author: hAMY, Judge.

text:
    Betty SMITH v. WAL-MART STORES, INC., d/b/a Wal-Mart Supercenter.
    No. 03-1582.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.

      Donald G. Kelly, William L. Townsend, III, Kelly, Townsend & Thomas, Robert L. Salim, Natchitoches, LA, for Plaintiff/Ap-pellee, Betty Smith.
    Ronald E. Corkern, Jr. Corkern & Crews, L.L.C., Natchitoches, LA, Kathleen A. Manning, Henri Wolbrette, III, Stephen P. Beiser, McGlinchey Stafford, PLLC, New Orleans, LA, John G. Swift, Swift & Rhoades, L.L.P., Lafayette, LA, for Defendant/Appellant Wal-Mart Stores, Inc.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   hAMY, Judge.

The plaintiffs filed individual suits against the defendant after a surveillance camera was discovered in the restroom of the defendant’s store in Natchitoches. The plaintiffs subsequently sought certification of a class action. The defendant objected, asserting that resolution by class action was not the superior method of adjudicating the matter. The trial court granted the motion to certify class. The defendant appeals the class certification. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that, on July 9, 1997, Natchitoches police officers responded to a complaint at the Natchitoches Wal-Mart Supercenter after a customer reported finding a camera located in the ceiling of the women’s restroom at the rear of the store. According to the police report, the officer entered the restroom, there locating the camera which had been pulled from its position by the customer’s husband. The officer explained in the incident report: “I entered the restroom and observed a small video camera, that appeared fully functional, hanging from some wires in the stall (# 3). Mr. Parker showed me where the camera was located, before it was pulled down, and it appeared to be placed in such a manner as to observe women as they used the restrooms [sic] toilet.” The report continues, stating that the store manager “showed me the path of the cable, which led to the [ ] surveillance room, but was unconnected to a working monitor.”

Wal-Mart denied knowledge or approval of the camera, stating the placement of such a camera in the restroom is impermissible and that such placement would not be in the course and scope of an employee’s duties. An August 20, 1997 statement from James McCorkle, a Wal-Mart assistant manager, is contained in the police report. It indicates that he was working at the store in the early morning hours of July 1?7, 1997 and that, in response to thefts taking place in the bathroom, he began placing a camera in the restroom. The statement indicates that he did not complete the task.

Wal-Mart also submitted an affidavit from Mr. McCorkle, who stated that he “placed a handheld video camera in the ceiling of the lady’s restroom on or about July 5 or 6, 1997.” He stated that the video camera was used on only two occasions; a recording made on July 5th or 6th, but which produced a tape that was unfocused and could not be observed; and a recording made on July 6th or 7th. He stated that he never reviewed this latter tape.

Mr. McCorkle explained that since this original camera operated from a battery only, he decided to install a surveillance camera, and began doing so on the morning of July 7th. Mr. McCorkle stated: “I was unable to complete this job of hooking up the cable to the camera and to the video monitor in the security room because I had too much to do on the sales floor to get the store ready for the next day’s business, and to get ready for inventory.” He stated that he did not return to work until July 9th, by which time the camera had been discovered. He stated that: “The only actual surveillance that ever occurred was the two occasions between July 5 and July 7, 1997, when I attempted to use the handheld video camera which I had installed in the ceiling of the women’s restroom.” Mr. McCorkle stated that the placement of the surveillance devices was done without Wal-Mart approval and that “no other Wal-Mart employee or associate had any knowledge of my efforts to conduct surveillance of the lady’s restroom[.]” The affidavit indicates that after Mr. McCorkle apprized Wal-Mart of the installation of the camera, his employment was terminated.

| aSubsequent to the discovery of the camera, Betty Smith, Janice Perry, and Jenny Bloodworth, filed individual suits. The petitions allege the discovery of the camera, that the camera was situated in a position so “as to observe women as they used the restroom toilet; there was a transmission cable that lead from the small video camera situated and located in said restroom to a surveillance room into a working monitor.” The petitions allege that actions on behalf of Wal-Mart and their employees “was obviously done with the knowledge and consent of the supervisors and as such, the doctrine of responde-at superior should apply herein.” The petitions sought damages related to “invasion of privacy or attempted invasion of privacy[J”

Ms. Bloodworth filed a Motion to Certify Class Action in her matter in November 1998. Before the matter was ruled upon, however, and on motion of Wal-Mart, the separate suits were consolidated in December 1998. The issue of class certification was considered over several hearing dates, with the trial court considering separately the temporal and geographic parameters of the class. The trial court ultimately certified the class, signing the judgment in February 2003. The judgment established the parameters as follows:

IT IS FURTHER ORDERED that the Court defines the members of the class to be all female, non-Wal-Mart employees, resident within a 40-mile radius from the corner of Front and Church Streets in Natchitoches, Louisiana, who were living in one of the six Parishes of Sabine, Rapides, Winn, Grant, Red River, and Natchitoches between and including the dates of November 16, 1996, through the discovery of the[4camera on July 9,1997, and who can establish presence in the customers’ ladies restroom at the rear of the Wal-Mart store in Natchitoches, Louisiana, during that period:
IT IS FURTHER ORDERED that to qualify as a member of the defined class, each claimant must prove her presence in the Wal-Mart ladies’ restroom during the period November 16, 1996, to July 9, 1997, in one of the following two ways:
1) By store receipt, credit card receipt, or canceled check to Wal-Mart dated during the relevant time period, along with the claimant’s affidavit confirming that the receipt or other acceptable proof is, in fact, her own, [sic] receipt or other proof and stating that she was in the restroom in question on that date; or
2) Alternatively, by a personal affidavit, supported by two corroborating affidavits, attesting that the claimant was in the store, and in the particular restroom, on a date during the relevant time period. If this method of proof is elected, the Court may hold hearings to allow cross-examination of the affiants before qualifying the potential claimant as a member of the class.
IT IS FURTHER ORDERED that plaintiffs Jenny Bloodworth, Janice Perry, and Betty Smith be and they are hereby named as representatives of the class certified in this Judgment.
IT IS FURTHER ORDERED that plaintiffs’ counsel, Kelly, Townsend & Thomas and Robert L. Salim, be and they are hereby certified as counsel for the class.
IT IS FURTHER HEREBY ORDERED that the parties submit to the Court within 45 days of the signing of this Judgment a proposed plan for notice to members of the class, agreed upon by all parties, and that no notice to the public in general shall be issued by any party prior to the Court’s approval of the method of notice.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this Judgment is an interlocutory Judgment which the Court finds may cause irreparable injury, all in accordance with La. C.C.P. Art.2083.

Wal-Mart filed a motion for new trial, asserting, among other things, that a bellwether trial should be conducted in order to establish the class parameters. Wal-Mart claimed that the bellwether trial method would permit the merits of the claim to be heard, the facts of the underlying case established, and class notice then sent to IsOnly those who were affected by any tortious conduct. The trial court denied the motion for new trial.

Wal-Mart appeals the certification asserting that the plaintiffs failed to establish the existence of a class so numerous as to require certification and that factors indicate that a class action is not the superior method for adjudication of the matter. Wal-Mart asks this court to decertify the class and remand the matter for individual trials.

Discussion

The Louisiana Code of Civil Procedure provides for class actions, setting forth guidelines for class certification in Articles 591 through 597. Central to this matter is Article 591, which contains the prerequisites for class certification and provides:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.
B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
(1) The prosecution of separate actions by or against individual members of the class would create a risk of:
Día) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
(4) The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subpara-graph B(3) might not otherwise be met.
C. Certification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class. However, following certification, the court shall 17retain jurisdiction over claims or defenses dependent for their resolution on proof individual to a member of the class.

The party seeking the class certification bears the burden of establishing the above criteria. Duhe v. Texaco, Inc., 99-2002 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, writ denied, 01-0637 (La.4/27/01), 791 So.2d 637. A trial court’s determination as to certification is reviewed under the abuse of discretion standard of review. Banks v. New York Life Ins. Co., 98-0551 (La.7/2/99), 737 So.2d 1275, cert. denied, 528 U.S. 1158, 120 S.Ct. 1168, 145 L.Ed.2d 1078 (2000); See also Duhe, 779 So.2d 1070.

Numerosity

Wal-Mart asserts that the prerequisite of numerosity of the class prohibits certification of the class in this case. It argues that, although the putative class may be large given the temporal and geographical parameters set forth by the trial court, few of that substantial number will be able to demonstrate that they are part of the class. Wal-Mart asserts that, although the trial court set the temporal limits of the class as between mid-November 1996 and July 9, 1997, the physical evidence does not support the allegation that a camera was in place for that length of time. Instead, Wal-Mart asserts in its brief that “the video recording that allegedly caused the injury took place, at most, over two days and produced a single tape that recorded nine persons during a 30-minute period.”

With regard to numerosity, one of the elements discussed in Article 591(A)(1), jurisprudence on the issue indicates that the numerosity element entails a determination as to whether the parties are so numerous as to indicate that individual suits would burden the courts. West v. G & H Seed Co., 01-1453 (La.App. 3 Cir. 8/28/02), 832 So.2d 274. There is no particular number of plaintiffs that renders a matter appropriate as a class action. Mathews v. Hixson Bros., Inc., 02-124 (La.App. 3 Cir. 7/31/02), 831 So.2d 995, (quoting Johnson v. Orleans Parish Sch. Bd., 00-0825 (La.App. 4 Cir. 6/27/01), 790 So.2d 734, writs denied, 01-2215 (La.11/9/01), 801 So.2d 379, 01-2216, 01-2225 (La.11/9/01), 801 So.2d 378), writ denied, 02-2305 (La.12/13/02), 831 So.2d 984. Rather, difficulty in identifying those who may be claimants is a factor in whether joinder of all potential plaintiffs is impracticable, making a class action appropriate. Id. Furthermore, although the claimants as a group must be definable, identification of every member of the potential class prior to certification is not required. West, 832 So.2d 274.

Our review of the record reveals support for the determination that “the class is so numerous that joinder of all members is impracticable” as is required by Article 591(A)(1). The evidence includes a videotape bearing the digital date imprint of November 17-18, 1996. As observed by the trial court, the tape reveals the recording of several women in the restroom stall. The evidence introduced also indicates the July 9, 1997 discovery of a camera in the restroom at Wal-Mart, and although not connected to a monitor, lines linked the camera to the surveillance room. Thus, the trial court did not err in establishing the temporal limits as between “November 16, 1996, through the discovery of the camera on July 9,1997.”

Although Wal-Mart argues that the digital date on the videotape is incorrect, subject to manipulation, or contrary to the affidavits/statements of Mr. McCor-kle, Iflthese determinations are ones relating to the merits. Further evidence may be explored by the parties and any necessary credibility determinations made. While Wal-Mart contends in its brief that eight months of viewing/taping without discovery “is contrary to practical logic,” this type of factual determination is a question related to the merits. Those determinations regarding the merits of the cause of action are inappropriate on class certification. West, 832 So.2d 274. In considering the appropriateness of class certification, the trial court is not to consider whether a cause of action has been successfully alleged or whether the plaintiffs will prevail on the merits. Id., quoting Andry v. Murphy Oil, U.S.A., Inc., 97-0793 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, writ denied, 98-1158 (La.6/19/98), 720 So.2d 1213, writ denied, 98-1178 (La.6/19/98), 720 So.2d 1214.

Wal-Mart further argues that Louisiana does not recognize a cause of action for attempted invasion of privacy as pled by the plaintiffs’ petition and therefore, only “persons who were actually recorded by the video camera in the restroom” have a cause of action. This, Wal-Mart contends, “greatly limits the numerosity of the class because the evidence shows only nine persons who actually were recorded.”

Although the videotape entered into evidence does not, alone, reveal the viewing of a large number of women in the restroom, it in no way limits what may be presented at a trial on the merits. It is unwarranted to draw from the evidence presented at the certification hearing, a conclusion that the evidence presented is the entirety of all the evidence that exists. That determination is properly left for the merits.

This assignment lacks merit.

| ¡(¿Superior Method of Adjudication

In its second assignment of error, Wal-Mart asserts that the trial court improperly considered the matter under La. Code Civ.P. art. 591(B)(3), that portion of Article 591 requiring consideration of whether “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Wal-Mart argues that the individuals allegedly affected “have no knowledge that their privacy may have been invaded and, therefore, they have sustained no emotional harm. The class notification, itself, will supply the final element of their tort, emotional injury caused by learning that they may have used the restroom at a time when the video camera was operating.” Wal-Mart continues, asserting that any damages sustained may then be non-recoverable by a large number of the class given the task of proving class membership, i.e., producing evidence indicating their presence in the restroom seven years ago.

We find no merit in Wal-Mart’s reasoning in this regard. First, we find no evidence in the record indicating to what extent discovery of the camera was known in the community. Obviously the plaintiffs filing the underlying petitions were aware of the discovery. While true that not all potential members of the class may have that knowledge, the trial court was not required to base its actions on keeping confidential those allegations of the petition, allegations which would ultimately come to light during the proceeding of individual suits. This argument lacks merit.

Wal-Mart also questions the certification under Article 591(B)(3)(d) and (f). Article 592(B)(3)(d) and (f) indicate that, in determining whether a class action is the superior method of adjudication, the trial court is to consider:

(d) The difficulties likely to be encountered in the management of the class action;
_Lu-•••
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation.

Wal-Mart contends that “[bjecause the class as certified includes women and girls who were in Wal-Mart during an eight-month period, the process of establishing class membership will require great expenditures of time, by both court and counsel.” Wal-Mart contends that this outlay of resources competes against the possibility that evidence will demonstrate that the camera was only in operation over a two-day period.

Again, the merits of the case are not to be fully litigated at the time of certification. Evidence presented supports the parameters of the class. Reference to the trial court’s reasoning in granting the class certification reveals an awareness and consideration of the realities of pursuing this matter as a class action. The burden of establishing entitlement to the class was placed on the purported class members. While the defendant will be faced with having to defend each purported class Jj^member’s entitlement to recover as a class member, similar costs would also have to be pursued if each purported class member sought to pursue any rights through individual suits. In short, we find no error in the trial court’s appreciation of the factors at issue in its determination as to whether a class action was the superior method of adjudication in this matter.

Belhuether Trial

Finally, Wal-Mart asks that, in the event class certification is appropriate, this court limit the class to those individuals who can establish that “they were in the restroom on July 5, 6, or 7, 1997, or November 17 and 18, 1996.” Wal-Mart requests that, upon certification of this smaller class, a bellwether trial be conducted to determine the duration of the “videotaping and the issue of liability, prior to class notice and the proceedings that will be required for the claimants to establish class membership and individual damages.”

As stated above, we find no abuse of discretion in the certification of the class nor do we find error in the trial court’s determination as to the parameters of the class. Pursuant to La.Code Civ.P. art. 592(A)(3)(c), the trial court retains the discretion to shape the class as is necessary as the evidence presented dictates. Furthermore, as is evident by reference to the judgment certifying the class, the trial

court retains control over the timing and content of the notice.

Having reviewed the record, the trial court’s conclusions, and the applicable law, we find no abuse of discretion in the determination to certify the class.

| ^DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assigned to the appellant, Wal-Mart Stores, Inc. d/b/a Wal-Mart Su-percenter.

AFFIRMED.

      . The record indicates that suit was initially filed by a fourth individual, but that the suit was dismissed.

      . For decretal information on the companion cases, see Perry v. Wal-Mart Stores, Inc., 03-1583 (La.App. 3 Cir.4/7/04), 870 So.2d 540, 2004 WL 737450, and Bloodworth v. Wal-Mart Stores, Inc., 03-1584 (La.App. 3 Cir.4/7/04), 870 So.2d 539, 2004 WL 737458.

      . Although Mr. McCorkle's affidavit related to activities in July 1997, a videotape recording of the women's restroom was entered into evidence which bears a digital date stamp of November 16 and 17, 1996.

      . Wal-Mart points out that the trial court included within the class, customers between November 16, 1996 through February 9, 1997, while the videotape contains November 17-18 taping dates. We cannot determine from the record whether the trial court intentionally established the beginning of the time period on the date prior to that shown on the tape. However, we do not disturb the temporal limits of the class, noting that La.Code Civ.P. art. 592(A)(3)(c) provides for the trial court to redefine the limits of the class as needed, providing:
      In the process of class certification, or at any time thereafter before a decision on the merits of the common issues, the court may alter, amend, or recall its initial ruling on certification and may enlarge, restrict, or otherwise redefine the constituency of the class or the issues to be maintained in the class action.

      . The trial court stated, in part:
      I think one of the bigger problems, and obviously not everybody in the trade area can be surmised to have been in this Wal-Mart during this period of time, uh, but, and have gone to this particular ladies bathroom but, that highlights my biggest concern about certification of the class and that was proof of the class and, and how you limit it, well that's not the right word, and the uh, the problems of potential fraudulent claims. To me that was, that was the biggest problem I had in certifying the class. And sorting through that, uh, these claims I can easily see will be a difficult and time consuming process for the attorney's [sic] but particularly for the Court. Uh, and I would hope that we would not have to have a special master involved in it, but I can see that it could get to the point where we would.... I would hope to retain control over it myself, uh, of course we would if there was a special master, but hope to ... continue to have direct control over the matter, uh rather than through an intermediary and that’s been the biggest bone of contention as far as I’m concerned from the defendants is the question of security of the class, uh, and fraudulent claims ... there is some potential there and I, I decided that uh, that problem was outweighed by the fact that this was the best way for people who were offended to have their claim presented in the Court because I didn’t think that their damages were that significant.


source: Caselaw Access Project

author: MARC T. AMY, Judge.

license: Public Domain

text:
    Jenny BLOODWORTH, et al. v. WAL-MART STORES, INC., d/b/a Wal-Mart Supercenter.
    No. 03-1584.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.

      Donald G. Kelly, William L. Townsend, III, Kelly, Townsend & Thomas, Robert L. Salim, Natchitoches, LA, for Plaintifl/Ap-pellee, Betty Smith.
    Ronald E. Corkern, Jr., Corkern & Crews, L.L.C., Natchitoches, LA, Kathleen A. Manning, Henri Wolbrette, III, Stephen P. Beiser, McGlinchey Stafford, PLLC, New Orleans, LA, John G. Swift, Swift & Rhoades, L.L.P., Lafayette, LA, for Defendant/Appellant, Wal-Mart Stores, Inc.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   MARC T. AMY, Judge.

For reasons set forth in the companion case of Smith v. Wal-Mart Stores, Inc., 03-1582 (La.App. 3 Cir.4/7/04); 870 So.2d 531, 2004 WL 737442, this matter is affirmed. All costs of this appeal are assigned the appellant, Wal-Mart Stores, Inc., d/b/a Wal-Mart Supercenter.

AFFIRMED.


text:
    Janice PERRY v. WAL-MART STORES, INC., d/b/a Wal-Mart Supercenter.
    No. 03-1583.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.
    Donald G. Kelly, William L. Townsend, III, Kelly, Townsend & Thomas, Robert L. Salim, Natchitoches, LA, for Plaintiff/Ap-pellee, Betty Smith.
    Ronald E. Corkern, Jr., Corkern & Crews, L.L.C., Natchitoches, LA, Kathleen A. Manning, Henri Wolbrette, III, Stephen P. Beiser McGlinchey Stafford, PLLC, New Orleans, LA, John G. Swift, Swift & Rhoades, L.L.P., Lafayette, LA, for Defendant/Appellant, Wal-Mart Stores, Inc.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   MARC T. AMY, Judge.

For reasons set forth in the companion case of Smith v. Wal-Mart Stores, Inc., 03-1582 (La.App. 3 Cir.4/7/04); 870 So.2d 531, 2004 WL 737442, this matter is affirmed. All costs of this appeal are assigned the appellant, Wal-Mart Stores, Inc., d/b/a Wal-Mart Supercenter.

AFFIRMED.


author: |1AMY, Judge.

text:
    Margaret FONTENOT v. WAL-MART STORES, INC.
    No. 03-1570.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.

      Kevin L. Camel, Cox, Cox, Filo & Camel, Lake Charles, LA, for Plaintiff/Appel-lee, Margaret Fontenot.
    Frank A. Flynn, Allen & Gooch, Lafayette, LA, for Defendant/Appellant, Wal-mart Stores, Inc.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   |1AMY, Judge.

In this workers’ compensation matter, the employee-claimant suffered an apparent seizure while at work, during which she fell to the floor and hit her head, cracking her skull. She underwent emergency surgery, which, in turn, resulted in an infection that required two additional surgeries. The claimant subsequently filed a disputed-compensation form, asserting that her employer had not paid wage benefits or medical benefits. The employer answered, arguing that the claimant’s injuries did not arise in the scope of her employment. Following the disputed-elaim hearing, the workers’ compensation judge ruled that the claimant suffered an injury in the course and scope of her employment and ordered the employer to pay workers’ compensation and medical benefits. In addition, the workers’ compensation judge ruled that the employer failed to reasonably controvert the claimant’s cause of action and assessed penalties and attorney’s fees accordingly. The employer appeals. For the following reasons, we affirm.

Factual and Procedural Background

The record reflects that Margaret Fon-tenot, the claimant herein, began working for Wal-Mart in late September 1993. Ms. Fontenot testified at the disputed-claim hearing in the matter that on November 26, 2001, the date of the accident at issue, she arrived at the Wal-Mart Su-percenter on Highway 14 in Lake Charles, Louisiana, at five o’clock in the morning for her shift in the bakery department. She explained that one of her duties each morning was to take bread from the bakery to the deli department for display. Ms. Fontenot testified that the last thing that she remembers from the day of the accident was that shortly before eight o’clock that morning, she said hello to a coworker while taking a load of bread to the deli. The record indicates that while Ms. Fontenot was in the process of delivering the bread, she fell | ¡>to the floor and hit her head. One of Ms. Fontenot’s co-workers testified that she saw Ms. Fontenot fall to the floor as if she had fainted. Several others testified that when they arrived on the scene after Ms. Fontenot fell, it appeared that she was having a seizure. The record reflects that she was bleeding profusely from the head and was moaning in pain.

Ms. Fontenot was promptly taken to the hospital, where emergency surgery was performed. Ms. Fontenot testified that it was her understanding that she had cracked her skull in three places and that the presence of four blood clots in the area required that surgery be performed immediately. She stated that when she awoke five days after the accident, her treating physician informed her that although her surgery was successful, he believed that an infection had developed that would require a second surgery. Ms. Fontenot indicated that during this second procedure, an infected bone was removed from her skull. She noted at the disputed-claim hearing that, although she was still weak, her condition improved afterwards.

On May 26, 2002, Ms. Fontenot began to experience sharp pain in her right leg. She went to the hospital, where she was informed that the second surgery was not completely successful in removing the infection, which had spread to her leg, penetrating the bone below the knee. A third surgery was then performed on June 6, 2002. Since then, Ms. Fontenot testified, she has suffered headaches and dizziness, which have kept her from activities such as housework, and she had fallen four times in the months preceding the disputed-claim hearing. She likewise testified that she has not been able to drive since the accident. She stated that as of the time of the disputed-claim hearing, she was still receiving medical treatment as a result of her | Jnjury and the ensuing infections. Ms. Fontenot indicated that although she desires to return to work, her doctors have not yet released her for this purpose.

On January 14, 2002, Ms. Fontenot filed a disputed-claim form in which she alleged that Wal-Mart had neither paid workers’ compensation benefits nor authorized medical treatment stemming from the November 26, 2001 accident. Wal-Mart answered, asserting that Ms. Fontenot was not injured during the course and scope of her employment and that her injuries were not related to the alleged work-related accident. Moreover, Wal-Mart claimed that Ms. Fontenot was able to perform light-duty work, which would preclude her from receiving workers’ compensation benefits.

The matter proceeded to hearing on July 2, 2003. In a judgment rendered on September 10, 2003, the workers’ compensation judge ruled that Ms. Fontenot had proven that her injury was sustained while in the course and scope of her employment and that she was entitled to wage and medical benefits. In addition, the workers’ compensation judge awarded penalties and attorney’s fees, finding that Wal-Mart failed to reasonably controvert Ms. Fonte-not’s claim.

Wal-Mart appeals the workers’ compensation judge’s ruling, asserting the following assignments of error:

1. The workers’ compensation judge committed manifest error in determining that Ms. Fontenot was entitled to workers’ compensation benefits when she did not prove by a preponderance of the evidence that a work-related accident and injury occurred during the course and scope of her employment; and
|42. The workers’ compensation judge committed manifest error in awarding attorney’s fees and penalties to Ms. Fon-tenot in accordance with the finding that Wal-Mart did not reasonably controvert her claim in that there were substantial legitimate disputes involved in the matter.

Discussion

Entitlement to Benefits

Louisiana Revised Statutes 23:1031 provides that a claimant may receive workers’ compensation benefits from an “accident arising out of and in the course of his employment.” The claimant may recover after proving, by a preponderance of the evidence, that the accident occurred “on the job site and that an injury was sustained.” Sterling v. Asplundh Tree Expert Co., 03-266, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 125, 128 (quoting Bryan v. Allstate Timber Co., 98-840, pp. 3-4 (La.App. 3 Cir. 12/16/98), 724 So.2d 853, 855). A workers’ compensation judge’s findings of fact are reviewed on appeal pursuant to the manifest-error standard. Nabors Drilling USA v. Davis, 03-0136 (La.10/21/03), 857 So.2d 407. This standard is likewise employed when an appellant raises questions as to the sufficiency of the evidence in the proceedings below. Id.

Wal-Mart contends on appeal that the workers’ compensation judge erred in finding that Ms. Fontenot proved by a preponderance of the evidence that she sustained an accident in the course and scope of her employment. It insists that although Ms. Fontenot suffered an accident while working at Wal-Mart, she did not suffer an accident in the “scope” of her employment. In support of its position on appeal, Wal-Mart underscores Ms. Fonte-not’s testimony that approximately twenty years before the accident at issue, she suffered two grand mal seizures while at home. | ¡^Accordingly, it argues that Ms. Fontenot’s accident was caused by her epilepsy, not by any risk associated with her employment.

Wal-Mart argues that the decision of the Louisiana Supreme Court in the matter of Kern v. Southport-Mill, 174 La. 432, 141 So. 19 (1932), is applicable in the present appeal. It contends that in Kern, the supreme court held that an accident arises out of employment when it results from a risk to which an employee was subjected in the course of his employment. It further cites Kern for the proposition that the mere occurrence of an accident on the job is insufficient to establish the crucial nexus between an employment risk and the subject accident. Wal-Mart maintains that Ms. Fontenot has only proven that her own physical infirmities caused the accident at issue, not any risk of employment.

Our review of the relevant jurisprudence indicates that, in matters similar to the instant appeal, Louisiana courts have been reluctant to deny workers’ compensation benefits to claimants whose pre-existing medical conditions may have contributed to their work-related accidents. For example, in Guidry v. Serigny, 378 So.2d 938 (La.1979), a trial court declined to award compensation benefits to a cook who had fallen en route from the storage area of a restaurant to its kitchen, basing its decision upon evidence that the claimant had fallen due to a heart attack or a fainting spell instead of as a result of a waxed floor. The court of appeal affirmed.

On review, the Louisiana Supreme Court reversed. It observed that the trial court denied benefits because the cook could not demonstrate a causal connexity between her employment and the heart attack or fainting spell that caused her to fall. The supreme court disagreed with the trial court’s reasoning, pointing out that “the plaintiffs accident was not the fainting spell, heart attack or slip which may have |ficaused her to fall. Plaintiffs accident was the fall itself and this is so regardless of the precipitating reason therefor.” Guidry, 378 So.2d at 940. The court then turned to a determination of whether the accident “arose out of’ the claimant’s employment, applying the standard as stated in Kern:

The inquiry is two-fold. First, it must be determined whether the employee was then engaged in his employer’s business and secondly, did the necessities of the employer’s business reasonably require that the employee be at the place of the accident at the time of the accident. Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932). Applying this standard to the present accident, it is apparent that the fall arose out of Mrs. Guidry’s employment. When the plaintiff fell, she was carrying a mayonnaise jar from the storage area to the kitchen in order to prepare for the noon meal. This activity was certainly in pursuit of her employer’s business. It is equally apparent that her employment required that she be in the area where the accident occurred. We therefore hold that Mrs. Guidry’s fall was an accident arising out of and in the course of employment within the meaning of R.S. 23:1031.

Id.

The third circuit has reached similar conclusions in cases in which an employee with a pre-existing medical condition seeks workers’ compensation benefits stemming from an at-work accident. In Morris v. City of Opelousas, 572 So.2d 639 (La.App. 3 Cir.1990), a panel of this court was asked to review a ruling that granted benefits to an employee who had suffered an on-the-job injury following an epileptic seizure. The City of Opelousas, the claimant’s employer, argued on appeal that the accident had not arisen “out of’ the claimant’s employment because the accident was caused by the claimant’s seizures. The deciding panel of this court provided an overview of the applicable law, stating that:

An otherwise compensable accident does not cease to arise out of the employment simply because it can be attributed to a physical infirmity of the employee. Guidry v. Serigny, 378 So.2d 938 (La.1979). It is clear that a worker’s pre-existing condition does not bar his recovery under our worker’s [sic] compensation statute. Id. Moreover, the jurisprudence is replete with statements that an employer takes the 17employee as he finds him. An abnormally susceptible worker is entitled to the same protection as a healthy worker. Allor v. Belden Corp., 393 So.2d 1233 (La.1981).

Morris, 572 So.2d at 642. Paraphrasing Guidry v. Serigny, the panel held that “[the claimant’s] accident was not the epileptic attack which may have caused him to fall. [The claimant’s] accident was the fall itself and this is so regardless of the precipitating reason therefor.” Id. at 642.

The record of the proceedings below indicates that Ms. Fontenot sought medical treatment after experiencing two seizures more than twenty years before the accident at issue. She was prescribed Dilantin, which she discontinued after two years of therapy. Nonetheless, the record indicates that Ms. Fontenot held several jobs following the seizures’ occurrence. In addition, according to her testimony at trial, Ms. Fontenot suffers from asthma and from low blood pressure, which has, in certain instances, resulted in her losing consciousness at work. Ms. Fontenot further noted at trial that on occasion, the dizziness that accompanies her low blood pressure has been so bad as to require her to stay home from work.

Despite the fact that Ms. Fontenot suffered from a pre-existing illness — epilepsy — that apparently contributed to her accident, we note that, according to Guidry and Morris, this does not foreclose her recovery of workers’ compensation and medical benefits in this matter. Applying the standard set forth by the supreme court in Kern to the instant matter on appeal, we find that Ms. Fontenot’s accident occurred in the scope of her employment. At the time of her fall, Ms. Fonte-not was carrying bread from the bakery to the deli in accordance with her |semployment responsibilities. In addition, the record indicates that her employment required her to work in the bakery department on the morning of the accident. We find no manifest error in the workers’ compensation judge’s ruling that Ms. Fon-tenot sustained an accident in the course and scope of her employment. This assignment lacks merit.

Penalties and Attorney’s Fees

Wal-Mart also argues on appeal that the workers’ compensation judge committed manifest error in assessing penalties and attorney’s fees against it in the amounts of $2,000 and $5,500, respectively, for its having failed to reasonably controvert Ms. Fontenot’s claim. It argues that the record of the proceedings below does not support the workers’ compensation judge’s determination that it acted arbitrarily and capriciously in handling this claim. Wal-Mart insists that this was a matter in bona fide dispute and requests that these awards be vacated.

In Johnson v. T.K. Stanley, Inc., 00-1000, p. 10 (La.App. 3 Cir. 2/28/01), 781 So.2d 760, 767 (footnotes omitted), a panel of this court provided the following discussion of the circumstances in which penalties and attorney’s fees are properly awarded to a claimant:

An employee is entitled to penalties and attorney’s fees when the employer arbitrarily, capriciously, or without probable cause fails to timely pay workers’ compensation benefits. In effect, this law describes an employer which fails to reasonably controvert the employees’ [sic] claim. An employer is deemed to have reasonably controverted a claim when it possessed sufficient factual and medical information to rebut the employee’s factual and medical assertions.

The first circuit, in Authement v. Wal-Mart, 02-2434, p. 11 (La.App. 1 Cir. 9/26/03), 857 So.2d 564, 574 (quoting Brown v. Texas-LA Cartage, Inc., 98-1063, pp. 8-9 (La.12/1/98), 721 So.2d 885, 890), states that “[f]or purposes of La. R.S. 1923:1201.2,’’[arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstance presented, or of seemingly unfounded motivation.” We review the workers’ compensation judge’s award of penalties and attorney’s fees pursuant to the manifest-error standard. See Sterling, 856 So.2d at 131.

Our review of the relevant jurisprudence reflects that, throughout Louisiana, it is clear that an accident is considered to arise “in the scope of employment” if the employment required the employee-claimant to be at the site of the accident when it happened. See, e.g., Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313; Haywood v. Dugal, 00-334 (La.App. 5 Cir. 10/31/00), 772 So.2d 240, writ denied, 00-3215, 00-3258 (La.2/2/01), 784 So.2d 4; Pappas v. Marine Spill Response Corp.(MSRC), 94-879 (La.App. 3 Cir. 2/15/95), 650 So.2d 441, writ denied, 95-0706 (La.5/5/95), 654 So.2d 326; Guillory v. Gulf States Utilities, 94-38 (La.App. 3 Cir. 10/5/94), 643 So.2d 488. In addition, within the third circuit alone, the prevailing interpretation of La.R.S. 23:1031 in situations such as the instant appeal is that a claimant’s recovery will not be barred on the basis of a pre-existing injury if the claimant can otherwise prove that an at-work accident occurred. See, e.g., Sterling, 856 So.2d 125; Tate v. Cabot Corp., 01-1652 (La.App. 3 Cir. 7/3/02), 824 So.2d 456; Curtis v. Wet Solutions, Inc., 98-789 (La.App. 3 Cir. 12/9/98), 722 So.2d 421; Stelly v. Guy Scroggins, Inc., 96-401 (La.App. 3 Cir. 10/9/96), 682 So.2d 782. In light of this overwhelming case law, we find that the workers’ compensation judge’s determination that Wal-Mart did not reasonably controvert Ms. Fontenot’s claim was not manifestly erroneous.

| ^Moreover, Wal-Mart produced neither factual nor medical evidence that tended to challenge Ms. Fontenot’s claim. It did not dispute that Ms. Fontenot was acting within the course of her employment when the accident occurred. Instead, the record reflects that Wal-Mart’s chief trial strategy was to establish that Ms. Fontenot suffered from epilepsy or another pre-existing illness that caused her to fall near the deli department on November 26, 2001. As stated above, it is clear that an employee’s pre-existing illness will not preclude her recovery if she can prove that the injury occurred during the course and scope of her employment as defined in Kern. Accordingly, we find that Wal-Mart failed to reasonably controvert Ms. Fontenot’s cause of action. The workers’ compensation judge was not manifestly erroneous in awarding Ms. Fontenot penalties and attorney’s fees in this matter. This assignment is without merit.

DECREE

For the foregoing reasons, the workers’ compensation judge’s ruling is affirmed. All costs of this proceeding are assigned to the defendant-appellant, Wal-Mart Stores, Inc.

AFFIRMED.

      . The record indicates that Ms. Fontenot had one prior accident during her employment at Wal-Mart. She testified that while putting french bread in a freezer in August 2000, she slipped and fell, hitting her head. She maintained that she fully recovered from this accident, adding that she did not file a workers' compensation claim. She further averred that she had not received medical treatment between the August 2000 accident and the November 2001 accident.

      . Parenthetically, the Morris court observed that the claimant was prescribed Dilantin for his seizures but did not regularly take his medicine. Id. at 641-642. The claimant’s failure to take his medication as prescribed did not preclude his recovery.


author: I,AMY, Judge.

text:
    Howard McCORMICK, et al. v. ALLSTATE INSURANCE COMPANY and Amy Romero.
    No. 03-1557.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.

      Michael T. Johnson, Johnson & Sieben-eicher, Inc., Alexandria, LA, for Defendants/Appellants, Allstate Insurance Company Amy Romero.
    Richard A. Rozanski, Wheelis & Rozan-ski, Alexandria, LA, for Defendants/Appellants, Allstate Insurance Company.
    Kenneth A. Doggett, Alexandria, LA, for Plaintiffs/Appellees, Howard McCormick, Jennifer McCormick.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   I,AMY, Judge.

The instant appeal arose from an automobile accident that occurred in a parking lot. The plaintiffs, claiming that they were injured as a result of the collision, filed suit against the driver of the automobile that struck them and against her insurer, seeking medical expenses and property and general damages. The defendants answered, arguing that the plaintiffs were partially at fault in the accident. After a bench trial, the trial judge determined that the defendant driver was solely responsible for the accident and awarded the plaintiffs medical expenses and property and general damages, accordingly. From this judgment, the defendants appealed sus-pensively. For the following reasons, we affirm.

Factual and Procedural Background

The accident from which the instant matter arose occurred between six o’clock and six-thirty on the evening of November 16, 2001, in Pineville, Louisiana. According to the record, after finishing dinner at Ryan’s, fifteen-year-old Jennifer McCormick and her father, Howard, walked to their car, which was in a parking lot shared between the restaurant and the nearby Wal-Mart. The record further indicates that Amy Romero and her then-boyfriend, Donald Johnson, had finished eating at Ryan’s at approximately the same time as the McCormicks. The record reflects that as she was exiting the parking lot, and as the McCormicks were pulling out of their parking space, Ms. Romero hit the McCormicks’ vehicle, damaging the right fender. The collision also damaged the left front portion of Ms. Romero’s vehicle. The events leading up to the accident formed the center of the controversy at trial and remain in dispute on appeal.

Howard McCormick testified at trial that after he and his daughter finished eating at Ryan’s, they decided to get gasoline at the nearby Wal-Mart. He noted that | Jus daughter had received a learner’s permit shortly before the date of the accident, and she had asked to drive to the gas station. According to his recollection, after his daughter had pulled out of the parking space by five or six feet, Mr. McCormick saw that the defendant, Amy Romero, was driving towards them at a “fairly fast” rate of speed, talking on her cellphone. Mr. McCormick stated that his daughter stopped the car when she saw Ms. Romero coming.

On cross-examination, counsel for the defendants used Mr. McCormick’s deposition, in which he stated that he and his daughter had not moved from their parking space when Ms. Romero hit them, to impeach his trial testimony. In response, Mr. McCormick maintained that as of trial, he recalled that they had moved five or six feet out of the parking space when the collision occurred. Defense counsel further pointed out that in Mr. McCormick’s deposition, he said that he did not see Ms. Romero’s car until immediately before the accident; at trial, however, he said that he saw her car from between thirty to fifty feet away. Mr. McCormick explained that he is not a good judge of distances in terms of feet and that the inconsistencies in his testimony could be a result of his age.

Miss McCormick likewise testified as to her recollection of the accident at trial. She indicated that although she had not turned on her headlights after starting the car and moving out of the parking space, the parking-lot lights were on, which were “very bright;” as such, her vision was not impaired. She recalled that after she started the car and moved approximately one-third out of her parking space, she saw Ms. Romero coming up the traveling lane, and she stopped to let her pass, explaining that she did not have time to back up. She posited that Ms. Romero could have maneuvered around her using the empty parking spaces across from the MeCor-micks’ lavehicle. Ms. McCormick also testified that Ms. Romero was talking on the cellphone while driving and was looking down towards the floor of her vehicle.

On cross-examination, Miss McCormick indicated that although a truck was parked to her right, the direction from which Ms. Romero approached, the truck had not kept her from seeing Ms. Romero. Miss McCormick indicated that she pulled up past the truck in order to see around it, but she stopped to let Ms. Romero pass because Ms. Romero had the right-of-way. Miss McCormick indicated that the collision did not happen immediately thereafter; instead, there was a delay of “a couple seconds.”

Ms. Romero testified that she was driving down the traveling lane of the parking lot when the McCormicks pulled out of a space before she could go around them. She testified that she had her headlights on.

Ms. Romero’s ex-boyfriend stated at trial that he was a passenger in Ms. Romero’s car when the accident occurred, at which time she was talking on her cellphone. Ms. Romero later denied this statement in her testimony, claiming that her ex-boyfriend was on her cellphone at the time of the accident because his mother had called about a medical emergency in the family. Ms. Romero indicated that she and her boyfriend broke up sometime after the accident and that she has a restraining order against him.

Mr. McCormick filed suit against Amy Romero and her insurer, Allstate, individually and on behalf of Jennifer, his minor daughter, on April 22, 2002, asserting damage to his vehicle and seeking medical expenses and general damages. The matter proceeded to trial on May 28, 2003. The trial judge issued written reasons for judgment on July 18, 2003, finding that Ms. Romero was solely at fault in the |4accident. The trial judge further awarded Jennifer and Howard McCormick medical expenses in the amounts of $1041 and $1356, respectively, and general damages in the amounts of $12,000 and $9,000, respectively. In addition, Howard McCormick was awarded $2,445.39 in property damages.

Allstate and Amy Romero perfected a suspensive appeal. They now assert the following assignments of error:

1. The trial court erred in finding Allstate’s insured, Amy Romero, one-hundred percent at fault for the accident, and
2. The trial court erred in assessing general damages in the amounts of $9,000.00 and $12,000.00 for Howard McCormick and Jennifer McCormick, respectively.

Discussion

Louisiana Civil Code Article 2315 provides a basis for recovery by persons who suffer damages as a result of the acts of another. In the instant appeal, the defendants wish to revisit the issue of tort liability according to notions of comparative fault, claiming that the McCor-micks were partially to blame for the accident. Comparative fault is outlined in La. Civ.Code art. 2323 as follows:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. | ¡¡If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tort-feasor, his claim for recovery of damages shall not be reduced.

In the leading case of Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967, 974 (La.1985), the Louisiana Supreme Court provided the following five factors for trial courts’ consideration in allocating percentages of fault among parties to a suit:

1) whether the conduct resulted from inadvertence or involves an awareness of danger; 2) how great a risk was created by the conduct; 3) the significance of what was sought by the conduct; 4) the capacities of the actor, whether superior or inferior; and, 5) any extenuating circumstances which might require the actor to proceed in haste without proper thought.

On appeal, the trial court’s apportionment of fault is reviewed pursuant to the manifest-error/clearly-wrong standard. Cleland v. City of Lake Charles, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writ denied, 03-1380, 03-1385 (La.9/19/03), 853 So.2d 644, 645.

As noted above, the McCormicks testified at trial that Amy Romero was talking on a cellphone and was not looking down the traveling lane of the parking lot just before she collided with their stopped vehicle. Miss McCormick stated that she had not entirely pulled out of their parking space before stopping the vehicle; instead, she pulled out enough to see around a truck that was parked nearby. In addition, Miss McCormick testified that Ms. Romero could have avoided their vehicle by going | around it, as the parking spaces .across from them were unoccupied. Ms. Romero, however, claimed that she did not have enough time to avoid hitting the McCormicks’ car.

In Louisiana Farm Bureau Mutual Insurance Co. v. Regal Insurance Co., 01-1446, p. 2 (La.App. 3 Cir. 3/6/02), 809 So.2d 1280, 1282, a panel of this court described the deference owed to the credibility determinations and findings of fact made by trial courts, within the context of allocation of fault, as follows:

Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the fact-finder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). An appellate court should not substitute its opinion for the conclusions made by the trial court, which is in a unique position to see and hear the witnesses as they testify. In re A.J.F. Applying for Private Adoption, 00-0948 (La.6/30/00), 764 So.2d 47. The trier of fact is not disadvantaged by the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in a record. Leal [v. Dubois, 00-1285 (La.10/13/00) ], 769 So.2d 1182; Adkins v. Huckabay, 99-3605 (La.2/25/00); 755 So.2d 206.

When we review the trial court’s findings of fact pursuant to the standard of review set forth in Cleland, above, and with deference to its credibility determinations pursuant to Louisiana Farm Bureau, we find that the trial court was neither manifestly erroneous nor clearly wrong in finding Ms. Romero to be solely at fault in the accident at issue. The trial judge determined that the McCormicks’ explanation of the accident was more credible than was Ms. Romero’s and that Ms. Romero was solely responsible. The record supports such a conclusion. This assignment is without merit.

\nGeneral Damages

In reviewing an award for general damages, an appellate court must determine whether the factfinder abused its discretion. Lavergne v. America’s Pizza Company, LLC, 02-889 (La.App. 3 Cir. 2/5/03), 838 So.2d 845. Whether an award is adequate or inadequate “should be determined by the facts or circumstances particular to the case under consideration.” Id. at 849 (quoting Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).) An appellate court should raise or lower an award that it has determined to be clearly erroneous to the highest or lowest point reasonably within the trial court’s discretion. Borne v. Young, 01-0715 (La.App. 3 Cir. 3/20/02), 813 So.2d 562, writ denied, 02-1079 (La.6/21/02), 819 So.2d 335.

Mr. McCormick testified at trial that he had been injured in the accident but that he had initially attempted to treat his pain with over-the-counter medications, such as Tylenol. He commented that this was not very effective, so he consulted his family doctor, who, in turn, instructed him to see a chiropractor. Mr. McCormick explained that he began seeing Dr. Kelly Faircloth, chiropractor, approximately a month after the accident. Dr. Faircloth’s deposition, admitted into evidence by the plaintiffs, indicated that Mr. McCormick complained of lower-back pain that radiated into his left hip and leg. Her initial diagnosis was traumatic lumbosacral sprain with associated radiculitis and muscle spasms, complicated by osteoarthritis. She opined that these injuries were consistent with the accident.

Dr. Faircloth performed intersegmental traction, diathermy, and manipulation in an effort to allay Mr. McCormick’s pain. According to the record, Mr. McCormick visited Dr. Faircloth twenty-three times between his initial visit and the end of March 182QQ2, when he was released, at a cost of $1,356. In addition, the record further reflects that Mr. McCormick was ninety-three years old at the time of trial, and, during his testimony, he noted that his injuries had kept him from gardening, which was one of his hobbies. In addition to medical expenses, the trial judge awarded Mr. McCormick general damages of $9,000.00.

Miss McCormick indicated that as a result of the accident, she experienced pain in her lower back. Like her father, she took over-the-counter pain relievers and found that they were ineffective. She testified that she, too, began treatment with Dr. Faircloth in January 2002. The record reflects that she visited Dr. Faircloth seventeen times before her last treatment in early March 2002. Dr. Faircloth’s deposition indicated that Miss McCormick complained of lower-back pain and pain in her left elbow that radiated into her forearm. She was diagnosed with traumatic lumbo-sacral sprain with associated muscle spasms, which Dr. Faircloth indicated were injuries consistent with the accident. Like her father, Miss McCormick received treatments of intersegmental traction, manipulation, and diathermy, at a total cost of $1,041. Miss McCormick testified that she was not allowed to participate in physical education at school but that her hobbies were otherwise unaffected by her injuries. In addition to medical expenses, the trial judge awarded Miss McCormick general damages in the amount of $12,000.00.

We find that, based upon the plaintiffs’ testimony and the medical evidence adduced at trial, the trial judge did not abuse his discretion in awarding Howard McCormick general damages of $9,000.00 and Jennifer McCormick general damages of $12,000.00. This assignment lacks merit.

| flDECREE

For the foregoing reasons, the ruling of the trial court is affirmed. All costs of this proceeding are assigned to the defendants, Amy Romero and Allstate Insurance Company.

AFFIRMED.

      . Louisiana Civil Code Article 2315 provides as follows:
      A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
      B. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease. Damages shall include any sales taxes paid by the owner on the repair or replacement of the property damaged.


author: LAMY, Judge.

text:
    STATE of Louisiana v. Robert AUGUST.
    No. 03-1478.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.

      Honorable J. Phillip Haney, District Attorney, New Iberia, LA, Walter J. Senette, Jr., Assistant District Attorney, Franklin, LA, for Appellee, State of Louisiana.
    Kenota Pulliam Johnson, Louisiana Appellate Project, Shreveport, LA, for Defendant/Appellant, Robert August.
    Robert August, Avoyelles Correctional Center, Cottonport, LA, pro se.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   LAMY, Judge.

The defendant was convicted of possession of more than two hundred but less than four hundred grams of cocaine and of receiving or acquiring proceeds derived from illegal drug transactions. He was sentenced to concurrent terms of thirty years at hard labor without benefits for the possession conviction and ten years at hard labor for the proceeds conviction. The defendant appeals his sentences. For the following reasons, we vacate the sentence on the possession conviction and remand for resentencing, and we affirm, in part, the sentence on the proceeds conviction and remand with instructions.

Factual and Procedural Background

According to the record of the proceedings below, during the early afternoon of January 19, 2000, Sergeants Kevin Judice and Darren Denise of the Iberia Parish Sheriffs Office, Narcotics Division, stopped a Toyota Supra driven by Robert August, the defendant herein, for having a switched license plate. Sgt. Judice testified at trial that other narcotics agents on duty had run the license plate on the vehicle and had discovered that its license plate was actually supposed to be on a 1993 Firebird.

Sgt. Judice testified that the defendant was unable to produce a driver’s license upon request; moreover, the defendant, whom Sgt. Judice described as “extremely nervous,” would not tell the officers to whom the vehicle belonged or where he was going, simply explaining that he was doing something for a friend. He noted that the defendant was the sole occupant of the vehicle.

Sgt. Judice testified that he ran the VIN number on the car and determined that it had not been stolen. He explained that because the defendant didn’t have a driver’s license and because the plates had been switched, the Supra was impounded. He | ¡¿recalled at trial that almost immediately after beginning an inventory search of the vehicle, Sgt. Denise discovered a yellow “Super 1” bag on the floor of the driver’s side of the car that contained suspected cookies of crack cocaine. Officers also found a match box containing a razor blade and a rock of suspected crack cocaine. Sgt. Judice testified that a search of the defendant’s person yielded $650 U.S. currency. It was later determined that the cookies were, in fact, crack cocaine, collectively weighing 222 grams.

Lieutenant Todd D’Albor, Chief of the Iberia Parish Sheriffs Office Narcotics Division, testified that after the defendant was transferred to the Criminal Investigations Division, and after he voluntarily waived his Miranda rights, the defendant agreed to an interview. The record indicates that this interview was videotaped and that the tape was shown to the jury during trial.

Lt. D’Albor testified that, according to the defendant, he and another individual had gone to Houston, Texas, where they had picked up twelve ounces of crack cocaine. The defendant, who was entrusted with the cocaine, took a bus from Houston to Lafayette and then from Lafayette to New Iberia. The defendant told Lt. D’Al-bor that upon returning to New Iberia, he went to his apartment before setting out for Jeanerette, and that he was on his way to Jeanerette when he was stopped by Sgts. Judice and Denise. Lt. D’AIbor opined that the defendant was acting as a “mule” when he was caught, noting that the amount of cocaine found in the defendant’s car had a street value of approximately $24,000.

Lt. D’AIbor observed that the $650 recovered from the defendant was organized in what is known as a “quick count” arrangement, which is consistent with dealing. He stated that on January 20, 2000, the day after the defendant’s arrest, the ^defendant again waived his Miranda rights and spoke to him about the $650. Lt. D’AIbor testified that he asked the defendant if the money was legitimate, to which the defendant replied in the negative. He then presented the defendant with a disclaimer of currency form, which the defendant signed.

The matter proceeded to trial on Monday, June 25, 2001. Although he was present in court on Friday, June 22, 2001, when the jury was impaneled, the defendant, who had been released from custody, was not present in court for any Pother part of his trial. The record indicates that when the defendant was not located after a search of the courthouse, the trial judge ordered a warrant for the defendant’s arrest and informed the court that trial would be postponed until later in the week. The trial judge also enlisted the aid of the Iberia Parish Sheriffs Office in locating the defendant in the interim.

On June 27, 2001, court was back in session, and the defendant was still absent. Defense counsel advised the trial judge that the defendant was aware of his court date. Accordingly, the trial judge instituted proceedings to determine whether the defendant was voluntarily absent, in which case, the trial could go forward without him. Lt. D’Albor, who was part of the team assigned to search for the defendant, testified that officers looked for the defendant at his last place of employment, at his last known address, and at the address of a former girlfriend, all to no avail. At the request of defense counsel, hospitals in Lafayette and in New Iberia were checked to rule out the possibility that the defendant had been in an accident or had fallen ill. This, too, proved unsuccessful.

Iberia Parish Sheriffs Officers reported that they had located the defendant’s ex-girlfriend, who had seen the defendant on the morning of June 25. The ex-girlfriend testified before the court that when she had seen him, the defendant told her that he was going to court. In addition, while searching an apartment complex frequented by the defendant, the officers encountered another individual, who ^testified before the court that he had seen the defendant there on the evening of June 25.

After the results of the search had been presented, the trial judge announced his decision as to whether the defendant was voluntarily absent from trial. The trial judge observed that La.Code Crim.P. art. 831 requires a defendant to be present at all stages of his trial. However, the judge observed, according to La.Code Crim.P. art. 832, the defendant who is initially present at trial may waive his further presence. The judge noted that pursuant to La.Code Crim.P. art. 761, the trial was deemed to begin when the first juror was called for examination on voir dire. Because the defendant was present throughout jury selection, the trial judge reasoned, he was present for the beginning of the trial and, based on the evidence presented, the ^defendant had “voluntarily absented himself from trial.” When the jury was brought in, the trial judge informed them of his decision, and trial proceeded without the defendant.

At the trial’s conclusion, the jury found the defendant guilty of possession of more than 200 grams but less than 400 grams of cocaine in violation of La.R.S. 40:967 and guilty of receiving or acquiring proceeds derived from illegal drug transactions in violation of La.R.S. 40:1049. The defendant was present for sentencing, at which time the trial judge imposed a term of thirty years at hard labor without benefit of probation, parole, or suspension of sentence as to the possession conviction and a term of ten years at hard labor, to run concurrently with the thirty-year sentence, as to the proceeds conviction. The defendant’s oral motion for reconsideration of sentence was denied. The defendant was later granted an out-of-time appeal, in which he asserts the following assignments of error:

1. The Honorable Trial Court erred in imposing excessive sentences;
2. The trial court failed to particularize the sentences, thus the sentences violates [sic] the guidelines of La.C.Cr.P. Art. 894.1; and
3. The trial court erred in denying Mr. August’s Motion to Reconsider the Sentences.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. We find three such errors.

First, we find that the sentence for possession of cocaine in amounts greater than 200 grams but less than 400 grams is illegally lenient. Louisiana Revised Statute 40:967(F)(l)(b) mandates the imposition of a fine of not less than $100,000 nor more |7than $350,000, in addition to imprisonment; in the matter on appeal, the defendant received a term of thirty years’ imprisonment but no fine.

In State v. Cedars, 02-861 (La.App. 3 Cir. 12/11/02), 832 So.2d 1191, a panel of this court observed that, pursuant to the principles outlined in La.Code Crim.P. art. 882 and State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, an appellate court may recognize an illegally lenient sentence sua sponte. The trial court’s failure to impose a fine within the parameters of La.R.S. 40:967(F)(l)(b) requires that we vacate this sentence and remand for resen-tencing.

The second patent error that we have noted on our review of the record is that the defendant was sentenced to serve a term of ten years at hard labor on the drug-proceeds conviction. In State v. Williams, 01-1398 (La.App. 1 Cir. 3/28/02), 815 So.2d 378, writ denied, 02-1466 (La.5/9/03), 843 So.2d 388, the first circuit determined that although the statute under which the defendant was convicted, La.R.S. 14:63.4, did not provide that imprisonment was to be at hard labor, and although this might have been an oversight on the part of the legislature, any ambiguity as to the penalty must be resolved in favor of the defendant. The first circuit found in favor of the defendant, holding that his imprisonment should not have been at hard labor. In the instant matter on appeal, an examination of the statute under which the defendant was convicted, La.R.S. 40:1049, reveals that the penalty for such a conviction is imprisonment for not more than ten years and a fíne of not more than $10,000. This statute does not specifically provide that the sentence is to be served at hard labor. Accordingly, we find that the defendant’s sentence should be amended to reflect that the term of ten years is not to be served at hard labor. This |sportion of the sentence is to be remanded, and the trial court is instructed to make the necessary corrections in the minutes.

Finally, we note that the bill of information contained an error as to a statute under which the defendant was charged. The bill of information charges the defendant with a violation of La.R.S. 40:967, without listing a particular subsection. In describing the charge of receipt of proceeds of a drug transaction in violation of La.R.S. 40:1049, the bill of information states that these proceeds were derived from actions in violation of La.R.S. 40:967F.2. We note that this statute, La. R.S. 40:967F.2, does not exist. However, the bill of information asserts that the defendant possessed more than 200 grams but less than 400 grams of cocaine, which is a violation of La.R.S. 40:967(F)(1)(b). With respect to this error in citation, our attention is brought to La.Code Crim.P. art. 464, which provides as follows:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment br for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

Regarding the use of the word “indictment” in the above code article, we note that La.Code Crim.P. art. 461 provides, in pertinent part, that “ ‘[ilndictmenf ” includes affidavit and information, unless it is the clear intent to restrict that word to the finding of a grand jury[;]” as such, La.Code Crim.P. art. 464 applies to citation errors in bills of information as well as to citation errors in indictments. Our review of the bill of information, and of the proceedings below generally, indicates that this citation error did not prejudice the defendant. The offense charged was uniformly referred to as “possession of more than 200 but less than 400 grams of cocaine,’^[¿which is the offense outlined in La.R.S. 40:967(F)(1)(b). Pursuant to La. Code Crim.P. art. 464, we find that the error in the citation in the bill of information charging the defendant with the offense described in La.R.S. 40:967(F)(l)(b) does not require any action by this court.

Excessive Sentence and Failure to Sufficiently Particularize Sentence

The defendant contends on appeal that his concurrent sentences of thirty years at hard labor, to be served without benefit of parole, probation, or suspension of sentence, and ten years at hard labor, are excessive; in addition, he argues that the trial judge violated the provisions of La. Code Crim.P. art. 894.1 in failing to sufficiently particularize his sentence. Because these assignments of error are interrelated, we address them together.

The record indicates that after the trial judge imposed sentence, counsel for defendant made an oral motion for reconsideration, which was denied. The record likewise indicates that the defense offered no arguments in support of the motion. As such, pursuant to La.Code Crim.P. art. 881.1(D), only a “bare claim of excessiveness” has been preserved on appeal in this matter. State v. Barling, 00-1241, p. 11 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-0838 (La.2/1/02), 808 So.2d 331.

In State v. Walker, 96-112, pp. 3-4 (La.App. 3 Cir. 6/5/96), 677 So.2d 532, 534, writ denied, 96-1767 (La.12/6/96), 684 So.2d 924, a panel of this court provided the following analysis of the law pertaining to excessive sentence claims:

hoArticle 1, § 20 of the Louisiana Constitution of 1974, prohibits “cruel, excessive, or unusual punishment.” A sentence which falls within the statutory limits may nevertheless be excessive under the circumstances. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Naquin, 527 So.2d 601 (La.App. 3 Cir.1988). To constitute an excessive sentence this court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981); State v. Everett, 530 So.2d 615 (La.App. 3 Cir.1988), writ denied, 536 So.2d 1233 (La.1989).

Moreover, although the trial court is not required to specify each of the factors listed in La.Code Crim.P. art. 894.1 that were contemplated in imposing sentence, the record must reflect that the trial judge gave them adequate consideration. State v. Palmer, 00-0216 (La.App. 1 Cir. 12/22/00), 775 So.2d 1231. A trial court is given considerable discretion in sentencing a defendant within the limits established by law. State v. Bey, 03-277 (La.App. 3 Cir. 10/15/03), 857 So.2d 1268. A reviewing court is not to disturb such sentences absent a manifest abuse of this discretion. Id.

The defendant was convicted of possession of more than 200 grams but less than 400 grams of cocaine, a violation of La.R.S. 40:967(F)(l)(b), which provides, in pertinent part, that

Any person who knowingly or intentionally possesses two hundred grams or more, but less than four hundred grams, of cocaine or a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than ten years, nor more than thirty years, and to pay a fine of not less than one hundred thousand dollars, nor more than three hundred fifty thousand dollars.

The record indicates that the defendant was sentenced to serve thirty years at hard labor without benefit of probation, parole, or suspension of sentence. In addition, with respect to the $650 recovered from his person, the defendant was convicted of |! receiving or acquiring proceeds derived from illegal drug transactions, a violation of La.R.S. 40:1049(D), which provides, in pertinent part, that “[i]t is unlawful for any person to knowingly or intentionally receive or acquire proceeds derived from any violation of La.R.S. 40:966 et seq., or to knowingly or intentionally engage in any transaction involving proceeds from any such violations.” The penalty provision of La.R.S. 40:966 is located in section (E), which dictates that “[a]ny person who is convicted of violating this Section shall be imprisoned for not more than ten years, or fined not more than ten thousand dollars, or both.”

According to the record, the trial judge stated that he had considered the guidelines set forth in La. Code Crim.P. art. 894.1 in imposing sentence. He observed that the defendant had chosen not to attend his trial and that he was therefore a flight risk. Referring to “State’s Exhibit No. 1,” which is absent from the record on appeal, the trial judge commented that the defendant has an extensive criminal history. (The record indicates that the trial judge ordered a pre-sentence investigation of the defendant after the jury returned the verdicts, but it received no further mention in the record.)

We find no manifest abuse of discretion on behalf of the trial court in sentencing the defendant to concurrent sentences of thirty and ten years. The record reflects that the trial judge considered the aggravating and mitigating factors as detailed in La.Code Crim.P. art. 894.1, and the sentences are within their statutory range. Although, as noted above, a sentence may be excessive even if it is within | ^statutory limits, we find that this is not the case in the instant matter. These assignments are without merit.

Denial of the Defendant’s Motion to Reconsider Sentences

The defendant’s final argument on appeal is that the trial court improperly denied his pro-se motion to reconsider sentence. Louisiana Code of Criminal Procedure Article 881.1 provides guidelines for motions to reconsider sentence, stating, in section (A)(1), that such a motion must be filed “[wjithin thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.”

The record indicates that the defendant was sentenced on September 27, 2001. The defendant’s pro-se motion for reconsideration of sentences was filed on October 30, 2001. Because more than thirty days had elapsed since sentencing, and because the trial court did not extend the time period during which the defendant could submit such a motion, the defendant’s motion was not timely, and the trial court lacked jurisdiction to consider it. See State v. King, 95-344 (La.App. 3 Cir. 10/4/95), 663 So.2d 307, writ denied, 95-2664 (La.3/15/96), 669 So.2d 433. This assignment lacks merit.

DECREE

For the foregoing reasons, the sentence for the conviction on possession of cocaine in amounts greater than 200 grams but less than 400 grams, a violation of La.R.S. 40:967(F)(l)(b) is vacated, and the matter is remanded for resentencing on this charge in accordance with the statutory provisions. Furthermore, we affirm the ten-year sentence on the drug-proceeds conviction pursuant to La.R.S. 40:1049, but 11swe remand with instructions to the trial court to amend the sentence to reflect that the ten-year term is not to be served at hard labor and to correct the minute entry accordingly.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.

      . According to the defendant’s motion, he was arrested and taken into custody on January 19, 2000. His attorney filed a motion for speedy trial on February 18, 2000. On July 14, 2000, the defendant's attorney filed a motion for release pursuant to La. Code Crim.P. art. 701(a)(2). It is unclear which section of the Article was relied upon by defense counsel in that Article 701 does not contain a subsection (a)(2). Nonetheless, the motion was granted following a video hearing on July 25, 2000. Louisiana Code of Criminal Procedure Article 701 provides that
      A. The state and the defendant have the right to a speedy trial.
      B. The time period for filing a bill of information or indictment after arrest shall be as follows:
      (1) When the defendant is continued in custody subsequent to an arrest, an indictment or information shall be filed within forty-five days of the arrest if the defendant is being held for a misdemeanor and within sixty days of the arrest if the defendant is being held for a felony.
      (2) When the defendant is not continued in custody subsequent to arrest, an indictment or information shall be filed within ninety days of the arrest if the defendant is booked with a misdemeanor and one hundred fifty days of the arrest if the defendant is booked with a felony.
      Failure to institute prosecution as provided in Subparagraph (1) shall result in release of the defendant if, after contradictory hearing with the district attorney, just cause for the failure is not shown. If just cause is shown, the court shall reconsider bail for the defendant. Failure to institute prosecution as provided in Subparagraph (2) shall result in the release of the bail obligation if, after contradictory hearing with the district attorney, just cause for the delay is not shown.
      C. Upon filing of a bill of information or indictment, the district attorney shall set the matter for arraignment within thirty days unless just cause for a longer delay is shown.
      D. (1) A motion by the defendant for a speedy trial, in order to be valid, must be accompanied by an affidavit by defendant’s counsel certifying that the defendant and his counsel are prepared to proceed to trial within the delays set forth in this Article. After the filing of a motion for a speedy trial by the defendant and his counsel the time period for commencement of trial shall be as follows:
      (a) The trial of a defendant charged with a felony shall commence within one hundred twenty days if he is continued in custody and within one hundred eighty days if he is not continued in custody.
      (b) The trial of a defendant charged with a misdemeanor shall commence within thirty days if he is continued in custody and within sixty days if he is not continued in custody.
      (2) Failure to commence trial within the time periods provided above shall result in the release of the defendant without bail or in the discharge of the bail obligation, if after contradictory hearing with the district attorney, just cause for the delay is not shown.

        E. "Just cause” as used in this Article shall include any grounds beyond the control of the State or the Court.
      F. A motion for a speedy trial filed by the defendant, but not verified by the affidavit of his counsel, shall be set for contradictory hearing within thirty days.

      .Louisiana Code of Criminal Procedure Article 831 provides, in pertinent part, that
      A. Except as may be provided by local rules of court in accordance with Articles 522 and 551, a defendant charged with a felony shall be present:
      (1) At arraignment;
      (2) When a plea of guilty, not guilty, or not guilty and not guilty by reason of insanity is made;
      (3) At the calling, examination, challenging, impanelling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror;
      (4) At all times during the trial when the court is determining and ruling on the admissibility of evidence;
      (5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced; and
      (6) At the rendition of the verdict or judgment, unless he voluntarily absents himself.

      . Louisiana Code of Criminal Procedure Article 832 provides, in pertinent part, as follows:
      A. A defendant initially present for the commencement of trial shall not prevent the further progress of the trial, including the return of the verdict, and shall be considered to have waived his right to be present if his counsel is present or if the right to counsel has been waived and:
      (1) He voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to be present during the trial[.]

      . Louisiana Code of Criminal Procedure Article 761 provides, "A trial commences when the first prospective juror is called for examination. A trial by a judge alone commences when the first witness is sworn."

      . Louisiana Code of Criminal Procedure Article 881.1(D) provides as follows:
      Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

      . A “criminal history” of the defendant is attached to the State’s bill of information in this matter. According to this “criminal history,” taken from a law-enforcement database, the defendant has several felony convictions. In addition, the record reflects that during the proceedings to determine the defendant's whereabouts, the judge expressed concern based upon the seriousness of the charges and noted that the defendant was a multiple felony offender. The State responded that, if convicted, this would be the deten-dant’s fourth felony conviction, although he did not face habitual-offender charges.


author: JjPICKETT, Judge.

text:
    GOLD, WEEMS, BRUSER, SUES & RUNDELL v. Tommie Mack GRANGER.
    No. 03-1412.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.
    Henry B. Bruser, III, David Cleveland Hesser, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Plaintiff/Applicant: Gold, Weems, Bruser, Sues & Rundell.
    Staci Knox Villemarette, Cloyd, Wim-berly & Villemarette, Lafayette, LA, for Defendant/Respondent: Tommie Mack Granger.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   JjPICKETT, Judge.

FACTS

Gold, Weems, Bruser, Sues & Rundell (the Gold firm) filed suit against Tommie Mack Granger to recover unpaid attorney fees and expenses arising out of their representation of Mr. Granger in custody litigation against his ex-wife. In his answer, Mr. Granger prayed for a trial by jury. After posting the appropriate bond, the trial court issued an order granting a trial by jury.

On August 18, 2003, the Gold firm filed a Motion to Withdraw Order Granting Trial by Jury, claiming that this suit is for the recovery of attorney fees and the reasonableness of attorney fees is exclusively within the province of the court. Following a hearing, the trial court denied the motion. The Gold firm timely filed an application for supervisory writs seeking reversal of this ruling. This court granted the writ in an unpublished disposition on November 20, 2003, for the purpose of briefing, argument, and opinion.

ASSIGNMENTS OF ERROR

The applicant, the Gold firm, asserts one assignment of error:

1. The trial court erred as a matter of law in denying Motion to Withdraw Order Granting Trial by Jury.

DISCUSSION

The right to trial by jury is recognized by La.Code Civ.P. art. 1731. This right is limited by La.Code Civ.P. art. 1732, which provides:

A trial by jury shall not be available in:
(1) A suit where the amount of no individual petitioner’s cause of action exceeds fifty thousand dollars exclusive of interest and costs.
| a(2) A suit on an unconditional obligation to pay a specific sum of money, unless the defense thereto is forgery, fraud, error, want, or failure of consideration.
(3) A summary, executory, probate, partition, mandamus, habeas corpus, quo warranto, injunction, concursus, workers’ compensation, emancipation, tutorship, interdiction, curatorship, legitimacy, filiation, annulment of marriage, or divorce proceeding.
(4) A proceeding to determine custody, visitation, alimony, or child support.
(5) A proceeding to review an action by an administrative or municipal body.
(6) All cases where a jury trial is specifically denied by law.

The Gold firm does not argue that any of the first five prohibitions against a jury trial apply in this case. Instead, it claims that since the principal demand in this case is the recovery of attorney fees and the reasonableness of attorney fees is a matter which is properly considered as a means of the regulation of the practice of law, it is solely within the ability of the courts to determine. Therefore, a trial by the court, and not a jury, is the only proper means of resolving this case.

In fact, the supreme court has asserted its power to regulate the practice of law in this state. See Chittenden v. State Farm Mutual Auto. Ins. Co., 00-0414 (La.5/15/01), 788 So.2d 1140. It has also held that all areas of the attorney-client relationship must be considered in light of the Rules of Professional Conduct. Id. These legal precepts are not in dispute here. It does not necessarily follow, however, that a dispute for legal fees filed by an attorney as a Petition for Breach Contract against a former client must be tried by a judge rather than a jury.

The Gold firm argues that the supreme court clearly found that attorney fees are only triable by a judge in Harris v. Wright Furniture of Gonzales, 532 So.2d 141 (La.1988). In Harris, the plaintiff sued in redhibition for injuries sustained when he Lfell from a chair. In addition to damages for his injuries, he sought attorney fees. After the evidence had been presented to the jury, the plaintiff moved that the trial court, and not the jury, consider the issues of attorney fees. The trial court granted the motion. Following a jury verdict awarding damages, the trial court awarded $18,421.79 in attorney fees. On appeal, the first circuit held that the award of attorney fees should have been considered by the jury, as both parties had sought a trial by jury of all issues. Harris v. Wright Furniture of Gonzales, 527 So.2d 1063 (La.App. 1 Cir.1988). It remanded the case “for the purpose of having the amount of attorney’s fees decided in conformity with this decision.” Id. at 1068. The supreme court granted writs in part and issued the following decision:

Granted in part. Denied in part. The remand to the trial court is vacated and set aside. The judgment of the trial court awarding attorney fees is reinstated. In all other respects the decree of the court of appeal is affirmed.

Harris, 532 So.2d at 141. The supreme court gave no reasoning for its ruling. Any rationale for its reasoning would only be speculation. The argument that this case is clearly governed by Harris is without merit.

The Gold firm does not cite any case other than Harris and the broad principles outlined in Chittenden and Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1978), to support their contention that a jury cannot try a suit seeking recovery of attorney fees. As the trial court properly pointed out in its ruling, the supreme court in Parker v. Rowan Companies, Inc., 628 So.2d 1108, 1110 (La.1991), rehearing granted on other grounds, 599 So.2d 296(La.), cert. denied, 506 U.S. 871, 113 S.Ct. 203, 121 L.Ed.2d 145 (1992), has stated:

A party claiming that its case fits within an exception to the right to a trial by jury has the burden of proving that the case falls within that exception. Cambridge Comer Corp. v. Menard, 525 So.2d 527, 530 |4(La,1988). Furthermore, jurisprudence indicates that the right to a trial by jury is fundamental in character and courts should indulge in every presumption against a waiver, loss, or forfeiture of that right. Champagne v. American S. Ins. Co., 295 So.2d 437, 439 (La.1974).

The trial court went on to state:

There is no doubt that the legislature can not invade the authority of the judiciary to regulate the practice of law. Furthermore, the courts have the duty to closely scrutinize all claims of excessive attorney fees. However, the compelling phrase is “judicial review”. Where civil cases are tried to a jury, the statutes provide for judicial review of verdicts deemed not consistent with the law and the evidence. La.Code Civ.P. arts. 1811 and 1814.
Simply stated, the instant matter may be categorized as collection litigation involving attorney fees and expenses incurred as the result of child custody litigation. Certainly, expenses are not attorney fees and whether they were reasonable and justified by the factual scenario presented by the custody case is to be determined by the trier of fact.

The trial court concluded by finding that the Gold firm had not met its burden of proving that this case falls within the exception to the right of a trial by jury.

The Gold firm also argues that this suit for attorney fees is actually in the nature of an incidental demand, and that the custody case is the main demand. In fact, the pleading which began this litigation is styled “Petition for Breach of Contract.” While issues regarding the firm’s representation of Mr. Granger in the custody case may be relevant to the contract dispute, the contract dispute is the principal demand.

We agree with the trial court’s conclusion that the Gold firm has not met its burden of proving that this case falls within an exception to the right to a trial by jury. Accordingly, the writ is denied.

WRIT DENIED.