author: J^THOMAS F. DALEY, Judge.

text:
    Gary SHAFFER and His Wife, Colleen Shaffer v. STEWART CONSTRUCTION COMPANY, INC., Marmac Corporation, d/b/a McDonough Marine Service International Construction Equipment, Inc., and ABC, DEF, and GHI Insurance Company.
    No. 03-CA-971.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2004.

      Michael G. Lemoine, Breaud & Lem-oine, Lafayette, LA, for Defendant/Appel-lee, International Construction Equipment, Inc. and St. Paul Guardian Insurance Company.
    Michael D. Sledge, Jennifer C. Babin, Saporito & Sledge, L.L.C., New Orleans, LA, for Defendant/Appellant, Pacific Insurance Company.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and CLARENCE E. McMANUS.
   J^THOMAS F. DALEY, Judge.

Pacific Insurance Company brings this appeal asking this Court to reverse several judgments, interlocutory and final, that found it had a duty to defend appellee, International Construction Equipment, Inc. (ICE), and related issues. We affirm the judgments.

The underlying facts of this case are undisputed. Stewart Construction (Stewart) was contracted to construct a mooring facility for a new casino barge on the Red River in the Shreveport/Bossier area. Plaintiff, Gary Shaffer, was Stewart’s project superintendent. Pacific Insurance Company (Pacific), appellant, was Stewart’s CGL carrier. In order to drive and extract pilings in the Red River in connection with this project, Stewart rented a Vibro-hammer from ICE on October 21, 1997. ICE was the manufacturer as well as the owner of the Vibro-hammer. The rental of the Vibro-hammer was governed by an October 21, 1997 Equipment Rental Agreement that contained certain indemnity and insurance requirements that are at issue in this appeal.

[¡¡On April 30, 1998, the Vibro-hammer developed a hydraulic leak at the coupling/fitting that attached the hammer’s large main hose to the power pack. Gary Shaffer telephoned ICE’s home office in North Carolina and received instructions to repair the problem, which was done successfully. While repairing the leak, however, Gary Shaffer allegedly slipped and fell in the hydraulic oil that had leaked from the Vibro-hammer’s hose, sustaining injuries.

On April 29, 1999, Gary Shaffer instituted a maritime suit against Stewart and McDonough Marine Services, the owner of the barge on which the accident happened. Additionally, Gary Shaffer sued ICE for both negligence and strict liability. The trial court later dismissed Gary Shaffer’s strict liability claims, applying the amended versions of LSA-C.C. arts. 2317 and 2317.1. Gary Shaffer subsequently filed a Supplemental and Amending Petition asserting a claim against ICE under the Louisiana Products Liability Act.

Upon receipt of the lawsuit, ICE made demand upon Stewart and its insurance agent for defense and indemnity of ICE in this litigation pursuant to the October 21, 1997 Equipment Rental Agreement. ICE’s demand had two parts; first, for Stewart to assume the defense and indemnity of ICE pursuant to Paragraph 8 of the Equipment Rental Agreement; and second, for Pacific to assume the defense and indemnity of ICE under the insurance provisions of Paragraph 12 of the Agreement, which ICE alleged required Pacific to name ICE as an additional insured under the CGL policy it had issued to Stewart.

Pacific refused to defend ICE, even under a reservation of rights, arguing that Paragraph 12 of the Equipment Rental Agreement did not require that ICE be named an additional insured under its CGL policy covering Stewart, but only required that ICE be named an additional insured under the all-risks equipment policy covering Stewart. ICE filed a Third Party Demand against Pacific, and then a Motion for Summary Judgment. The trial court ruled in favor of ICE in | Judgments dated November 8, 2001, and December 6, 2001, finding that ICE was an additional insured under Pacific’s CGL policy, thus obligating Pacific to defend ICE in these proceedings, and ordering Pacific to reimburse ICE’s defense costs. Additionally, the trial court found Pacific arbitrary and capricious in its refusal to defend ICE and ordered penalties and attorney’s fees in favor of ICE, in a judgment dated February 7, 2002.

Relevant to this appeal, Pacific sought this Court’s supervisory review of the judgments of November 8, 2001, December 6, 2001, and February 7, 2002 in an Application for Writs, 02-C-205. On March 27, 2002, this Court denied the Writ Application, stating in pertinent part:

“With regard to the trial court’s ruling granting the Motion for Summary Judgment brought by International Construction Equipment, Inc. as to Pacific Insurance Company’s duty to defend, we find no error in the trial court’s ruling as all of plaintiffs claims against ICE are not unambiguously excluded by the subject policy. Further, on the showing made, we find no error in the trial court’s ruling requiring Pacific to reimburse ICE for attorney’s fees in the amount of $47,492.30. In addition, the trial court’s award of penalties and attorney’s fees are supported by La. R.S. 22:1220 and R.S. 22:658(B)(1). See, Credeur v. McCullough, 702 So.2d 985 (La.App. 3 Cir. 10/29/97).

The Supreme Court also denied writs. 2002-CC-1158 (June 14, 2002).

Pacific reimbursed ICE for the defense costs and attorney’s fees as ordered. Thereafter, Pacific filed a Third Party Demand against ICE’s CGL insurer, St. Paul Guardian Insurance Company (St.Paul), seeking whole, or in the alternative, partial reimbursement of defense costs and any indemnity amounts paid on behalf of ICE. Pacific also paid $360,000.00 on behalf of ICE in full and final settlement of plaintiffs’ claims against ICE. Pacific then filed a Motion for Summary Judgment on the issue of Other Insurance, arguing that St. Paul’s policy’s excess clause was mutually repugnant to Pacific’s policy’s pro-rata clause, thus obligating St. Paul to reimburse Pacific one-half of all defense costs and indemnity.

| BSt. Paul filed its own Motion for Summary Judgment, arguing that St. Paul’s excess clause trumped Pacific’s pro-rata clause. On April 1, 2003, the trial court ruled in favor of St. Paul, denying Pacific’s motion and granting St. Paul’s, finding that St. Paul’s excess clause rendered Pacific’s policy primary regarding defense and indemnity obligations of ICE in this litigation. Pacific took a Writ Application to this Court on the denial of their Motion. This Court denied writs on May 27, 2003, with the following disposition:

“After careful consideration of the writ application, policy clauses in question, reasons for judgment and cases cited therein, we find the trial court did not err in its finding that Pacific is not entitled to judgment as a matter of law.”

The last issue left was the incidental demand between Pacific and St. Paul as to who bore the responsibility for ICE’s defense costs and settlement amounts paid to plaintiff, Gary Shaffer. St. Paul filed a Supplemental Cross-Motion for Summary Judgment to have this issue resolved and for the complete dismissal of Pacific’s Third Party Demand. This Motion was heard on May 14, 2003. The trial court ruled in favor of St. Paul, finding that Pacific had the sole responsibility for the defense and indemnification of ICE in these proceedings. The trial court applied the “sole negligence” exclusion in Pacific’s policy, under which Pacific could avoid its indemnity obligation if it were found that plaintiff, Gary Shaffer’s, accident were caused solely by the negligence of ICE. The trial court found “abundant” evidence that reasonable persons could conclude that at least some fault for the accident could be attributable to parties other than ICE. A final judgment to this effect was rendered on May 16, 2003, after which Pacific took this appeal.

On appeal, Pacific assigns as error the trial court’s rulings in the judgments of November 8, 2001, December 6, 2001, February 7, 2002, April 1, 2003, and May 16, 2003. Specifically, Pacific argues the following Assignments of Error:

|fil) The trial court committed reversible legal error by ruling that ICE is an additional insured under Pacific’s general liability insurance policy issued to Stewart as the named insured, because the plain language of Paragraph 12 of the delivery ticket does not require Stewart to name ICE as an additional insured under its CGL policy, but rather requires Stewart to name ICE as an additional insured and loss payee only on its all-risk equipment insurance policy.
2) The trial court committed reversible legal error by ruling that Shaffer’s petition stated a potentially viable claim against ICE for which Pacific owed ICE a duty to defend. Pacific argues that as the manufacturer of the Vibro-hammer, its exclusive liability was pursuant to the Louisiana Products Liability Act, and at the time it filed its Motion for Summary Judgment on this issue, Shaffer’s petition did not contain an LPLA claim.
3) The trial court committed reversible factual and legal error by ordering Pacific to reimburse ICE $47,492.30 in attorney’s fees, because ICE did not incur those fees, they were incurred by St. Paul, ICE’s CGL carrier. Additionally, ICE did not prove which fees are related to the defense of the main demand and which are related to pursuing coverage. ICE is not entitled to reimbursement of any attorney’s fees incurred in the prosecution of its insurance coverage claim.
4) The trial court erred in finding Pacific arbitrary and capricious in refusing to defend ICE, and awarding $4,749.23 in penalties and $2,500.00 in additional attorney’s fees. The trial court made no factual determination of how Pacific acted arbitrarily and capriciously in refusing to defend ICE, given that Pacific’s position was based upon the exclusivity of the LPLA. Additionally, ICE failed to prove a loss resulting from Pacific’s refusal to defend, because ICE’s defense was funded by St. Paul until Pacific was ordered to reimburse the defense costs to ICE.
5) The trial court committed reversible legal error by ruling that St. Paul’s “excess” other insurance provision prevails over Pacific’s “pro-rata” other insurance provision.
6) The trial court committed reversible legal error by ruling that Pacific owes ICE exclusive insurance coverage for Shaffer’s negligence and LPLA claims against ICE.

The first four Assignments of Error, concerning judgments entered November 8, 2001, December 6, 2001, and February 7, 2002, were reviewed by this Court in Writ No. 02-C-205, which was denied on March 27, 2002. Writs were also denied by the Supreme Court (2002-CC-1185, June 14, 2002). The Fifth Assignment of Error concerns the trial court’s judgment of April 1, 2003. Pacific 17took writs to this Court, which were denied (03-C-499, May 27, 2003), and were also denied by the Supreme Court (2003-CC-1729, October 10, 2003). The sixth Assignment of Error concerns the trial court’s judgment of May 16, 2003, after which Pacific took this appeal.

Appellee ICE argues that law of the case prevents this Court from reconsidering the judgments of November 8, 2001, December 7, 2001, February 7, 2002, and April 1, 2003, since this Court denied Pacific’s Writ Applications after considering the merits of the claims raised therein, and since Pacific, in its appellate brief, “merely regurgitates” the arguments it has previously made to this Court in those Writ Applications. Pacific claims in its appellate brief that this Court’s previous writ denials did not address the substance of the issues raised, and therefore, the law of the case doctrine does not apply.

The law of the case principle is a discretionary guide which relates to (a) the binding force of a trial judge’s ruling during the later stages of trial, (b) the conclusive effects of appellate rulings at trial on remand, and (c) the rule that an appellate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same case. Louisiana Land and Exploration Co. v. Verdin, 95-2579, pp. 3-4 (La.App. 1 Cir.9/27/96); 681 So.2d 63, 65, writ denied, 96-2629 (La.12/13/96); 692 So.2d 1067, cert. denied, 520 U.S. 1212, 117 S.Ct. 1696, 137 L.Ed.2d 822 (1997). It applies to all prior rulings or decisions of an appellate court or the supreme court in the same case, not merely those arising from the full appeal process. Brumfield v. Dyson, 418 So.2d 21, 23 (La.App. 1 Cir.), writ denied, 422 So.2d 162 ([La.]1982). The reasons for the law of the case doctrine is to avoid relit-igation of the same issue; to promote consistency of result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Louisiana Land and Exploration Co. v. Verdin, 95-2579 at 4; 681 So.2d at 65.
Jones v. McDonald’s Corp., 97-2287 (La.App. 1 Cir. 11/6/98), 723 So.2d 492, 494.

This Court has carefully reviewed the appellate record, the previous Writ Applications and dispositions of denial from this Court, and has noted the Supreme Court’s denial of the Writ Applications. We find that in this case, the writ panels of this Court clearly considered the substance of the issues raised. We find no_y.egal error in the trial court’s rulings concerning Assignments of Error One and Two.

Concerning the First Assignment of Error, Pacific argues that under the following language of Paragraph 12 of the Equipment Rental Agreement, the trial court erred in finding that ICE was an additional insured under Stewart’s CGL policy:

12. INSURANCE — Lessee will provide ICE with evidence in a form satisfactory to ICE of a valid (i) general liability insurance policy and (ii) all-risks, equipment insurance policy covering the Lessee, including the interests of ICE as an additional insured and loss payee, as applicable, and providing at least a ten-day notice of cancellation. Such evidence shall be submitted prior to delivery of the Equipment.

Pacific argues that this language requires that ICE be named as an additional insured only under the all-risks, equipment insurance policy, and not on the CGL policy. ICE notes, on the other hand, LSA-C.C. arts. 2045-48, which govern the interpretation of contracts, and argues that the language of Paragraph 12 is clear and explicit that ICE is required to be named an additional insured under both the CGL and all-risks equipment policies.

We find no error in the trial court’s interpretation of this language as requiring ICE as an additional insured under both policies, including the CGL policy. The language is clear, explicit, and leads to no absurd consequences. Further, it was noted in the parties’ briefs and at argument on February 7, 2002 that CGL policies do not have “loss payees” and all-risk equipment policies do not have “additional insureds.” Thus, Pacific’s position that Paragraph 12 required that ICE be named only on the all-risk policy renders meaningless the words “as applicable” found in that paragraph. Regarding the intent of the parties, John Stewart of Stewart Construction testified in deposition that Stewart Construction has entered into these types of contracts for at least ten years, and he understood 19that this language required him to have ICE named as an additional insured under the CGL policy, which Stewart Construction did.

In its Second Assignment of Error, Pacific argues that it was reversible legal error to find that Shaffer’s petition stated some cause of action for which ICE might be liable. They argue that as manufacturer of the Vibro-hammer, Gary Shaffer’s exclusive remedy was under the LPLA, which, at the time, was a cause of action not asserted in his petition. This Court, in the writ denial, found “no error in the trial court’s ruling as all of plaintiffs claims against ICE are not unambiguously excluded by the subject policy.”

ICE was the manufacturer of the Vibro-hammer; it was also the owner and lessor of the Vibro-hammer. Initially, plaintiff did not plead that ICE was the manufacturer; plaintiff specifically plead that ICE supplied, maintained, and had custody of the Vibro-hammer. As such, plaintiff stated a cause of action against ICE in negligence based upon LSA-C.C. arts. 2515 and 2316 stemming from ICE’s ownership and leasing of the Vibro-ham-mer. The allegations of the petition did not unambiguously exclude coverage under Pacific’s policy, of which ICE was an additional insured under Paragraph 12 of the ERA. We see no error in this regard.

Next, in its Third Assignment of Error, Pacific argues that the trial court committed reversible factual and legal error by ordering Pacific to reimburse ICE $47,492.30 in attorney’s fees, because ICE did not incur those fees, they were incurred by St. Paul, ICE’s CGL carrier. Additionally, Pacific argues that ICE did not prove which fees are related to the defense of the main demand and which are related to pursuing coverage, as ICE is not entitled to reimbursement of any attorney’s fees incurred in the prosecution of its insurance coverage claim.

In its response to Writ Application 02-C-205, ICE noted that Pacific failed to present any evidence, at the hearing on its Motion for Summary Judgment that ICE did not pay for its defense costs. ICE notes that they made the demand upon hnPacific for defense and indemnity in a demand letter sent to Pacific on July 2, 1999. On October 12, 2001, ICE filed its Cross-Claim and Third Party Demand against Pacific. In Paragraph 18 thereof, ICE specifically requested penalties and attorney’s fees pursuant to LSA-R.S. 22:658 and 22:1220. Next, ICE filed its Motion for Summary Judgment on August 8, 2001, attaching its affidavit attesting that $47,492.30 was incurred in defense of Shaffer’s claims through July 26, 2001. The hearing on this Motion was originally set for September 13, 2001, but was reset to October 16, 2001. From October 2000 to October 2001, ICE argues that Pacific failed to propound any discovery to determine if ICE had incurred the defense costs directly or whether such costs were paid by another insurance company pursuant to a policy purchased directly by ICE. ICE also argued that the issue should be resolved between Pacific and St. Paul as to whose policy should pay, but ICE should not be denied its recovery from Pacific, based upon Pacific’s clear obligation to defend ICE in this matter.

The trial court issued its judgment on November 8, 2001. Not until November 29, 2001, did Pacific send two Requests for Admission to ICE seeking information about who actually paid the defense costs Pacific was ordered to reimburse. Pacific’s Motion for Clarification and/or Amendment of the Judgment, filed on November 15, 2001, does not address this issue, though counsel did attempt to argue these new issues at the hearing on that motion on December 5, 2001. Counsel for ICE objected.

We find no legal error in the trial court’s finding that Pacific owed reimbursement to ICE of the attorney’s fees incurred in defending the Gary Shaffer suit. Nor do we find merit to Pacific’s argument that the fees should have been divided between the defense and the coverage litigation. Generally, an insured is entitled to recover attorney fees associated with its defense of the underlying |n action, but not with its litigation of the coverage issue. Steptore v. Masco Const. Co., Inc., 93-2064 (La.8/18/94), 643 So.2d 1213. ICE’s affidavit, in fact, does not delineate the fees, though the affiant does state therein that “[the affiant was] familiar with the fee and expense bills generated by Michael G. Lemoine, ... in connection with his defense of [ICE] in the matter entitled, “Gary Shaffer ... (emphasis added) We find, as ICE notes, that Pacific did not timely contest the affidavit or attempt to conduct discovery regarding the division of those fees until long after the trial court rendered its judgment.

Fourth, Pacific appeals the trial court’s finding that Pacific was arbitrary and capricious in failing to defend ICE. We find no error in this ruling. Gary Shaffer’s Petition alleged the negligence of ICE based upon its ownership and custody of the Vibro-hammer, yet Pacific argued that there was no duty to defend ICE because as manufacturer of the Vibro-hammer, ICE could only be liable to Gary Shaffer under the LPLA, which Gary Shaffer’s Petition did not plead. As this Court recently stated in Houghtaling v. Richardson, 01-208 (La.App. 5 Cir. 10/17/01), 800 So.2d 1012:

Generally, the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. Yount v. Maisano, supra[, 627 So.2d 148 (La.1993)]. The insurer’s duty to defend suits brought against its insureds is determined by the allegations of the plaintiffs petition, and the insurer is obligated to defend the insured, unless the petition unambiguously excludes coverage. The allegations in the petition are to be construed liberally to determine whether they state grounds bringing the claims within the scope of the insurer’s duty to defend. Assuming all the allegations of the petition to be true, if there would be coverage under the policy and also liability to the plaintiff, the insurer must defend the suit, regardless of the outcome of the suit. The duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. The duty to defend is determined solely from the plaintiffs pleadings and the face of the policy, without consideration of extraneous evidence. Yount v. Maisano, supra; KLL Consultants, Inc., supra[, 99-14 (La.App. 5 Cir. 6/1/99), 738 So.2d 691].

Pretermitting this issue was ICE’s status as additional insured under the Pacific CGL policy based upon Paragraph 12 of the Equipment Rental Agreement, |12and Pacific’s arguments against ICE’s status. An insurer’s actions are “arbitrary and capricious,” for purposes of statutes imposing penalties on insurer for arbitrary and capricious actions, when its willful refusal of a claim is not based on a good faith defense, or is unreasonable or without probable cause. Wallace v. State Farm Mut. Auto. Ins. Co., 36,099 (La.App. 2 Cir. 6/14/02), 821 So.2d 704. Reviewing the record and evidence as a whole, we find no error in the trial court’s apparent conclusion that Pacific’s refusal to defend ICE was not based on a good faith defense.

We likewise find unfounded Pacific’s reliance on its argument that products liability suits are not covered by its policy. At the time the Motions for Summary Judgment were filed on this issue, Gary Shaffer had not sued ICE in products liability, but sued ICE for negligence as per its status as owner/lessor of the Vibro-hammer. Pacific’s position throughout has focused on ICE’s status as manufacturer of the Vibro-hammer and ignored ICE’s status as owner/lessor of the equipment. Given the broad duty to defend, which is larger than the issue of coverage, we find no error in the trial court’s conclusion that Pacific’s refusal to defend ICE was arbitrary and capricious.

In Assignment of Error No. Five, Pacific argues that the trial court erred in granting summary judgment in favor of St. Paul (and denying their own Cross Motion for Summary Judgment) finding that St. Paul’s excess “other insurance” clause prevailed over Pacific’s pro-rata “other insurance” clause. Pacific argues that the trial court should have found Pacific’s pro-rata and St. Paul’s excess “other insurance” clauses mutually repugnant, as per Lamastus & Associates v. Gulf Insurance Company, 260 So.2d 83 and Penton v. Hotho, 601 So.2d 762 (La.App. 1 Cir.1992).

|13St. Paul contends that the trial court did not err in its ruling. They argue that the Lamb-Weston rule, which the Lamastus court followed, is a minority rule adopted only by the First and Fourth Circuits. St. Paul also argues that clauses in the St. Paul and Pacific policies are distinguishable from the clauses analyzed in La-mastus. They argue that the situation is more akin to the clauses analyzed by the Supreme Court in Juan v. Harris, 279 So.2d 187 (La.1973), and that the clauses in these two insurance policies are not mutually repugnant.

After reviewing the clauses in question in each policy and the case law argued by both parties, we conclude that these insurance clauses are governed by Juan v. Harris. In that case, the “excess” other insurance clause was not triggered merely by the existence of other valid and collectible insurance, but was triggered by the fulfillment of a specific condition. In our case, St. Paul’s excess other insurance clause was triggered by the fulfillment of two conditions, that ICE was named as an additional insured under another policy (the Pacific policy), AND ICE’s agreement that the St. Paul policy would be excess coverage in this scenario. Pacific’s clause and St. Paul’s clause are not mutually repugnant because ICE is not left without coverage if effect is given to the St. Paul excess clause. The St. Paul policy, under these conditions, does not constitute valid and collectible “other insurance” within the meaning of the Pacific pro-rata provision, so there is, in fact, no conflict between the two. We also note the obvious difference between an “excess” and “pro-rata” clause. The “pro-rata” policy always contemplates paying first dollar coverage, either full, when no other valid and collectible insurance exists, or part, when it will share with the other valid and collectible insurance. The “excess” other insurance, however, pays first dollar coverage only in the absence of other valid and collectible insurance.

Lamastus is distinguishable, as is Penton v. Hotho, 601 So.2d 762 (La.App. 1 Cir.1992), another case relied upon by Pacific. In those cases, the excess | ^provision was triggered merely by the existence of other valid and collectible insurance, unlike the instant case.

Pacific attempts to distinguish Juan v. Harris because that case involved automobile policies, a distinction we find without a difference. We note that Penton, upon which Pacific relies, concerned two medical malpractice liability policies, not CGL policies.

In Assignment of Error No. Six, Pacific argues that the trial court committed reversible legal error by ruling that Pacific owes ICE exclusive insurance coverage for Gary Shaffer’s negligence and LPLA claims against ICE. In this assignment, Pacific argues that there is no coverage under their policy (as distinguished from the duty to defend arguments raised earlier) for the plaintiffs LPLA claim against ICE. They also argue that the scope of the coverage under the policy for ICE as “additional insured” is much narrower, as per endorsement G-109, than is afforded a “named insured,” and that ICE is in fact not covered.

St. Paul argues that the trial court’s judgment was correct because the Pacific policy affords coverage for Gary Shaffer’s negligence claims. They also contend that another endorsement to the Pacific policy amends the definition of “named insured” to include those persons required to have coverage by contractual liability.

After reviewing the briefs and supporting documents identified therein, we see that both Pacific and St. Paul point to the same endorsement, G-109, to support their argument on the scope of the coverage available to ICE as an additional insured. St. Paul quotes only the part of Section (A) italicized by this court below; Pacific quotes the whole Section (A) and its subparts 1 and 2, emphasizing the part underlined below by this court:

(A) WHO IS AN INSURED (Section II) is amended to include as an insured any person, organization, trustee, estate or governmental entity to whom or to which you are obligated, by |1svirtue of a written contract or agreement or by virtue of the issuance or existence of a permit, to provide insurance such as is afforded by this policy, but only with respect to liability arising out of:
(1) “Your work” for the additional insured(s) or for which a governmental entity has issued a permit, or
(2) Acts or omissions of the additional insured(s) in connection with their general supervision of “your work”;

We agree with Pacific that the scope of coverage under this policy has been narrowed, by this endorsement, for ICE as an additional insured. The question then becomes whether the incident falls within these two conditions. The facts surrounding Gary Shaffer’s injury are undisputed. The hose developed a leak of hydraulic fluid; Stewart called ICE for repair instructions, which were carried out successfully by Stewart personnel. While repairing the leak, however, Gary Shaffer allegedly slipped and fell in the hydraulic oil that had leaked from the Vibro-ham-mer's hose, sustaining injuries.

After review of the facts of this case, we cannot agree with Pacific’s position that it is undisputed that ICE performed “absolutely no work” on behalf of ICE, as per subsection (1) above. Specifically, Gary Shaffer, Stewart’s employee, performed a repair upon the Vibro-hammer, during which he was injured. Paragraph 5 of the Equipment Rental Agreement addresses “Job Breakdowns” and the parties’ relative responsibilities for repairs to the equipment. ICE was within its rights under Paragraph 5 to request the Lessee, Stewart, to make the required repairs to the Vibro-hammer, which Stewart did pursuant to instructions given by ICE. Performing the repairs constituted “Stewart’s work” for the additional insured (ICE), as per Section (A)(1) of endorsement G-109. Thus, the occurrence is covered under Pacific’s policy.

Next, we reach the issue of the “sole negligence” exclusion in the . Pacific policy. This exclusion, also found in endorsement G-109, states, in pertinent.part, Lfithat this insurance does not apply to “bodily injury” or “property damage” arising out of the sole negligence of a lessor of leased equipment. St. Paul’s Cross Motion for Summary Judgment argued that summary judgment on this issue was appropriate because no genuine issue of material fact remained in this regard, and that the factual testimony clearly showed that no reasonable person could reach the conclusion that ICE was solely negligent in causing Gary Shaffer’s accident. St. Paul argued that the deposition testimony of plaintiff himself, ■ other Stewart witnesses, the documentary evidence in Stewart’s log, and ICE’s expert, established acts and omissions on the part of Stewart’s employees that contributed to Gary Shaffer’s injury.

Pacific argues that it was not the trial court’s prerogative to make this ruling on summary judgment, and that the matter should have gone forward to the requested jury trial, as per the trial court’s ruling of April 7, 2003. In otherwise opposing St. Paul’s motion, however, Pacific did not produce any affidavits or other credible evidence in response to St. Paul’s Cross Motion for Summary Judgment, as is required by LSA-C.C.P. art. 967, which would support Pacific’s contention that ICE’s negligence was the “sole” cause of the plaintiffs injury.

Our review of the record indicates that there remained no genuine issues of material fact undisputed. Therefore, the issue was properly within the prerogative of the trial court. The issue here is not one of apportionment of fault, as the matter had already been settled, but only would a rational trier of fact have found that ICE was solely negligent, under the undisputed facts? The issue at this point was not the extent of ICE’s liability, but the extent of some fault of the other parties. After thorough review of the record, we find that the trial court did not err in finding that a rational trier of fact would have concluded that ICE was not solely negligent in causing plaintiffs injuries. The evidence clearly supports the finding of some fault on the other parties, including other Stewart employees and/or plaintiff himself.

|17In conclusion, after thorough review of each judgment appealed, we affirm the judgments of the trial court. We affirm the court’s finding that ICE was an additional insured under Pacific’s CGL policy issued to Stewart Construction. We affirm the trial court’s finding that Pacific owed’ ICE the duty to defend this claim after considering the allegations of plaintiffs Petition and the terms of the Pacific policy. We affirm the trial court’s ruling that found Pacific arbitrary and capricious in its refusal to defend ICE. We affirm the judgment ordering Pacific to reimburse ICE for the costs of defense. We affirm the trial court’s ruling that St. Paul’s “excess” other insurance provision and Pacific’s “pro-rata” other insurance provision are not mutually repugnant and also finding that St. Paul’s excess clause rendered Pacific’s policy primary regarding defense and indemnity obligations of ICE in this litigation. Last, we affirm the trial court’s ruling that found that Pacific owes ICE exclusive insurance coverage for Gary Shaffer’s negligence and LPLA claims against ICE. Costs of appeal are assessed against appellant.

AFFIRMED.

      . The Writ Application and ruling addressed, in addition, other judgments not at issue in this appeal.

      . Plaintiff, Gary Shaffer, did not name St. Paul as a defendant.

      . ICE refused to respond to these requests for admission on the basis that they were irrelevant and untimely. ICE successfully defended Pacific’s Motion to Compel on this issue, heard on February 7, 2002.

      . We find that this court's writ disposition in 03-C-499, as noted above, finding no error in the trial court’s ruling that Pacific was not entitled to Summary Judgment as a matter of law on this issue, does not warrant the application of the law of the case doctrine.


source: Caselaw Access Project

author: |,CHARLES R. JONES, Judge.

license: Public Domain

text:
    Sonya J. WILLIAMSON and her Minor Children, Abner Williamson, Dixie Williamson, and Jolie Williamson through their Natural Tutor, Robert Williamson v. HAYNES BEST WESTERN OF ALEXANDRIA, INC.; American General Fire & Casualty Company; Maryland Casualty Insurance Company; Best Western International, Inc.; and St. Paul Mercury Insurance Company; M/M H.L. Haynes, Individually, et al.
    No. 2002-CA-1076.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 21, 2004.
    Rehearing Denied Feb. 27, 2004.

      Sonya J. Williamson, Abner Williamson, Dixie Williamson, Robert Williamson, Jolie Williamson, Gary J. Haynes, Lafayette, LA, for Plaintiffs/Appellees.
    E. John Litchfield, Berrigan, Litchfield, Schonekas, Mann, Traína & Thompson, LLC, New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge EDWIN A. LOMBARD.
   |,CHARLES R. JONES, Judge.

The Appellants, Haynes Best Western of Alexandria, Inc., et al., seek review of the judgment of the District Court for the Parish of Orleans granting the Motion for Default Judgment on behalf of the Appel-lees, Sonya J. Williamson, et al. After a thorough review of the record, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

For a recitation of the facts, see St. Paul Mercury Ins. Co. v. Williamson, 332 F.3d 304 (5th Cir.2003).

DISCUSSION

The first issue raised by Haynes Best Western of Alexandria, Inc. et al. (hereinafter “Best Western”) is whether a preliminary default can be confirmed when the court has outstanding exceptions. Best Western argues that a Preliminary Default Judgment should not have been granted in light of the exceptions they had filed, which had not yet been ruled upon. The Appellees argue that the Preliminary Default Judgment contains the district court’s handwritten notations about these three exceptions, and, hence, this Court can assume that these exceptions were considered and rejected by the district court. However, we pretermit a discussion of this issue since the legitimacy of this appeal centers around whether the district 12court erred by granting the Motion for Default Judgment, the second issue raised by the Appellants. Best Western argues that the district court erred in granting the Default Judgment based on: 1. an invalid preliminary default; 2. the record does not reflect a prima facie case, and was based on hearsay evidence; 3. the district court was currently under an order granting injunctive relief; and 4. no notice of judgment was given. However, the most salient of these is whether the district court was under a federal injunction at the time the judgment was rendered. We find that the district court was under a federal injunction when it granted the Motion for Default Judgment. The U.S. District Court, Western District of Louisiana had issued its first order granting injunc-tive relief, enjoining state courts from proceeding in this matter, on October 16, 1998. Said Order stated,

For the oral reasons assigned at the conclusion of the Court’s October 5,1998 hearing on plaintiffs’ [sic] motion for a preliminary injunction [rec. doc. No. 2], the Court finds that the issues raised in the state court litigation pending in the Civil District Court for the Orleans Parish, are the same issues litigated and decided by this Court in Civil Action 93-1902. Accordingly,
IT IS ORDERED that plaintiffs’ [sic] motion for preliminary injunction is GRANTED pursuant to 28 U.S.C. § 2283 to protect and effectuate the judgment and rulings of this Court issued in Civil Action 93-1902 and defendants, Robert and Sonya T. Williamson, their minor child Jolie Williamson, and their children Dixie and Abner Williamson, Lawrence T. Smith, their agents and anyone acting on their behalf and the Civil District Court for Orleans Parish are enjoined from pursuing the nullity action pending in the Civil District Court for Orleans Parish, State of Louisiana, bearing docket number 95-16175, entitled Sonya J. Williamson, et al v. Haynes Best Western of Alexandria, Inc, et al. [Emphasis added.]

The Motion for Default Judgment was filed on January 25, 2001. The Preliminary Default Judgment was granted on February 9, 2001. However, on June 1, 2001, the U.S. District Court expressly stated in a second Order that the |RCivil District Court for the Parish of Orleans violated the first injunctive order, thus requiring the U.S. District Court to expand its Order to all Louisiana state courts. [Emphasis added.] The expansion order stated:

... for the reasons assigned in the Court’s April 25, 2001, 3:55 p.m. order signed at 4:35 p.m., the Court finding it necessary to enjoin all state court action to prevent the state courts from so interfering with this Court’s and the United States Court of Appeals for the Fifth Circuit’s consideration or disposition of this case as to seriously impair the Court’s flexibility and authority to decide this issue,
IT IS ORDERED that the Court of Appeal, Fourth Circuit, State of Louisiana, and all other courts of the State of Louisiana before which matters are pending arising out of suit number 95-16175, Division “F” of the docket of the Civil District Court for the Parish of Orleans, State of Louisiana, are enjoined from adjudicating any matters related there to [sic] until further order of this Court.

This disregard for the order granting injunctive relief is further elucidated in St. Paul Mercury Ins. Co. v. Williamson, 332 F.3d 304 (5th Cir.2003), wherein the United States Court of Appeals, Fifth Circuit, stated that the U.S. District Court issued:

another preliminary injunction, which effectively enjoined the enforcement of the default judgment in the nullification suit (the “second preliminary injunction”). The Williamson’s timely filed a notice of appeal.
While the Williamson’s appeal was pending before us, the state court that had issued the default judgment continued proceedings apace, ignoring the second preliminary injunction. In May 2001, the state court denied the insurance parties’ motion for a new trial. The insurance parties thus returned to the district court and requested that the second preliminary injunction be amended to cover any state appellate proceedings. In June 2001, the district court agreed, expanding the scope of the second preliminary injunction accordingly.

14Clearly the Louisiana district court was prohibited from acting in this matter at the time in which it issued the default judgment. Therefore, we must reverse and remand for a hearing on the Petition for Nullity, now that the orders granting injunctive relief by the United States courts are no longer in effect.

The final issue raised by Best Western is whether the district court erred in denying it’s Motion for New Trial without a contradictory hearing, and while under a federal injunction enjoining the district court from adjudicating any matters relating to the Petition of Nullity.

Disposition may be rendered in Motion for New Trial without a contradictory hearing. A contradictory hearing would not be required. Pursuant to La. C.C.P. art.1971, “[a] new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for re-argument only.” In Waters v. Allstate Ins. Co., 731 So.2d 1001 (La.App. 4 Cir. 3/31/99), this Court found that no absolute right to a contradictory hearing exists on a Motion for New Trial. Further, a Motion for New Trial may be summarily denied in the absence of a clear showing in the motion of facts or law reasonably calculated to change the outcome or reasonably believed to have denied the applicant a fair trial. Lopez v. Wal-Mart Stores, Inc., 700 So.2d 215, (La.App. 4th Cir.8/13/97).

DECREE

For the reasons set forth herein, the judgment of the District Court is reversed, the matter is remanded for a hearing on the Petition of Nullity.

REVERSED AND REMANDED.


author: | t STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Solomon MOORE, Appellant.
    No. 37,935-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.

      Louisiana Appellate Project, by Kenota P. Johnson, Counsel for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, Counsel for Appellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   | t STEWART, J.

The defendant, Solomon Moore (“Moore”), was convicted by a jury of attempted second degree murder, second degree kidnaping and armed robbery and sentenced to serve 40 years, 65 years and 40 years respectively for each conviction. These sentences were ordered to be served consecutive to each other and to run consecutive to any other terms Moore was sentenced to serve. The defendant now appeals. We affirm each of the defendant’s convictions. However, we amend the sentences for attempted second degree murder and armed robbery, and remand the sentence for second degree kidnaping for hearings consistent with this opinion.

FACTS

At about 11:00 p.m. on January 17, 2002, law enforcement officials were summoned to North Monroe Hospital in Monroe to investigate what was reported as an abduction, robbery and shooting. When the first patrolman arrived, he found a young woman named Misty Barlow (“Barlow”) with injuries to her back right shoulder, chest and thumb.

Barlow related to officials that earlier in the evening around 10:00 p.m., she was making deliveries in connection with her job at Johnny’s Pizza. On her last delivery she turned onto Peach Street in Monroe where she noticed four black males standing outside a pool hall on the corner of Montgomery and Peach Streets. She then realized that she had turned the wrong way on Peach Street, and she turned around in a driveway. When she came back through the intersection in front of the pool hall, the four men spread out across the road, and she passed through them with two on each side of her vehicle.

| gShe continued down Peach Street, found the correct address, and got out of her car to make the delivery. As she returned to her vehicle, she saw a black male standing by her car. He asked her who had answered the door during the delivery. She replied that she did not know. After Barlow got into her gray, four door, Mazda Protege, she heard a tap on the window and noticed that the driver-side door was being opened. The man put a pistol to her head and told her to get into the backseat.

Barlow had trouble getting into the backseat because she wore a prosthesis on her amputated left leg. The assailant pushed her and told her to hurry or he would shoot her right there. At this point she noticed that a man was standing behind a tree and two other people in front of the pool hall. She realized they were the four men she had passed in the street earlier.

She begged the assailant, later identified as Lee Roy “Luther” Warren (“Warren”), to let her go and offered him the Johnny’s Pizza billfold that contained over $100.00 in exchange for her freedom. He apparently took the money, but instead of releasing her, Warren backed out of the driveway, went back down the street and pulled into another driveway of what appeared to be a vacant house. The other three men ran up to the vehicle.

Warren made her assist him in getting her child’s car seat unbuckled, and it was thrown out. He then got into the backseat and sat next to Barlow. Another man later identified as Willie Ethridge (“Eth-ridge”) also got in the backseat. The defendant got in the front passenger seat and taking the driver’s seat was a man later identified as Danny Hargrove (“Har-grove”).

| aBarlow recognized that they were taking her on the interstate and over to Monroe. The men discussed what they were going to do with her, and they agreed that they would kill her since she had heard one of their names. They drove to an area that she was unfamiliar with and stopped. When they opened her car door, she stepped out and began running. She was shot in the back in the upper right shoulder area. She fell in a ditch and was able to get back up. She heard two more gunshots, and she felt hits on her thumb and chest. She then heard three or four clicks of the empty gun. Warren yelled that she was dead. She heard the men talking in the car and one said that they had to make sure she was dead, so she laid still and closed her eyes. One of the men ran over to her, rolled her over and lifted her up by her shirt. He ran back toward the car and hollered that she was dead. After she heard the car drive away, Barlow got up and ran in hope of finding help. She tried to flag down cars that passed by until one driver, Jeremy Michot, stopped to help. He drove her to North Monroe Hospital.

Barlow was able to give authorities her license plate number and information describing the abductors as four black males. She also described the outfit of one of the assailants as a blue jean jacket with matching jeans. Radio dispatchers put out a “be on the look out” (BOLO) message to area law officers.

At around midnight a state trooper was about a mile and a half from the pool hall area when he discovered an SUV parked in an odd way. He ran the plates and discovered it was registered to someone who lived in Monroe and thought it was an unusual place for it to be abandoned. He cruised the area 1¿and saw five black men on foot nearby. He noticed that one of the men matched the description in the BOLO and observed them. They went to a nearby Chevron station. When they came out of the store, they split up. He followed two of them. He stopped and asked them what they were doing and videotaped the investigation on his cruiser’s built-in video camera. The man in the blue jean jacket identified himself as Lee Roy Warren, and the defendant identified himself with his real name, Solomon Moore. After questioning the men, he released them and they turned to walk through a field.

The trooper drove to where the trail in the field ended and observed all five men coming out of the area. He told Warren and Moore they could continue on since he had already spoken to them. He interviewed the other three, again taping the encounter. The three identified themselves as Mashaylin Green (“Green”), Kenneth Shaw (“Shaw”) and Sam Farmer (“Farmer”). It was later determined that Shaw and Farmer had given false names and were actually Danny Hargrove (“Har-grove”) and Willie Ethridge (“Ethridge”). They told him the vehicle had run out of gas and they had walked to the store to purchase gas. They indicated the vehicle, an SUV, was parked where he had seen the abandoned vehicle. The trooper also released these men.

The trooper learned that Barlow’s vehicle had been found burned in West Monroe and he went to that crime scene. Since the residence of the registered owner of the SUV was in close proximity to the location ofJjBarlow’s burned vehicle, the search turned toward finding the SUV and its occupants for further questioning.

The police found the vehicle later with only Green in it. He told them that a little after 11:00 p.m. he was at Winnsboro Gas and Grocery in Monroe when a friend of his, Danny Hargrove, asked if Green could take Hargrove and three of his friends to West Monroe. He said he gave them a ride, but ran out of gas. He said after they had been stopped by the trooper, he dropped off one of the guys, whom he could not identify, in West Monroe. Har-grove rode back to Monroe with Green. He dropped Hargrove off and went to another gas station. He was stopped on his way home.

All four men were picked up and arrested within days of the crime. The other three men gave statements implicating themselves and the defendant with the crime.

Keydra Lacy, an employee of the pool hall, testified that she had seen both a woman fitting the description of Barlow and the defendant in a small car outside the pool hall at the same time of the abduction that night.

The defendant was indicted on February 25, 2002, of attempted second degree murder, armed robbery and aggravated kid-naping. The three other co-defendants entered guilty pleas prior to the defendant’s trial.

On December 7, 2002, the defendant was found guilty of attempted second degree murder, second degree kidnaping and armed robbery in an 11-1 jury verdict. On April 11, 2003, he was sentenced to serve 40 years on the attempted murder charge, 65 for the armed robbery, and 40 on the kidnaping | ^conviction. An oral motion for reconsideration of sentence was made and denied. This appeal ensued.

DISCUSSION

Sufficiency of Evidence

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for insufficiency of evidence is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

This court’s authority to review questions of fact in a criminal case does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, supra.

l7The defendant concedes that the crimes were committed. In brief he argues that the witness who testified she saw him in the car with Barlow should not be believed and that the testimony of Barlow’s identification of him is unclear.

Keydra Lacy testified on direct examination that she knew the defendant and the other three men involved in the crimes well. She was the niece of the pool hall owner and worked there. She had also resided in the rear of the pool hall for several years. She stated that the defendant had been a regular patron of the pool hall. She testified that the four men had come into the pool hall on the evening of the incident. Later while she was outside taking a break, she saw Danny Hargrove drive by in a small grey vehicle with the appellant in the front passenger seat. She saw a white female in the seat behind the driver and two other passengers whose faces she could not see in the rear.

On cross examination Lacy further described the white female as having curly blond hair. Barlow testified that her hair was blond and curly on the night she was shot. Although the defense tried to discredit her testimony since she did not report seeing the men and the woman when she was originally questioned by police, she explained that at the initial questioning she was only asked whether or not she had heard any screams or knew anything about a kidnaping. It was not until the police returned days later and asked her if she had seen four men and a woman that evening that she gave them the information.

IsBarlow identified the defendant as one of the men who kidnaped her both by out-of-court and in-court identifications. She viewed the videotape made by the state trooper and picked out the defendant as one of the men involved. She also told authorities that he had sat in the front seat of her car.

The defendant tried to discredit Barlow’s testimony about the out-of-court identification on two grounds. On cross examination the defense tried to show that Barlow originally stated at the hospital that she could only identify one of the abductors. She was able to explain that when first questioned she gave details about the man who abducted her at gunpoint with specificity because she had gotten a really good look at him and could remember his outfit. She indicated that she was in a lot of pain and that she could not recall exactly what she did or did not tell the numerous officers who questioned her that night.

However, she also testified that she had told the investigators that one of the men was lighter complected and wore a light blue jacket before she ever viewed the videotape of the men. Her testimony, which was corroborated by the police officer, was that she gave her statement before viewing the tape. She admitted that the officers had given her the impression that the men in the video were suspects but that she recognized them “as soon as they started playing the tape.” On cross she stated that she recognized the defendant and said “I remember that man sitting in that seat and turning around and talking with the other guys.”

In addition to these two witnesses, the state produced the girlfriend of the defendant who testified that she dropped the four men off at the pool hall ^shortly before the time of the crime. The testimony of Mashaylin Green placed the defendant with the three other men near Barlow’s burned-out car and the abduction site. The state trooper had seen him with the other three men in West Monroe near the abduction site also. There is nothing in the record to show that the witnesses contradict one another. La. R.S. 14:24 states:

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

We find that the evidence, viewed in the light most favorable to the prosecution, proves beyond a reasonable doubt that the defendant was part of the group of men who kidnaped their victim at gunpoint, robbed her of her money, and shot her thinking they had left her dead so she could not identify them. Thus, this court is bound to uphold the findings of the trier of fact since the record more than amply supports the jury’s finding. This assignment lacks merit.

The appellant argues that the court did not comply with La.C.Cr.P. art. 894.1 and therefore the record is inadequate for this court to review. He further urges that the sentences which arise from a single course of action are excessive since they are the maximum or near maximum allowed. He also argues that the trial court should have ordered that the sentences be served concurrently, again because all three convictions arise from a single course of action.

|inThe defendant’s oral motion to reconsider sentence simply states that the sentence is excessive and requests that the court reduce the sentence. Therefore, the defendant has only preserved a review of his sentence for constitutional excessiveness.

The definition of criminal conduct and the provisions of penalties for such conduct is a purely legislative function. State v. Carlos Johnson, 31,448 (La.App.2d Cir.03/31/99), 747 So.2d 61, writ denied, 99-1689 (La.11/12/99), 749 So.2d 653. When a defendant’s motion for reconsideration urges merely that the sentence is excessive, he is relegated only to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993). This bare claim preserves only a claim of constitutional excessiveness. State v. Mims, supra; State v. McEachern, 624 So.2d 43 (La.App. 2d Cir.1993).

La.C.Cr.P. art. 881.1 applies to defendant’s sentence. This article precludes the defendant from presenting arguments to the court of appeal which were not presented to the trial court. In such a circumstance, the defendant is simply relegated to having the appellate court consider the bare claim of constitutional ex-cessiveness. Mims, supra; State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. The record must show that the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982).

Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864. In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Jackson, 612 So.2d 993 (La.App. 2d Cir.1993).

The following statutes apply to the defendant’s sentences:

La. R.S. 14:30.1 — Second Degree Murder
B. Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
La. R.S. 14:27 — Attempt
|12P. (l)(a) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence;
La. R.S. 14:64 — Armed Robbery
B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.
La R.S. 14:44.1 — Second Degree Kid-naping
C. Whoever commits the crime of second degree kidnaping shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence.

The sentencing range for the attempted second degree murder was 10-50 years. The trial court meted a 40-year sentence. This could be classified as a near maximum sentence.

The trial court ordered a 65-year term for the armed robbery. The statutory range is 10-99 years; thus, this is not a maximum or near maximum sentence. The maximum sentence of 40 years was given in the second degree kidnaping conviction.

The defendant’s brief is inaccurate when it states that the trial court failed to follow the mandates of La.C.Cr.P. art. 894.1. The trial court specifically refers to its review of the article and expresses which portions are applicable. Further, prior to imposing sentence, the trial court reviewed a PSI report and considered the facts of the case. The court noted that defendant had an extensive adult criminal record and that four of his prior felony convictions involved crimes against persons.

113Further, the judge specifically stated that he found no mitigating factors and felt that long-term incarceration was the only solution to keeping this dangerous man from committing another crime of violence.

In deciding to have the sentences run consecutive to each other, the judge referenced La.C.Cr.P. art. 883 and followed its mandates by articulating his reasons. He found that this crime was cruel and vicious and that the appellant had shown no remorse during the course of the trial and sentencing.

While the aggregate of this sentence will have the likely effect of keeping the defendant incarcerated for life, it does not shock one’s sense of justice. Barlow was shot and left for dead. The intent of the group of men who shot her and left her abandoned on the side of the road was to take her life. The testimony was clear that none of the men disagreed with the decision to kill her or tried to stop the action. These assignments have no merit.

Error Patent

An error patent review yields illegal sentence issues that the state has not raised on appeal. At the time of sentencing the trial judge failed to order that the sentences be served without benefit of parole, probation or suspension of sentence. The written sentencing judgment tracks the transcript and omits the benefits reservations also. However, the judgment of conviction and sentence includes the reservation of no benefits as to all three sentences.

114Our court has previously held that the controlling voice of the trial court is the transcript. The court states in State v. Sebastien, 31,750 (La.App.2d Cir.3/31/99), 730 So.2d 1040:

The district court is required to pronounce sentence, but a written judgment is not required. La.C.Cr.P. art. 871; State v. Boyte, 571 So.2d 722 (La.App. 2nd Cir.1990). Discrepancies between a written judgment and the sentencing transcript should be resolved in favor of the oral sentence reflected in the sentencing transcript. State v. Boyte, supra.

When a district court fails to order service of sentence without benefits in a case in which a determinate time period to be so served is mandated by the statute of conviction, the sentence automatically will be served without benefits for the required time period. La. R.S. 15:301.1(A); State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 799.

For many years, this court has followed rulings of the Supreme Court of Louisiana which held that when a defendant alone has appealed and the record contained an error patent favorable to him, an appellate court should ignore the error unless the prosecution, having properly raised the issue in the trial court, has also sought appellate review. State v. Fraser, 484 So.2d 122 (La.1986); State v. Jackson, 452 So.2d 682 (La.1984).

The supreme court modified that jurisprudence in State v. Williams, supra. In Williams, a case of DWI-third offense, the trial court imposed an illegally lenient sentence. The defendant, alone, appealed. The appellate court, noting error patent, vacated the sentence and remanded for resentencing. The supreme court affirmed.

The court noted that, in Section 2 of 1999 La. Acts 94, effective August 15, 1999, the legislature stated its intent to “overrule” the Jackson-Fraser line |1Rof cases. That intent, the court held, is in accord with the recognized rule that a defendant does not have a constitutional right to an illegally lenient sentence. Fraser, supra at 124.

Acts 94 enacted La. R.S. 15:301.1, paragraph (A) of which provides: When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole or suspension of sentence, each sentence imposed under that statute shall be deemed to contain the provisions relating to the service of that sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefits shall not affect the statutory requirement that all or a portion of the sentence be served without benefits.

Thus, when a district court fails to order service of sentence without benefits where the portion to be so served is mandated, and the state has failed to appeal, this court need not state that it cannot modify the sentence or remand due to the state’s failure to appeal, because the sentence automatically will be served without benefits for the required time period. This result occurs because paragraph A of La. R.S. 15:301.1 is self-activating.

However, when the statute of conviction provides that “at least” some portion of the sentence is to be served without benefits, as in the case of a conviction for second degree kidnaping, sentencing discretion is still involved. In such a case, “it was necessary for the appellate court to remand the matter to the trial court for re-sentencing.” Williams, supra. Thus, in cases involving “at least” language, remand should be required.

| ifiWhile the “without benefits” omission can be corrected by this court in the attempted second degree murder and armed robbery sentences, the second degree kid-naping statute has a discretionary portion of the benefit suppression. Specifically, the pertinent part of La. R.S. 14:44.1 states, “At least two years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence.” Therefore, we remand this matter to the trial court for correction of the sentence on second degree kidnaping.

CONCLUSION

All three convictions are affirmed. We amend both the attempted second degree murder and armed robbery sentences to include that they are to be served without benefit of parole, probation or suspension of sentence. This matter is remanded to the trial court for resentencing on the second degree kidnaping conviction for it to set the length of the portion of the sentence which is to be served without benefit of parole, probation or suspension of sentence.

AFFIRMED IN PART. AMENDED IN PART. REMANDED IN PART.


author: h WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. Kevin Ray VOLGAMORE, Appellant.
    No. 38,054-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.

      James E. Beal, Jonesboro, for Appellant.
    Paul J. Carmouche, District Attorney, J. Thomas Butler, Laura 0. Wingate, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   h WILLIAMS, J.

The defendant, Kevin R. Volgamore, was charged by bill of information with operating a vehicle while intoxicated, fourth offense, a violation of LSA-R.S. 14:98. After a bench trial, the defendant was found guilty as charged. Pursuant to LSA-R.S. 14:98(E)(4)(b), the trial court imposed a sentence of ten years at hard labor without the benefit of probation, parole or suspension of sentence, with credit for time served. The court ordered that the sentence be served consecutively with any other sentence previously imposed. Defendant’s motion to reconsider sentence was denied. Defendant now appeals his conviction and sentence. For the following reasons, we affirm the conviction, amend the sentence and affirm as amended.

FACTS

On September 2, 2002, at approximately 1:43 a.m., Vivian Police Department Sergeant J.P. Hart observed a brown Ford pickup truck execute a wide sweeping right turn, crossing the center line, while traveling in a residential area of Vivian, Louisiana. Sergeant Hart followed the pickup truck for about one-half of a mile and observed the driver turn at two intersections without using a turn indicator or making a complete stop. Sergeant Hart also noticed the pickup truck was traveling at less than one-half the posted speed limit for the area. After noting that the driver of the pickup truck had committed several minor traffic violations, Sergeant Hart stopped the truck and asked the driver to approach the rear of the vehicle. The driver of the vehicle was later identified as the defendant.

Sergeant Hart testified that as the defendant approached the rear of 1 ?the vehicle, the defendant was unsteady on his feet and he had a strong odor of alcohol on his breath and person. Sergeant Hart advised the defendant of the reason he was stopped and informed him of the traffic violations. Sergeant Hart observed a twelve-pack of beer in the pickup truck and one opened can of beer on the floor between the driver and passenger seats. The passenger in the vehicle was known to Sergeant Hart as Stacy Cook.

Prior to the administration of the three field sobriety tests, the defendant informed Sergeant Hart that at sometime during the day, he had visited the river boat and had been drinking; however, he did not inform the officer of the quantity of alcohol he had consumed. The defendant failed the first sobriety test, the horizontal gaze nystagmus test, or HGN. The defendant stated that he had a bad left knee and refused to take the second test, the nine-step walk-and-turn test. Sergeant Hart twice administered a third and final field sobriety test, the one-leg-stand test. On his first attempt, the defendant did not follow the instructions. He was unable to perform the test on the second attempt. Sergeant Hart informed the defendant of his Miranda rights, placed him under arrest for suspicion of DWI and transported him to the Vivian Police Department.

While at the police department, the defendant was given a form explaining his rights relating to chemical tests to determine the level of intoxication. The defendant refused to sign the form and provide a breath sample for the Intoxilizer-5000. The defendant was uncooperative and disruptive, and he threatened the officers.

I ¿DISCUSSION

Assignment of Error Number Two:

By this assignment of error, the defendant contends the evidence presented was insufficient to sustain a conviction of driving while intoxicated, fourth offense. The defendant argues that the evidence taken as a whole does not support a finding of guilt beyond a reasonable doubt.

LSA-R.S. 14:98(A)(l)(a) provides as follows:

A.(l) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when:
(a) The operator is under the influence of alcoholic beverages; ...

The standard of review for a claim of insufficient evidence is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Rosiere, 488 So.2d 965 (La.1986). The reviewing court must consider the record as a whole and not just the evidence most favorable to the prosecution; and, if rational triers of fact could disagree as to the interpretation of the evidence, the decision to convict should be upheld. State v. Mussall, 523 So.2d 1305 (La.1988).

Where there is conflicting testimony with regard to factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, writs denied, 2002-2997 (La.6/27/03), 847 So.2d 1255.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048.

In State v. Holley, 32,156 (La.App.2d Cir.8/18/99), 742 So.2d 636, this Court held:

To convict an accused of driving while intoxicated, the state need only prove that the defendant was operating a vehicle and that the defendant was under the influence of alcohol or drugs. Some behavioral manifestations, independent of any scientific tests, are sufficient to support a charge of driving while intoxicated. State v. Iles, 96-256 (La.App. 3d Cir.11/06/96), 684 So.2d 38; State v. Courtney, 30,629 (La.App.2d Cir.5/13/98), 714 So.2d 176. It is not necessary that a conviction of DWI be based upon a breath or blood alcohol test. The observations of an arresting officer may be sufficient to establish guilt. Intoxication is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330 (La.1983); State v. Courtney, supra.

Immediately prior to trial, the state and the defense stipulated that the three prior DWI convictions listed in the defendant’s bill of information were correct. The trial court accepted the stipulation as a part of the record.

At trial, the state called only one witness, Sergeant Hart, to testify as to the details of the traffic stop and subsequent arrest of the defendant. Sergeant Hart testified that he observed the defendant operating a brown pickup truck while committing several minor traffic violations. He further | (¡testified that when he conducted the traffic stop and asked the defendant to exit the pickup truck, he observed that the defendant was unsteady on his feet.

Sergeant Hart testified that as the defendant approached the rear of the vehicle, he observed defendant take a step back in order to steady himself. When Sergeant Hart made personal contact with the defendant at the front of the police cruiser, Sergeant Hart smelled a strong odor of alcohol on the defendant’s breath and person. Sergeant Hart further testified that he observed an opened twelve-pack of beer, as well as an opened can of beer, in the vehicle. Sergeant Hart testified that the defendant had failed two of the field sobriety tests and refused to submit to a third test, claiming that he had a knee injury that would prevent him from being able to perform the test. According to Sergeant Hart, he arrested the defendant and transported him to the Vivian Police Department because, based on his experience and training, he believed the defendant was impaired. At the police department, the defendant refused to submit to the intoxilizer test. He threatened the officers present and was very disruptive and uncooperative.

The defense called two witnesses during the trial. Stacy Cook, the passenger in the vehicle, testified that she and the defendant had just left a house where defendant had been working all day and into the night and they were driving home when they were stopped. She further testified that the twelve-pack of beer and the open container found in the vehicle at the time IfiOf the traffic stop belonged to her. She testified that the defendant had not been drinking that night.

The owner of the pickup truck, Hank Cook, also testified that the defendant had just left the house where they had been working when Cook got a telephone call that the defendant had been pulled over for driving while intoxicated. Cook testified that it had been approximately 15 minutes between the time defendant left the house and when he received the telephone call. He testified that the defendant had not been drinking at all during the day or night while defendant was at the house. He stated defendant left the house at approximately 11:30 p.m. or midnight.

The trial court specifically found that Sergeant Hart’s testimony was more credible than the testimony of the two defense witnesses. Pursuant to State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442, the appellate court cannot assess the credibility of witnesses or re-weigh evidence. Thus, this court is bound by the trial court’s findings with regard to the credibility of the witnesses.

As stated in State v. Holley, supra, the observations of an arresting officer may be sufficient to establish guilt in a DWI trial. Consequently, we conclude that the evidence, viewed in the light most favorable to the prosecution, was sufficient to prove beyond a reasonable doubt that defendant was the operator of the subject vehicle, that he was intoxicated at that time, and that he had three prior DWI convictions as alleged in the bill of information and stipulated to at trial. This assignment of error is without merit.

Assignment of Error Number One:

By this assignment of error, the defendant contends the trial court imposed an excessive sentence. The defendant argues that a ten-year sentence without the benefit of probation, parole or suspension of sentence, to be served consecutively with any other sentence imposed, is grossly disproportionate to the severity of the crime and serves no useful purpose.

LSA-R.S. 14:98 provides, in pertinent part:

E. (l)(a) Except as otherwise provided in Subparagraph (4)(b) of this Subsection, on a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Sixty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The remainder of the sentence of imprisonment shall be suspended and the offender shall be required to undergo an evaluation to determine the nature and extent of the offender’s substance abuse disorder.
(4)(b) If the offender has previously received the benefit of suspension of sentence, probation, or parole as a fourth offender, no part of the sentence may be imposed with benefit of suspension of sentence, probation, or parole, and no portion of the sentence shall be imposed concurrently with the remaining balance of any sentence to be served for a prior conviction for any offense.

Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion we will not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

On this record, we do not find constitutional error. The defendant has a history of DWI convictions and on January 28, 2002, the defendant pled guilty to DWI, fourth offense. He received leniency from the trial court for that conviction, when it imposed a sentence to be served with the benefit of probation. In the present case, the district court noted that the defendant committed the current offense while on probation for a prior DWI conviction in which the court imposed the same sentence.

The sentence is lawful and is the minimum term of imprisonment which could have been imposed. Under these circumstances, the imprisonment provisions of LSA-R.S. 14:98(E)(4)(b) were correctly applied, and the sentence is neither grossly disproportionate to the severity of the offense nor shocking to our sense of justice. There is no showing of a manifest abuse of the district court’s discretion in the imposition of this sentence. The sentence is not constitutionally excessive.

13Pursuant to LSA-C.Cr.P. art. 920, we have examined the record and note the presence of an error patent. LSA-R.S. 14:98(E)(l)(a) provides that upon conviction of a fourth offense, in addition to the prison sentence, the offender “shall be fined five thousand dollars.” However, the trial court did not impose the mandatory fine, resulting in an illegally lenient sentence.

A reviewing court has the authority to amend an illegally lenient sentence on its own motion. State v. Decrevel, 03-0259 (La.5/16/03), 847 So.2d 1197; State v. Clemons, 01-1032 (La.App. 5th Cir.2/26/02), 811 So.2d 1047. Therefore, we amend the sentence to assess defendant with a mandatory fine of $5,000.

CONCLUSION

For the foregoing reasons, the defendant’s conviction is affirmed. The sentence is hereby amended to impose the mandatory fine of $5,000 in addition to the term of imprisonment imposed, and the sentence is otherwise affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AFFIRMED AS AMENDED.


author: |, STEWART, J.

text:
    Irma THORNTON, Plaintiff-Appellant, v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 38,025-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.

      Scott D. Wilson, Baton Rouge, for Appellant.
    Cook, Yancey, King and Galloway by S. Price Barker, Rebecca L. Castillo, Shreveport, for Appellee.
    Before STEWART, GASKINS and LOLLEY, JJ.
   |, STEWART, J.

Irma Thornton filed suit against her employer, the City of Shreveport (hereinafter “the City”), for conversion and breach of contract relating to alleged inaccuracies regarding her years of service and fund contributions in the City’s retirement system records. The City responded with an exception of prescription that was sustained by the trial court after a hearing. On appeal, Thornton argues that the trial court erred in ruling that her claims had prescribed, specifically by not applying the doctrine of contra non valentem. For the following reasons, we affirm the trial court’s judgment.

FACTS

Thornton was employed by the City from July 1979 until July 22, 1982, when her employment was terminated. As a result of a complaint filed by Thornton with the United States Equal Opportunity Employment Commission, a settlement agreement was reached in July 1983, whereby Thornton’s employment was reinstated “without loss of seniority.” Over nineteen years later, on October 22, 2002, Thornton filed the instant suit claiming that the City’s records do not accurately reflect her contributions to the retirement fund nor her years of service for retirement eligibility “without loss of seniority.”

In the early part of 2002, Thornton checked with the City to determine her retirement status and learned that her years of service for retirement purposes did not date back to her initial employment beginning in July 1979. The City’s retirement records reflected only 19 years of service, whereas Thornton believed that she should be credited for 23 years of service.

|2A letter from the City’s director of finance dated March 7, 2002, informed Thornton that the City’s records showed that she received a refund of her contributions to the retirement system in the amount of $2,862.42 on August 1, 1982, following her employment termination. As a result of this refund, Thornton lost her time in the retirement system from July 1979 through July 1982. The letter explained that even though Thornton was reinstated with seniority, she could not regain her time for retirement purposes without buying back that time. Although the City’s pension records and accounting records indicated that the refund check had been issued, the City did not have the canceled check from twenty years ago.

In her petition, Thornton alleged that the City refused to adjust her retirement account to properly reflect her contributions or give her credit for years of employment “without loss of seniority.” Alternatively, she asserted that the City refused to pay her the amount of her contributions plus employer contributions and accrued interest. Based on these allegations, Thornton asserted a cause of action for conversion based on the City allegedly depriving her of funds contributed by her. Thornton also asserted a cause of action for breach of contract based on the City’s alleged breach of the settlement agreement due to its failure to credit her with years of service prior to the date of the settlement agreement. Thornton asserted that this failure was contrary to the City’s fiduciary duties regarding its administration of the retirement plan and care for the members’ contributions.

|sOn July 16, 2003, the City filed a peremptory exception of prescription asserting that Thornton had one year to bring her conversion claim and ten years to bring her breach of contract claim. Since the settlement agreement was made in June 1983, and the petition not filed until October 2002, Thornton’s claims appeared to be prescribed. At the hearing on the exception, the City presented testimony to establish that Thornton had received a refund of her contributions when her employment was terminated and that she had not bought back that time when she resumed employment with the City.

The City established that beginning in August 1984, the pay stubs for the City’s employees included year-to-date pension contributions and pension amount totals. However, the pay stubs did not reflect years of service credited toward retirement. Elizabeth Washington, the City’s director of finance, testified about a payroll processing form from December 1985, which pertained to Thornton’s employment. As explained by Washington, the payroll form indicated that Thornton contributed $1,008.72 to the retirement fund for 1985 and that her employment-to-date retirement contributions totaled only $2,404.75. This information would have been available to Thornton on her payroll stubs. Washington also testified about a form from the City’s pension office dated August 1, 1982, which was used to generate checks for refunds. This form, which was introduced into evidence, included a listing for Thornton in the amount of $2,862.42. In addition, Washington testified that Thornton’s retirement refund payment from 1982 was reflected in a microfiche check register, a copy of which was | ¿(introduced into evidence. On cross, Washington admitted that the City had no other evidence to show that Thornton negotiated a refund check and that there was no letter in the City’s records of Thornton ever requesting a refund of her retirement contribution.

The City also presented testimony from Phillis Copp, who served as pension manager from December 1996 through April 2000. Copp testified that she performed a refund buy-back calculation for Thornton in August 1997. Although Copp did not have a specific recollection of speaking with Thornton about the calculation, Copp testified that she would not have performed the calculation without Thornton having asked her to do it. The “Refund BuyBack” form was introduced into evidence and showed that Thornton was refunded $2,862.42 on August 1, 1982, and that she would have to buy back 3.061 years at 7% interest for a total amount of $7,943.36 to credit her retirement account with the years of employment prior to her termination on July 23, 1982. Copp also testified about a computer screen printout of benefits accrual dates for Thornton which showed that her leave accrual began on her initial date of hire, July 1,1979, but that her retirement plan credits began on June 12, 1983. Copp explained that the discrepancy indicated that some event interrupted Thornton’s contributions to the retirement plan.

In opposition to the exception of prescription, Thornton argued that she had a personal right to seek modification or correction of her retirement account to accurately reflect the amount of contributions made and that this right was subject to a 10 year prescriptive period that did not begin running | ¡¡until she became vested in her retirement. In addition, Thornton argued that if her claims for conversion and breach of contract were found to date back to the time of the alleged issuance of the refund check or the settlement agreement, then the doctrine of contra non valentón suspended the running of prescription until February 2002, when she first learned of the discrepancy in the City’s records.

At the hearing on the exception of prescription, Thornton testified that she never elected to take a refund of her retirement funds when she was terminated, and that she never received any refund check. Also, she did not recall asking Copp to prepare a refund buy-back calculation. Thornton insisted that she learned only a year ago that the City believed she had received a refund and that she was not given retirement credit for her full years of employment. Thornton introduced the certificate of appreciation she received from the City for twenty years of service on November 18, 1999, to show that the City considered her employed since 1979.

At the conclusion of the hearing, the trial court stated that it was convinced Thornton was paid her retirement refund when it was due and that she knew about it. The court also stated that when Thornton was rehired in 1983, she should have cheeked to see whether she was reinstated and given credit for retirement purposes. Accordingly, the trial court concluded that Thornton’s claims were prescribed.

DISCUSSION

On appeal, Thornton raises the single issue of whether the doctrine of contra non valentem should be applied in this case to prevent the running of | ^prescription. The doctrine of contra non valentem is based on the equitable notion that no one is required to exercise a right when it is impossible for him to do so. Harvey v. Dixie Graphics, Inc., 593 So.2d 351 (La.1992); Martin v. Comm-Care Corp., 37,600 (La.App.2d Cir.10/16/03), 859 So.2d 217. The doctrine is an exception to the general rule of prescription. Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206; Hughes v. Olin Corp., 37,404 (La.App.2d Cir.10/03/03), 856 So.2d 222. It applies only in “exceptional circumstances.” La. C.C. art. 3467, Official Revision Comment (d); Renfroe v. State ex rel. Dept. of Transp. and Dev., 2001-1646 (La.2/26/02), 809 So.2d 947. In fact, the Louisiana Supreme Court has recognized the following four specific situations to which the doctrine of contra non valentem applies so as to prevent the running of liberative prescription:

1. Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs actions;
2. Where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
3. Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or
4. Where the cause of action is neither known nor reasonably knowable by the plaintiff even though the plaintiffs ignorance is not induced by the defendant.

Renfroe, supra.

Thornton asserts that the third and fourth situations listed above apply in this case. For the third category of contra non valentem to apply, the defendant’s conduct must have prevented the plaintiff from availing himself l7of his cause of action. In other words, the cause of action accrued, but the plaintiff was unable to enforce it due to some reason external of his own will. Wimberly, supra; Corsey v. State, Through Dept. of Corrections, 375 So.2d 1319 (La.1979). Under the fourth category, referred to as the discovery rule, prescription begins to run when the injured party discovers or should have discovered the facts upon which his cause of action is based. Wimberly, supra; Griffin v. Kinberger, 507 So.2d 821 (La.1987). For the fourth category to apply, the plaintiffs ignorance of his cause of action cannot be attributable to his own willfulness or neglect; a plaintiff is deemed to know what he could have learned by reasonable diligence. Renfroe, supra; Corsey, supra.

Thornton argues that before she checked her retirement status in 2002, she had every reason to believe that the City was standing by the agreement it made in 1983 to reinstate her “without loss of seniority.” She notes that in 1999, she received a certificate of appreciation for twenty years of service, and she points out that the City was unable to produce a cancelled check to show she actually received a refund, that the City had no evidence showing it actually mailed the refund check to her, and that the City had no letter from her requesting a refund. Thus, she argues that the record shows she did not know and could not reasonably have known about the City’s failure to reinstate her with no loss of seniority as agreed in 1983.

Evidence regarding the City’s payment of a retirement contribution refund to Thornton was introduced at the hearing on the exception of prescription without objection by either party. Even though such evidence 1 swent to the ultimate issue before the trial court on Thornton’s claims, such evidence was also germane to the City’s claim of prescription. At trial on a peremptory exception pleaded prior to trial, other than the exception of no cause of action, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. See La. C.C.P. art. 931. When evidence is introduced at a hearing on a exception of prescription, the trial court’s findings of fact are reviewed under the manifest error standard. Perez v. Trahant, 2000-2372 (La.App. 1st Cir.12/28/01), 806 So.2d 110, writs denied, 2002-0847, 2002-0901 (La.8/30/02), 823 So.2d 953.

In ruling that Thornton’s claims had prescribed, the trial court made the factual finding that the “plaintiff was paid her retirement refund when it was due, that she knew about it.” The trial court also concluded that Thornton should have cheeked to make sure that she was reinstated and given retirement credit when rehired in 1983. From our review of the record, we cannot conclude that the trial court’s factual findings are manifestly erroneous. These findings were undoubtedly based, at least in part, on credibility determinations made by the trial court after hearing the witnesses, including Thornton. The manifest error standard accords great deference to the fact finder’s credibility determinations as only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what was said. Where a fact finder’s conclusion is based on its decision to credit the testimony of one of two or more witnesses, that determination can virtually |9never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Pope v. Prunty, 37,395 (La.App.2d Cir.8/20/03), 852 So.2d 1213, writ denied, 2003-2496 (La.11/26/03), 860 So.2d 1137.

From its ruling, it is apparent that the trial court disbelieved Thornton’s testimony that she did not receive the refund check and credited the testimony and evidence presented by the City which established that a refund check was issued. Even though no canceled check was produced, the trial court had before it evidence of both a check request and a check issuance reflected on the City’s internal documents. While the City could not show that Thornton had requested payment of her retirement benefits in 1982, there was evidence that she had requested a buyback calculation in 1997. That evidence, by its very nature, contradicted Thornton’s testimony that she did not learn of the City’s allegation of a refund until years after the buy-back calculation was performed. The trial court resolved the conflict in the evidence in favor of the City, and resolving a conflict in the evidence is a matter falling squarely within the trial court’s broad discretion.

Thornton’s claim of breach of contract was subject to a ten year prescriptive period under La. C.C. art. 3499, and her claim for conversion was subject to a one year prescriptive period under La. C.C. art. 3492. Both causes of action arose when Thornton was rehired by the City in 1983, the time at which the breach of the settlement agreement and the conversion of funds would have occurred as a result of the City’s alleged failure to reinstate her “without loss of seniority.” As such, the trial court was correct in ruling that both causes of action are prescribed. Moreover, we do not |infind that the trial court erred in failing to apply the doctrine of contra non valentem. Neither the settlement agreement by which Thornton was rehired “without loss of seniority” nor the certificate of appreciation introduced by Thornton were acts that prevented her from availing herself of any cause of action she might have had against the City. Moreover, any cause of action pertaining to her reinstatement in the retirement system with credit for her prior years of employment was reasonably knowable by the plaintiff, who with exercise of due diligence could have learned the status of her retirement system participation when rehired.

We note Thornton’s argument that she alleged current wrongful conduct by the City due to its refusal to adjust her retirement account to reflect contributions made during the early years of her employment or to credit her for her full years of service. However, this alleged wrongful conduct hinges upon the claims for breach of contract and conversion, which have prescribed. Moreover, the trial court’s finding that the City paid Thornton a retirement refund means that her claims regarding the inaccuracies in her retirement account have been shown to be without merit.

CONCLUSION

For the reasons set forth above, the trial court’s judgment sustaining the exception of prescription is hereby affirmed at appellant’s costs.

AFFIRMED.