author: McCLENDON, J.

text:
    STATE of Louisiana v. Michael KELLY.
    No. 2005 KA 1913.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      Samuel C. D’Aquilla, District Attorney, Haley Major Green, Jesse L. Means, Jr., Assistant District Attorneys, St. Francis-ville, Counsel for Appellee State of Louisiana.
    Bertha M. Hillman, Thibodaux, Counsel for Defendant/Appellant Michael Kelly.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

| ^Defendant, Michael Kelly, was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1. Defendant pled not guilty and was tried before a jury. The jury found defendant guilty. The trial court sentenced defendant to a term of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence.

Defendant appeals. After reviewing the record, we find no merit to any of his assignments of error and affirm his conviction and sentence.

FACTS

Defendant and Joseph Chase, the victim, were both inmates incarcerated at the Louisiana State Penitentiary (LSP) in Angola. Defendant and the victim were assigned to the same cell, located in Camp D, Raven 4. Prior to the incident at issue, the men had been cellmates for approximately six weeks. On February 26, 2004, around 6:00 in the evening, defendant and Chase were escorted to the shower cell located at the end of the tier by Sergeant Henry Lavalais. Sergeant Lavalais locked them in the shower cell, and left for a brief period in order to complete a scheduled check of the inmates on the tier. Sergeant Lavalais was not gone very long when he heard a noise coming from the shower cell. Sergeant Lavalais returned to the shower cell and saw defendant repeatedly stabbing the victim. Defendant stopped his attack of the victim when ordered to do so by Sergeant Lavalais. Defendant refused to hand over the knife he was holding to Sergeant Lavalais, but eventually handed the knife to Sergeant Matthew Stokes, who came upon the scene shortly after the stabbing ceased.

Defendant, who was clad only in white boxer shorts, was removed from the shower cell. The victim, who was naked, was taken to the medical facility where he died. Dr. Alfredo Suarez performed the autopsy on the ^victim and was accepted by the trial court as an expert in forensic pathology. According to Dr. Suarez, the victim bled to death as a result of receiving thirteen stab wounds and fourteen incise (cut) wounds. Dr. Suarez testified that three of the stab wounds would have been fatal by themselves. Dr. Suarez also testified that the wounds were consistent with a knife blade, probably five inches long. Dr. Suarez agreed that the homemade knife seized from defendant was the type of weapon that could cause the wounds sustained by the victim.

The homemade knife, or shank, was seized from defendant at the time of the incident. Both Sergeants Stokes and La-valais observed defendant with the weapon in his hand. No weapon was recovered from the victim.

Lieutenant Trent Barton, an investigator employed at LSP, learned that defendant might have concealed the weapon in a Bible. A search of defendant’s cell revealed a Bible laying on top the mattress of defendant’s top bunk. The Bible had paper wrapped around it, resembling a homemade folder. Lt. Barton testified that the back of the Bible had been cut where something could be placed inside of it.

The investigation of the incident also resulted in two letters written by defendant that were seized by prison security.

The defendant did not testify at trial.

CHARACTER EVIDENCE OF VICTIM

In his first assignment of error, defendant argues that the trial court erred in sustaining the State’s objection to the introduction of character evidence of the victim. During the direct examination of Fabien Harper, an inmate who had previously shared a cell with the victim, defendant attempted to introduce evidence of the dangerous character of the victim. |4The trial court sustained an objection by the State to the introduction of such evidence and defendant objected to the trial court’s ruling.

Louisiana Code of Evidence art. 404(A), governing the admissibility of character evidence, provides in part:

A. Character evidence generally. Evidence of a person’s character or a trait of his character, such as a moral quality, is not admissible for the purpose of proving that he acted in conformity .therewith on a particular occasion, except:
(2) Character of victim, (a) Except as provided in Article 412, evidence of a pertinent trait of character, such as moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence; provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible; provided further that when the accused pleads self-defense and there is a history of assaultive behavior between the victim and the accused and the accused lived in a familial or intimate relationship such as, but not limited to, the husband-wife, parent-child, or concubinage relationship, it shall not be necessary to first show a hostile demonstration or overt act on the part of the victim in order to introduce evidence of the dangerous character of the victim, including specific instances of conduct and domestic violence; .... (Emphasis added.)

Thus, evidence of a person’s character generally is not admissible to prove that the person acted in conformity with his or her character on a particular occasion. However, there are several specific exceptions to this general rule. With respect to evidence of the dangerous character of the victim of a crime, such evidence is admissible (1) when the accused offers appreciable evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, or (2) when the accused, relying on the defense of self-defense, establishes (a) a history of assaultive behavior between the victim and the accused and (b) a familial or intimate relationship between the victim and the accused. State v. Rodrigue, 98-1558, pp. 4-5 (La.4/13/99), 734 So.2d 608, 610-11.

| ¡¿Defendant claimed he acted in self-defense and sought to introduce evidence of the victim’s dangerous character through the exception found in LSA-C.E. art. 404(A)(2). Under this exception, before evidence of the victim’s dangerous character can be introduced, it must first be established that a history of assaultive behavior existed between the victim and the defendant and a familial or intimate relationship existed between the victim and the defendant.

In the present case, Harper testified that he had been cellmates with the victim for approximately two weeks before being reassigned. Harper described the victim as “a bully” before the trial court sustained the State’s objection to his testimony.

At the time the trial court sustained the State’s objection, the only requirement of the Article 404(A)(2) exception that had been established was that the victim and defendant lived in the same cell for a period of six weeks prior to the victim’s death. No proffer of evidence was made by the defendant. While defendant argues that such a relationship qualifies as an “intimate” relationship for purposes of the code article, we note that defendant failed to establish that there was a history of assaultive behavior between the victim and defendant. Thus, the requirements of the exception had not been met at the time defendant sought to introduce evidence of the victim’s dangerous character. We note that none of the witnesses who testified for defendant indicated that any assaultive behavior existed between the victim and defendant. Although one fellow inmate claimed to have heard raised voices coming from defendant’s cell on occasion, no evidence was presented that the relationship between the victim and defendant had ever become physical. Accordingly, the proper foundation was never | ^established in order for defendant to introduce evidence of the victim’s dangerous character.

Furthermore, we disagree with defendant’s argument that his relationship to the victim, which consisted of sharing a ten-by-ten foot cell for six weeks, qualifies as an intimate relationship for purposes of the article 404(A)(2) exception. Neither defendant nor the State cite any jurisprudence to support whether the relationship between cellmates can qualify as “intimate.” However, Black’s Law Dictionary defines “intimate” as, “[cjlose in friendship or acquaintance, familiar, near, confidential.” Black’s Law Dictionary 821 (6th ed.1990). In brief, defendant states the following, “Certainly, there is no evidence to suggest that these two men were involved in a sexual relationship and that is not being suggested by this argument.” As the State points out in brief, the victim and defendant may have shared physical living space, but there was no familial or intimate relationship between them. Two letters written by defendant reflect defendant wanted to be moved to another cell. Testimony by inmates Ronald Jones, Troy Payne, Dan Barrios, and Derrick Curry, indicated that defendant had requested a cell change.

In this case, we do not And that the mere living in close quarters without some evidence of a close personal relationship qualifies as an intimate relationship for purposes of the LSA-C.E. art. 404(A)(2) exception to the prohibited admission of evidence of the dangerous character of the victim. The purpose of establishing this particular exception was to provide a certain measure of relief for defendants in the so-called “battered wife” cases. We realize that there are broader categories of domestic situations beyond the husband-wife relationship where this exception could apply; however, all of those situations would include an intimate personal or sexual ^relationship and there has been no evidence of such a relationship between the victim and the defendant introduced in the present case. Moreover, defendant failed to proffer the evidence of the victim’s dangerous character that he was allegedly prevented from presenting to the jury. Therefore, even if this Court were to conclude an “intimate” relationship existed, there is nothing for us to review without a proffer. LSA-C.E. art. 103(A)(2); see State v. Lynch, 94-0543, pp. 17-18 (La.App. 1 Cir. 5/5/95), 655 So.2d 470, 480, writ denied, 95-1441 (La.11/13/95), 662 So.2d 466. Finally, the only argument in the defendant’s brief is that the victim was a “bully,” and such evidence was presented to the jury anyway.

The trial court properly sustained the State’s objection barring the admissibility of evidence of the dangerous character of the victim. This assignment of error is without merit.

SUFFICIENCY OF THE EVIDENCE

In his second assignment of error, defendant argues that the evidence was insufficient to support Ms conviction for second degree murder. Specifically, defendant argues that the State failed to establish that defendant had the specific intent to kill the victim and that he was not acting in self-defense.

The standard of review for the sufficiency of evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. See LSA-C.Cr.P. art. 821; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Our standard of review is an objective ¡^standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Williams, 01-0944, p. 5 (La.App. 1 Cir. 12/28/01), 804 So.2d 932, 939, writ denied, 02-0399 (La.2/14/03), 836 So.2d 135.

Second degree murder is defined, in pertinent part, by LSA-R.S. 14:30.1(A)(1) as “the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm .... ” Specific intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent need not be proven as a fact and may be inferred from the circumstances present and the actions of the defendant. Williams, 01-0944 at p. 5, 804 So.2d at 939. In the instant case, defendant does not deny that he stabbed the victim, or that the victim died as a result of the wounds he inflicted. Defendant argues instead that he stabbed the victim in self-defense.

When the defendant in a homicide prosecution claims self-defense, the State must prove beyond a reasonable doubt that the homicide was not committed in self-defense. Louisiana Revised Statute 14:20(1) provides that a homicide is justifiable when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save him from that danger. On appeal, the relevant inquiry is whether or not, after viewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found beyond a reasonable doubt that the .[¡¡defendant did not act in self-defense. Williams, 01-0944 at pp. 5-6, 804 So.2d at 939.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder’s determination of guilt. Williams, 01-0944 at p. 6, 804 So.2d at 939.

Viewing the evidence in the light most favorable to the prosecution, we find that the evidence sufficiently supports defendant’s second degree murder conviction. Sergeant Lavalais testified that he saw defendant stabbing the victim multiple times. The victim was not armed, nor was there ever any evidence that the victim initiated a confrontation with defendant in the shower. The autopsy revealed that the victim sustained thirteen stab wounds and fourteen cuts. There was no evidence that defendant sustained any injury during the shower incident.

In a letter written by defendant to Lynn Tavceda, who is identified as defendant’s sister, defendant wrote, “After trying to get moved into another cell w/no luck I just said f— everything, I’m gona [sic] f— his stupid ass up.” In the same letter, defendant also wrote that he could have gotten around killing the victim, but “I didn’t want to go that route.” In a second letter written by defendant to his friend, James Allison, dated March 2, 2004, defendant tells his friend of killing the victim and writes, “And maybe there could’ve been another way of getting around that.” Although both of defendant’s letters indicate he was having problems with the victim and had|inrequested a cell change, there was no evidence from any of the LSP employees that defendant wanted to change cells. Moreover, defendant’s letters do not indicate precisely what type of problems he was having with the victim.

Because of the multiple stab wounds inflicted on the unarmed victim, the absence of any action on the part of the victim to provoke defendant, and defendant’s admissions in his letters that he wanted to hurt the victim, the jury clearly had a basis to conclude that defendant intended to kill the victim and his action was not in self-defense.

This assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

      . Although we acknowledge that the examples given in Article 404(2)(A) of a husband-wife, parent-child, or concubinage relationship are non-exclusive, they are illustrative of the types of relationships intended to be included in the exception.


source: Caselaw Access Project

author: WHIPPLE, J.

license: Public Domain

text:
    STATE of Louisiana v. William BROWN.
    No. 2005 KA 1676.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      Juan Pickett, Houma, for Appellee, State of Louisiana.
    Bertha Hillman, Thibodaux, for Defendant/Appellant, William Brown.
    Before: WHIPPLE, McCLENDON and WELCH, JJ.
   WHIPPLE, J.

|¡,The defendant, William Brown, was charged by grand jury indictment with one count of first degree murder, a violation of LSA-R.S. 14:30, and pled not guilty. Pri- or to the commencement of trial, the charge was amended to one count of second degree murder, a violation of LSA-R.S. 14:30.1, and the defendant pled not guilty to the amended charge. Following a jury trial, he was found guilty as charged by a unanimous verdict. He was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. He now appeals, designating two assignments of error. We affirm the conviction and sentence.

FACTS

On January 1, 2003, the victim, Richard Joseph Lodrigue, was shot to death outside the home he shared with his fiancée and daughter in Ashland North in Terre-bonne Parish. He suffered multiple gunshot wounds to his chest. The victim’s neighbor, Joshua Day, was also shot during the incident.

The victim’s pregnant fiancée, Jessica Sue Plaisance, was standing next to him during the shooting and gave the following account of the incident. On December 31, 2002, at approximately 11:00 p.m., the victim was outside of his house with two of his nephews, Plaisance, Day, and Day’s girlfriend, Rebecca Parfait, shooting off fireworks when at least five men walked past the house. The victim knew some of the men, shook hands with them, and the men continued on without incident. Day then told the victim that the men had “jumped [Day]” a week | .¡earlier.

Shortly thereafter, the men returned with approximately six other men and began slowly walking toward the victim and the other people standing outside with him. All of the men, with the exception of the defendant, stopped short of reaching the victim. The defendant approached the victim and Day and questioned them concerning which of them had stated that the group of men had “jumped y’all[.]” The victim told the defendant, “Look, we don’t want no trouble. We got kids out here. Y’all just go.”

The defendant responded to the victim’s comments by running to him and shooting him in the chest at least three times. After shooting the victim, the defendant continued firing, striking Day and a parked vehicle. The defendant and the other men then fled from the scene. Thirteen shell casings were subsequently recovered from the scene.

Parfait also testified at trial. She saw the defendant pointing a gun at the victim and Day as he questioned them concerning who had claimed to have been “jumped[.]” She then backed away and heard gunshots.

Jermaine Timothy Verdin also testified at trial. He indicated there was animosity in the neighborhood between the men from Ashland and those from Dulac and that, approximately two months prior to the incident, he and six to eight other men had beaten up Day. On the night of the incident, but prior to the shooting, Verdin and his cousin, Ray Verdin, had gone to the defendant’s trailer, where he saw the defendant’s brother, David “Peaches” Theri-ot, Jamar “Old School” Williams, Lionel “Nig” Lewis, Shawn “Twerk” “Turk” Allen, Jerome “Buff’ Scott, LJoshua “Rash Meat” Mosely, Derrick “Dog Man” “D-Love” Robinson, and Richard Nelson. Outside the trailer, the defendant was shooting a .22 caliber pistol at the ground and in the air. Inside the trailer, the other young men were talking and playing video games. At some point, Allen left to go to his house. When he returned, he told the men at the trailer that there were some “Dulac boys” down the street shooting off firecrackers and “talking -.” Everyone at the trailer then left to go fight with the “Dulac boys”-r-the victim and Day.

After the group of men arrived at the victim’s house, the victim recognized Jermaine, Ray Verdin and Robinson and greeted them. Theriot stated, “[M]an, they ain’t about-[,]” and the group of men left without incident. After the group of men arrived back at the trailer, the defendant left. He returned, however, claiming that the victim and Day had tried to “jump” him. The defendant and all of the men from the trailer then went back to the victim’s house.

The defendant and Theriot got closer to the victim and Day than the other men. The victim asked the defendant and the group of men why they had to come to his house and mess up his New Year’s celebration. The victim stated he was just trying to have fun with his kids. Day said that the group of men was the same group that had previously “jumped” him. A “little argument” started between the victim and the defendant, and the defendant pulled out the gun he had fired at the trailer previously. Jermaine Verdin did not see anyone else with a gun. The victim asked the defendant why he had to use a gun; why could he not fight with his hands. According to Verdin, the defendant pointed the gun at the victim’s “face, and stuff[ ]” and fired at least five times. Jermaine Verdin then ran away.

IsWhen questioned by the police following the shooting, the defendant denied shooting anyone and claimed he was not present at the scene at the time of the shooting.

At trial, the defense argued there was a close resemblance between Theriot and the defendant, and the witnesses who claimed to have seen the defendant shoot the victim had mistaken the defendant for his brother, Theriot.

CHALLENGES FOR CAUSE

In assignment of error number 1, the defendant contends the trial court erred in denying the defense challenges for cause. Specifically, he argues the court erred in its denial of challenges for cause against prospective jurors Theophile A. Torres, Jr., Ira L. Davis, Michael R. Adams, Sandra Ann Scott, and Sophia A. Seymore. He argues that these prospective jurors indicated they would believe the testimony of a police officer over a layperson and were never rehabilitated.

Louisiana Code of Criminal Procedure art. 797, in pertinent part, provides:

The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;

(4) The juror will not accept the law as given to him by the court; or ....

A trial court’s ruling on a motion to strike jurors for cause is afforded broad discretion because of the court’s ability to get a first person impression of prospective jurors during voir dire. State v. Kang, 2002-2812, p. 6 (La.10/21/03), 859 So.2d 649, 653-54.

However, prejudice is presumed when a trial court erroneously denies a challenge for cause and the defendant ultimately exhausts his peremptory challenges. This is because an erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error. Therefore, to prove there has been an error warranting reversal of a conviction and sentence, a defendant need only show: (1) the trial court’s erroneous denial of a challenge for cause; and (2) the use of all of his peremptory challenges. Kang, 2002-2812 at p. 3, 859 So.2d at 651-52.

Generally, an individual who will unquestionably credit the testimony of law enforcement officers over that of defense witnesses is not competent to serve as a juror. However, a mere relationship between a prospective juror and a law enforcement officer is not of itself grounds to strike the juror for cause. Additionally, a prospective juror’s seemingly prejudicial response is not grounds for an automatic challenge for cause, and a trial judge’s refusal to excuse him on the grounds of impartiality is not an abuse of discretion, if after further questioning the potential juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. But, a challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render a judgment according to law may be reasonably implied. Kang, 2002-2812 at pp. 4-5, 859 So.2d at 652-53.

During the voir dire examination of the first panel of prospective jurors, Torres indicated that, if everything else was equal, he would believe a policeman more than a layperson due to his respect for the uniform. Seymore indicated she |7was friends with at least three sheriffs deputies. She indicated that, under the circumstances referenced by Torres, if a Terre-bonne Parish Sheriffs Deputy testified, she would believe him. Defense counsel asked the other members of Panel # 1 if any of them felt the same way as Torres and Seymore. Davis, Scott, and Adams all answered affirmatively.

The court stated it “need[ed] to figure something out” with Torres, Scott, Adams, and Davis. The court asked Scott, if a police officer with fifteen years experience as a police officer came before her, would the fact of his experience possibly influence her to believe him over someone else who did not have so much experience. Scott answered, “Maybe at first, until I hear the whole case,” but that she would then decide from there. Scott initially indicated that part of the reason why she would believe a police officer was because he may have training that would make him more observant to a particular crime. The court asked Scott, if a police officer testified he went to school to learn how to test people for driving while intoxicated by performing a test with their eyes, or making them walk a certain kind of line, or performing some kind of chemical test, would that fact be one reason why she might believe him over someone else. Scott answered, “I think so.” Thereafter, Davis, Torres, Scott and Adams indicated they agreed with what the court had said.

However, the court then offered another scenario. The court asked Torres, Scott, Adams, and Davis to imagine a policeman with two days experience testifying that although his radar gun was broken, he thought he could judge how fast people were going, and he thought two truck drivers were driving over the speed limit. The court then asked the referenced prospective jurors to imagine that the truck drivers, a husband and wife, testified that they had been driving for |stwenty years, had never had a ticket, and knew they were going 55 miles per hour. Davis indicated, in the court’s scenario, he would probably believe the truck driver. Scott, Adams, and Torres all indicated they would believe the truck driver in the court’s scenario.

The court further asked Davis, was he saying he would believe a policeman over a layperson just because of the uniform. Davis replied negatively, and added “it would depend on the circumstances and if all things were equal[,]” but indicated that was “not the total case.” When asked to elaborate on what he meant by “all things were equal[,]” Davis indicated he had respect for authority. He added, if the court was asking him whom he would believe, then “there wouldn’t be any difference.”

Defense counsel challenged Torres, Davis, Adams, Scott, and Seymore for cause arguing Torres and Davis had stated they would believe a policeman more than a layperson and the other referenced prospective jurors had agreed. The court denied the challenges, and the defense subsequently exhausted all of its peremptory challenges.

There was no error in the denial of the challenges for cause. Torres’s answer that he would believe a policeman more than a layperson out of respect for the uniform was conditioned by his statement, “if everything was equal[.]” He elaborated on his answer by stating he would believe the policeman over a lay witness if the policeman and the lay witness had the exact same story under the exact same circumstances. Thus, neither Torres nor the other prospective jurors who agreed with his answer, including Seymore, were incompetent to serve as jurors who would unquestionably credit the testimony of law enforcement officers over that of defense witnesses. Indeed, when Davis was asked to elaborate on |3what he meant by “all things were equal[,]” he indicated he had respect for authority. He added, if the court was asking him whom he would believe, then “there wouldn’t be any difference.”

Moreover, in regard to Torres, Davis, Adams, and Scott, even if their initial responses indicated they were not impartial, they were rehabilitated following the additional questioning by the trial court. See Kang, 2002-2812 at p. 7, 859 So.2d at 654 (no abuse of discretion in denying challenge for cause against prospective juror where review of entire voir dire indicated juror would give more weight to testimony of deputies on the basis of their training).

This assignment of error is without merit.

DENIAL OF MOTION TO PROFFER

In assignment of error number 2, the defendant contends the trial court erred in denying the defense motion to proffer testimony. He references the voir dire transcript from the case of State of Louisiana versus Jerome Ayro, Thirty-second Judicial District Court docket # 406,814. The defendant claims he wanted to proffer the Ayro voir dire transcript to establish that some of the same prospective jurors at issue herein had been dismissed for cause two days earlier in the Ayro trial. The State argues the trial court accepted the proffer and the transcript of voir dire is in the record. The State is correct.

This assignment of error likewise is without merit.

CONVICTION AND SENTENCE AFFIRMED.

WELCH, J., concurs without reasons.

      . Deputy Coroner Dr. Charles Ledoux, who performed the autopsy on the victim, testified that an examination of the victim's body revealed entrance wounds left of his left nipple, right of his midline incision, and in his left shoulder, but added that the entrance wounds were obscured by surgical incisions.

      . Ray Verdin testified that Lewis was also the defendant’s brother.


author: DOWNING, J.

text:
    STATE of Louisiana In the Interest of D.A.G.-DOB: 8/14/98 L.D.G.-DOB: 6/6/00 J.O.G.-DOB: 11/30/95 C.D.G.-DOB: 3/19/97 L.G.G.-DOB: 10/16/01.
    No. 2005 CJ 1806.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      Y.G., Hammond, Appellant In Proper Person.
    Blaire Edwards, Office of the Public Defender, Hammond, Counsel for Minor Children.
    Theresa Beckler, Covington, Counsel for the Department of Social Services.
    Michael Mclntire, Hammond, Counsel for Appellee Father of L.G. (C.C.).
    Leslie McAndrew, Denham Springs, Counsel for Appellee Unknown Father of J.G.
    Esther A. Redmann, Slidell, Counsel for Appellee Unknown Father of C.G.
    Before: CARTER, C.J., DOWNING = and GAIDRY, JJ.
   DOWNING, J.

| gY.G. appeals a judgment terminating her parental rights to five children and certifying the children to be free for adoption.. In her two page, handwritten appellant’s brief, she complains that she did not have a lawyer -to help her write her brief, that she did not receive a fair trial, that her lawyer “was never for me,” apparently that the lawyer and the Department of Social Services/Office of Community Services worker lied to her, and that no one will help her. For the following reasons, we remand for appointment of new counsel to assist Y.G., with instruction.

FACTS AND PROCEDURAL HISTORY

The State Department of Social Services/Office of Community Services (DSS) took Y.G.’s five children into custody on or about January 11, 2002. These children are D.A.G., L.D.G., J.O.G., C.D.G., and L.G.G., all born between August 1998 and October 2001. On January 17, 2002, the trial court signed an order appointing Ma-rylin Noble Arnold as attorney for Y.G.

The children were adjudicated to be children in need of care on November 19, 2002, by stipulation, without admission to the allegations. On September 7, 2004, DSS filed a petition to terminate the parental rights of Y.G. and the various fathers of the children. The trial of this matter was held on January 18, 2005. At trial, Y.G. stipulated that grounds existed for the termination of her parental rights. After finding a factual basis for the stipulation, the trial court entered judgment terminating all of Y.G.’s parental rights and responsibilities. Judgment was signed on May 11, 2005.

|aOn May 31, 2005, Ms. Arnold, Y.G.’s attorney, filed a notice of appeal on Y.G.’s behalf. On June 2, 2005, Ms. Arnold filed a motion to withdraw as counsel primarily on the basis that she would have a conflict of interest due to her participation in Y.G.’s stipulation to the termination of her parental rights, which stipulation would be the basis of the appeal. On the same day, the trial court signed the attached order with the following notation: “Denied — appeal pending.”

On July 5, 2005, Ms. Arnold filed a motion to allow Y.G. to proceed with her appeal informa pauperis. The trial court signed the order allowing Y.G. to proceed informa pauperis on July 7, 2005.

On September 12, 2005, this court signed an order allowing Ms. Arnold to withdraw as counsel of record. The bases of her motion to withdraw were: 1) an insurmountable conflict of interest in that Y.G. claims she did not understand the stipulation she entered while Ms. Arnold asserts that she thoroughly explained the stipulation to Y.G.; and 2) Y.G.’s dissatisfaction with Ms. Arnold’s representation and possible irreparable harm should Ms. Arnold not be allowed to withdraw.

DISCUSSION

Right to Counsel

Constitutional due process mandates the appointment of counsel to represent indigent parents in proceedings where the state seeks to terminate parental rights to a minor child. In re Johnson, 465 So.2d 134, 138 (La.App. 1 Cir.1985). This right is codified in La. Ch.C. art. 1016. Accordingly, the trial court appointed Ms. Arnold as attorney to represent 14Y.G. This court allowed Ms. Arnold to withdraw without appointing substitute counsel for Y.G.

On appeal, counsel for an indigent entitled to appointed counsel must act as an active advocate in behalf of his client. See Anders v. State of Cal., 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). The attorney’s role as advocate requires that he or she support the client’s appeal to the best of his or her ability. Id. It amounts to ineffectiveness where counsel files a motion for appeal but fails to pursue the appeal. State v. Bienemy, 483 So.2d 1105, 1107 (La.App. 4 Cir.1986), citing State v. Simmons, 390 So.2d 504 (La.1980).

Y.G. has a right to suspensively appeal. La. Ch.C. art. 336B. She has manifested her desire to appeal by having her attorney file a notice of appeal and by filing a pro se appellate brief. The trial court has twice determined her to be indigent. Therefore, we find merit in Y.G.’s argument that she has been deprived of the assistance of counsel.

Duties of Counsel

Accordingly, we direct the trial court to appoint new counsel by May 19, 2006, to assist Y.G. with the preparation of her appeal. In accordance with our order below, appointed counsel is to review the record and file a brief with this court assigning errors and making argument in accordance with the Louisiana Uniform Rules, Courts of Appeal, supporting Y.G.’s appeal to the best of his or her ability. See Anders, 368 U.S. at 744, 87 S.Ct. at 1400.

However, should counsel find no valid, good-faith (i.e., non-frivolous) grounds for appeal after conscientious examination of the record, counsel should so advise this court and request permission to withdraw. Id. The Supreme Court explained:

| sThat request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal ... or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Id.

ORDER

We direct the trial court to appoint new counsel by May 19, 2006 to assist Y.G. with the preparation of her appeal. The clerk for the City Court of Hammond, Louisiana is to promptly supplement the appellate record with a copy of the order of appointment.

Pursuant to Anders and Louisiana jurisprudence governing appellate counsel for indigent defendants entitled to appointment of counsel, we order counsel to review the record and either file a brief by June 26, 2006 containing assignments of error and argument addressing the assigned errors in accordance with the Louisiana Uniform Rules, Courts of Appeal, or, should counsel find no valid basis for appeal, counsel shall comply with the requirements of State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam), and State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990) by June 26, 2006.

APPOINTMENT OF NEW ATTORNEY ORDERED; ORDER

CARTER, C.J., and GAIDRY, J„ concur.

      . We identify appellant by her initials because of the sensitive and confidential nature of this case and because of the indeterminate resolution herein.

      . The parental rights of the fathers were terminated as well, but none of them appeal here.

      . But see In re Rodrigue, 95-0009, pp. 2-5 (La.App. 1 Cir. 6/23/95), 657 So.2d 648, 650-51, where we held that in an intrafamily adoption proceeding, an indigent biological father was not entitled to appointed counsel where grandparents, and not the state, were seeking to terminate the indigent’s parental rights through adoption.


author: GUIDRY, J.

text:
    Thomas E. SUND v. ST. HELENA PARISH SCHOOL BOARD.
    No. 2005 CA 2473.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      J. Craig LeJeune, Baton Rouge, Counsel for Plaintiff-Appellee Thomas E. Sund.
    Franklin V. Endom, Jr., Robert L. Ham-monds, Baton Rouge, Clifton T. Speed, Office of District Attorney, Greensburg, Counsel for Defendanh-Appellant St. Helena Parish School Board.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

|2A local school board appeals a trial court’s order for the issuance of a writ of mandamus directing the school board to offer a two-year employment contract to an employee. Based on the applicable law, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 1, 2003, the St. Helena Parish School Board (“Board”) entered into a “Contract of Employment for Administrative or Promotional Appointment” with Thomas Sund, employing him as an assistant principal for a period of two years, from July 1, 2003 through June 30, 2005, at a salary of $48,125 per year. Mr. Sund was initially assigned to perform his job duties of assistant principal at the St. Helena Central Elementary School.

A year later, Mr. Sund received a new appointment to work as assistant principal at St. Helena Central High School. In conjunction with the new appointment, Mr. Sund’s salary was increased to $49,875 per year. Upon being appointed to the new position, Mr. Sund requested a new, two-year contract for the position he held. His request was denied, prompting Mr. Sund to file a petition for the issuance of a writ of mandamus directing the Board to offer him a new contract for the position of assistant principal at the high school.

The matter was presented to the trial court. After taking the matter under advisement and considering post-trial briefs filed by the parties, the trial court issued a writ of mandamus directing the Board to offer Mr. |sSund “a contract of employment for a minimum of two years, from July 1, 2004 — June 30, 2006, at an annual salary of $49,875.00.” It is from the issuance of the writ of mandamus that the Board suspensively appeals.

ASSIGNMENT OF ERROR

On appeal, the Board contends that the trial court erred in issuing a writ of mandamus commanding it to grant Mr. Sund a new, two-year employment contract. Mr. Sund answered the appeal requesting expedited consideration and attorney fees for work performed by counsel in opposing the appeal.

APPLICABLE LAW

Article 3863 of the Louisiana Code of Civil Procedure provides that a “writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law...;” however, as indicated in La. C.C.P. art. 3862, use of this extraordinary remedy is limited to situations “where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice[.]”

Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised. The remedy is not available to command the performance of an act that contains any element of discretion, however slight. Allen v. St. Tammany Parish Police Jury, 96-0938, p. 4 (La.App. 1st Cir.2/14/97), 690 So.2d 150, 153, writ denied, 97-0599 (La.4/18/97), 692 So.2d 455. Further, mandamus is to be used only when there is a clear and specific legal right to be enforced or a duty that ought to be performed. It never issues in doubtful cases. Wiginton v. Tangipahoa Parish Council, 00-1319, p. 4 (La.App. 1st Cir.6/29/01), 790 So.2d 160, 163, writ denied, 01-2541 (La.12/7/01), 803 So.2d 971.

| ¿DISCUSSION

In bringing this appeal, the Board contends that the trial court erred in finding that La. R.S. 17:444(B) mandated that Mr. Sund be offered a new, two-year contract of employment under the circumstances. We disagree.

Louisiana Revised Statute 17:444(B) provides, in pertinent part:

B. (1) Whenever a teacher who has acquired permanent status, as set forth in R.S. 17:442, in a parish or city school system is -promoted by the employing school board by moving such teacher from a position of lower salary to one of higher salary, such teacher shall not gain permanent status in the position to which he is promoted, but shall retain permanent status acquired as a teacher, pursuant to R.S. 17:442.
(3) ... whenever a person is employed to take a position that pays a higher salary than that paid to a teacher in the system and the employment in the position of higher salary requires a teaching certificate or any appropriate administrative/supervisory endorsement, or both, all the provisions of this Subsection with regard to employment pursuant to a written contract containing performance objectives for a period of not more than four nor less than two years shall apply.
(4)(a)(i) ... the employment provided for in this Section shall be for a term of not less than two years, except when such employment is for a temporary position, nor more than four years, and said term shall be specified in a written contract, which shall contain performance objectives. (Emphasis added.)

In accordance with these provisions, the Board offered Mr. Sund a two-year contract of employment appointing him to the position of assistant principal, for a period commencing on July 1, 2003 and ending on June 30, 2005. The contract specifically provided that (1) Mr. Sund be paid an annual salary of $48,125; (2) the Board had the right to transfer or reassign Mr. Sund to a position for which he is certified and which is of equal pay, rank, and dignity when the Board determined it to be in the best interest of the school system to do so; (3) Mr. Sund understood that his employment was not at a | ^particular school site; and (4) if during the term of the contract Mr. Sund “is offered an appointment to a position of higher salary, then the acceptance of such appointment shall cause [the] contract to have no further affect whatsoever, as of the date of acceptance.” (Emphasis added.)

At an August 9, 2004 meeting of the Board, the Board approved the administrative transfer of Mr. Sund from assistant principal of St. Helena Central Elementary School to assistant principal of St. Helena Central High School, effective July 30, 2004, for the 2004-2005 school year. Along with the transfer, Mr. Sund’s pay rate was increased to $49,875 annually, effective July 30, 2004. Mr. Sund held the position of St. Helena Central High School Assistant Principal until June 13, 2005, on which date he was reassigned to the position of assistant principal of St. Helena Central Middle School.

Considering these facts in conjunction with the express provisions of La. R.S. 17:444(B), the Board was required to offer Mr. Sund a new, two-year contract. Louisiana Revised Statutes 17:444(B) expressly states that “whenever a person is employed to take a position that pays a higher salary than that paid to a teacher in the system... all the provisions of this Subsection with regard to employment pursuant to a written contract.. .for a period of not .. .less than two years shall apply.” Thus, to be in compliance with this statute, Mr. Sund’s employment, in a position that pays a higher salary than that paid to a teacher in the system, had to be pursuant to a effective written contract.

Unfortunately, the Board erroneously assumed that Mr. Sund could perform the duties of his new position pursuant to the terms of the existing contract; however, that contract was no longer operative upon Mr. Sund’s acceptance of “an appointment to a position of higher salary.” The | Rtermination of the existing contract in accordance with its express terms resulted in Mr. Sund being employed with no effective contract in place. Louisiana Revised Statute 17:444(B) obligated the Board to offer Mr. Sund a new, two-year written contract of employment when this occurred.

Mr. Sund also filed an answer to the appeal requesting that the appeal be given expedited consideration and also requesting an award of reasonable attorney fees for the work performed by counsel in defending the appeal. The request to expedite the appeal was granted by order of this court on December 28, 2005. As for the request for attorney fees, additional attorney fees are usually awarded on appeal to an appellee when the appellant obtains no relief, and the appeal has necessitated additional work on the opposing party’s counsel, provided that the opposing party appropriately requests an increase. Guidry v. Millers Casualty Insurance Company, 01-0001, p. 11 (La.App. 1st Cir.6/21/02), 822 So.2d 675, 684. Since Mr. Sund did not introduce any evidence attesting to the exact amount of expenses incurred, we believe an award of $1,000 for attorney fees to be sufficient.

CONCLUSION

Accordingly, based on the law and the evidence presented, we affirm the order of the district court issuing the writ of mandamus against the Board. We further render judgment awarding Mr. Sund $1,000 in attorney fees for additional expenses incurred for work performed by his counsel in successfully defending the appeal. All costs of this appeal in the amount of $2,369.25 are to be paid by the St. Helena Parish School Board.

AFFIRMED WITH ATTORNEY FEES AWARDED ON APPEAL.

      . Mr. Sund also made certain claims of damages in his petition, which claims were severed from his request for the issuance of a writ of mandamus as a result of the trial court sustaining the dilatory exception filed by the Board objecting to the improper cumulation of the request for a writ of mandamus and the demand for damages.


author: ROLAND L. BELSOME, Judge. ARMSTRONG, C.J.,

text:
    Mary Ellen CARTER v. ORLEANS PARISH SCHOOL BOARD.
    No. 2005-CA-0642.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 31, 2006.

      Jay Alan Ginsberg, Larry Samuel, Rit-tenberg and Samuel, L.L.C., New Orleans, Counsel for PlaintiflyAppellee.
    Ernest L. Jones, Lolis E. Elie, Elie, Jones & Associates, Baton Rouge, Counsel for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

|, Mary Ellen Carter filed suit against the Orleans Parish School Board (“School Board”) alleging that she was inadequately paid since October 1996. After a two-day bench trial, the trial court rendered judgment in favor of Mrs. Carter awarding her back pay of $35,398.88, plus costs, together with legal interest from date of judicial demand. This appeal followed.

Mrs. Carter began her employment with the School Board in 1994 in a Secretary I position for the Drug Free Schools Department. In 1996, Mrs. Carter applied and secured a Secretary I position working for Sharon Bell, the Director of Educational Technology.

Under Sharon Bell’s supervision, Mrs. Carter claims she began performing the job responsibilities of an Executive Secretary without any change in her salary or job title. Mrs. Carter contends she continued to perform those duties at her Secretary I pay scale through December of 1997.

Mrs. Carter also claims that in 1998, she began taking on additional work assignments in connection with preparations for Y2K. She states that her duties at pthat time equated to the job responsibilities of an Administrative Assistant. The duties she was performing at that time included, but was not limited to, coordinating computer classes, attending meetings for Sharon Bell, as well as typing, and answering the phones. Mrs. Carter claims that her duties remained that of an Administrative Assistant until Sharon Bell took a leave of absence from Director of Educational Technology in 1999.

Leroy Prout became Mrs. Carter’s supervisor after Sharon Bell took her leave. Mrs. Carter alleges that she continued to perform Administrative Assistant duties for Leroy Prout until July 2000. Then in August of 2000, she began acting in the capacity of a Software Resources Coordinator. Mrs. Carter maintains that she continued to perform those duties until they were removed from her assigned responsibilities in November of 2001.

Mrs. Carter alleges that for almost five years she performed duties and responsibilities at levels higher than that of her pay grade. She further asserts that during that time she was continuously promised a promotion and pay raise. Although each of her supervisors sought to have her position reclassified and her pay increased, the process was never finalized. As a result, Mrs. Carter argues that her reliance on promises from her superiors was detrimental to her while unjustly enriching the School Board. Thus, she seeks to recover retroactive pay for her job performance during that time.

Under Louisiana law, a claim of detrimental reliance must meet three requirements: (1) a representation by conduct or word; (2) justifiable reliance; and | ⅞(3) a change in position to one’s detriment because of the reliance. Lakeland Anesthesia, Inc. v. United Healthcare of La., Inc., 2003-1662 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, writ denied, 2004-0969 (La.6/25/04), 876 So.2d 834.

Sharon Bell’s deposition testimony supports all of Mrs. Carter’s assertions regarding her work performance for the time period of October 1996 until November 1999. Sharon Bell said that in October 1996, Mrs. Carter began scheduling programs and meetings associated with the Technology Department. In connection with the scheduling she would have to coordinate the security and insurance prior to the event. Then Mrs. Carter would have to maintain records of what transpired during the meetings. Mrs. Carter performed these duties in addition to the clerical duties of her Secretary I position.

Sharon Bell also testified that Mrs. Carter superseded those duties in January 1998 when the Y2K program went in to full gear. At some point Mrs. Carter became responsible for payroll for several departments as well as consultants. She was also given assignments to attend meetings for Sharon Bell and report back to Sharon Bell. She stated that she relied on Mrs. Carter’s performance of those enhanced job duties. She also confirmed that she continuously assured Mrs. Carter that her position and pay grade would be reclassified and she would secure retroactive pay for her past performance.

Sharon Bell explained that she had numerous conversations with Mrs. Carter representing to her that she intended to have her position reclassified to an Executive Secretary. She explained to Mrs. Carter that she had submitted the | ¿required forms and was anticipating budget approval. Based on these representations Mrs. Carter continued to perform the job assignments given to her by Sharon Bell.

Sharon Bell presented Mrs. Carter’s reclassification to the Chief Financial Officer at the time, Reginald Zeno, and also to the Chief Executive Officer at that time, Dr. Morris Holmes. Sharon Bell stated that Reginald Zeno and Dr. Morris Holmes agreed with the reclassification telling her to submit it for budget approval. The request was submitted to the budget committee. The committee never denied the request and always led Sharon Bell to believe that they were working on its approval. Sharon Bell continued the pursuit of obtaining proper compensation for Mrs. Carter’s work responsibilities until December of 1999 when she took her leave of absence.

Even after Sharon Bell was on leave of absence she followed up on those promises and reassurances by writing a letter to the Executive Director of Human Resources at the time, Alvi Anderson Mogilles. In the letter dated October 8, 2001, Sharon Bell asserted that Mrs. Carter was due retroactive pay for her job functions from October of 1996 to December of 1997. Sharon Bell classified Mrs. Carter’s performance as that of an Executive Secretary 7 and then from January 1998 to December 1999 as an Administrative Assistant Step 7.

Chief Information Officer Leroy Prout succeeded Sharon Bell and remained in that position for approximately fifteen months. He expressed to Mrs. Carter his desire for her to be his Executive Secretary. Mrs. Carter continued to perform the Usame functions for Leroy Pratt that she performed for Sharon Bell through July 2000. He recommended retroactive pay for Mrs. Carter based on the duties she performed while under his supervision from December 1999 until the end of July 2000. She was eventually compensated with $846 in response to Leroy Prout’s request for the retroactive pay.

The record indicates that on August 1, 2000, Leroy Prout made a formal request to create the position of Coordinator, Software Resources. He informed Mrs. Carter that he wanted her to fill that position, which would come with a pay increase. The evidence shows that based on the representations of Leroy Prout regarding the coordinator’s job, Mrs. Carter began performing the duties associated with that job description. At all times Mrs. Carter relied on the promises of promotion while complying with what was requested of her. The School Board approved the creation of Coordinator, Software Resources and Mrs. Carter applied for the position. However, Mrs. Carter was never interviewed for that position and there is no indication that the position, though created, was ever filled. Then in early 2001, Leroy Prout ended his employment with the School Board.

Joe Bekeris testified that he was the Chief Administrative Officer of the School Board from December 1999 until July 2001. During that time, he provided the then School Board Superintendent, A1 Davis, with a memorandum asking for resolution of Mrs. Carter’s long standing discrepancy regarding her job classification. He described Mrs. Carter’s work performance as “flawless.” He | ¿further stated that “she was very dedicated, a team player, I felt that she was extremely honest and very forthcoming.” The matter was passed on to legal counsel. Shortly thereafter Joe Bekeris left the School Board. The issue was not resolved.

Dr. Alonzo Luce succeeded Leroy Prout as Chief Information Officer. It was Dr. Luce who finally removed the expanded duties from Mrs. Carter’s assigned work responsibilities.

The standard of review for factual findings by the trial court is one of manifest error or clearly wrong. An appellate court may not set aside a trial court’s finding of fact unless it is clearly wrong. Conflicts in testimony are resolved using reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even if the appellate court may believe its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The argument asserted by the School Board focuses not on whether the representations of reclassification or a pay raise were made but was it reasonable of Mrs. Carter to rely on those representations. The School Board relies on Mrs. Carter’s understanding of how the School Board creates new positions and the process in which employees are reclassified.

Mrs. Carter acknowledges she was aware of how job positions were reclassified. She also acknowledged that both Sharon Bell and Leroy Prout informed her that they were processing the necessary paperwork to remedy Mrs. Carter’s situation. This was done not only to have her properly classified based on 17her responsibilities, but also to secure retroactive pay for her past performance. Furthermore, Mrs. Carter was under the impression her supervisors had the authority to have her reclassification approved. Mrs. Carter knew that Sharon Bell and Leroy Prout received verbal support from the Superintendent, Chief Financial Officer, and Chief Administrative Officer. However, they could never get final approval.

The evidence clearly indicates that throughout the five-year period in question the School Board’s Human Resources Department was well aware that Mrs. Carter was performing duties outside the scope of her Secretary I classification. As a matter of fact, the Human Resources Department conceded just that when they paid Mrs. Carter $846, stating that Mrs. Carter “supported the office of Chief Information Officer from December 1999 through August 2000.” That payment supports Mrs. Carter’s argument that it was common practice for the School Board to have interim assignments, which allowed employees to get paid for working outside of their job description. She undoubtedly believed she would be paid for her efforts.

It is obvious to this court that Mrs. Carter was a victim of the School Board’s administrative changes and bureaucracy. Given the facts of this case, the School Board’s argument that Mrs. Carter’s reliance was unreasonable is absurd. If the School Board was not going to raise Mrs. Carter’s pay to reflect her job duties they should have reduced her job duties. Although, that was eventually [«done, Mrs. Carter deserves to be compensated for the five years that the School Board benefited from her job performance.

Lastly, the School Board contends that the trial court miscalculated the damages. Based on the evidence in the record this court calculates the damages as presented at trial as follows:

1996 - $ 1,444.00
1997 - $ 4,238.00
1998 - $ 8,942.96
1999 - $ 8,942.96
2000 - $ 8,942.96
2001 - $ 1,719.80
Total $34,230.68
Less 846.00 - Prior Payment
$33,384.68

Therefore, the trial court’s judgment is amended to reflect the proper calculation of $33,384.68 in general damages, plus costs, together with legal interest from date of judicial demand.

For the reasons discussed the trial court’s judgment is amended and affirmed.

AMENDED AND AFFIRMED.

ARMSTRONG, C.J., concurs.

ARMSTRONG, C.J.,

concurs.

LI respectfully concur in the decision to affirm the judgment of the trial court.

      . This is the amount testified to by Judy Haines who at the time of the payment was Director of Human Resources.


author: PATRICIA RIVET MURRAY, Judge.

text:
    Linda and Scotty WIGGINS, Individually and as Personal Representatives of their Deceased Son Thomas Jeffrey Wiggins v. TRANSOCEAN SEDCO FOREX f/k/a R & B Falcon and Shell Exploration and Production Company.
    No. 2005-CA-1246.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 14, 2006.
    Timothy W. Cerniglia, Sharp, Hymel, Cerniglia, Colvin, Weaver & Davis, LLC, Baton Rouge, LA, for Defendant/Appellant (R & B Falcon Management Services, Inc.).
    Timothy J. Young, N. Husted DeRussy, The Young Firm, New Orleans, LA, for Plaintiffs/Appellees.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   PATRICIA RIVET MURRAY, Judge.

| defendant, R. & B. Falcon, takes this interlocutory appeal from the district court’s denial of its exception of improper venue. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

On June 15, 2001, the plaintiffs, Linda and Scotty Wiggins, filed suit in Orleans Parish Civil District Court against R. & B. Falcon and Shell Exploration and Production Company [“SEPCO”] alleging that defendants were liable for the wrongful death of plaintiffs’ son, Thomas Wiggins. Thomas Wiggins, an employee of R. & B. Falcon, was killed when he was accidentally struck by a crane while working aboard the DEEPWATER NAUTILUS, a semi-submersible drilling vessel that plaintiffs alleged was owned by R. & B. Falcon and operated by SEPCO.

SEPCO filed a motion for summary judgment based on the following undisputed facts. In 1998, SEPCO’s sister corporation, Shell Deepwater | ¡Development Inc. [“SDDI”], entered into a contract with R. & B. Falcon under which R. & B. Falcon agreed to perform drilling operations in the Gulf of Mexico utilizing the DEEPWATER NAUTILUS, which R. & B. Falcon was to construct according to the specifications provided by SDDI. One provision of the contract provided that SDDI was entitled to designate representatives to observe the work of R. & B. Falcon, which representatives were specifically empowered to act for SDDI in all respects relating to R. & B. Falcon’s performance under the contract. Pursuant to this provision, SDDI designated certain employees of SEPCO, its sister corporation, to be on board the vessel to observe the work of R. & B. Falcon.

Based on these facts, SEPCO argued in its motion for summary judgment that R. & B. Falcon had operational control of the vessel, that SEPCO’s employees were only on board as the representatives of SDDI, and that, therefore, SEPCO could not have any liability for the decedent’s accident. Contemporaneously with SEPCO’s motion for summary judgment, R. & B. Falcon filed exceptions of improper venue and improper joinder of parties. These exceptions were based on the assertion that venue would not exist in Orleans Parish unless SEPCO was a proper party to the litigation, which R. & B. Falcon argued was not the case.

The district court heard the motion and exceptions on February 18, 2005. On May 24, 2005, the district court rendered judgment denying the motion for summary judgment brought by SEPCO and the exceptions filed by R. & B. Falcon. R. & B. Falcon now appeals the denial of its exception of improper venue.

J^DISCUSSION

R. & B. Falcon is a foreign corporation; its registered principal place of business in Louisiana is in East Baton Rouge Parish. SEPCO is a foreign corporation that has its Louisiana registered principal place of business in Orleans Parish. The sole issue on appeal is whether the district court correctly determined that venue as to R. & B. Falcon is proper in Orleans Parish. As there are no facts in dispute, the appropriate standard of review is simply for this court to determine whether the district court’s decision is legally correct or incorrect. Glass v. Alton Ochsner Medical Foundation, 2004-1824, p. 5 (La.App. 4 Cir. 6/01/05), 907 So.2d 782, 785.

Under La. C.C.P. article 42(4), an action against a foreign corporation licensed to do business in Louisiana must be brought in the parish where its primary place of business in this state is located. One of the exceptions to this general rule is found in La. C.C.P. article 73, which provides, in pertinent part:

A. An action against joint or solidary obligors may be brought in a parish of proper venue, under Article 42 only, as to any obligor who is made a defendant. ...
B. If the action against this defendant is compromised prior to judgment, or dismissed after a trial on the merits, the venue shall remain proper as to the other defendants, unless the joinder was made for the sole purpose of establishing venue as to the other defendants.

In the instant case, plaintiffs allege that defendants are solidary obligors; therefore, because SEPCO may be sued in Orleans Parish pursuant to Article 42, plaintiffs 14argue that venue is also proper as to R. & B. Falcon in Orleans Parish pursuant to Article 73. Conversely, R. & B. Falcon argues that SEPCO is not a viable defendant because there exists no basis for the independent liability of SEPCO, that SEP-CO was clearly joined as a defendant for the sole purpose of obtaining venue against R. & B. Falcon in Orleans Parish, and that Article 73(B) prohibits such a joinder from being used to establish venue.

We first note that R. <& B. Falcon’s reliance upon Article 73(B) is misplaced. By its very terms, that provision only applies if the action against the defendant as to which venue is proper under Article 42 has been “compromised prior to judgment” or “dismissed after a trial on the merits.” Neither condition has occurred in the instant case. SEPCO did attempt to have plaintiffs’ action against it dismissed on summary judgment, but did not succeed. Therefore, Part B of Article 73 is inapplicable. Moreover, according to the plain terms of Part A, venue is proper in an “action against joint or solidary obligors” whenever the action is brought in a parish where Article 42 venue is proper as to any one of the obligors named a defendant. In the instant case, SEPCO remains a viable defendant whose negligence plaintiffs have alleged is responsible, along with the negligence'of R. & B. Falcon, in causing Thomas Wiggins’ death. Moreover, the district court has found that there is a genuine issue of material fact as to whether SEP-CO has any independent negligence in this matter. Neither that decision nor the denial of the exception of improper joinder is subject to review by interlocutory appeal; the | ^instant appeal concerns only the denial of the venue exception. Because the two defendants are alleged to be joint tort-feasors, venue is clearly proper as to both defendants in Orleans Parish. R. & B. Falcon has cited no jurisprudence that supports the application of Article 73(B) to the instant situation, which clearly does not fall under the ambit of that provision.

Alternatively, R. & B. Falcon argues that even if SEPCO were a valid defendant, Article 73 would not apply because legally there can be no joint or solidary obligation between it and SEPCO. Appellant bases this argument on the assertion that SEPCO’s duty to the decedent was different from the duty .owed him by R. & B. Falcon, his Jones Act employer.

This argument is not convincing. Appellant has cited no authority to support its contention that in order to be joint tortfeasors or solidary obligors, defendants must owe the same duty. Generally, delic-tual obligations are considered joint or sol-idary if their breach causes the same harm, which, in the instant case, is alleged to be the death of Thomas Wiggins. See, e.g.: Hennegan v. Cooper/T. Smith Stevedoring Co., 2000-0282 (La.App. 4 Cir. 12/30/02), 837 So.2d 96 (manufacturer of defective product found solidarily liable with vessel owner/employer for seaman’s death). Because there can be more than one cause of the harm to the plaintiff, there can be multiple wrongdoers (joint tortfeasors) that are liable. Id., p. 6, 837 So.2d at 102. We therefore reject R. & B. Falcon’s contention that, as a matter of law, it cannot be found to be a joint or solidary obligor with SEPCO in the instant case.

1 «CONCLUSION

For the reasons stated, we find no error in the district court’s denial of the exception of improper venue raised by R. & B. Falcon. Accordingly, we affirm the judgment of the district court.

AFFIRMED.

      . For purposes of this appeal, "R. & B. Falcon” refers to any one of four related corporate entities, including R. & B. Falcon Management Services, Inc.; R. & B. Falcon Exploration Company; R. & B. Falcon Deepwater (UK) Limited; and R. & B. Falcon Corporation.

      . SDDI was not named as a defendant in the lawsuit.

      . SEPCO applied for supervisory writs from the denial of the motion. On May 17, 2004, this court denied the application, stating that SEPCO had an adequate remedy on appeal. In his partial concurrence/partial dissent, Judge Tobias agreed that there remained a genuine issue of fact as to SEPCO’s independent negligence, but differed from the majority in that he would have granted the writ application on the issue of SEPCO’s lack of operational control.

      . We note that dismissal by summary judgment is not specifically mentioned in Article 73(B). We express no opinion as to the application of the article to that hypothetical situation.

      . The denial of an exception of improper venue is considered an interlocutory judgment that may cause irreparable injury and therefore is immediately appealable pursuant to La. C.C.P. art. 2083. See Greater Lafourche Port Commission v. Louisiana State Civil Service Commision, 481 So.2d 745 (La.App. 1st Cir. 1985).


author: PATRICIA RIVET MURRAY, Judge. JONES, J.,

text:
    Phyllis Kay Roby Doerr, Wife of/and Kenneth John DOERR, Juliette D. Loverde, Donna Jo Topey Loverde, Wife of/and Kenneth L. Loverde, Individually and on Behalf of their Minor Child, Kaye Lee Loverde v. MOBIL OIL CORPORATION and Chalmette Refining, L.L.C.
    No. 2004-CA-1789.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 14, 2006.

      Sidney D. Torres, III, Roberta L. Burns, Law Offices of Sidney D. Torres, III, APLC, Slidell, LA, Irving J. War-shauer, Gerald E. Meunier, Gainsburgh, Benjamin, David, Meunier & Warshauer, Gilbert V. Andry, III, Jerald N. Andry, Jr., Andry & Andry, L.L.C., New Orleans, LA, for Plaintiffs/Appellants.
    Robert B. McNeal, Mark L. McNamara, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, Alvin J. Bordelon, Jr., Metairie, LA, for Defendants/Appel-lees.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME).
   PATRICIA RIVET MURRAY, Judge.

_[iThis is a class action lawsuit arising out of a discharge of oil, grease, and other contaminants from a Mobil Oil refinery in Chalmette, Louisiana into the Mississippi River. Following the discharge, the contaminants were drawn into the St. Bernard Parish water system and then distributed to users throughout the parish. Pursuant to a joint trial plan, a bench trial was held in this matter at which the claims of thirteen named plaintiffs were tried. The only defendants at trial were Mobil Oil Corporation and Chalmette Refining, L.L.C. (collectively “Mobil”). The trial court rendered judgment in favor of the thirteen plaintiffs. From that judgment, the plaintiffs appeal, and Mobil answers the appeal. For the reasons that follow, we affirm in part and reverse in part.

I.

On January 7, 1998, Mobil discharged approximately 3.4 million gallons of untreated, contaminated waste water and storm water, and 2.1 million gallons of | astorm water run-off over a period of fourteen hours into the Mississippi River. The discharged water contained over 52,000 pounds of oil and grease and other contaminants, which then infiltrated the Parish’s drinking water system. Residents immediately voiced complaints about the odor and taste of the water. The Parish Water Board documented that it received over 160 calls. The callers described the parish water as appearing “cloudy” and “greasy” and smelling like “gasoline,” “kerosene,” and “petroleum.”

On January 14, 1998, this class action was filed against Mobil. It is alleged that over 6,000 persons who were present in the parish at the time Mobil’s discharge contaminated the Parish’s water supply experienced physical injuries, emotional distress, and economic loss. On November 5, 1998, a supplemental and amended petition was filed to add as a defendant St. Bernard Parish, through the Department of Public Works, Water Division (the “Parish”), on the basis of its distribution of the contaminated water throughout the parish. Following a hearing, the trial court on April 28, 2000, certified the lawsuit as a class action against Mobil and the Parish. The trial court defined the class as follows:

All persons and/or entities residing and/or present in St. Bernard Parish, Louisiana, and who or which have sustained damages arising or resulting from the January 7, 1998, discharges of certain hazardous and non-hazardous substances from the facility owned and operated by Mobil Oil Corporation and Chalmette Refining, L.L.C., such class including, specifically, all persons and entities who obtain their water from and/or were exposed to water supplied by the St. Bernard Parish sewerage and water system, which, upon information and belief, was contaminated by chemicals and other contaminants and materials discharged from the facility owned and operated by Mobil Oil Corporation and Chalmette Refining, L.L.C., located in Chalmette, Louisiana, and, specifically, those who have sustained physical, mental and/or emotional injuries, fright, inconvenience, personal and medical expenses, economic damages, and interruption of or intrusion |sinto their personal and professional lives as a direct consequence of the referenced discharges occurring on the aforementioned date.

On the defendants’ appeal, this court affirmed the trial court’s judgment certifying the class, and the Louisiana Supreme Court denied the defendants’ application for writ of certiorari. Doerr v. Mobil Oil Corp., 2001-0775 (La.App. 4 Cir. 2/27/02), 811 So.2d 1135, writ denied, 2002-0938 (La.5/31/02), 817 So.2d 106. On May 14, 2004, the trial court denied Mobil’s “Motion for Decertification of Class and Dismissal of Purported Class Members.”

From January 20, 2004 through February 12, 2004, a bench trial was held in this matter at which the claims of thirteen plaintiffs against Mobil were tried. At trial, six experts and twenty-two fact witnesses (including the thirteen plaintiffs) testified, and more than three hundred exhibits were introduced. On June 4, 2004, the trial court rendered judgment in favor of the thirteen plaintiffs. The trial court found both Mobil and the Parish were at fault and allocated fault 90% to Mobil and 10% to the Parish. The trial court awarded damages to all but two of the thirteen plaintiffs. The trial court awarded $2,000 to six plaintiffs, $1,000 to two plaintiffs, $500 to three plaintiffs, and no damages to two plaintiffs. From that judgment, Plaintiffs appeal, and Mobil answered the appeal.

II.

For clarity sake, we first address the procedural and substantive arguments Mobil raises on its cross appeal. Procedurally, Mobil contends that the trial court erred in denying its motion to decertify the class. Mobil argues the motion should have been granted because each class member’s claim will require an _[¿ndividualized adjudication of causation and damages. Plaintiffs counter that Mobil is re-raising the same arguments this court rejected in affirming the trial court’s certification decision.

A trial court’s decision denying a motion to decertify a class is reviewed on appeal for an abuse of discretion. See Richardson v. American Cyanamid Co., 99-675 (La.App. 5 Cir. 2/29/00), 757 So.2d 135 (finding no abuse of discretion in trial court’s decertification of class). “In the absence of materially changed or clarified circumstances, or the occurrence of a condition on which the initial class ruling was expressly contingent, courts should not condone a series of rearguments on the class issues by either the proponent or the opponent of class, in the guise of motions to reconsider the class ruling.” 3 Alba Conte and Herbert Newberg, Newberg on Class Actions, § 7:47 (4th ed.2002).

Mobil’s arguments for decertification, as Plaintiffs contend, are very similar to those we rejected in our earlier decision affirming the trial court’s certification decision. In this case, there has not been a material change in circumstances since the initial class ruling. This case is procedurally distinguishable from the two cases Mobil relies upon, Richardson, supra, and Spitzfaden v. Dow Corning Corp., 98-1612 (La.App. 4 Cir. 12/4/02), 833 So.2d 512. In those two cases, the trial courts decertified the class; in this case, the trial court refused to decertify the class. We find that the trial court did not abuse its discretion in refusing to decertify the class.

Substantively, Mobil argues that the trial court erred in its allocation of fault. Mobil argues that because the Parish’s water plant systematically ignored its operating procedures and breached its statutory duty to make clean water, the Parish was either the sole or the major cause of the off-taste water. Mobil |,.¡characterizes the Parish’s fault as an “independent or intervening” cause for which it is not responsible. Plaintiffs counter that the record supports the trial court’s allocation of fault. We agree.

In allocating fault, the trial court in its judgment stated:

The Court is convinced from the totality of the evidence that the defendants, Mobil Oil Corporation and Chalmette Refining, L.L.C., were negligent in allowing and causing harmful toxins to enter the Mississippi River and ultimately the homes of the plaintiffs. The defendants had the expertise and ability to prevent this situation and not rely on the defense of “Act of God” or “The Perfect Storm.” The Court assesses the fault of these defendants at 90%.
The Parish of St. Bernard must share a portion of the total blame because of its failure to act timely and responsibly in preventing the home intrusion of contaminated water. This fault is assessed at 10%. The Court finds no fault on the part of plaintiffs.

The trial court’s allocation of fault is a question of fact, which is reviewed on appeal under the manifest error standard. Petre v. State, Dep’t of Trans. and Dev., 2001-0876, p. 13 (La.4/3/02), 817 So.2d 1107, 1114. In allocating fault, the Watson factors apply, to-wit: 1) whether the conduct results 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 that might require the actor to proceed in haste, without proper thought. Petre, 2001-0876 at p. 13, 817 So.2d at 1114-15.

The record reflects that Mobil was under a state-issued compliance order to physically separate the Parish’s water intake “from all possible contamination by discharge from the Refinery.” In August 1987, the Louisiana Department of Environmental Quality (“DEQ”) issued this order to Mobil’s predecessor, Tenneco Oil Company (“Tenneco”), after a xylene leak from the refinery contaminated the | fiParish’s water supply. This order mandated that the owner of the refinery take action to physically separate the Parish’s water intake from all possible contamination by discharges from the refinery. The order suggested this could be accomplished in one of three ways; to-wit: (i) relocating all refinery discharges to a point downstream of the Parish water intake, (ii) relocating the intake to a point upstream of all refinery discharges, or (iii) any other means approved by the DEQ.

In December 1987, the refinery employed Wink Engineering to conduct a dye study for the purpose of evaluating the potential impact of a discharge from the refinery on downstream domestic water treatment facilities. The study traced the path of a green dye discharged from the refinery down river directly to the Parish’s water intake. The dye study confirmed that a contaminated discharge from the refinery would impact the Parish’s water intake. Another significant finding of the study was that “[l]ocal currents near the St. Bernard intake structure restricts the downstream flow of river water at low river flow rates. This would result in an increased duration of the impact of a Ten-neco [Refinery] spill at the water works during low river flow conditions.”

In an attempt to comply with the DEQ’s order, Mobil constructed a hydraulic separation, which required moving the Parish water intake further out and deeper into the river. Mobil selected this option, as opposed to relocating either the Parish’s intake or the refinery’s outfalls, despite the following factors: (i) the dye study showed that “relocation of the St. Bernard intake structure further out into the river to a depth of 40 feet would minimize, but not eliminate, the impact of a refinery spill at the water works during low river conditions;” and (ii) Bruce Hillman, Mobil’s project engineer on the intake extension project, warned that the project was deficient because of the potential for silting coupled with the 17lack of a plan for the refinery to continue to maintain the project. Mr. Hill-man further warned that if the project failed, the Parish would be forced to revert to using the old intake.

In 1989, the construction of the intake extension was completed. However, in February 1991, the Parish notified Mobil that the intake extension had failed due to silting. As a result of that failure, the Parish reverted to using the old intake. Although Mobil made some efforts to develop a plan to repair the hydraulic system, it abandoned those efforts in 1993. Mobil does not dispute that it made no further efforts at complying with the order requiring it to separate its discharge from the Parish’s water intake.

The evidence at trial reflected that the January 7,1998, contaminated discharge at issue in this case was not an isolated occurrence; rather, as Mobil acknowledges, such discharges occurred “every now and then,” such as when a “hellacious rainstorm occurred.” Indeed, as Plaintiffs point out, the record reflects that there were six other documented cases of the Chalmette Refinery’s discharging contaminated water into the Mississippi River allegedly due to rainfall as reported to DEQ.

Given Mobil’s awareness that contaminated discharges from its refinery would affect the Parish’s water supply coupled with Mobil’s failure to take any further efforts to comply with the DEQ’s order after the hydraulic system failed, we cannot say that the trial court was manifestly erroneous in finding Mobil at fault. Stated otherwise, we find the record supports the trial court’s factual finding that Mobil “had the expertise and ability to prevent this situation.”

| ^Although we might have allocated fault differently, we cannot say that the trial court’s allocation was manifestly erroneous.

III.

Plaintiffs’ first contention is that the trial court erred in applying an incorrect legal standard to deny recovery of emotional distress damages to two of the plaintiffs based solely on their lack of physical injury. We find the trial court legally erred by imposing such a requirement.

The correct standard for the recovery of negligent infliction of emotional distress absent physical injury is that the plaintiff must show an “especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious.” Moresi v. State Through Dep’t of Wildlife and Fisheries, 567 So.2d 1081, 1096 (La.1990); Bonnette v. Conoco, Inc., 2001-2767 (La.1/28/03), 837 So.2d 1219. Louisiana courts have also recognized that plaintiffs, without regard to physical injury, may recover for emotional distress and inconvenience resulting from damage to their property, but only in the following four categories of cases: (1) when the property was damaged by an intentional or illegal act; (2) when the property was damaged by acts giving rise to strict or absolute liability; (3) when the property was damaged by activities amounting to a continuous nuisance; and (4) under circumstances where the owner was present or nearby at the time the damage occurred and suffered psychic trauma in the nature of or similar to a physical injury as a direct result of the incident itself. Frank L. Maraist and Thomas C. Galligan, Jr., Louisiana Tort Law § 7.02[6] (2nd ed.2004). The jurisprudence, however, has limited such recovery by requiring that the emotional distress be severe and not merely the result of the usual worry or anxiety attendant to property damage. See Farr v. Johnson, 308 So.2d 884 (La.App. 2d Cir.1975).

The trial court acknowledged that all the plaintiffs suffered some level of inconvenience, but that none of them suffered any serious injury. The court refused to award any damages to the two plaintiffs who suffered inconvenience and distress, but no physical injury. We find this to be an abuse of the trial court’s discretion.

In reaching this conclusion, several factors have been considered.

First, in Bonnette, the court was concerned with the speculative nature of the claims therein, the potential for spurious claims, and the difficulty in distinguishing valid from spurious claims. Hence, the Court imposed the additional burden on the plaintiff to establish factor(s) which would support a finding that his claim was valid. The existence of physical injury is one such factor, but others may also exist. Proximity to the event, witnessing injury to others, and contemporaneous reports from reliable sources that the danger is real are also indicia of the reliability of claims of emotional distress.

Here, the record established that these two plaintiffs, David Peterson and Raymond Garafolo, were exposed to contamination of the potable water supply through the fault of the defendants. While this particular discharge and the attendant distress and inconvenience were of relatively short duration, it was established that the contaminated discharge in this ease was not an isolated event. The repetition of such events would add to the distress of these plaintiffs, all of |1(lwhom experienced the legitimate concern that the safety of their water supply had been compromised.

Second, it is a troubling proposition that a tortfeasor can be relieved of responsibility if its conduct produces minimal harm, albeit to many people. Surely a wrong that causes a hundred dollars of harm to ten thousand people is of no less concern than a wrong that causes a million dollars of harm to an individual. To declare the former harm de minimus, and not worthy of redress is to undermine the dual concerns of tort law: accountability for the wrongdoer and compensation for the victim.

Third, it is a legitimate concern that the courts not be bogged down by claims that are minimal. It makes little economic sense to have parties engage in litigation over sums greatly outweighed by the expense of the legal process. However, where, as here, the claims of a large population can be processed efficiently by virtue of class certification, there can be no valid reason not to hold a corporate wrongdoer accountable and to afford appropriate relief to the individual members of the class.

The trial court found that all plaintiffs had suffered some inconvenience. The record establishes that the emotional distress suffered by these plaintiffs was not the usual worry or anxiety associated with property damage, but legitimate concern about health effects. Because of their legitimate concern, both Mr. Garafolo and Mr. Peterson testified that they now use only bottled water. Mr. Garafolo further testified that he purchased a filtered refrigerator that filters water for ice cubes and drinking. According to Mr. Garafolo, this incident brought back memories of boiling water after Hurricane Betsy flooded his Arabi home. Mr. Garafolo also testified that every morning he smells the water before he uses it to Inbrush his teeth or bathe. Similarly, Mr. Peterson testified that he no longer drinks tap water because he fears and distrusts the water supply.

For these reasons, we find the trial court abused its discretion in refusing to award any damages to the two plaintiffs who had no physical injuries. We find an appropriate award to each of these two plaintiffs to be $250.

As to the other eleven plaintiffs, the trial court awarded lump sum damage awards ranging from $500 to $2,000. Plaintiffs contend these awards do not include any amount for emotional distress. Although it is unknown whether the trial court’s lump sum awards to these plaintiffs included any amount for “parasitic” emotional distress damages, “[i]t is well settled that a lump sum judgment is presumed to award all items of damages claimed.” Bryan v. City of New Orleans, 98-1263, pp. 2-3 (La.1/20/99), 737 So.2d 696, 697 (citing Reichert v. Bertucci, 96-1213 (La.App. 4 Cir. 12/4/96), 684 So.2d 1041). In this case, the certified class is defined as “those who have sustained physical, mental and/or emotional injuries, fright, inconvenience, personal and medical expenses, economic damages, and interruption of or intrusion into them personal and professional lives as a direct consequence of the referenced discharges occurring on the aforementioned date.” Doerr, 2001-0775 at p. 2, 811 So.2d at 1139. It is thus presumed that the lump sum awards to the eleven plaintiffs include damages for not only personal injuries, but also emotional distress and inconvenience. The application of this presumption in this case is supported by the trial court’s express preference in its judgment to the plaintiffs’ inconvenience and lack of serious injuries. We find the trial court’s lump sum awards are not an abuse of discretion.

DECREE

For the forgoing reasons, the judgment of the trial court is affirmed in part and reversed in part.

AFFIRMED IN PART, REVERSED IN PART, RENDERED IN PART.

JONES, J., Concurs In Part and Dissents In Part.

JONES, J.,

concurring in part and dissenting in part.

hi respectfully dissent because the majority fails to adjust the damage awards rendered by the district court. Thus, considering that the district court allocated fault between both Mobil and St. Bernard Parish, the damage awards to the Appellants should have been reduced on the basis of comparative fault.

In all other respects, I concur with the majority.

      . The thirteen plaintiffs are as follows: Phyllis Kay Roby Doerr, Kenneth John Doerr, Kenneth L. Loverde, Donna Loverde, Juliette Lov-erde, Lisa DeRose May, Lorraine Guillory, Joseph Roberts, Charles Rohr, Myrna Hinyub, John Swider, David Peterson, and Raymond Garofalo. This court granted a motion to substitute as a party plaintiff the heirs of Kenneth L. Loverde, who died in May 2004 from causes unrelated to the injuries claimed in this case.

      . The Parish was not a party-defendant at trial because on May 9, 2000, the trial court approved a preliminary settlement agreement between the Parish and the plaintiffs.

      . This court denied a motion to dismiss this appeal due to lack of certification as a final judgment.

      . The reported discharges occurred on April 2, 1998; November 7, 1989; November 8, 1989; May 13, 1990; April 19, 1991; and May 9, 1995.

      . Before the 1996 amendment to the vicinage articles (which provided generally for a negligence standard), La.C.C. art. 667 was construed to provide for absolute (or strict) liability and thus fall under the second category. Louisiana Tort Law, § 16.01. The jurisprudence thus recognized that "[a] person suffering mental distress from a neighbor's violation of the Civil Code articles on vicinage may recover for such distress.” Louisiana Tort Law, § 5.08.

      . It is well-settled that "[m]ental distress that accompanies prior or contemporaneous physical injury is compensable; it is sometimes is called 'parasitic,' and as such is an element of damages caused by the physical injury.” Frank L. Maraist and Thomas C. Galligan, Jr., Louisiana Tort Law § 5.08 (2nd ed.2004).