author: STEWART, J. GASKINS, J.,

text:
    Tammy ESSWEIN, Plaintiff-Respondent v. David A. WHITE, D.D.S. and Dental West, Inc., Defendants-Respondents. Deborah Painich, Plaintiff-Respondent v. David A. White, D.D.S. and Dental West, Inc., Defendants-Respondents.
    Nos. 42,502-CW, 42,503-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.
    Rehearing Denied Nov. 29, 2007.
    Judice & Adley by James J. Hautot, Jr., Lafayette, for Defendant-Applicant, The Medical Protective Co.

      Davidson, Jones & Summers by Allison A. Jones, Shreveport, for Plaintiffs-Respondents, Tammy Esswein and Deborah Painich.
    Hammonds & Sills, by Jon K. Guice, Baton Rouge, for Defendants-Respondents, David A. White, D.D.S. and Dental West, Inc.
    Before STEWART, GASKINS and PEATROSS, JJ.
   STEWART, J.

|, The Medical Protective Company (“MPC”) appeals the trial court’s denial of its motion for summary judgment against Dr. David White, Dental West, Incorporated (“Dental West”), Tammy Esswein and Deborah Painich. For the reasons that follow, we affirm the trial court.

FACTS

Deborah Painich filed suit against her former employer, Dental West, Incorporated and former co-employee, Dr. David A. White, a dentist, for damages alleging that during her employment she was exposed to offensive language, “touchings of a sexual nature,” and other alleged inappropriate behavior and speech by Dr. White. Dental West was alleged to be vicariously liable for the actions of Dr. White.

Plaintiff filed an amended petition alleging that the dental malpractice insurance policies issued by the Medical Protective Company (MPC) to Dr. White and Dental West covered her claims. MPC denied coverage contending that the substance of Painich’s claims was not based on “professional services rendered or which should have been rendered ... in the practice of the insured’s profession.” MPC filed a motion for summary judgment. While the motion was pending, this matter was consolidated with a parallel case brought by another former employee of Dental West, Tammy Esswein.

Dr. White and Dental West opposed the motion for summary judgment, arguing that the policies were ambiguous because neither professional services nor practice of the insured’s profession were defined in the policies; the inclusion of an antitrust exclusion in the policy somehow [ ¡Implied that the policy was intended to cover the plaintiffs battery and intentional infliction of emotional distress claims, although none of these were based on professional services; and that the inclusion in the policies of an Expanded Coverage Endorsement which limited the scope of the “willful tort” exclusion in the main body of the policy also expanded the scope of coverage claim “based on professional service.”

The trial court denied MPC’s motion for summary judgment on the issue of coverage under the policy, and writs were sought. We consolidated the writs into the instant appeal.

DISCUSSION

Standard of Review

The motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Wells v. Red River Parish Police Jury, 39,445 (La.App. 2 Cir. 3/2/05), 895 So.2d 676, writ not cons., 2005-0854 (La.5/13/05), 903 So.2d 438. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Racine v. Moon’s Towing, 2001-2837 (La.5/14/02), 817 So.2d 21. The motion shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B; Racine v. Moon’s Towing, supra.

|sOn the motion for summary judgment, the burden of proof is on the mover. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, then the mover may merely point out to the court the absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to the plaintiff to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966 C(2); Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Wells v. Red River Parish Police Jury, supra. If the plaintiff fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment. La. C.C.P. art. 966 C(2); Power Marketing Direct Inc. v. Foster, 2005-2023 (La.9/6/06), 938 So.2d 662.

Appellate review of the grant or denial of summary judgment is de novo. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002; Wells v. Red River Parish Police Jury, supra.

Painich alleges that during her employment, which ended October 27, 2000, she was “exposed to outrageous conduct and outrageous behavior,” consisting of offensive language and physical conduct of a sexual nature. Painich characterizes the behavior as intentional inflictions of emotional distress. For instance, on many occasions Dr. White would grab his pants in the crotch area and pretend to zip his pants while making some derogatory comment toward the women in the office. While Painich assisted Dr. White with patients by holding the vacuum powered debris remover in a patient’s mouth, White would say to the patient, “she’s the best sucker I know” in preference to Painich. On several of the occasions where a patient was in the chair being treated, Dr. White would suggestively remark that the patient had a “hair caught in their teeth.” Painich also testified that, while in the office, she saw Dr. White behind Tammy Esswein “hunching” her and that he had attempted this maneuver on her at work as well. Moreover, Dr. White also solicited sex from Painich on several occasions and groped Painich and other co-workers.

Contrary to the arguments of MPC, the policies at issue provide coverage for just the kind of actions perpetrated by Dr. White. The trial court did not rewrite the policy at issue. We find that Dr. White’s conduct did fall under the parameters of actions rendered during professional services for the purposes of coverage under the policy. Most, if not all, of the conduct complained of by Esswein and Painich occurred at work while Dr. White and Ms. Esswein and Ms. Painich rendered professional services in the form of dental services. We find no support for the narrow definition of professional services offered by MPC that would seem to only extend to actions perpetuated by the employees of Dental West on patients, but would not extend to behavior between coworkers. We find that professional services would extend to behavior between co-workers as well as to that perpetuated upon patients by employees of Dental West.

Although the trial court effectively found that the definition of professional services did not appear in the policy issued by MPC, we find that its denial of the motion for summary judgment was proper. Further, the language of the “Dental Expanded Coverage Endorsement Corporation J^Policy” indicated to the court that the coverage provided by MPC went beyond the kinds of risks that might arise out of pure professional services rendered in a dentist’s office. ,

Without a definition of the terms “professional services” or “practice of the insured’s profession” in the insurance policies, the allegations made by the plaintiffs who were employed as the defendants’ re-eeptionist/hygienist and office manager occurred in relation to the professional services offered by Dental West. None of the conduct alleged occurred after business hours but happened during the course and scope of the plaintiffs’ employment. There is nothing in the policy that excludes employment-related matters. As such, the trial court was correct in determining that coverage for the acts alleged by plaintiffs was proper under the law.

CONCLUSION

Based on the above and foregoing, we affirm the trial court’s denial of summary judgment. Costs assessed to MPC.

AFFIRMED.

GASKINS, J., concurs with written reasons.

PEATROSS, J., concurs for the reasons set forth in the written concurrence of GASKINS, J.

GASKINS, J.,

concurring.

Iil respectfully concur with the majority’s decision to affirm the denial of the motion for summary judgment filed by Medical Protective Company. It appears that some of the acts alleged by the plaintiffs may be covered under the language of the policy, while others may not. Until the evidence is fully developed, I would withhold judgment as to whether all the acts are covered by the insurance policy.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, CARAWAY and PEATROSS, JJ.

Rehearing denied.

CARAWAY and PEATROSS, JJ., would grant rehearing.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    Rodric CASCIO and Sue Ellen Cascio, Plaintiffs-Appellants v. Henry Hays CARPET and Decorating, LLC, Defendant-Appellee.
    No. 42,653-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Donald L. Kneipp, Monroe, for Appellants.
    Hayes, Harkey, Smith & Cascio, by Thomas M. Hayes, III, Monroe, for Appel-lee.
    Before STEWART, PEATROSS and LOLLEY, JJ.
   STEWART, J.

pin this breach of contract case, Dr. Rodric Cascio and his wife, Sue Ellen Cas-cio, (“the Cascios”) appeal a judgment denying their claim for damages due to the failure of the defendant, Henry Hays Carpet and Decorating, L.L.C., (“Henry Hays”) to install wood floors in a workmanlike manner or to remedy the defects. Finding no manifest error in the trial court’s judgment, we affirm.

FACTS

On April 8, 2003, the Cascios contracted with Henry Hays for the purchase and installation of brick-style pavers in the kitchen and breakfast areas of their home and wood flooring in their living room, dining room, foyer, hall, and utility room. The total contract price was $19,920.94. The Cascios paid $9,960.47 upon signing the contract. No specifications were provided in the contract, other than the flooring material to be used and the requirement that Henry Hays pull up the existing flooring.

Henry Hays’ installer, Matt Marble, began the job shortly after the contract was signed and last worked on or about May 22, 2003. The Cascios were unhappy with the finished product and the time it took to complete the installation. They did not like the three-quarter inch round shoe molding used to trim the area between the floor and baseboards and claimed that this molding, rather than their preferred one-quarter inch molding, was required due to excessive gaps left between the wood planks and baseboards. They also complained that the door jambs and plinth blocks were cut too high and that thresholds and trim around the fireplace and stairs were not installed in a workmanlike manner. The Cascios noticed | ?gaps between and at the ends of planks, and they found hollow spots where the wood planks did not adhere to the slab.

When Henry Hays was unable to remedy the defects to the Cascios’ satisfaction, they filed suit on October 13, 2003, alleging breach of contract and seeking the return of what they had already paid, the cost to remove and replace the flooring, damages for emotional distress and mental anguish, as well as attorney’s fees and costs. Henry Hays filed a reconventional demand seeking the balance of $9,960.47 due on the contract and alleging the work was done properly. The matter proceeded to a bench trial.

Trial Testimony

According to the Cascios, they decided to replace the floors in their downstairs living area after an overflow drain in an upstairs bathroom malfunctioned and caused water damage to the wood floors in their foyer. Though the Cascios ultimately contracted with Henry Hays, Dr. Cascio testified that they first selected the wood flooring they liked, a Harris-Tarkett engineered wood product in a Brazilian cherry finish, at another store. The finish was their only consideration in selecting the new wood floor.

The Cascios told Donna Bonnette, a Henry Hays salesperson, that they wanted everything to be exactly the same. She assured them that it would look the same and even better. Bonnette told them the work would take eight to ten days and that Henry Hays’ best installer would be on the job.

|sThe work began sometime between April 9, 2003, and April 14, 2003. The installers moved the Cascios’ furniture and tore out the old wood floor that had been glued down to the slab before installing the new floors. Dr. Cascio described the “horrible, filthy, awful” conditions they endured while the work was underway-furniture crammed in rooms, splinters on the floors, stickiness, having to hop across the rooms on carpet squares, and dust everywhere. They were unable to park their cars in their garage during this time because materials and supplies were stored there. The prolonged installation process interfered with plans for a number of family events, including their son’s confirmation and eighth grade graduation, their daughter’s kindergarten graduation, and Mrs. Cascio’s mother’s birthday and fiftieth wedding anniversary. However, the Cascios’ testimony indicated that some of these events may have occurred during the early days of the installation and some as late as July.

During the installation of the wood floors, Mrs. Cascio noticed that some planks were not sticking to the slab. Problems also arose due to the new flooring being thicker than the original floors in the Cascio home. Wherever the new flooring met another material, such as at thresholds between rooms and at the marble tiles surrounding the hearth, wood trim had to be installed as a transition, whereas the original wood floor had been installed flush with the other flooring materials and the marble hearth. Dr. Cascio testified that the trim work was poorly done. Some of it broke repeatedly, and the plinth blocks were cut too high. Molding was left unpainted and glue residue was left behind. The Cascios had previously had | ¿quarter-inch round shoe molding where their six-inch baseboards met the old floors. However, three-quarter inch shoe molding was installed to cover the gap between the new flooring and the baseboard. The Cascios found the larger shoe molding, which was a half an inch higher on the baseboard than the old molding, to be out of proportion to the baseboard and aesthetically unappealing. It was also improperly installed, glued to the slab in one area, and not even attached in some areas. Lastly, the Cascios noticed both hollow spots and some gaps where the ends of the planks met and between the planks. Photographs of the poor trim work and of credit cards propped between the gaps were introduced into evidence.

To address the problems with the installation, Mrs. Cascio met with Donna Bon-nette, Paula Lyles, who was another Henry Hays employee, and Irene Sartori of Boliek, the Harris-Tarkett distributor. Though the Cascios agreed to allow five additional days for the installer to remedy the problems, nothing was completed to their satisfaction. No additional work was done after May 22, 2003. Dr. Cascio’s testimony on cross-examination established that most of the deficiencies could be repaired. However, the Cascios rejected an offer by Henry Hays of $1,500 off their balance to have the repairs made.

At the Cascios’s request, Chris Sullivan, the carpenter who had done the trim work when their house was built, gave an estimate of $1,300 to replace the three-quarter inch round shoe molding with quarter inch molding and to replace the plinth blocks and T-molds at doorways. Sullivan recommended placing new marble tiles over the existing marble to make the | shearth flush with the floor. However, none of the work was done. When Sullivan attempted to replace the shoe molding, the smaller size did not cover the gap between the edge of the floor and the baseboard. Sullivan testified that he had used the smaller shoe molding on floors of similar thickness to that installed in the Cascios’ home, and he believed that the new flooring would have to be completely removed and replaced in order to correct the deficiencies. However, Sullivan had no expertise in floor installation and no familiarity with the Harris-Tarkett flooring.

When Donna Bonnette went to the Cascios’ home to measure the job, she informed Mrs. Cascio that transition pieces would be required at the hearth and at doorways where different flooring materials met. Although Mrs. Cascio said that her husband did not want transitions, they accepted the bid with the understanding that the job was not feasible without them. Bonnette admitted that she never discussed the size of shoe molding with the Cascios. She testified that the size of shoe molding had never been an issue with customers. Bonnette recalled that another Henry Hays employee went over the specifications of the Harris-Tarkett flooring with Mr. Cascio at the store. According to Bonnette, the smaller shoe molding could not be used due to the thickness of the new floor which required at least a half inch gap at the perimeter. She testified that small gaps between and at the ends of planks are not uncommon and not indicative of poor installation. She believed that Matt Marble was competent to do the installation even though he may not have installed the Harris-Tarkett flooring before the Cascio job.

[ (¡Although Bonnette told the Cascios that the work should take eight to ten days, she testified that this time period did not include the removal of the old floors, which were tough to get up and took longer than expected. She also attributed delays to Mrs. Cascio, who asked that they not work during a few days of heavy rain and that the installers be out of the house by 3:00 p.m., when the children returned from school. Further delay occurred due to the Cascios’ disapproval of the method used to repair hollow spots in the floors by drilling a small hole and injecting epoxy under the wood. They demanded that the planks be removed and new ones installed.

Paula Lyles, a manager at Henry Hays, denied the Cascios’ claim that she intimated that Marble was not qualified to do the job. Lyles explained that she told the Cascios that Marble was not the only installer Henry Hays used and that he may not have previously installed the flooring they chose. Lyles recognized some problems with the trim, particularly cracks in the trim surrounding the hearth and at thresholds that needed replacement. She believed that the Cascios should have been told that larger shoe molding would be required with the floors.

The deposition of Irene Sartori, a sales representative of Bolick, the distributor of the Harris-Tarkett flooring, was introduced into evidence. From her visit to the Cascios’ home, Sartori found that the flooring looked beautiful, though she noticed one spot that may have been cut too far from the wall. She described the Harris-Tarkett product chosen by the Cascios as an engineered material consisting of different plies glued together with a veneer on top. Each plank was eight feet long, seven and a half inches |7wide, and nine-sixteenth of an inch thick. Sartori explained that the longer planks were harder to glue down, but anyone with experience installing wood should be able to do the job. She suggested that expansion and contraction of the flooring and imperfections in the slab, rather than poor installation, might have caused the gaps between the planks. As explained by her, the thickness of the floor required at least a one-half inch gap around the perimeter of the floor, and covering the gap required shoe molding larger than what the Cascios originally had. Although she would have made the Cascios aware that larger shoe molding would be needed, Sartori had never heard a customer and salesperson discuss the size of shoe molding. She explained that customers are usually more concerned with the aesthetics of the wood floor. Finally, Sartori agreed that the installers used the standard method to correct hollow spots in the floor by drilling a small hole into which epoxy could be injected.

The Cascios had Keith Young, the installer of their original floors and owner of a floor covering business, examine the new floors. Young did not agree that the floors would have to be replaced. Rather, he noted a few problems that were easily correctable. Young testified that the Henry Hays installers used the industry accepted standard for repairing hollow spots by injecting an adhesive through an inconspicuous hole drilled in the floor. He explained that a gap of at least one-half inch is usually required around the perimeter when installing wood floors so as to allow for expansion of the material. He noted that manufacturers usually specify an even larger gap and that the warranty may be voided if such specifications are not followed. | sYoung stated that he always discusses transition materials with customers but that he did not recall any customer asking about shoe molding size.

Matt Marble installed the new flooring in the Cascios’ home. He testified that he' had seven years of installation experience and that, while he had installed long planks before the Cascio job, he had not previously installed the particular material they selected. However, he knew what he was doing and that a gap of one-half inch for expansion was required for the wood flooring. ■ Marble explained that a one-half inch gap did not allow for replacement of the Cascios’ desired shoe molding nor did it even allow for placement of a one-half inch round shoe molding. Marble’s crew averaged three people a day, and they usually stopped working around 2:00 or 3:00 in the afternoon when they began to feel unwelcome. He believed that six weeks for a job the size of the Cascio job was not unrealistic. He described the removal of the old flooring, which came up in splinters, as difficult. With regard to the Cascios’ other complaints, Marble did not recall leaving any shoe molding unattached or glue residue on surfaces. He noted that gaps between and at the ends of planks will occasionally happen and that the gaps are usually filled with wood putty. He had no prior experience working with molding like that he installed around the hearth, and he recalled repairing it at least one time. He believed the plinth blocks could be repaired with Dap and paint. Marble explained that he did not return to make further repairs due to the dispute between Henry Hays and the Cascios.

| ¿Larry Johnson, the owner of Henry Hays, testified that the Cascios owe a balance of $9,960.47. He recalled that the Cascios were not happy with the trim work. Johnson visited the Cascio home with the attorneys involved in their litigation and found the workmanship on the floors to be of acceptable quality. He stated that Marble had installed wood floors for him before the Cascio job and that he was a reputable and qualified installer.

The trial court found that Henry Hays had substantially performed its contractual obligations but that the trim work was not completed in a workmanlike manner. Thus, the trial court denied the Cascios’ claim for the full contract price but awarded a deduction of $2,050 from the balance owed. Henry Hays was awarded $7,910.47, the amount due on the contract minus the deduction awarded the Cascios. Finding that the nature of the property problem did not support an award for emotional distress or mental anguish damages, the trial court denied that part of the Cascios’ claim. The trial court did not award either party attorney’s fees or costs. The Cascios’ appeal followed.

DISCUSSION

The Cascios challenge the trial court’s finding that the floor installation was completed in a workmanlike manner. They argue that they should have been awarded the full contract price as damages to place them in the same position as if the contract had been fulfilled.

The basis of the Cascios’ claim is La. C.C. art. 2769, which states:

If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.

|10A contractor is obligated to perform the work in a good and workmanlike manner so that the work is suitable for its intended purpose and free from defects in material and workmanship. Allstate Enterprises, Inc. v. Brown, 39,467 (La.App.2d Cir.6/29/05), 907 So.2d 904; Mount Mariah Baptist Church v. Pannell’s Associated Electric Co., 36,361 (La.App.2d Cir.12/20/02), 835 So.2d 880, writ denied, 2003-0555 (La.5/2/03), 842 So.2d 1101. To establish the contractor’s liability for damages due to defective workmanship, the owner must prove the existence and nature of the defects, that the defects are due to faulty materials or workmanship, and the' cost of repairing the defects. Mount Mariah, supra; Industrial Roofing & Sheet Metal Works, Inc. v. J.C. Dellinger Memorial Trust, 32,048 (La. App.2d Cir.8/20/99), 751 So.2d 928, writs denied, 99-2948 and 99-2958 (La.12/17/99), 752 So.2d 166; Austin Homes, Inc. v. Thibodeaux, 2001-1282 (La.App. 3d Cir.5/8/02), 821 So.2d 10, writ denied, 2002-2324 (La.11/15/02), 829 So.2d 436.

If the owner meets the burden of proof, the remedy is to reduce the contract price in an amount necessary to perfect or complete the work according to the terms of the contract. Mount Mariah, supra; Moore v. Usrey & Usrey, 52 So.2d 551 (La.App. 2d Cir.1951). However, a contractor may still recover part of the contract price, notwithstanding defects, when substantial performance is shown. Mount Mariah, supra; Industrial Roofing, supra. Determination of substantial performance is a question of fact about whether the construction is fit for its intended purpose despite deficiencies. Mount Ma-riah, supra. Factors that may be _|_y considered in determining whether the contractor achieved substantial performance include the extent of the defects or non-performance, the degree to which the purpose of the contract has been impaired, the ease of correction, and the use or benefit to the owner of the work performed. Id.

The trial court’s factual findings may not be set aside in the absence of manifest error or unless clearly wrong. Lirette v. State Farm Ins. Co., 563 So.2d 850 (La. 1990). Where there is conflicting testimony, reasonable evaluations of credibility and inferences of fact should not be disturbed by the reviewing court. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there are two permissible views of the evidence, the trier of fact’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

Although the Cascios claim the defects they complain of show that Henry Hays failed to perform the floor installation in a workmanlike manner, the trial court rejected their claim for recovery of damages to replace the entire wood floor and determined that Henry Hays had substantially performed its contractual obligation. However, the trial court did find that the defective trim work would require repair and/or replacement and awarded the Casc-ios a reduction in the contract price. The record supports the trial court’s factual findings and judgment.

There was no credible testimony to support the Cascios’ claim that the floors were improperly installed and would have to be removed and reinstalled to correct the alleged deficiencies. The trial court rejected the testimony of Chris Sullivan, who testified that the floors would have to be removed and replaced. Sullivan, a trim carpenter, had no experience inj^floor installation. Keith Young, who had installed the original floors in the Cascios’ home, disagreed with Sullivan’s assessment and testified that the defects he observed were easily correctable. The gaps between and at the ends of planks were not shown to be a defect indicative of unworkmanlike installation. Rather, the testimony established that such gaps, which were attributed to imperfections in either the engineered planks or the slab, are not always avoidable. Additionally, the record shows that Marble attempted to repair the hollow spots complained of using a commonly accepted method and then removed and replaced some planks to satisfy the Casc-ios. Any remaining hollow spots were not shown to constitute a defect requiring replacement of the wood flooring.

The other deficiencies related to trim work. The Cascios’ primary complaint was about the size of the shoe molding required to cover the gap left between the end of the planks and the baseboards. Though they alleged the gap was excessive, this claim is not supported by the record. The Cascios testified that they selected the Harris-Tarkett flooring for its finish. They sought an estimate for the Harris-Tarkett flooring from Henry Hays and did not ask about its specifications. They testified that they told Donna Bon-nette that they wanted everything exactly the same, but there was conflict in the testimony as to what was discussed about transitions needed with the new flooring and whether Dr. Cascio was told about its thickness. There was no meeting of the minds as to what “exactly the same” meant in the context of a new flooring. The record establishes that the thickness of the Harris-Tarkett flooring meant that it would be impossible to replace the |iaCascios’ preferred smaller shoe molding after installation. Although the Cascios may have chosen a different flooring had they known that a larger shoe molding would be required, the failure to communicate cannot be attributed solely to Henry Hays. Keith Young, Irene Sartori, and Paula Lyles testified that customers should be told about changes in molding. However, the testimony also established that the size of shoe molding is not typically discussed and not something on which most customers base their flooring decisions. We note that the contract between the parties did not specify the size of shoe molding to be replaced and did not even address trim work. Considering the totality of the evidence, we do not find that the installers left an excessive gap around the perimeter of the flooring or that use of a larger size of shoe molding to cover the gap constitutes a breach of contract.

The record supports the trial court’s finding of substantial performance by Henry Hays. Despite some deficiencies, the flooring was not shown to be unsuitable for its intended purpose. While the trial court found that the trim work was not done in a workmanlike manner, the record shows that the poor quality work can be corrected. The Cascios got an estimate of $1,300 for repairs from Sullivan, and Henry Hays offered them $1,500 off the contract price for repairs. Taking these amounts into account and considering the work to be done to correct the deficiencies, the trial court awarded the Cascios $2,050 off the contract price on their demand for damages. We find no abuse of discretion in the award. Reviewing the record as a whole, we cannot say that the trial court’s finding of substantial | T ¿performance by Henry Hays and failure to award the Cascios the full amount under the contract is manifestly erroneous or clearly wrong.

The Cascios also argue that the trial court erred in failing to award nonpe-cuniary damages for emotional distress and mental anguish. Under La. C.C. art. 1998, nonpecuniary damages may be awarded when the nature of the contract was intended to gratify some nonpecuniary interest and, because of the circumstances surrounding the formation of the contract or the nonperformance, the obligor knew or should have known that nonpecuniary loss would result from the failure to perform. Nonpecuniary damages may also be recovered when the obligor intended the nonperformance to aggrieve the feelings of the obligee. La. C.C. art.1998. Whether the principal object of a contract was intended to gratify some nonpecuniary interest is a question of fact, and the decision of whether to award damages is within the trial court’s discretion. Stonecipher v. Mitchell, 26,575 (La.App.2d Cir.5/10/95), 655 So.2d 1381.

The trial court denied the claim for non-pecuniary damages upon concluding that the Cascios’ property problem was not of the type to support an award for emotional distress or mental anguish damages. The record does not show that the installation contract had the satisfaction of some non-pecuniary interest as its principal object. Rather, the decision to get new flooring stemmed from damage caused by an overflow in an upstairs bathroom.

Although Dr. Cascio testified that what they experienced during the installation was more than a mere inconvenience, the living conditions he 11fidescribed do not appear so unusual or unexpected for a job involving the removal of a significant amount of wood flooring glued to a slab and the installation of new flooring in the main living areas of the home. The Casc-ios complain that the work lasted longer than the eight to ten days they were told by Donna Bonnette, but their contract did not provide a time period. The installer, Matt Marble, testified that six weeks was not unreasonable for the job, and the trial court found him to be a credible witness. Bonnette clarified that her estimate did not take into account the removal of the wood floors which was, as testified to by Marble, more difficult than expected.

We also find no basis for awarding damages to compensate the Cascios for their disappointment in not hosting family celebrations at their home. It appears from the record that the Cascios knew some of the events would not be able to be held at their home due to the scheduled installation. Others, such as the mother-in-law’s birthday and anniversary, occurred months after the installers quit working. The trial court found substantial performance by Henry Hays; therefore, the flooring was fit to serve its purpose despite the poor quality work on the trim. The Casc-ios’ decision to close their house to family celebrations because of their dissatisfaction with the trim work does not support an award of nonpecuniary damages.

We find no abuse of discretion in the trial court’s denial of damages for the inconveniences suffered by the Cascios during the installation process even though it lasted longer than they expected and interfered with plans for family celebrations.

I ^CONCLUSION

Finding no manifest error, we affirm the trial court’s judgment. Costs of appeal are assessed to the Cascios.

AFFIRMED.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Kelvin Dewayne BRAZIEL, Appellant.
    No. 42,668-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Peggy J. Sullivan, Monroe, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Assistant District Attorney, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   WILLIAMS, J.

|, The defendant, Kelvin Dewayne Bra-ziel, was charged by bill of information with distribution of a Schedule II Controlled Dangerous Substance (“CDS”), cocaine, a violation of LSA-R.S. 40:967(A)(1). Following a jury trial, the defendant was convicted as charged. He was adjudicated a second habitual offender and sentenced to serve 15 years at hard labor without benefit of probation or suspension of sentence. For the following reasons, we affirm the defendant’s conviction and sentence. Further, we order that the incorrect transcript which appears in the appellate record be removed from the record and we order the court minutes be amended to reflect the sentence ordered in the correct transcript. We also order the trial court minutes to be amended to reflect the sentence of 15 years at hard labor without benefit of probation or suspension of sentence and without benefit of parole for the first two years.

FACTS

On December 5, 2000, Agent Lee Jay Scott and Agent Rodney Demery of the Shreveport Police Department were working undercover as part of a citywide narcotics investigation to expose “street-level” drug dealers in areas in which the department had received complaints of drug activity. The agents patrolled the area in an unmarked vehicle equipped with an electronic listening device, and back-up officers, who were waiting nearby in a van, were able to listen to transactions. Agent Scott and Agent Demery were carrying currency in various denominations to use for drug transactions and had photocopied the currency.

Agent Scott and Agent Demery observed the defendant and six other | ¡Individuals standing near a residence in the 100 block of North Dale Street. The agents drove up to the group and asked where they could “get two,” meaning two “rocks” of crack cocaine. The defendant gestured for the agents to go in another direction, but one of the other individuals wanted them to pull into the driveway of the residence. Considering this to be unsafe, Agent Demery suggested that they drive around the block. When the agents returned, Agent Scott asked the defendant if he could have “two,” and the defendant pointed to a location in the 200 block of North Dale Street. After circling the block a second time, the agents drove to the location where the defendant had indicated. Agent Scott gave the defendant two of the previously photographed $10 bills, and the defendant gave him two clear plastic bags with a red heart, each containing what appeared to be a rock of crack cocaine.

Agent Scott signaled the back-up officers (“arrest team”) that the transaction had been completed and provided the team with a physical description of the defendant. Agent Scott and Agent Demery left the scene, and the arrest team arrived and arrested the defendant. Thereafter, Agent Scott and Agent Demery returned to the scene to identify the defendant as the person who had sold them the substance. The buy money was still in the defendant’s possession at the time of his arrest. Agent Scott conducted a field test on the substance they had purchased from the defendant, and it tested positive for cocaine. Subsequent tests conducted by a forensic chemist at the North Louisiana Crime Laboratory confirmed that the substance was cocaine, a Schedule II CDS.

|aThe defendant was charged by bill of information with distribution of a Schedule II CDS, cocaine, a violation of LSA-R.S. 40:967(A)(1). Following a jury trial, the defendant was convicted as charged. The trial court adjudicated the defendant a second habitual offender and sentenced him to serve 15 years at hard labor without benefit of probation or suspension of sentence.

DISCUSSION

Sufficiency of the Evidence

The defendant contends the evidence presented at trial was insufficient to support a conviction of distribution of cocaine. According to the defendant, the state failed to meet its burden of proving that he was the person who sold the crack cocaine to the undercover agents.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Murray, 36,-137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La. 10/4/96), 680 So.2d 1165.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. 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. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422. .

A reviewing courhmay intervene in the trier of fact’s decision only to the extent necessary to guarantee due process of law. State v. Pigford, supra; State v. Mussall, 523 So.2d 1305 (La.1988). Accordingly, in cases relying on circumstantial evidence to prove one or more elements of the crime, when the fact-finder reasonably rejects the hypothesis of innocence advanced by the defendant at trial, that hypothesis fails, and the verdict stands unless the evidence suggests an alternative hypothesis sufficiently reasonable that rational jurors could not find proof of the defendant’s guilt beyond a reasonable doubt. State v. Pigford, supra.

Cocaine is classified as a Schedule II CDS, and it is unlawful for any person to knowingly or intentionally distribute or dispense a Schedule II CDS. See, LSA-R.S. 40:964(A)(4) and 40:967(A)(1). To present sufficient evidence of distribution of a CDS, the state must prove the following elements: (1) delivery or physical transfer of the CDS to its intended recipient; (2) guilty knowledge of the CDS at the time of the transfer; and (3) the exact identity of the CDS. State v. Kelley, 36,602 (La.App.2d Cir.1/29/03), 836 So.2d 1243; State v. Manning, 30,809 (La.App.2d Cir. 6/24/98), 715 So.2d 668. In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson v. Virginia, supra, rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Brady, 414 So.2d 364 (La.1982); State v. Powell, 27,959 (La. App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

In the instant case, Agent Scott and Agent Demery testified that the defendant sold Agent Scott two rocks of crack cocaine in exchange for two prerecorded $10 bills. Agent Jerry Alkire, a member of the arrest team who apprehended the defendant near the scene of the transaction, testified that Agent Scott had described the defendant’s physical appearance and came back to the scene to identify, the defendant as the person who had sold him the crack cocaine. Agent Scott and Agent Demery both identified the defendant in court as the person from whom they had purchased the crack cocaine. This court has repeatedly held that positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Youngblood, 41,976 (La.App.2d Cir.5/9/07), 957 So.2d 305; State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12; State v. Miller, 561 So.2d 892 (La.App. 2d Cir. 1990), unit denied, 566 So.2d 983 (La. 1990).

Further, the testimony of the officers was corroborated by the fact that the two prerecorded $10 bills were in the defendant’s possession when he was arrested within minutes of the drug transaction. In State v. Robinson, 624 So.2d 1260 (La.App. 2d Cir.1993), unit denied, 93-2899 (La.2/11/94), 634 So.2d 372, this court held that the trial court properly denied the defendant’s alibi evidence regarding mistaken identity when the evidence showed that the marked $20 bill had been found on the defendant within minutes of the transaction.

In the instant case, we find that the state presented sufficient evidence to prove that the defendant was the person who committed the offense of distribution of cocaine, a Schedule II CDS. This assignment is therefore without merit.

Habitual Offender Adjudication

The defendant also contends the trial court erred in adjudicating him a second felony offender. He argues that the prior guilty plea cannot be used against him because the trial court that accepted that plea did not inquire into his level of education, age and ability to understand the plea agreement. The defendant maintains that those questions were pertinent because he was 17 years old at the time of the prior guilty plea.

We first point out that this issue is not properly before this court. A defendant claiming that a prior conviction is invalid must file a written response to the multiple offender bill of information. LSA-R.S. 15:529.1(D)(1)(b). Where the record does not contain a written objection |7to the multiple offender bill of information, the issue is not preserved for appellate review unless an oral objection is made at the hearing. State v. Kunzman, 31,976 (La.App.2d Cir.5/5/99), 741 So.2d 112.

In the instant case, the record reveals that the defendant did not file a written response to the habitual offender bill of information, and he failed to raise an objection at the hearing. Therefore, the issue pertaining to the habitual offender adjudication is not properly before this court.

Even if the .defendant had preserved the issue for appellate review, the claim lacks merit. The state’s burden of proof in habitual offender proceedings under LSA-R.S. 15:529.1 is as follows:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel, when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any | ^combination thereof, the judge must then weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that the defendant’s prior • guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.

State v. Shelton, 621 So.2d 769, 779-780 (La.1993)(footnotes omitted); State v. Zeigler, 41,617 (La.App.2d Cir.12/20/06), 945 So.2d 946. Furthermore, where the record establishes that an accused was informed of and waived his rights to trial by jury, to confrontation, and against self-incrimination, the burden shifts to the accused to prove that despite this record, his guilty plea was involuntary. State v. Scott, 34,949 (La.App.2d Cir.1/25/02), 823 So.2d 960, unit denied, 2002-1622 (La.5/16/03), 843 So.2d 1122; State v. Youngblood, 32,-003 (La.App.2d Cir.5/5/99), 740 So.2d 687.

In this case, the state presented certified copies of the bill of information, court minutes and transcripts of the guilty plea in First Judicial District Court, Parish of Caddo Docket No. 147,296. The documents indicated that the defendant pleaded guilty to armed robbery on December 18, 1989 and that he was represented by counsel at the time he pleaded guilty. The state also presented the testimony of a fingerprint analyst, who testified that the fingerprints obtained from the defendant in open court matched those fingerprints contained in the Automated Fingerprint Identification System (“AFIS”) file maintained by the Office of Probation and Parole with regard to the conviction of armed robbery in Docket No. 147,296. The state also presented evidence that the defendant’s name and date of birth were the same as listed on the first offender pardon issued in 19Pocket No. 147,296. Additionally, the state presented the testimony of Bob Lee, the defendant’s parole officer in Docket No. 147,296, who presented a photograph of the defendant from the AFIS with regard to Docket No. 147,296. Accordingly, we find that the state clearly met its burden of proving that the defendant was the person who pleaded guilty to armed robbery in First Judicial District Court, Parish of Caddo Docket No. 147,-296.

In response to the state’s evidence, the defendant offered no evidence to prove that there was a procedural irregularity or infringement of his rights. Further, the transcript of the prior guilty plea shows that .the trial court properly advised the defendant of his right against self-incrimination, right to a trial by jury and his right to confrontation, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The colloquy was as follows:

COURT: Do you understand that you have a right to a trial by jury and that by pleading guilty you are giving up that right?
DEFENDANT: Yes, sir.
COURT: Do you further understand that you are giving up the right to be confronted at the trial by the witnesses against you and you are also giving up 'the right to have those witnesses questioned at the trial?
DEFENDANT: Yes, sir.
COURT: Additionally, do you understand that you are giving up your Fifth Amendment right to remain silent which is the right against compulsory self-incrimination?
DEFENDANT: Yes, sir.
COURT: Do you have any questions about those rights? '
ImDEFENDANT: No, sir.
COURT: Do you understand those rights?
DEFENDANT: Yes, sir.

This court has previously rejected the argument that a trial court is required to inquire into a defendant’s educational background or ability to understand the consequences of a guilty plea. In State v. Hill, 35,013 (La.App.2d Cir.9/26/01), 796 So.2d 127, the defendant alleged that his prior guilty plea should not be used for enhancing his current sentence because the trial court failed to inquire into his educational background or his ability to understand the plea and its consequences. In rejecting the defendant’s argument, this court found that the minutes and Boykin colloquy proved that defendant waived his right to a jury trial, right of confrontation, and right against self-incrimination, and the state was not required to prove anything else before using the prior guilty plea for enhancement.

Likewise, in State v. Bryant, 34,244 (La. App.2d Cir.12/6/00), 775 So.2d 596, unit denied, 2001-0144 (La.11/21/01), 802 So.2d 627, the defendant challenged his adjudication as a habitual offender, arguing, inter alia, that the courts in his prior offenses failed to ascertain his educational background and failed to determine his ability to understand the plea or its consequences. This court rejected his argument, stating that as long as the Boykin requirements are met, “Louisiana courts have not required the state to prove the further elements that defendant raises.” Id. at 604.

Based on the foregoing, the trial court did not err in adjudicating the defendant a second felony offender. This assignment is without merit.

J^ERRORS PATENT

In accordance with LSA-C.O.P. art. 920, all appeals are reviewed for errors patent on the face of the record. A review of the record herein reveals three errors patent.

Transcripts of Sentencing Hearing

The record in this case contains two distinctly different transcripts of the defendant’s sentencing hearing. The defendant filed a post-conviction relief application seeking an out-of-time appeal, and to it, he attached a transcript of his sentencing hearing conducted on June 10, 2003. In that transcript, Donna Frazier was listed as the assistant district attorney, and the trial court sentenced the defendant to 15 years in prison without benefit of probation or suspension of sentence, noting that he was eligible for good time. A second sentencing transcript appears in the appellate record. This transcript listed the same defendant, docket number, and date of sentencing as listed in the first transcript. The defendant was given the same sentence; however, the second transcript listed William Edwards as the assistant district attorney, and the trial court noted that the defendant was not eligible for good time. The minutes indicated that the trial court stated that sentence was to be served without benefit of good time, as reflected in the second transcript.

Upon noticing the disparity between the two transcripts, this court directed the court reporter to review his records to determine which transcript was correct. The court reporter responded that the first transcript attached to the defendant’s post-conviction relief application was the correct 119one. Therefore, we hereby order the second transcript to be removed from the record and the court minutes to be amended to reflect the sentence in the correct transcript.

We note that the defendant may be ineligible for good time credit due to his conviction for distribution of cocaine and his adjudication as a habitual offender. See, LSA-R.S. 15:571.3(C)(1)(s), (C)(2) and (C)(3). However, a trial court lacks the authority to grant or deny good time. Except where otherwise provided by law, the provisions of LSA-R.S. 15:571.3(0 are directed to the Department of Corrections exclusively, and “the sentencing judge has no ... role in the matter of good time credit.” State ex rel. Simmons v. Stalder, 93-1852 (La.1/26/96), 666 So.2d 661, quoting Jackson v. Phelps, 506 So.2d 515, 517-18 (La.App. 1st Cir.), writ denied, 508 So.2d 829 (La.1987); see also, State v. Jones, 2006-2905 (La.8/31/07), 963 So.2d 382; State v. Narcisse, 1997-3161 (La.6/26/98), 714 So.2d 698.

Sentence

Our error patent review also reveals that the trial court failed to specify that the first two years of the defendant’s sentence must be served without benefit of parole, probation or suspension of sentence, pursuant to LSA-R.S. 40:967(B)(4)(b). As noted above, the trial court found the defendant to be a second felony offender and sentenced him to 15 years at hard labor without benefit of probation or suspension of sentence as required by LSA-R.S. 15:529.1(G). We order that the trial court minutes be amended to reflect a sentence of 15 years at hard labor without benefit of | ^.probation or suspension of sentence and without benefit of parole for the first two years.

However, there is no need to remand for correction of the sentencing error. 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 will automatically be served without benefits for the required time period. LSA-R.S. 15:301.1(A); State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790.

Delay for filing Application for Post-Conviction Relief

Our error patent review further reveals that the trial court failed to specifically advise the defendant at sentencing that he has two years from the time of the finality of his conviction and sentence to seek post-conviction relief as required by LSA-C.Cr.P. art. 930.8. The record indicates that the trial court provided the defendant with a form to sign as | uacknowledgment that he had been informed of the time limitation; however, the form is absent from the record. Nevertheless, LSA-C.Cr.P. art. 930.8 contains supplicatory language which does not bestow an enforceable right on an individual defendant. State v. Hunter, 36,692 (La. App.2d Cir.12/20/02), 834 So.2d 6. Furthermore, this defect has no bearing on whether the sentence is excessive and, thus, is not grounds to reverse the sentence or to remand the case for resentencing. State v. Ferrell, 26,649 (La.App.2d Cir.12/7/94), 647 So.2d 427. Therefore, the defendant is advised, by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 and 922.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are hereby affirmed. Further, we order that the transcript which appears in the appellate record be removed from the record and we order the court minutes be amended to reflect the sentence ordered in the correct transcript. Additionally, we order the trial court minutes to be amended to reflect a sentence of 15 years at hard labor without benefit of probation or suspension of sentence and without benefit of parole for the first two years. CONVICTION AFFIRMED; SENTENCE AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . LSA-R.S. 15:529.1(D)(1)(b) provides, in pertinent part:
      [I]f the person claims that any conviction or adjudication of delinquency alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. A person claiming that a conviction or adjudication of delinquency alleged in the information was obtained in violation of the Constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction or adjudication of delinquency which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

      . See also, State v. Wuneburger, 2003-490 (La. App. 5th Cir. 10/15/03), 860 So.2d 78, writ denied, 2003-3357 (La.1/7/05), 891 So.2d 673; State v. Santee, 2002-0693 (La.App. 4th Cir. 12/4/02), 834 So.2d 533.

      . LSA-R.S. 15:301.1(A) 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 which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.

      . LSA-C.Cr.P. art. 930.8(C) provides:
      C. At the time of sentencing, the trial court shall inform the defendant of the prescriptive period for post-conviction relief either verbally or in writing. If a written waiver of rights form is used during the acceptance of a guilty plea, the notice required by this Paragraph may be included in the written waiver of rights.


author: MOORE, J.

text:
    Lori A. RICKS, Plaintiff-Appellee v. CITY OF SHREVEPORT, Defendant-Appellant.
    No. 42,675-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Davis Law Office, LLC, by S.P. Davis, Sr., for Appellant.
    Russell 0. Brabham, Shreveport, for Ap-pellee. ,'
    Before WILLIAMS, CARAWAY and. MOORE, JJ.
   MOORE, J.

I,The City of Shreveport appeals a judgment finding it 25% at fault and ássessing general damages of $100,000 in favor of Lori A. Ricks, who stepped into a storm drain grate located between the sidewalk and the street of her house. Ms. Ricks answers the appeal. We affirm.

Factual Background

Ms. Ricks and her husband moved into the house at 948 Charlotte Street, in the North Market/Aero Drive area of Shreveport, in August 2002. At the time, this area was not inside the city limits, but annexation was before the city council and was approved effective October 4, 2003.

Ms. Ricks testified that as soon as she moved in, she saw the storm drain grate in the ditch between the sidewalk and the street. When she mowed the yard over the last weekend of August 2002, she noticed standing water in the ditch. Concerned, about West Nile Virus, she called the Division of Streets & Drainage to report this. The division thought there was a leak under the sidewalk and made two attempts to patch it, without success.

Meanwhile, however, the City Engineer had designated this portion of Charlotte Street to receive a new water and sewer line. The project was contracted to Southern Soil Environmental, which began work on September 22, 2003 and finished in mid-December 2003. According to Ms. Ricks, the contractors laid a “No Parking” sign across the top of the grate. Apparently the new water and sewer line solved the problem,’ as nobody lodged any more complaints about standing water.

|2Nine months later, on September 14, 2004, Ms. Ricks was cutting the grass and Weed Eating the ditch. She testified that usually her landlord mowed this part of the yard, which was in the city’s right-of-way, and that this was only the second time she had done it herself. Regardless, while wielding the Weed Eater she stepped backward and her left foot went through the grate. She fell straight down, stopping when her foot hit bottom, with the grate . around mid-thigh. She screamed out loud, thinking she had broken her leg.

Dr. Richard Kamm, a general practitioner, extensively described 'Ms. Ricks’s course of treatment. Initially- he diagnosed soft-tissue injuries and treated her conservatively for about three months. In December 2004, however, she started complaining of pain in her mid-and lower back, with limitation of motion, and later, pain radiating from the back into the left leg. When she failed to improve, he ordered an MRI; this showed minimal bulging disks at L4-5 and L5-S1, not apparently impinging on any nerves, but he believed her complaints of constant, debilitating pain.

Dr. Kamm referred her to Dr. Anil Nan-da, a neurosurgeon and chair of the neurosurgery department at LSU Health Sciences Center-Shreveport. He ordered a myelogram and CT scan in February 2006; these showed a bulging L4-5 disk and stenosis from L3 through L5. Both doctors testified that this condition predated the accident. Dr. Nanda thought her present condition was solely a function of her age and overweight, but he admitted that a traumatic incident can make a condition symptomatic. Dr. Kamm agreed that Ms. Ricks had some degenerative disk disease, but he felt that |sthe accident directly caused the bulging disk. Dr. Kamm also admitted that for awhile, Ms. Ricks was taking six Lortabs a day, but he thought this had less to do with addiction than with her intractable pain.

Although he initially thought that surgery would be only marginally helpful, in November 2006 Dr. Nanda performed a laminectomy at L4 and shaved the disks at L3, L4 and L5. This was only 1 ⅜ weeks before trial, so Dr. Kamm had not performed a functional capacity exam or calculated a disability rating.

Ms. Ricks testified that the injury had curtailed her normal activities such as scuba diving, rescue diving and EMS work. At the time of the accident, she was working as a civilian EMS at Barksdale AFB in Bossier City, and left because funding for the job ran out. She testified that she would not be able to work in any position that required her to stay seated a long time. At the time of trial in December 2006, she was doing state vehicle inspections for $2 per vehicle.

Ms. Ricks’s husband, Ronald Ricks, also testified that he had seen the grate as soon as they moved in and noticed that it was bent. Ronald’s employer, Steven Swords, testified that before the Rickses moved in, he had leased the house to use as an office, and was aware the grate was bent as far back as 1997. A neighbor, Mrs. Dorsey, testified that the grate had been bent for at least 13 years. None of these witnesses, however, called the city to report it. Mr. Swords took pictures of the grate shortly after Ms. Ricks fell through it.

|4The photographs, marked “9-14-04,” showed that the metal slats were somewhat widely spaced and, on one side, forced apart, presumably where Ms. Ricks’s leg fell through. Grass was growing over a small portion of the grate. The superintendent of Streets & Drainage, Ernie Negrete, testified that this grate was defective, and had he known of its condition, repairs would have been a simple maintenance matter; however, in 2003 and 2004, his department received no complaints about it. A city administrative assistant, Cassandra Singleton, confirmed that nobody had reported the grate to the city.

The assistant city engineer, Ali Musta-pha, and the assistant superintendent of the Office of Water & Sewerage (“DOW-AS”), Lonnie Fouts, testified that they were not personally aware of the condition of the grate, and nobody had called it to their attention. These witnesses were emphatic that the storm drain grate was part of the Streets & Drainage system to handle runoff rainwater, and in no way connected to the DOWAS lines installed in 2003. Mr. Mustapha admitted that in October 2002, his office received a topographic survey of the area showing the precise location of the grate but not that it was in any way defective. He also admitted that while Southern Soil was performing the contract, a city project manager or city inspector was present periodically to inspect the progress.

Action of the District Court

After trial, the court ruled from the bench. It quoted from Priest v. City of Bastrop, 38,841 (La.App. 2 Cir. 7/11/01), 792 So.2d 80: “The fact that an individual [plaintiff] exposed to a defect has knowledge of its | «¡existence does not mean that a reasonable person [city] having garde over a defective thing has no obligation to take steps to eliminate that risk of harm.” The court then cited the balancing test of Reed v. Wal-Mart Stores Inc., 97-1174 (La.3/4/98), 708 So.2d 362, and accepted Mr. Negrete’s testimony that this repair would have been a simple maintenance item; ergo, the grate posed an unreasonable risk of harm. The court further found constructive notice based on the city engineer’s periodic inspections of the water and sewer project in October 2003. However, the condition of the grate was “open and obvious to all,” as not only Ms. Ricks, but her husband and his employer, all knew about it before the accident. The court therefore allocated fault of 25% to the city and 75% to Ms. Ricks.

As to quantum, the court accepted Ms. Ricks’s statement of special damages, $39,579.29. It found that she was “somewhat fragile medically, but asymptomatic, due to the degenerative problem,” and it was “a coin flip” as to whether the surgery was really necessary. Despite the “paucity of objective indication of injury,” the court awarded general damages of $100,000.

With the reduction for Ms. Ricks’s percentage of fault, the court rendered judgment in her favor for $34,894.82. As noted, the city has appealed, raising two assignments of error, and Ms. Ricks has answered the appeal, also raising two assignments of error.

Discussion: Liability

By its first assignment of error, the city urges the district court erred in allocating only 75% of the fault to Ms. Ricks. First, it submits the grate |fiwas not defective. The city concedes that the court found constructive notice of the defect as required by La. R.S. 9:2800 C, but argues that other facts militate against a finding of defect: there was a total absence of actual notice; the condition of the grate was perfectly apparent to Ms. Ricks and everyone else who lived nearby; and the grate belonged to the parish for at least 13 years before the area was annexed. Second, even if the grate was defective, Ms. Ricks was fully aware of its location and condition; under the factors enunciated in Watson v. State Farm, 469 So.2d 967 (La. 1985), she should be 100% at fault.

Ms. Ricks responds that the court’s finding of a defect was not plainly wrong in light of Mr. Negrete’s admission to that effect. By answer to appeal, she urges the court allocated her too much fault. Even though she had lived there for two years, she. had mowed that area only once or twice and had no other reason to walk around the grate. She submits that her misstep was only a momentary lapse of attention, similar to the plaintiff who lit a cigarette while pumping diesel fuel contaminated with gasoline and was found only 10% at fault in Guidry v. Frank Guidry Oil Co., 579 So.2d 947 (La.1991). By contrast, the city dealt with “banquettes, water meters, drainage grates, manhole covers, etc., on a regular basis,” placing it in a superior position to notice the defect. She concludes the city was 100% at fault, as was found in Lewis v. City of Shreveport, 36,659 (La.App. 2 Cir. 12/11/02), 837 So.2d 44.

| /Under La. C.C. art. 2317, “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” Under La. R.S. 9:2800 C,

[N]o person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

To establish a claim under these provisions, the plaintiff must show (1) the thing which caused the damage was in the care or custody of the public entity, (2) the thing was defective due to a condition that created an unreasonable risk of harm, (3) the public entity had actual or constructive knowledge of the condition yet failed to take corrective action within a reasonable period of time, and (4) the defect was a cause in fact of the plaintiffs harm. Jones v. Hawkins, 98-1259 (La.3/19/99), 731 So.2d 216; Fordham v. Nissan North America, 41,987 (La.App. 2 Cir. 4/4/07), 954 So.2d 346. Constructive notice means the existence of facts which imply actual knowledge. La. R.S. 9:2800 D.

The unreasonable risk of harm analysis requires the: trier of fact to balance the gravity and risk of harm against individual and societal rights and obligations, the thing’s social value and utility, and the cost and feasibility of repairing the defect. Reed v. Wal-Mart Stores, supra; Lawrence v. City of Shreveport, 41,825 (La.App. 2 Cir. 1/31/07), 948 So.2d 1179, unit denied, 2007-0441 (La.4/20/07), 954 So.2d 166. The district ^court’s findings under R.S. 9:2800 are subject to manifest error review. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566; Lawrence v. City of Shreveport, supra. In other words, the court of appeal will not set aside the trier’s findings in the absence of manifest error or unless they are clearly wrong. Henderson v. Nissan Motor Corp., 2003-606 (La.2/6/04), 869 So.2d 62; Johnson v. City of Bastrop, 41,240 (La. App. 2 Cir. 8/1/06), 936 So.2d 292.

The city does not contest that it had custody and control over the grate or that it was the cause in fact of Ms. Ricks’s injuries. The city does assert, in a conclu-sory way, that the grate was not defective, but Mr. Negrete, whose Division of Streets & Drainage manages the city’s storm drains, admitted that this grate was defective. The photos show that several of the slats have been damaged, spread farther apart than reasonably necessary to serve the useful purpose of accepting excess rainwater. The district court was not plainly wrong to find a defect.

The city’s principal argument is lack of notice. We recognize that this grate was not part of the city’s drainage system until annexation some 11 months prior to this accident, and since annexation nobody had lodged any complaint about it. We are also aware that a private contractor performed the street and drainage work on behalf of DOWAS, which did not exercise control over storm drains. However, the record confirms that during the work on the project, an inspector or a project manager — a city employee — was onsite regularly. His frequent presence at or near this grate, in its readily apparent condition, are facts which imply actual knowledge of 19the hazard. La. R.S. 9:2800 D. On this record, we cannot say the district court was plainly wrong in finding that Ms. Ricks proved her claim under La. C.C. art. 2317 and R.S. 9:2800.

Under La. C.C. art. 2323, “If a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.” Comparative fault applies to claims against public entities under La. C.C. art. 2317 and R.S. 9:2800. Priest v. City of Bastrop, supra. In assessing comparative fault, the courts consider (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson v. State Farm, supra. The trial court’s allocation of fault is subject to manifest error review. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607; Priest v. City of Bastrop, supra.

Again, the photographs are more demonstrative than the arguments. In particular, Exhibit P-9 shows a grate in full view, prominently placed between the sidewalk and street. Even in tall grass, this would not be entirely concealed. Having lived in the house for over two years, Ms. Ricks should have been intimately aware of this important part of the drainage system, regardless of the city’s failure to notice and correct it.

|inMs. Ricks urges that her situation is analogous to that of the plaintiff in Guidry v. Frank Guidry Oil Co., supra, but the instant case does not present the truly hidden danger of mislabeled fuel and an ultrahazardous substance like gasoline. Lewis v. City of Shreveport, supra, is also inapposite as in that case the city stipulated its liability. In light of the factors enunciated in Watson v. State Farm, supra, and Priest v. City of Bastrop, supra, we cannot say the district court was plainly wrong to allocate fault 75% to Ms. Ricks and 25% to the city.

These assignments of error lack merit.

Quantum

By its second assignment of error, the city urges the court erred in awarding $100,000 in general damages. It concedes that the court’s factual finding is entitled to great weight and that the presumption of causation applied. Methvin v. Ferguson, 35,138 (La.App. 2 Cir. 9/26/01), 796 So.2d 712. However, it contends that Ms. Ricks received a huge amount of pain medication, declined a conservative steroid injection in favor of major surgery, and had no disability rating. It suggests that for an injury resulting in a bulging disk, an award of $30,000 is appropriate. Harrison v. Richardson, 35,512 (LaApp. 2 Cir. 1/23/02), 806 So.2d 954; Orillac v. Solomon, 33,701 (La.App. 2 Cir. 8/23/00), 765 So.2d 1185; Holford v. Allstate Ins. Co., 41,187 (La.App. 2 Cir. 6/28/06), 935 So.2d 758.

By answer to appeal, Ms. Ricks urges that an accident requiring a multilevel lam-inectomy warrants much greater general damages. In support, she cites Jones Act cases in the $350,000-$400,000 range, as well as slip-|and-fallu cases that affirmed damages in the $200,000-$300,000 range. DeRouen v. Audirsch, 25,847 (La.App. 2 Cir. 6/28/94), 639 So.2d 476; Stewart v. Winn Dixie La. Inc., 96-599 (La.App. 5 Cir. 12/11/96), 686 So.2d 907; Bradford v. Winn Dixie of La. Inc., 94-0667 (La.App. 4 Cir. 12/28/94), 648 So.2d 464. She concludes that the minimum affirmable general damages would be $225,000.

General damages are those which may not be fixed with pecuniary exactitude; instead, they involve “mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms.” Kaiser v. Hardin, 2006-2092 (La.4/11/07), 953 So.2d 802; Nelson v. Southeast Food Inc., 39,157 (La.App. 2 Cir. 1/28/05), 892 So.2d 790. In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion is left to the judge or jury. La. C.C. art. 2324.1; Kaiser v. Hardin, supra. The role of the appellate court in reviewing awards of general damages is not to decide what it considers an appropriate award, but rather to review the exercise of discretion of the trier of fact. Id.; Hae Woo Youn v. Maritime Overseas Corp., 92-3017 (La.9/3/93), 623 So.2d 1257, cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The initial inquiry is whether the trier of fact abused its vast discretion in assessing the amount of damages. Kaiser v. Hardin, supra; Reck v. Stevens, 373 So.2d 498 (La.1979). Only after finding that the trier did in fact abuse its great discretion may the appellate court resort to prior awards, and then only to determine the highest or lowest | ispoint reasonably within that discretion. Kaiser v. Hardin, supra; Coco v. Winston Industries Inc., 341 So.2d 332 (La.1976).

A defendant takes his victim as he finds her and is responsible for all natural and probable consequences of his tortious conduct; where his action aggravates a preexisting condition, he must compensate the victim for the full extent of her aggravation. Touchard v. Slemco Elec. Found., 99-3577 (La.10/17/00), 769 So.2d 1200; Edwards v. LCR-M Corp., 41,125 (La.App. 2 Cir. 7/12/06), 936 So.2d 233.

The district court noted a “paucity of objective indication of injury” and that the need for major back surgery was “a coin flip”; this court would also observe that Ms. Ricks’s neurosurgeon, Dr. Nanda, never linked the surgery to the accident, but rather to degenerative disk disease and the patient’s excessive body weight. These facts completely undermine Ms. Ricks’s claim that the award was insufficient; taken alone, they would support the city’s claim that it was abusively high.

However, the treating physician, Dr. Kamm, testified that physical therapy had been ineffective, that her debilitating pain was related to the accident, and that the surgery was a “last resort.” The district court found that Ms. Ricks was “somewhat fragile medically,” and obviously accepted her descriptions of pain and a diminished lifestyle. There is no compelling reason to overturn the court’s favorable view of her sincerity. Bearing in mind that the city must compensate Ms. Ricks for the full extent of the aggravation of any preexisting condition, we cannot say the district court’s award of general damages is excessive or inadequate. Kaiser v. Hardin, | msupra; Nelson v. Southeast Food Inc., supra.

These assignments of error lack merit.

Conclusion

For the reasons expressed, the judgment is affirmed. The appellate filing fee of $119.50 is to be paid by the City of Shreveport in accord with La. R.S. 13:5112.

AFFIRMED.

      . Overruled on other grounds in Gauthier v. O’Brien, 92-2921 (La.5/24/93), 618 So.2d 825; superseded by 1996 amendment to La. C.C. art. 2323, as recognized in Grayson v. R.B. Ammon & Asso. Inc., 1999-2597 (La.App. 1 Cir. 1 1/3/00), 778 So.2d 1, writs denied, 2000-3270, 3311 (La. 1/26/01), 782 So.2d 1026, 1027.


author: PEATROSS, J.

text:
    The SUCCESSION OF Eloise Mayo PITMAN.
    No. 42,654-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Blackwell, Chambliss, Henry, and Caldwell, by Sam 0. Henry, III, West Monroe, for Appellants, First Baptist Church of West Monroe & The Louisiana Baptist Children’s Home.
    Marshall L. Sanson, Monroe, for Appel-lees, Maxey Mayo and J.R. Mayo.
    Christian C. Creed, Pro Se.
    Before BROWN, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

11 This appeal arises from the succession proceedings of Eloise Mayo Pittman. First Baptist Church of West Monroe (“Church”) and the Louisiana Baptist Children’s Home of Monroe (“Home”), hereinafter collectively referred to as “Petitioners,” assert on appeal the following two assignments of error, verbatim, to wit:

(1) The Trial Judge erred in declining to rule or incorrectly ruling on the issue of the existence or non-existence of a Last Will and Testament allegedly taken by the defendants from decedent’s personal effects.
(2) The Trial Judge erred in failing to conclude that defendants in rule, J.R. Mayo and Maxey Mayo, took possession of a Last Will and Testament of the decedent and failed to produce the testament in response to the court’s orders.

In addition, Petitioners submit that the trial court erred in its assessment of a portion of court costs to the estate. For the reasons set forth below, the above assignments of error are denied.

FACTS AND DISCUSSION

Following the death of Eloise Pitman, the Church filed a petition for probate seeking the appointment of a notary to make a search for Ms. Pitman’s last will and testament. The petition also alleged that the testament was last known to be in the possession of potential intestate heirs, J.R. and Maxie Mayo, who were denying its existence. The court appointed a notary public to conduct a search for the last will and testament and ordered the Mayos to appear and show cause why they should not produce the last will and testament.

The hearing on the Mayos’ possession of a last will and testament was held on September 7, 2005. At the hearing, the Mayos’ local attorney 12testified that, shortly after the death of Ms. Pitman, he accompanied the Mayos to Ms. Pitman’s home to conduct an inventory. During this process, a will executed in April 1993 and notarized by W.A. Hargiss was discovered. The Mayos’ local attorney recalled that the will left a specific parcel of immovable property to her “beloved uncle” T.E. Mayo and the residual portion of her estate to her husband, who had predeceased her. In the event of her husband predeceasing her, the will named, as alternative residual legatees to her estate, the Home in the amount of 70 percent of the estate, and the Church in the amount of 30 percent of the estate. The Mayos’ attorney claimed that Maxie Mayo took the will and told him something to suggest that the parties present were not to acknowledge the existence of that will. Both Maxie and J.R. Mayo denied that a will was ever discovered that day.

At the conclusion of the hearing, the trial court ordered that the notary continue to search for the last will and testament of the decedent, ordered the Mayos to allow him access to their properties for the purpose of conducting that search and ordered the Mayos to produce any purported wills in their possession whether they believed them to be valid or not. After the hearing, counsel for the Church contacted the estate of W.A. Hargiss, the now deceased attorney-notary identified by the Mayos’ attorney as having notarized the will found in Ms. Pitman’s home. As a result, an original copy of a will disposing of Ms. Pitman’s estate executed in April 1998 and conforming with the substance of the will purportedly discovered |sby the Mayos and their attorney was discovered. That will was submitted to the notary, who in turn filed it with the court as the only testament located.

The Home and the Church filed a petition to probate the April 1993 will and for the appointment of an independent executor. The petition was opposed by the Ma-yos, who requested the appointment of a certified document examiner to authenticate the document. An examiner was appointed; and, after a hearing on the probate of the will, the court issued an order on May 12, 2006, probating the will and appointing an independent executor of the succession. That judgment was not appealed.

On June 28, 2006, the trial court issued a judgment ordering the payment by the Church and the Home of the fees incurred by the notary public and the document examiner. On July 13, 2006, the Church and the Home filed a rule to vacate that order and for re-allocation of costs alleging that the fees were incurred as a result of the Mayos’ refusal to produce the will they found in Ms. Pitman’s home. In a supplemental ruling, the trial court equally apportioned the fees and costs of the appointed notary to the succession of Ms. Pitman and the Mayos. It further assessed the Mayos with transcription fees of $440 and additional court costs of $895.25 payable to Ms. Pitman’s succession. The Home and the Church appealed this judgment.

In the brief relative to this appeal, the appellants have assigned error to the alleged failure of the trial court to issue a specific factual finding to the effect that another will existed and that it was taken by the Mayos and holding the Mayos in constructive contempt for their failure to turn over |4said will. The two reasons offered for the necessity of such a determination are: 1) so that the independent executor can confidently disburse and the appropriate legatees accept the estate assets without concern of another will surfacing and, 2) to hold the Mayos in contempt for failing to turn over the will allegedly in their possession.

The record does not establish that the issue of contempt was ever placed before the trial court. It is well settled that courts of appeal may not consider issues which were not raised in the pleadings or addressed by the trial court. Segura v. Frank, 93-1271 (La.1/14/94), 630 So.2d 714, cert. denied, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994). The appellants herein sought to have the last will and testament of the decedent probated. That relief, as prayed for, was granted on May 12, 2006. By its nature, a judgment probating a will does not and cannot guarantee the non-existence of another will. Therefore, to what end was the trial court compelled to issue a specific factual finding as requested by the appellants?. If the trial court found that there had been such a will yet the Mayos refuse to produce it, it cannot be probated. If the trial court had concluded there was no such will, that is not dispositive of whether another will exists, only that the Mayos do not have it.

Furthermore, if we assume for the sake of argument that the issues of a declaratory judgment and for contempt were before the trial court, the silence of the May 12, 2006 final judgment on the merits is deemed to be a denial of the issues. As such, the appellants were obligated to file an appeal from that judgment in order to seek modification of same. They did not do | sso. The motion filed by the appellants on March 21, 2007, seeks a devolutive appeal from the February 23, 2007 cost judgment only. The issues raised in the appellants’ first two assignments of error are, therefore, not properly before the court and, as such, are hereby denied.

The issues raised by the appellants’ first two assignments of error are either non-appealable, because they were not raised at the trial court level, or irrelevant to this appeal.

Costs

Petitioners filed a devolutive appeal of the judgment on costs. Petitioners further specifically contend that the trial court erred in assessing them with any costs of court and in not assessing the expense of taking the deposition of the attorney who purportedly found the will in Mrs. Pitman’s lock box as a cost of court.

A judgment for costs rendered after the final judgment on the merits is a separate and appealable judgment. Hoyt v. State Faim Mutual Automobile Insurance Co., 623 So.2d 651 (La.App. 1st Cir. 1993), unit denied, 629 So.2d 1179 (La. 1993). A probate of a will is a final appealable judgment. Succession of Salzer, 597 So.2d 448 (La.1992); Succession of Roth, 230 La. 33, 87 So.2d 719 (La.1956). The judgment allocating costs in the case sub judice is properly appealed to this court.

Under La. C.C.P. art.1920, “the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” La. R.S. 13:4533 describes the expenses that are allowed to be taxed as costs, which include “the costs of the clerk, sheriff, witness’ fees, costs of | ^taking depositions and copies of acts used on the trial, and all other costs allowed by the court.” Under these statutes, the trial judge has great discretion in awarding costs, and his assessment of costs can be reversed by the appellate court only upon a showing of an abuse of discretion. Barrilleaux v. Franklin Foundation Hosp., 96-0343 (La.App. 1st Cir.11/8/96), 683 So.2d 348, writ denied, 96-2885 (La.1/24/97), 686 So.2d 864; Joe Broadway, Inc., Wholesale Fish v. Dickson, 582 So.2d 967 (La.App. 2d Cir.1991).

The trial court was deliberate and thorough in its allocation of court costs. It carefully reconsidered its initial allocation of costs on Petitioners’ Rule to Vacate Order for Payment of Costs. It also issued written reasons for its allocation of costs in response to the rule. Upon review of the trial court’s reasons and its final allocation, we do not find that the trial court abused its discretion in its allocation of court costs.

In addition, La. R.S. 13:4533 provides that only depositions “used on the trial” can be taxed as costs, and only depositions that are introduced and accepted into evidence are considered “used on the trial” for purposes of the statute. Barrilleaux, supra, citing Succession of Franz, 242 La. 875, 139 So.2d 216 (1962). The deposition of the attorney for the Mayos was not introduced to the trial court, nor was it potentially necessary because their attorney testified in person. Accordingly, the trial court did not abuse its discretion in denying Petitioners’ request for its depositions to be taxed as court costs.

17CONCLUSION

For the foregoing reasons, the judgment allocating court costs is affirmed. Costs of appeal are assessed to Petitioners.

AFFIRMED.