury and a knee injury that required surgery. At the time of trial he was still receiving treatment for injuries to the nerves in his leg. When the deputy regained consciousness L.B. was on Deputy Shackelford’s back with his arm around the deputy’s neck and bending the deputy’s leg against his back. At trial the deputy stated he saw D.M. take the master key out of the deputy’s pocket and the deputy stated he passed out again. Subsequently, the two juveniles utilized the keys to get out of the facility to an outside yard, where they completed their escape by crawling under a fence.

While attempting to swim across a nearby canal, L.B. drowned. D.M. managed to swim across the canal and used a boat he came across to flee the area. | sFirst, he went to an oil rig in Lake Washington, where he obtained warmer clothing and then proceeded to Grand Isle where he called his grandmother for advice before turning himself in to the Grand Isle Police Department.

ASSIGNMENTS OF ERROR:

On appeal D.M. asserts two errors: 1) The adjudication of delinquency on Second Degree Battery and Aggravated Escape was contrary to the law and the evidence; and 2) The sentences were excessive.

ERROR PATENT:

We note an error patent on the face of the record. D.M. was adjudicated guilty of second degree battery but he was only charged with battery of a police officer. Indeed, the heading of the petition includes the citation to the second degree battery statute, La. R.S. 14:34.1 for count one. However the actual wording of the allegation, “ * * * committed a battery without the consent of the victim when the offender has reasonable grounds to believe the victim is a police officer acting in the performance of the duty,” leaves no doubt the charge is battery of a police officer, a violation of La. R.S. 14:34.2.

Ch.C.Art. 845(3) provides that the petition for delinquency shall set forth with specificity facts which show the child is a delinquent child. See also C.Cr.P. art. 464, which requires that an indictment or bill of information be a plain, concise and definite written statement of the facts constituting the offense, charged. Ch.C.art. 845(4) requires the petition to specify the statute the child is accused of | (¡violating. We have found no rule in the children’s Code to guide us in resolving a conflict between cited statute and the actual language used to show the child is delinquent. On authority of Ch.C.art. 803 we look to the La.Code of Criminal Procedure for assistance in resolving the conflict. C.Cr.P. art. 464 provides that an error in the citation, or its omission, shall not be grounds to reverse a conviction if the error or omission did not mislead the defendant or his prejudice.

In State v. Boswell, 96-801 (La.App. 3 Cir. 2/12/97) 689 So.2d 627 the Court found a similar problem. There, the wording of the bill of information charged two counts of distribution of cocaine, but the citation reference was to La. R.S. 40:967(A)(1)(C). Distribution of cocaine is prohibited by La. R.S. 40:967(A)(1) but subsection (C) punishes possession of the substance. The Third Circuit held:

Since the bill of information in the present case states the essential facts of the offense charged and the [defendant has not objected to this error, nor claimed surprise or prejudice, this error is harmless.

96-801 at 9, 689 So.2d 632

Implicit in the Third Circuit’s reasoning in Boswell is its conclusion that it is the recitation of facts in the bill of information (or petition) showing criminal conduct which determines the offense being prosecuted, not the statutory citation. We agree with that conclusion, especially in light of an accused’s constitutional right to be informed of the nature and cause of the accusation against him. See U.S. Constitution, Amendment VI; Louisiana Const. Art. I § 13.

|7In the case sub judice the words of the petition unmistakably allege a battery of a police officer. As noted by the La. Supreme Court in State v. Johnson, 2001-0006 (La.5/31/02), 823 So.2d 917 (La.2002):

The crime of battery of a police officer is generally a six month misdemeanor offense. La. R.S. 14:34.2(B)(1). However, the crime becomes a felony, and thereby entitles a defendant to a jury trial if it is committed within a correctional facility, La. R.S. 14:34.2(B)(2), or if it produces injury that requires medical attention. La. R.S. 14:34.2(B)(3).

2001-0006 at 2, 823 So.2d at 919.

Since the petition, quoted supra, did not include any allegation that the offense occurred within a correctional facility or that the victim required medical attention, at most, D.M. was only charged with the misdemeanor grade of the offense. Even if we assume arguendo that the petition alleges a battery of a police officer committed within a correctional facility, second degree battery is not a lesser included responsive verdict. See State v. Johnson, supra 2001-0006 at 5, 823 So.2d at 921:

The correct responsive verdicts in [a case where the defendant is charged with battery of a police officer when the offender is in the custody of a correctional facility are]:
1) Guilty as charged ... (felony grade);
2) Guilty of battery of a police officer (misdemeanor grade);
3) Guilty of simple battery (misdemean- or)
4) Not guilty.

We have scoured the record and have not found an amended petition nor a minute entry reflecting an oral amendment in open court. We conclude, therefore, that since the juvenile was adjudicated delinquent for an offense with which he was not charged (second degree battery), and which is not responsive to the offense |swith which he was charged (battery of a police officer, misdemeanor grade), his adjudication of delinquency on count one must be reversed and the matter remanded for further proceedings consistent with the views expressed herein.

ASSIGNMENT OF ERROR NO. 1:

Our discussion above regarding the error patent moots D.M.’s first assignment of error as to count one. On the Aggravated Escape adjudication he asserts a lack of evidence to show his departure was “under circumstances wherein human life is endangered.”

The criteria for evaluating sufficiency of evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found all elements of the crime proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991); State v. Juarbe, 2001-2250 (La.App. 4 Cir. 7/31/2002), 824 So.2d 1240. When circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982).

Insofar as it pertains to the facts of this case, “aggravated escape is the intentional departure of a person ... from any place where such person is legally confined when his departure is under circumstances wherein human life is endangered.” La. R.S. 14:110(C). It was stipulated at the adjudication hearing that D.M. was legally confined. The state proved the element of departure through |flthe testimony of Deputy Shackelford to the effect that D.M. took the master keys from his pocket and that D.M. was gone when he regained consciousness. Corroborative of the fact that he departed the detention center was the testimony of the worker on the oil rig in Lake Washington that D.M. appeared at the rig seeking assistance at a time when he should have been confined in the detention facility. Most compelling, though, is the fact that he subsequently turned himself in to Grand Isle Police, quite a distance away from the place of his confinement.

The final element the state had to prove was whether, under the circumstances, human life was endangered. Here, given the advanced age of the deputy and the fact that his head was slammed against a table such that he was rendered unconscious, viewing the evidence in the light most favorable to the prosecution, we find the conclusions of the trial court that D. M.’s departure was under circumstances wherein human life was endangered is a permissible view of the evidence.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 2:

Again, we note for completeness that óur disposition on the error patent moots this assignment as to count one of the petition.

When an excessive disposition is complained of in a juvenile proceeding, the record must be reviewed to determine whether the juvenile court imposed the least restrictive disposition consistent with the circumstances of the case, the child’s | inneeds, and the best interest of society, State ex. Rel. M.N.H., 2001-1218 (La.App. 3 Cir. 2/6/02), 807 So.2d 1149; State ex. rel. K.H., 98-632 (La.App. 5 Cir. 12/16/98), 725 So.2d 583; State in Interest of T.L., 28,564 (La.App. 2 Cir. 5/8/96), 674 So.2d 1122. In any review for excessiveness, the appellate court must first ascertain whether the lower tribunal took cognizance of the general guidelines provided for juvenile cases in Louisiana Children’s Code Article 901, and whether the record reflects an adequate factual basis for the commitment imposed. State in Interest of T.L., 674 So.2d 1122. “Following that determination, the reviewing court need only explore for constitutional exeessiveness in light of the circumstances of the case and the background of the juvenile.” Id. at 1124. “[Ajbsent a showing of manifest abuse of the wide discretion afforded in such cases, a disposition will not be set aside as constitutionally excessive.” Id.

D.M. argues that because he had no previous record of violent tendencies and because the deputy could not see if both L.B. and D.M. attacked him or if it was just L.B., that the sentence was excessive.

The trial judge noted, and the evidence supports, that both juveniles were principals acting in unison in the commission of the crime. He articulated the fact that the deputy was elderly; that D.M. and L.B. “savagely beat” him; and, that this fact shocked the conscience and predominated against probationary treatment. The judge referred to the fact that L.B. died during the course of this event. The record reflects that the judge specifically found that D.M. was a threat to society. He stated that D.M. had already proven himself to be a “callous, heinous, 11 bloodthirsty, violent individual without remorse.” The court noted that there was an undue risk that during the period of a suspended sentence or probation that D.M. would commit other crimes. He noted that D.M. had repeatedly committed criminal offenses and that he had done so violently and viciously. There was no reason to believe, the judge found, that D.M. would not do the same thing again. He concluded that D.M. needed correctional treatment in a custodial environment and that a lesser sentence would deprecate the seriousness of the delinquent act.

The record further reflects that the trial judge adequately considered the mitigating circumstances of Ch.C. art 901(D). He found D. M.’s conduct in fact caused serious harm to the deputy and to L.B. He found the beating of the deputy to be intentional thereby negating the factor pertaining to whether D.M. contemplated that his conduct would cause serious harm. The judge found no provocation; no substantial grounds tending to excuse or justify the conduct; that D.M.’s prior history did not indicate he would lead a law abiding life for a substantial period of time; that his character and attitude indicated he was likely to commit another delinquent act or crime; and, that there was not even a remote possibility that D.M. would respond affirmatively to probationary treatment. The court concluded by saying that it was- not concerned whether commitment would entail hardship to the juvenile or his family. In the context of the remark, though, it is apparent the court found the other factors in favor of commitment to outweigh this factor.

|12After a thorough review of the record, we find the court below considered the guidelines set forth in Ch.C. art. 901 and that there is an adequate factual basis in the record for the commitment imposed. We do not find the disposition to be excessive in light of the facts of this case.

This assignment of error is without merit.

CONCLUSION

For the reasons expressed above, we reverse the adjudication of delinquency on count one and remand this matter to the juvenile court for further proceedings consistent with the views expressed herein. The adjudication and disposition on count three are affirmed.

ADJUDICATION OF DELINQUENCY ON COUNT ONE REVERSED AND REMANDED; ADJUDICATION AND DISPOSITION OF COUNT THREE AFFIRMED.

      . Pursuant to Uniform Rules of the Courts of Appeal 5-1 and 5-2 the initials of all juveniles are used in this opinion in lieu of their names.


author: JACHARLES R. JONES, Judge.

text:
    Matthew BERG v. Philip ZUMMO, Lawrence Zummo, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Assurance Company of America and Fireman’s Fund Insurance Company.
    No. 2003-CA-0281.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 2, 2003.

      Randall A. Smith, Andrew L. Kramer, Smith & Fawer, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Thomas E. Schafer, III, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge CHARLES R. JONES, Judge TERRI F. LOVE).
   JACHARLES R. JONES, Judge.

The Appellant, C. Napco, Inc. (hereinafter “Napco”), appeals the judgment of the district court casting Napco in judgment for the liability found against L.M.J.D., Inc. (hereinafter “LMJD”). The Appellee, Mr. Matthew Berg, sought to enforce a judgment against Napco pursuant to the “single business enterprise” theory. We affirm.

The facts and procedural history in the underlying case are set forth in Berg v. Zummo, 2000-1699 (La.4/25/01) 786 So.2d 708.

DISCUSSION

Although Napco raises several errors by the district court, essentially it’s complaint centers around whether the district court properly interpreted the “single business theory” propounded in In Re: New Orleans-Train Car Leakage, 690 So.2d 255, 257 (La.App. 4 Cir.1997). Thus, all issues raised in this appeal will be incorporated in the discussion of the district court’s application of the “single business enterprise” theory.

In In Re: New Orleans Train Car Leakage, this Court followed factors to be considered in the application of a “single business enterprise” as set forth in Green v. Champion Insurance Company, 577 So.2d 249 (La.App. 1st Cir.1991). The factors include:

1. corporations with identity or substantial identity of ownership, that is, ownership of sufficient stock to give actual working control;
2. common directors or officers;
3. unified administrative control of corporations whose business functions are similar or supplementary;
4. directors and officers of one corporation act independently in the interest of that corporation;
5. corporation financing another corporation;
6. inadequate capitalization (“thin incorporation”);
7. corporation causing the incorporation of another affiliated corpora1 tion;
8. corporation paying the salaries and other expenses or losses of another corporation;
9. receiving no business other than that given to it by its affiliated corporations;
10. corporation using the property of another corporation as its own;
11. noncompliance with corporate formalities;
12. common employees;
13. services rendered by the employees of one corporation on behalf of another corporation;
14. common offices;
15. centralized accounting;
16. undocumented transfer of funds between corporations;
17. unclear allocation of profits and losses between corporations; and
18. excessive fragmentation of a single enterprise into separate corporations.

In Re: New Orleans Train Car Leakage, 690 So.2d 255, 257 (La.App. 4 Cir.1997)

This list is illustrative and is not intended as an exhaustive list of relevant factors. No one factor is dispositive of the issue of “single business enterprise.” Id. Thus, inferably, it is not required that every factor of the list be satisfied to justify a finding of a “single business enterprise.”

Considering the factors, the record contains sufficient evidence for the district court to have found that the affiliated entities operated a single business enterprise. In its Reasons for Judgment, the district court effectively summarized | sthe relationship of the entities, and provided a sound basis for its decision by stating the following:

... Counsel for Mr. Berg aver that C. Napco, which owns the leased property known as “The Boot”, operated as a “Single Business Enterprise”. This contention is based on the fact that the corporations have a substantial identity of ownership in addition to having common directors and officers. C. Napco is owned 50% by Nancy Napoli and 25% each by Craig Napoli and Aline Napoli. Craig and Aline Napoli each own 50% of LMJD. Craig and Aline Napoli each simultaneously served as members of the Board of Directors of both companies. The directors failed to act independently in the best interest of the individual companies. The directors acted in the best interest of the companies as a whole. This was demonstrated when C. Napco failed to penalize LMJD for terminating the lease seven months before
its expiration. Acting on behalf of LMJD, Craig and Aline Napoli surrendered the premises, equipment and trade name “The Boot” without any consideration for the relinquishment of the company’s rights to the property. Additionally, Aline Napoli served as the accountant for both of the companies.
Within days of the June 3, 1998, judgment, LMJD terminated its lease with C. Napco, for the premises, equipment, and use of the name “The Boot”. C. Napco accepted the termination of the lease without attempting to enforce penalties upon LMJD for early termination of the lease as provided for in the lease agreement. On June 12, 1998, C. Napco and CJN, Inc. (a corporation owned by Charles Napoli, Sr.) entered into a lease for The Boot. On October 14, 1998, LMJD filed for Chapter 7 protection in the Bankruptcy Court for the Eastern District of Louisiana.

The district court reasoned that Napco was the dominant or parent company of LMJD. Although these business entities were separately incorporated, the district court found that Napco and LMJD were a single corporation based on Napco’s management of LMJD, and that they had interlocking directorates. Therefore, the district court correctly held that Napco was the dominant or parent corporation liable for the obligations of its branch since justice required the ^protection of the rights of a third person, in accordance with Green v. Champion Insurance Company, 577 So.2d 249 (La.App. 1st Cir.1991), citing, Johnson v. Kinchen, 160 So.2d 296, 298 (La.App. 1st Cir.1964). The district court further reasoned that:

... Justice so requires such a finding in this case.
Each of the steps taken by LMJD, from the date of the judgment by the trial court, have [sic] all been taken in an effort to deprive this victim of his just compensation. It is the Court’s opinion that the only reason for the bankruptcy was to improperly and unfairly deny this victim who had looked to the civil justice system of that which even the Louisiana State Supreme Court found to be just. The behavior of C. Napco and LMJD was highly suspect and visibly transparent.... Consequently, the Court finds that C. Napco, Inc. and L.M.J.D., Inc. were a “single business enterprise”.

We agree with the reasoning of the district court. Clearly, the district court did not err in finding that C. Napco, Inc., and L.M.J.D were a single business enterprise.

DECREE

For the reasons stated herein, we affirm the judgment of the district court.

AFFIRMED.


text:
    Robert F. SHEARMAN v. Harold ASHER, C.P.A., Katz & Asher, Ltd., a Professional Accounting Corporation, and ABC Insurance Company.
    No. 2003-CA-0152.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 2, 2003.
    J. Douglas Sunseri, Dawn Danna Marul-lo, Nicaud, Sunseri & Fradella, LLC, Me-tairie, LA, for Plaintiff/Appellant.
    Steven W. Usdin, H. Minor Pipes, III, Stone Pigman Walther Wittmann, L.L.C., New Orleans, LA, for Defendants/Appel-lees.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR.).
   | PATRICIA RIVET MURRAY, Judge.

This is an accounting malpractice action. The plaintiff, Robert Shearman, appeals from the trial court’s judgment granting the exception of res judicata filed by the defendants, Harold Asher and Katz & Asher, Ltd. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1999, Robert F. Shearman, R. Ray Orrill, Jr., and Leslie Cordell decided to dissolve and liquidate the law firm of Or-rill, Shearman & Cordell, L.L.C. (“law firm”). Initially, Mr. Orrill acted as liquidator. On January 13, 2000, Harold Asher was appointed as judicial liquidator for the law firm in an action brought by the law firm and Mr. Orrill against Mr. Shearman (“liquidation action”). In the liquidation action, Mr. Shearman alleged that Mr. Or-rill was not an owner of the law firm and was responsible for financial irregularities during the liquidation of the law firm.

On February 9, 2000, Mr. Shearman and Mr. Orrill executed an indemnity agreement, which stated:

| PHarold Asher has the right as liquidator to make decisions pursuant to his duties under Title 12 of the Louisiana Revised Statutes. R. Ray Orrill and Robert F. Shearman agree that if they do not agree with Mr. Asher’s actions that they will have the right to challenge, via appropriate motion, Mr. Ash-er’s actions only against each other. Robert F. Shearman and R. Ray Orrill hereby release and agree to indemnify Mr. Asher for any of his actions as liquidator. Any challenge to an action of Mr. Asher will only involve Mr. Asher as a witness, if at all. Orrill and Shear-man agree that all matters pertaining to the liquidation of Orrill, Shearman & Cordell, L.L.C. will be subject to the jurisdiction of the matter No. 99-11819, Division “N” in Civil District Court for Orleans Parish as captioned above.

On June 7, 2000, Mr. Shearman agreed to a consent judgment in the liquidation action, which stated in pertinent part:

1. Any and all claims, whether currently existing or arising in the future, regardless of whether such claims are contained in any ongoing suits, that exist by, among or between Kevin Shearman, Robert Shearman, Shearman & Shear-man, Ray Orrill, Leslie Cordell, Orrill & Cordell, L.L.C., Orrill, Shearman & Cor-dell, L.L.C. and/or their agents, attorneys or heirs, are hereby forever and finally settled, including, but not limited to, all claims which are or could have been brought in the following lawsuits:
a. Orrill, et al v. Shearman, et al, Case No. 99-11819, Division “N”, Civil District Court for the Parish of Orleans, State of Louisiana....
j. Both cases mentioned in Number 1 above specifically shall be dismissed with prejudice immediately without any further actions being taken by any party in those proceedings and without any responsibility or obligation of Harold Asher to report as a judicial liquidator to Division “N”....

On August 26, 2002, Mr. Shearman brought suit against Mr. Asher and his accounting firm, Katz & Asher, Ltd. (“accounting firm”), for actions taken by Mr. Asher in his role as court appointed liquidator of the law firm (“accounting malpractice suit”). On October 14, 2002, after receiving an extension of time to file a responsive pleading, Mr. Asher and his accounting firm filed a peremptory exception of res judicata. Mr. Asher argued that in the liquidation action, Mr. Shear-man agreed to release and indemnify Mr. Asher “for any of his actions as a I liquidator.” Mr. Asher also argued that on June 8, 2000, Mr. Shearman entered into a consent judgment, in which he compromised and settled all past and future claims against Mr. Asher as the liquidator of the law firm in the liquidation action.

On December 6, 2002, following a hearing, the trial court granted the exception of res judicata and dismissed the accounting malpractice suit. On December 20, 2002, the trial court issued its reasons for judgment, stating that res judicata barred Mr. Shearman’s claims against Mr. Asher and his accounting firm because the claims were previously “compromised, settled and/or released.” This appeal followed.

ANALYSIS

Mr. Shearman first argues that the trial court erred in granting the exception of res judicata because Mr. Asher and his accounting firm were not parties to the liquidation action and because the exception was granted without the benefit of discovery or trial. Second, he argues that the trial court erred in ruling that Mr. Asher was released from any liability in the underlying litigation for his role as court appointed liquidator of the law firm.

Mr. Asher counters that he was a third party beneficiary to the indemnity agreement signed by Mr. Shearman, which released him from all claims arising from his actions as judicial liquidator. Mr. Asher further counters the consent judgment resolved the same issues as raised by Mr. Shearman in his suit against Mr. Asher, ie., the accounting malpractice suit; thus, the trial court properly found Mr. Shear-man’s suit barred by res judicata.

After a final judgment, res judicata bars relitigation of any subject matter arising from the same transaction or occurrence of a previous suit. La.R.S. |413:4231; La. C.C.P. art. 425. Explaining the current doctrine of res judicata, the Louisiana Supreme Court stated:

In 1990, the Legislature amended LSA-R.S. 13:4281, the Louisiana res judicata statute. Terrebonne Fuel [ & Lube v. Placid Refining, 95-0654, 95-0671, pp. 11-12 (La.1/16/96); 666 So.2d 624, 631] addressed the amended statute. The original Louisiana doctrine of res judica-ta was based on a correctness presumption rather than a cause of action’s extin-guishment: a decided case precluded a second suit only if the prior suit involved the same parties, the same cause, and the same object of demand. Terrebonne Fuel at 12; 666 So.2d at 632. However, the amended res judicata statute’s chief inquiry is whether the second action asserts a cause of action which arises out of the transaction which was the subject matter of the first action. Id.

Avenue Plaza, L.L.C. v. Falgoust, 96-0173, p. 6 (La.7/2/96), 676 So.2d 1077, 1080. Explaining the exceptions to res judicata, the Court stated:

Although rarely mentioned, exceptions exist to the common law theory of res judicata, as noted in the Restatement (Second) of Judgments, § 26 (1982). These exceptions involve “exceptional circumstances” as where (a) the parties have agreed that the plaintiff may split his claim, or the defendant has acquiesced therein; (b) the court in the first action has expressly reserved the plaintiffs right to maintain the second action; (c) there are restrictions on the subject matter jurisdiction of the courts; (d) the judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory or constitutional scheme; (e) for policy reasons; or (f) it is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason. Restatement (Second) of Judgments, § 26 (1982), pg 233-234.[FN4]
FN4. When Louisiana law on res judi-cata was amended by enacting La.R.S. 13:4231, effective January 1, 1991, a companion statute, La.R.S. 13:4232, was also enacted to include similar exceptions, stating in pertinent part: A. A judgment does not bar another action by the plaintiff:
(1) When exceptional circumstances justify relief from the res judicata effect of the judgment;
(2) When the judgment dismissed the first action without prejudice; or
(3) When the judgment reserved the right of the plaintiff to bring another action.

Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 95-0654, p. 13 (La.1/16/96), 666 So.2d 624, 632.

Res judicata is ordinarily premised on a final judgment on the merits, but “it also applies where there is a transaction or settlement of a disputed or compromised matter that has been entered into by the parties. Thus, compromises have the legal efficacy of the thing adjudged.” La. C.C. art. 3078. Ortego v. State, Dept. of Transp. and Development, 96-1322, p. 6 (La.2/25/97), 689 So.2d 1358, 1363. A settlement agreement “must be interpreted according to the parties’ intent” and is “governed by the same general rules of construction applicable to contracts.” Ortego, 96-1322, p. 6, 689 So.2d 1358, 1363 (internal citations omitted). That is, consent judgments are given res judicata effect. Hartwig Moss Ins. Agency, Ltd. v. Kelly, 96-1423, p. 3 (La.App. 4 Cir. 1/29/97), 688 So.2d 196, 198.

In the instant case, the two suits at issue are the liquidation suit, which resulted in the consent judgment, and the accounting malpractice suit. Mr. Shearman argues in pre-1990 res judicata terms of identity of thing, cause of action, and parties, but the liquidation suit arises out of the decision in 1999 to dissolve the law firm and the appointment of Mr. Asher as judicial liquidator in 2000. As a result, the amended version of the res judicata statute controls, and the test is whether the subject matter of the accounting malpractice suit arises from the same transaction or occurrence of a previous suit.

In the liquidation suit, the issue was the proper distribution of the assets of the law firm. Within the liquidation suit, the lawyers of the law firm executed an indemnity agreement, in which they indemnified Mr. Asher for any actions he took as judicial liquidator. The indemnity agreement also provided that any disagreement with Mr. Asher over his actions as judicial liquidator would be |fichallenged within the liquidation suit via motions filed by one law firm lawyer against another law firm lawyer. Mr. Asher would be, at most, a witness in any challenge to his decisions as judicial administrator. Subsequently, the law firm’s lawyers entered into a consent judgment, which settled any possible claim that could arise out of the liquidation of the law firm and provided for distribution of the law firm’s assets.

The accounting malpractice suit arises out of the same nucleus of facts as the liquidation suit, the indemnity agreement, and the consent judgment. At issue, again, is the proper distribution of assets of the law firm, which now claims was marred by the professional negligence of Mr. Asher. The issue of Mr. Asher’s professional negligence could have been raised in the liquidation suit, and the consent judgment did not specifically reserve the

right of Mr. Shearman to bring another action on the issue. Thus, Mr. Shearman’s second suit against Mr. Asher arising out of his actions as judicial liquidator in the dissolution of the law firm is barred by res judicata.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court granting the defendants’ exception of res judicata and dismissing the plaintiff action.

AFFIRMED.

      . Orrill, Shearman & Cordell, L.L.C. and R. Ray Orrill, Jr. v. Robert F. Shearman, CDC No. 99-11819.


author: I,LEON A. CANNIZZARO, JR., Judge.

text:
    Cleo P. PELLETERI v. The CASPIAN GROUP INCORPORATED. The Caspian Group, Inc. v. Cleo P. Pelleteri.
    Nos. 2002-CA-2141, 2002-CA-2142.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 2, 2003.

      Burt K. Carnahan, Candace M. Murphy, Lobman, Carnahan, Batt, Angelle & Nader, New Orleans, LA, for Cleo P. Pelleteri.
    Jack A. Ricci, Gary J. Giepert, Ricci & Giepert, New Orleans, LA, for The Caspian Group, Incorporated.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge LEON A. CANNIZZARO, JR.).
   I,LEON A. CANNIZZARO, JR., Judge.

This is an appeal by both parties from a judgment awarding damages to The Caspian Group, Incorporated (“Caspian”) in connection with its eviction from the premises where it operated a restaurant and bar. For the reasons set forth below, this Court affirms the judgment of the trial court on the issue of liability but reverses the judgment of the trial court on the issue of damages.

FACTS AND PROCEDURAL HISTORY

Cleo Pelleteri leased the premises at 487 Esplanade Avenue in New Orleans, Louisiana (the “Leased Premises”) to Caspian pursuant to a Lease of Commercial Property dated September 30, 1996 (the “Lease”). The initial term of the Lease was three years. The Lease also provided for two renewal terms of three years each. The rent due under the Lease beginning December 1, 1996, was $3,500 per month plus a percentage rental in the amount of six percent of gross sales in excess of $650,000.00 per year.

Un October and November of 1996, Caspian prepared the Leased Premises for the operation of a restaurant and bar, obtained permits and licenses needed for its business, hired employees, and began making arrangements for the installation of three video poker machines in the bar. At the end of November, 1996, Caspian opened the Half Moon Bar and Grill (the “Half Moon”) in the Leased Premises.

On March 13, 1997, Ms. Pelleteri inspected the Leased Premises and subsequently wrote a letter to Haluk Dogru, Caspian’s president, listing several items that she considered to be violations of the Lease. She stated in that letter that she would make another inspection of the premises within fifteen days. After the follow-up inspection, Ms. Pelleteri wrote another letter to Mr. Dogru asking that Caspian “vacate my property immediately”. Ms. Pelleteri wrote a third letter to Mr. Dogru confirming “your default of the lease”. There was no allegation by Ms. Pelleteri of nonpayment of rent.

On Friday, April 18, 1997, Ms. Pelleteri spoke with Mr. Dogru by telephone and advised him that she was going to put a lock on the door of the Half Moon on Monday, April 21, 1997. After the Half Moon closed at 4:00 a.m. that Monday morning, out of concern that Ms. Pelleteri might actually lock them out of the Half Moon, Caspian removed most of the food and liquor from the Leased Premises when the Half Moon closed in the early morning hours on Monday, April 21. Caspian did not remove the computer used in operating the Half Moon, because it was difficult to move and would be needed if the Half Moon opened later that day. Caspian also left its business records in the Leased Premises. Additionally, Caspian asked its employees to come to work on Monday, April 21, to prepare to open the |aHalf Moon as usual that afternoon. When the employees arrived at the Leased Premises to prepare to open the Half Moon later in the day, they found that the Leased Premises had been padlocked. Ms. Pelleteri subsequently had all the locks in the Leased Premises changed.

Because the next weekend was the first weekend of the annual New Orleans Jazz and Heritage Festival (the “Jazz Fest”), Caspian had published advertisements targeted at the Jazz Fest crowds and had hired a band to perform on the weekends of the Jazz Fest. Ms. Pelleteri testified that when Mr. Dogru, Caspian’s president, requested that the Half Moon be allowed to remain open at least through the end of the Jazz Fest, she replied, “Absolutely not.”

In a letter dated June 19, 1997, Ms. Pelleteri gave Caspian a five day notice to vacate the Leased Premises, and on July 17, 1997, Ms. Pelleteri filed a Petition for Eviction in the Civil District Court for the Parish of Orleans. Caspian’s attorney advised Ms. Pelleteri’s attorney that Caspian would not contest the eviction, because Caspian could no longer afford to rent the Leased Premises due to the action taken by Ms. Pelleteri. A Judgment of Eviction was rendered on July 25,1997.

On July 31, 1997, Caspian filed suit against Ms. Pelleteri for, among other things, the damages resulting from the wrongful eviction. On August 12, the eviction suit filed by Ms. Pelleteri and the suit filed by Caspian against Ms. Pelleteri were consolidated. On October 3, 1997, Ms. Pelleteri filed an answer to the lawsuit filed by Caspian. Ms. Pelleteri also filed a reconventional demand with her answer, in which she sought damages in connection with what she alleged were |4defaults under the Lease. She also alleged that Caspian had abandoned the Leased Premises. Therefore, she asserted that she was entitled to reenter the Leased Premises when she did without obtaining a judgment of eviction.

A trial was held on January 24, 25, and 26, 2001. At trial two of Caspian’s shareholders, Mr. Dogru and Mr. Hassan Kha-leghi, testified that they had extensive experience in the restaurant business. A third shareholder, Mr. Yalcin Hatipoglu, who, along with Mr. Khaleghi, ran the day to day operations of the Half Moon, testified that he had experience managing and owning restaurants. There was also testimony that although the Half Moon lost money the first three months it was open, it broke even in March of 1997, and it was profitable in April of 1997, even though it was only open for business for part of that month. Mr. Hatipoglu testified that although he was disappointed in the Half Moon’s business initially, once the opening and closing hours and the menu were changed to attract more of the late night crowd, business dramatically improved.

Ms. Pelleteri testified at trial that when she went to the Leased Premises on Monday, April 21, 1997, the premises had been abandoned. Ms. Pelleteri further testified that she looked through a window of the Leased Premises and “the bar had been totally emptied of liquor bottles and certainly appeared that people had indeed left.”

Also at trial Ms. Pelleteri testified regarding Caspian’s alleged defaults under the Lease, which were discovered by Ms. Pelleteri in her March 13, 1997 inspection of the Leased Premises. Her letter itemized the following deficiencies:

1. the bathrooms and the floor around the bar were filthy;
2. faucets leaked and fans were “beyond filthy”;
|b3. the patio, which had been “lush and inviting with herbs and foliage” prior to Caspian’s occupancy of the Leased Premises, resembled a “site sprayed with ‘agent orange’
4. the walls were defaced;
5. there was scorching in the kitchen;
6. sections of the ceding tiles were missing; and
7. an electric convection oven was “out in the weather”.

Mr. Dogru testified at trial regarding each of these alleged defaults under the Lease. He testified that he did “not really” find the bathrooms or the floor around the bar to be “filthy”, that the faucets did not leak, and that the fans were not “beyond filthy”. With respect to the patio resembling a site sprayed with agent orange, Mr. Dogru stated that the patio was “not destroyed, it’s cleaned up.” He further stated that the walls were not defaced and that there was no scorching of the kitchen walls. There were no ceiling tiles missing, and the convection oven Ms. Pelleteri allegedly found in the rain was actually a warmer, not a convection oven.

Mr. Khaleghi testified regarding the alleged defaults under the Lease. He testified that the bathrooms and floor around the bar were not filthy, as alleged by Ms. Pelleteri, and that the patio had so many shrubs that they had to cut some and that they had to remove the dead banana trees that had been killed by a freeze. With respect to defacing the walls, Mr. Khaleghi testified that “we did a little painting in the dinning [sic] room for one reason and one reason only, we wanted to make money out of that place and we thought face lifting would be sufficient for that purpose.” When he was questioned about the scorching in the kitchen and the missing ceiling tiles, Mr. Khaleghi admitted that they were moving ceiling tiles so that lights could be installed over the pool table. He stated further that the ceiling | fitiles were removable and that the ceiling was in no way damaged by installing the lighting. Finally, Mr. Khaleghi testified that the electric convection oven that Ms. Pelleteri alleged was outside was not a convection oven. He said that it was a food warmer consisting of a metal container on wheels and that it was taken outside for cleaning but was not exposed to the weather.

After the trial the judge rendered a Judgment on July 12, 2001, in which she awarded Caspian $249,800. Ms. Pelleteri filed a motion for a new trial, and the motion was heard on May 24, 2002. On July 26, 2002, the trial court rendered a Judgment granting the motion for a new trial and reducing the amount awarded to Caspian in the original judgment to $14,193.39. Ms. Pelleteri and Caspian are both appealing the July 26, 2001 Judgment. Caspian is also seeking an award of attorneys fees and expert witness fees.

STANDARD OF REVIEW

In Rosell v. ESCO, 549 So.2d 840 (La.1989), the Louisiana Supreme Court discussed as follows the issue of the scope of the appellate court’s review of a trial court’s findings of fact:

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong....
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of |7voice that bear so heavily on the listener’s understanding and belief in what is said.

Id. at 844. See also Mistich v. Volkswagen of Germany, Inc., 95-0939 (La.1/29/96), 666 So.2d 1073; Aleman v. Favret Co., 349 So.2d 262 (La.1977); Harvey v. Cole, 2000-1849 (La.App. 4 Cir. 1/23/02), 808 So.2d 771.

With respect to issues of law, however, this Court is required to determine whether the trial court applied the law appropriately. In Glass v. Alton Ochsner Medical Foundation, 2002-0412 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, this Court discussed the scope of appellate review of issues of law as follows:

The standard of review of appellate courts in reviewing a question of law is simply whether the court’s interpretative decision is legally correct. Phoenix Assur. Co. v. Shell Oil Co., 611 So.2d 709, 712 (La.App. 4 Cir.1992). Furthermore, if the decision of the district court is based on an erroneous application of law rather than on a valid exercise of discretion, the decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-1072 (La.1983).

2002-0412, p. 3, 832 So.2d at 405. See also Sander v. Brousseau, 2000-0098, p. 4 (La. App. 4 Cir. 10/4/00), 772 So.2d 709, 711, where this Court stated that “[a]ppellate review of a question of law involves a determination of whether the lower court’s interpretive decision is legally correct.”

DISCUSSION

LIABILITY

Legal Prohibition Against Self-Help

Louisiana Civil Code article 2692 lists the obligations of the lessor that arise from a lease contract. That article provides, in relevant part, that “[t]he lessor is bound from the very nature of the contract, and without any clause to that effect ... [t]o cause the lessee to be in a peaceable possession of the thing during the continuance of the lease.”

| ^Louisiana Code of Civil Procedure article 4701 provides, in relevant part, as follows:

When a lessee’s right of occupancy has ceased because of the termination of the lease by the expiration of its term, action by the lessor, nonpayment of rent, or for any other reason, and the lessor wishes to obtain possession of the premises, the lessor or his agent shall cause written notice to vacate the premises to be delivered to the lessee.

Louisiana Code of Civil Procedure article 4731(A) provides in relevant part:

If the lessee ... fails to comply with the notice to vacate required under this Title ... and has lost his right of occupancy for any reason, the lessor or owner ... may cause the lessee ... to be cited summarily by a court of competent jurisdiction to show cause why he should not be ordered to deliver possession of the premises to the lessor or owner.

The jurisprudence has made it clear that a lessor must use judicial process to evict a lessee from the leased premises in the event of a default under a lease. In Boniel v. Block, 44 La. Ann. 514, 10 So. 869 (1892), the Louisiana Supreme Court articulated the rule against allowing a lessor to regain possession of premises that have been leased through the use of self-help, as follows:

Counsel for defendant has quoted some common-law authorities which are no doubt of great weight in the cases to which they apply; but, so far as this case is concerned, we prefer to rest it upon the memorable case of Thayer v. Littlejohn, (decided by this court,) 1 Rob. (La.) 140, in which the doctrine, ever since followed by this court, was laid down, that, ‘where a landlord, instead of resorting to the means 'provided by law for obtaining payment of his rent and possession of his premises, takes upon himself, without authority, to remove the property and turn out the family of his tenant, he will be liable in damages ...

44 La. Ann. at 516-17, 10 So. at 870 (emphasis added).

[3In Weber v. McMillan, 285 So.2d 349 (La.Ct.App. 4th Cir.1973), this Court recognized the long standing rule enunciated in the Boniel case as follows:

It has long been established in our law that a lessor has no right to take possession or in any way disturb the possession of the lessee without first resorting to judicial process. If the lessor should wrongfully dispossess the lessee, he commits a trespass and becomes liable to the lessee in damages.

Id. at 351. See also, e.g., Richard v. Broussard, 495 So.2d 1291 (La.1986); Connecticut General Life Insurance Co. v. Melville Realty Co., 591 So.2d 1376 (La.Ct. App. 4th Cir.1991); Gennings v. Newton, 567 So.2d 637 (La.Ct.App. 4th Cir.1990); Fo-Coin Co. v. Drury, 349 So.2d 382 (La. Ct.App. 4th Cir.1977).

The first issue that must be addressed by this Court in the instant case is whether or not Ms. Pelleteri is liable for wrongfully evicting Caspian. In her original reasons for judgment, dated July 12, 2001, the trial court stated as follows:

The testimony revealed that defendant Cleo Pelleteri demanded that the plaintiffs leave the premises and went in the next day to padlock them, employing self help techniques contrary to law. Plaintiffs were not behind in rent, nor had they been placed in default based on any provision of the lease. She then sought to legitimize the wrongful eviction by instituting eviction proceedings three months after she had already taken possession of the premises.

In her reasons for judgment, dated July 26, 2002, which were rendered after the new trial that was granted to Ms. Pelleteri, the trial court stated the facts in the instant case as follows:

Ms. Pelleteri leased her business to The Caspian Group. A few months into the lease period, she became displeased with the cosmetic changes made by the lessees. She called them and ordered that they vacate the premises immediately. Ms. Pelleteri further threatened to padlock the building. Fearing the loss of their contents, The Caspian Group attempted to remove as much as possible. As promised, Ms. Pelleteri padlocked the premises on the following day (There was no issue of nonpayment of rent.).

The trial court then stated that Ms. Pellet-eri’s actions “constituted a wrongful | ^eviction.”

This Court has reviewed the record in the instant case and finds- that there was no manifest error or abuse of discretion in the trial court’s finding of fact as set forth in the quoted portions of the reasons for judgment in both the original trial and in the new trial. In fact, this Court agrees with the trial court’s findings of fact.

Abandonment Exception

Louisiana Code of Civil Procedure article 4731(B) provides that “[ajfter the required notice has been given, the lessor or owner ... may lawfully take possession of the premises without further judicial process, upon a reasonable belief that the lessee ... has abandoned the premises.” This is an exception to the rule against the use of self-help in the eviction process, and it has been recognized by the jurisprudence.

In Richard v. Broussard, 495 So.2d 1291 (La.1986), the Louisiana Supreme Court addressed the exception to the self-help prohibition as follows:

[Wjhen the lessee breaches the lease by abandoning the premises, the lessor has the right to take possession of the premises as agent for the lessee and to relet the premises to a third party without canceling the lease or relieving the lessee of his obligations under the lease contract.

Id. at 1293 (footnote omitted).

In Connecticut General Life Insurance Co. v. Melville Realty Co., 591 So.2d 1376 (La.Ct.App. 4th Cir.1991), this Court addressed the abandonment exception as follows:

The third option [to enter the leased premises to relet them in the case of an unjustifiable abandonment] is an exception to the general rule that a lessor may not take possession or in any way disturb the possession of the lessee without first resorting to judicial process. It allows the lessor to exercise self-help when the lessee has voluntarily abandoned the premises. La. C.C.P. article 4731. See Bunel of New Orleans, Inc. v. Cigali, 348 So.2d 993 (La.App. 4th Cir.1977), writ denied 350 So.2d 1210 (La.1977). The way in which this self-help Inremedy operates is the lessor has the right to reenter the premises for the purpose of reletting the property to a third person, with the lessee receiving the benefit of any rent collected from the third person (after recovery by the lessors of costs, fees and expenses of collection, and the expense of redecorating or altering the premises) but remaining liable for their obligations under the lease.

Id. at 1378.

Ms. Pelleteri’s actions in padlocking Caspian out of the Leased Premises clearly constituted a wrongful eviction, and she is liable in damages to Caspian. Her argument that Caspian abandoned the Leased Premises, thereby entitling her to retake possession of the Leased Premises without judicial process, is without merit. The trial court found that Caspian’s hurried removal of food and liquor from the Leased Premises occurred, because Caspian feared the loss of these items if Ms. Pelleteri followed through on her threat to lock Caspian out of the Leased Premises. This Court agrees with the trial court that Caspian did not abandon the Leased Premises based on the facts presented at trial.

Effect of a Judgment of Eviction after Wrongful Eviction

The trial court’s reliance on Montz v. Theard , 2001-0768 (La.App. 1 Cir. 2/27/02), 818 So.2d 181, in determining that the Judgment of Eviction established a date after which Ms. Pelleteri’s liability for her wrongful eviction of Caspian ceased, was misplaced. This Court finds that the Montz case is inapplicable to the instant case. In the Montz ease, unlike in the instant case, the eviction was not found to be a wrongful eviction. There was a judgment of eviction that resulted from a contested judicial proceeding, and the party in possession of the premises 11gin the Montz case remained in those premises until the judicial proceedings were final. Additionally, the contract in the Montz case was not a lease. The Louisiana First Circuit Court of Appeal considered whether the contract was a type of conditional sale, bond for deed, or innominate contract before deciding that it was unnecessary to determine exactly what type of contract was involved. The Court never considered the contract to be a contract of lease.

There was testimony at trial that the Caspian shareholders were puzzled when they received the notice to vacate the Leased Premises in connection with the eviction proceeding filed by Ms. Pelleteri. They wondered why they were being notified to vacate the Leased Premises when they had not been permitted to occupy the Leased Premises since they were wrongfully evicted. At trial there was testimony that by the time the eviction proceedings were filed, the Caspian shareholders could not afford to resume their restaurant and bar business in the Leased Premises. They would have to incur additional start-up costs, because the business had been closed, and Caspian could not afford this new expense. Therefore, there was no reason for Caspian to try to regain the right to occupy the Leased Premises.

In the instant case the eviction of Caspian from the Leased Premises occurred when Ms. Pelleteri padlocked the Leased Premises. The Judgment of Eviction obtained by Ms. Pelleteri did not in any way sanction the wrongful eviction, and it did not, in fact, evict Caspian from the Leased Premises. Caspian had already been evicted from the Leased Premises. The Judgment of Eviction merely returned lawful possession of the Leased Premises to Ms. Pelleteri so that she could either occupy the Leased Premises herself or relet them.

| iaFinding of Wrongful Eviction

Based on the foregoing discussion, this Court finds that Ms. Pelleteri wrongfully evicted Caspian from the Leased Premises. Caspian did not unjustifiably abandon the Leased Premises, so Ms. Pelleteri was not authorized to retake the premises without judicial process. Additionally, when the Judgment of Eviction was rendered, Caspian had already been wrongfully evicted from the Leased Premises. Therefore, the Judgment of Eviction had no effect on the liability Ms. Pelleteri incurred as a result of her wrongful eviction of Caspian.

DAMAGES

Louisiana Civil Code article 2696 provides that “[i]f the lessee be evicted, the lessor is answerable for the damage and loss which he sustained by the interruption of the lease.” Louisiana Civil Code article 1995 provides that the measure of damages for an obligor’s failure to perform a contract is “the loss sustained by the obligee and the profit of which he has been deprived.” Louisiana Civil Code article 1999 provides that “[w]hen damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages.” Article 1999 applies to damages from a breach of a contractual obligation. La. C.C. art. 2324.1, which applies to tort liability, also provides that “[i]n the assessment of damages ... much discretion must be left to the judge or jury.”

In Waller & Edmonds v. Cockfield, 111 La. 595, 35 So. 778 (1904), a wrongful eviction case, the Louisiana Supreme Court stated as follows regarding the damages that could be recovered by the lessee in that case:

This brings us to a consideration of the amount of damages. The ouster resorted to by defendant was illegal, and it was made in such positive terms that plaintiffs could not do less than, as they did, | uleave and abandon their rights as lessees.
From this point of view they are entitled to judgment for amounts which they would have earned, as made to appear by the testimony, if they had been allowed to continue in their work of running the gin.
Manifestly, plaintiffs sustained a loss. Defendant is hable for an illegal act; in other words, a tort or wrong, which is the proximate cause of the loss.
We come to exemplary damages-a question which presents some difficulty in deciding. The liability is partly contractual and partly ex delicto. To the extent that it is ex delicto, plaintiffs may recover.

111 La. at 600-01, 35 So. at 780. See also Chronister v. Creole Corporation, 147 So.2d 218 (La.Ct.App. 4th Cir.1962), also a wrongful eviction case, where this Court stated that the Waller & Edmonds case “is authority for the preposition [sic] that the violation of a contract can cause damages ex delicto as well as contractual in a breach of a contract.” Id. at 220.

In Fo-Coin Co. v. Drury, 349 So.2d 382 (La.Ct.App. 4th Cir.1977), this Court reiterated that damages from wrongful eviction are not only contractual but also are delictual. This Court stated that “[w]hen a lessor takes the law in his hands by unlawfully dispossessing a tenant, he commits a trespass and is hable for general damages.” Id. at 384.

In New Orleans Riverwalk Associates v. Robert P. Guastella Equities, Inc., 94-2092, 94-2093 (La.App. 4 Cir. 11/16/95), 664 So.2d 151, this Court discussed damages in the context of a wrongful eviction case. This Court stated that “[w]hen damages are insusceptible of precise measurement, much discretion is left to the court for its reasonable assessment. The reviewing court must evaluate the | ^particular injuries and their effects on the particular injured persons.” 94-2092, 94-2093, p. 9, 664 So.2d at 157 (citations omitted).

The trial court initially assessed damages against Ms. Pelleteri in the amount of $249,800. This amount, as stated in the trial court’s reasons for judgment, was based solely on revenues derived from video poker. The trial court stated in her reasons for judgment, dated July 12, 2001, that the revenues from video poker “averaged $27,700 per machine, per year.” After the new trial that was granted to Ms. Pelleteri, the trial court again rendered judgment against Ms. Pelleteri but reduced the amount of damages assessed against her. In her Judgment, dated July 26, 2002, the trial court awarded Caspian $14, 193.39. In her reasons for judgment, dated the same date, the trial court stated that the award was based on the projected revenues that Caspian would have earned during the three month time period from the date the Leased Premises were padlocked until the Judgment of Eviction was rendered on July 25,1997. The trial court found that the only revenue reasonably certain to have been earned during this time period would have been from video poker machines, and the net revenue from those machines was calculated to be $14,193.38 for that time period.

At trial expert witnesses for both sides testified regarding the damages suffered by Caspian. The two methods that Caspian’s expert determined to be most useful in assessing the lost profits from the Half Moon were the “yardstick method” and the “hypothetical revenue and profit method.” The expert used the budget prepared by one of Caspian’s shareholders in assessing lost profits using the “hypothetical revenue and profit method”. Caspian’s expert used another restaurant he deemed comparable to the Half Moon and a bar with video poker machines at a location less than a block from the Leased Premises as “yardsticks” l-ififrom which he could extrapolate the potential lost profits suffered by Caspian from the wrongful eviction. At trial Caspian’s expert testified that using the “yardstick method”, he determined that in the initial lease term that the lost profits were greater than $480,000. There was also testimony at trial that Caspian lost approximately $35, 000 in start up costs and liquor worth about $1,000. Part of the start up costs included the cost of a computer that Caspian’s shareholders were still able to use later, so the cost of the computer would not be an item of damages.

The expert witness who testified at trial on behalf of Ms. Pelleteri was qualified in the fields of business administration and economics. Ms. Pelleteri’s expert was asked by the trial court, “Did you come up with an overall conclusion about any damages that these people may have suffered?” The expert then stated, “In fact I went one step beyond, I said not only weren’t there any damges [sic], but the closure for whatever reason prevented multiplying the losses, and averted further loses [sic].” Although Ms. Pelleteri’s expert disagreed with the analysis of future profits used by Caspian’s expert, he did say that “[t]he format, the general approach, the yardstick approach, that is fine.” Ms. Pelleteri’s expert used data available from the National Restaurant Association in reaching this conclusion.

This Court has carefully reviewed the expert witness testimony in the instant case and does not think that the damage assessment by either expert is sufficiently nonspeculative for this Court to determine the potential lost profits that might have resulted from the wrongful eviction. At the time of the eviction there were no video poker machines in the Leased Premises, and insufficient evidence was presented at trial for this Court to conclude that the necessary applications and licenses required for the video poker machines would be forthcoming. Additionally, the restaurant Caspian’s expert used as a “yardstick” for his calculation of lost profits was not |17located near the Leased Premises, was a different type of restaurant, and served a completely different type of clientele than did the Half Moon.

Although this Court considered the measure of damages in wrongful eviction cases involving business enterprises in New Orleans Riverwalk Associates v. Robert P. Guastella Equities, Inc., 94-2092, 94-2093 (La.App. 4 Cir. 11/16/95), 664 So.2d 151, and in Weber v. McMillan, 285 So.2d 349 (La.Ct.App. 4th Cir.1973), this Court does not find that these cases are instructive in the calculation of damages in the instant ease. In the New Orleans Riverwalk case, the lessor’s, not the lessee’s, profit projection was used to calculate the measure of damages. The profit projection was made at the time of the lease and was a reasonable estimate of what the lessor expected the lessee’s profits to be. In the Weber case, unlike the instant case, there was a business history from which future profits could be reasonably determined.

This Court does not, however, find that there were no damages incurred by Caspian. As mentioned above, Caspian incurred start up costs of approximately $35,000 in connection with preparing to open the Half Moon, it was wrongly denied the opportunity to determine whether the Half Moon would become a thriving business enterprise, it suffered the loss of the efforts it had expended in preparing the Half Moon to become profitable. The Half Moon was precipitously closed prior to the Jazz Fest, a particularly lucrative period for restaurants and bars in New Orleans.

Caspian’s shareholders also were forced to start other endeavors when they were wrongfully deprived of possession of the Leased Premises, and such endeavors required new expenditures to be made. Additionally, the Caspian shareholders had substantial experience in the restaurant and bar business, and the h «abrupt closing of the Half Moon, no doubt, adversely affected their reputation in the restaurant business.

Because the damages in the instant case are “insusceptible of precise measurement”, this Court has “much discretion” in assessing the amount of damages. It “shall be left to the court for the reasonable assessment of these damages.” La. C.C. arts. 2324.1, 2692. Based on a thorough review of the record, this Court awards Caspian damages resulting from Ms. Pelleteri’s wrongful eviction in the amount of $100,000.

AWARD OF FEES FOR ATTORNEYS AND EXPERT WITNESSES Attorneys Fees

Caspian argues that the trial court improperly failed to award damages for the fees of its expert witness and its attorneys. This Court finds that there should have been an award for the fee of Caspian’s expert witness but not for the fees of its attorneys.

Caspian argues that it is entitled to an award of attorney’s fees, because Ms. Pelleteri violated the Unfair Trade Practices and Consumer Protection Law (the “Unfair Trade Practices Law”), La. R.S. 51:1401 et seq., which provides for an award for reasonable attorney’s fees and costs. The Unfair Trade Practices Law does not specifically define unfair trade practices, and what constitutes an unfair trade practice is determined on a case by case basis. Jefferson v. Chevron, 97-2436, 98-0254 (La.App. 4 Cir. 5/20/98), 713 So.2d 785. Based on the facts in the instant case, this Court does not find that Ms. Pelleteri’s actions constitute an unfair trade practice. Therefore, Caspian is not entitled to an award of attorney’s fees.

|19Ejcpert Witness Fees

La. R.S. 13:3666(A) provides for the compensation of expert witnesses. That statute reads as follows:

Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.

Additionally, “[t]he court shall determine the amount of the fees of said expert witnesses which are to be taxed to be paid by the party cast in judgment....” La.R.S. 13:3666(B). See also La.C.C.P. art.1920, which provides that “[u]nless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.”

Pursuant to La. R.S. 13:3666(A) Caspian, as the prevailing party in this litigation, is entitled to an award of expert witness’ fees. The trial court is given considerable discretion is setting the fees of expert witnesses, and an appellate court will not retract an award absent a showing of a serious abuse of discretion. Mossy Motors v. Water Board of the City of New Orleans, 2001-0486 (La.App. 4 Cir. 9/19/01), 797 So.2d 133. Because the trial court is able to hear evidence regarding the expert witness fees and this Court is not, the trial court is the appropriate place for a determination of the amount of those fees that should be assessed against the party cast in judgment.

In the instant case Caspian filed a Rule to Tax Cost and Attorneys Fees in the trial court. That rule is still pending. In Crosby v. The Great Atlantic & Pacific Tea Co., 408 So.2d 11 (La.Ct.App. 4th Cir. 1982), this Court held that “[t]his |¡>ncourt cannot hear evidence regarding costs.” Therefore, we refer to the trial court for a hearing on the issue of the assessment of expert witness fees as costs.

CONCLUSION

The judgment of the trial court regarding Ms. Pelleteri’s liability for the wrongful eviction of Caspian is affirmed. However, for the reasons set forth in this opinion, the amount of damages awarded to Caspian by the trial court is increased from $14,193.39 to $100,000. This case is further remanded to the trial court solely for the purpose of a hearing on the pending rule to tax costs in accordance with this opinion. The costs of this appeal are assessed against Ms. Pelleteri.

AFFIRMED IN PART, AMENDED IN PART, AND REMANDED FOR CONSIDERATION OF COSTS.

      . Caspian’s shareholders included Haluk Do-gru, Recep Ozel, Hassan Khaleghi, and Yalcin Hatipoglu. Mr. Khaleghi and Mr. Hatipoglu ran the day to day operations of the restaurant and bar located at 437 Esplanade Avenue.

      . The eviction suit filed by Ms. Pelleteri was concluded by a Judgment of Eviction rendered on July 25, 1997. Nevertheless, this concluded matter was consolidated with the suit filed by Caspian on July 31, 1997.

      . The Judgment rendered in connection with the new trail is dated July 26, 2001, but the date should have been July 26, 2002.

      . See also La. C.C. art. 2713, which establishes a procedure for notice and eviction when the rent is not paid.

      . This case is cited by the trial court as Montz v. Pilcher. The defendants are Mary D. Pil-cher, wife/of and Nevil L. Theard.