author: GAIDRY, J.

text:
    Dennis R. WHALEN v. Peyton P. MURPHY.
    No. 2005 CA 2446.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 15, 2006.
    Rehearing Denied Nov. 8, 2006.

      Dennis R. Whalen, Baton Rouge, Plaintiff/Appellant In Proper Person.
    Daniel J. Balhoff, Baton Rouge, Counsel for Defendani/Appellee Peyton P. Murphy.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

12This matter arises from a dispute over the sharing of attorney’s fees. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Peyton Murphy represented the plaintiffs in a matter filed in Federal Court entitled “Michael Eunice, et al v. State of Louisiana, et al, No. 95-885-B-1.” Murphy had a contingency fee arrangement with the plaintiffs which provided for a forty percent attorney fee. In October 1995, Murphy contacted Dennis Whalen and requested his assistance with the suit since Murphy lacked experience with civil rights litigation. After reviewing the file and resolving a possible conflict of interest, Whalen enrolled as counsel. Whalen claims that he and Murphy agreed to split the attorney fee equally, but once the Eunice matter was ultimately settled, Murphy told him that he would have to pay a one-third referral fee to Fred Bel-cher, the attorney who had initially referred the case to him. Murphy sent Whalen a check for one-third of the total attorney’s fee, with a stipulation that the check was to represent full and final payment of attorney’s fees owed. Whalen returned the check to Murphy, uncashed, and followed it with a demand for payment of fees owed. A suit for attorney’s fees was filed on June 7, 2001, and Murphy reconvened with a suit for libel based on a letter Whalen sent to the Attorney Disciplinary Board that Murphy alleges falsely claimed he violated the Code of Professional Responsibility by agreeing to pay and/or paying a referral fee to Belcher.

Whalen filed a motion for summary judgment on July 26, 2001, which was denied by Judge Timothy Kelley. On October 26, 2001, Whalen filed a peremptory exception raising the objections of no cause of action and no right of action as to the reconventional demand. Judge Kelley sustained the | ^exception raising the objection of no cause of action and dismissed Murphy’s libel suit with prejudice, thus rendering the exception of no right of action moot.

Whalen filed a second motion for summary judgment on December 20, 2001. Judge Kelley granted this motion and awarded Whalen $52,886.56 in attorney fees, which represented fifty percent of the fee received by Murphy, less a credit of $9,775.50 already paid, plus costs and legal interest from September 27, 2000 until paid.

Murphy filed a motion for new trial, asserting that the summary judgment was contrary to the law and evidence. Judge Kelley granted Murphy’s motion for new trial and vacated its earlier summary judgment based on the fact that he had failed to consider Murphy’s affidavit filed in opposition to the summary judgment, and had instead considered the motion unopposed.

After Judge Kelley vacated the $52,886.56 judgment in favor of Whalen, Whalen filed a motion seeking to have Judge Kelley adjudicate the alternative grounds for summary judgment set forth in his motion. Whalen’s second motion for summary judgment had requested “judgment in the amount of $52,882.56, representing proceeds of an agreement or a joint venture for one half of attorney fees received by Peyton P. Murphy ... with interest ... and costs” or, alternatively, “judgment in the amount of $31,996.66, with legal interest ... and costs, representing the amount judicially confessed by Peyton P. Murphy to be owing to the plaintiff in the fifth paragraph of his Opposing Affidavit to the First Motion for Summary Judgment, reserving mover’s rights to pursue the remainder of his claims.” In the opposing affidavit referred to by Whalen, Murphy stated that, If Whalen would have been entitled to receive and to be paid $31,996.66 for Whalen’s attorney fee, [but] the amount was rejected by Whalen.”

Judge Kelley had not addressed the alternative request at the hearing on the second motion for summary judgment because it granted summary judgment in the amount of $52,866.56. Prior to the hearing date on the motion to adjudicate the alternative grounds for summary judgment, Murphy made an unconditional tender of $36,389.11 to Whalen, which mooted the motion.

On January 28, 2003, Whalen filed a motion to have Judge Kelley recused from the case, claiming that Judge Kelley demonstrated bias by vacating the summary judgment previously rendered in favor of Whalen after receiving campaign contributions from Murphy. In his motion to re-cuse Judge Kelley, Whalen alleges that Murphy originally supported Judge Kelley’s opponent and had the opponent’s campaign signs displayed in front of his office, but later removed the campaign signs and made several contributions to Judge Kelley’s campaign. Whalen alleges that Judge Kelley changed his mind and vacated the summary judgment because of Murphy’s contributions to his campaign. Judge Kelley declined to recuse himself, and the recusal was set for hearing before Judge Janice Clark.

Whalen subpoenaed Bruce Craft, Judge Kelley’s opponent, to testify at the hearing on the motion to recuse. Craft filed a motion to quash the subpoena, claiming it sought nothing more than to “elicit speculative questioning and inflammatory discourse that both fails to advance the issues involved in this litigation and attempts to improperly embarrass, humiliate, and otherwise deprecate the witness, other officers of the Court, and the institution of judge.” Alternatively, Craft requested an in camera examination of his testimony so the court could determine whether his | stestimony’s relevance would be outweighed by the risk of undue prejudice and confusion of the issues. After an in camera examination of Craft’s testimony, Judge Clark granted the motion to quash Craft’s testimony, and subsequently denied the motion to recuse Judge Kelley after finding no evidence that Judge Kelley was biased in favor of Murphy.

On February 19, 2004, Whalen filed another motion to have Judge Kelley recused on different grounds. Judge Kelly denied the motion to recuse, noting “Per CCP art 154, no valid ground for recusation has been set forth.” After applications for writs to both this court and the supreme court were denied, this matter proceeded to trial.

After a bench trial, Judge Kelley rendered judgment in favor of Murphy and against Whalen, dismissing all of Whalen’s claims with prejudice, at Whalen’s cost. Judge Kelley found that Whalen was entitled to a share of the attorney’s fees received in the jEunice matter, but that the amount already tendered, which equaled approximately one-third of the total fee, was sufficient compensation for the work he performed.

Whalen appealed devolutively, assigning the following errors:

1. Judge Clark erred in quashing the subpoena for Bruce Craft.
2. Judge Clark erred in refusing to recuse Judge Kelley.
3. Judge Kelley erred in holding that Whalen was required to prove all elements of a joint venture under McCann v. Todd and its progeny.
4. Judge Kelley erred in applying Lloyd v. Tritico to the facts of this case.
5. Judge Kelley erred in applying quantum meruit to the facts of this case.
|fi6. Judge Kelley erred in dismissing Whalen’s claims for all sums above one-third.
7. Judge Kelley erred in not awarding Whalen $52,882.56 in fees.
8. Alternatively, Judge Kelley erred in not awarding Whalen eighty-five percent of the total fee under quantum meruit.
9. Judge Kelley erred in taxing costs against Whalen.

DISCUSSION

The May 10, 2005 Judgment Dismissing Whalen’s Suit

In the absence of a fee-splitting agreement between the parties, the method of sharing attorney’s fees depends upon whether or not the attorneys are engaged in a joint venture. In the absence of any agreement or custom to the contrary, attorneys engaged in a joint venture share equally in the profits, while attorneys employed severally receive the reasonable value of their services. See McCann v. Todd, 203 La. 631, 638-640, 14 So.2d 469, 471-72 (1943). In order for a joint venture to exist, the parties must consent to the formation of the venture, share in the losses as well as the profits of the venture, and exercise equal control over the enterprise. Lloyd v. Tritico, 527 So.2d 57, 60 (La.App. 3rd Cir.) unit denied, 528 So.2d 154 (La.1988).

After the trial on the merits, Judge Kelley found that while there was no written contract between Whalen and Murphy, they had agreed that Whalen would assist Murphy with the suit and that they would split the fees. No specific percentages were discussed for this fee splitting. Since there was no specific agreement, either written or verbal, the issue becomes whether or not the parties were engaged in a joint venture. Judge Kelly found that Whalen had failed to put forth sufficient proof of any mutual intent between the parties to form a joint venture. Judge Kelly found no meeting of the minds as to what their arrangement would actually be. ^[^Additionally, Judge Kelley noted that Whalen did not share any of the risk of loss with Murphy. The only element of a joint venture which Judge Kelley did find to exist was that the parties did have joint control over the prosecution of the case. Regardless of the joint control, the lack of intent to form a joint venture and the absence of risk sharing prevented the court from finding a joint venture between the parties.

Because this was not a case of a joint venture, Judge Kelley turned to quantum meruit to determine the proper division of the fee. He noted that both Whalen and Murphy had done a significant amount of work on the Eunice case. Since there were no timesheets in the record, Judge Kelley considered the parties’ trial testimony as well as the judge’s finding in the Eunice case as to the number of hours put in by each attorney, and concluded that approximately two-thirds of the work was done by Murphy and one-third was done by Whalen. Based on this finding, Judge Kelley concluded that the fees that Whalen had already received were appropriate compensation for his services. Based on the evidence contained in the record, we find no error in the trial court’s conclusion that no joint venture existed or in its apportionment of the fees.

The April Ik, 2003 Judgment Quashing Whalen’s Subpoena

Bruce Craft sought to have Whalen’s subpoena for his testimony quashed on the grounds that he had nothing relevant to add on the topic of Judge Kelley’s recusal. Craft had no knowledge as to what Judge Kelley said or did diming the period in question. The grounds for re-cusing Judge Kelley raised in the motion are found in Louisiana Code of Civil Procedure article 151(B)(5), which states that a trial court judge may be recused when he is “biased or prejudiced toward or against the parties or the parties’ attorneys to such an extent that he would be unable to conduct fair and )simpartial proceedings.” Whalen claims that Judge Kelley was biased in favor of Murphy because Murphy made several contributions to Judge Kelley’s reelection campaign. The only connection Mr. Craft had to this issue is the fact that at one time his campaign signs were displayed in front of Murphy’s office. Whalen claims that Mr. Craft told him that Murphy told him that he was “changing horses” because he had a big case (this suit) in front of Judge Kelley and that if he helped Judge Kelley, Judge Kelley would help him. However, Mr. Craft tells a different story. He claims that he spoke to Murphy by telephone after some of his campaign signs in front of Murphy’s office came down, and Murphy told him that the reason he took them down was that he had a big case going before Judge Kelley. Mr. Craft denied that Murphy ever told him that he expected “help” from Judge Kelley, and Craft had no conversations with Judge Kelley about Murphy. The issue on the motion to recuse is whether Judge Kelley was actually biased in favor of Murphy to such an extent that he would be unable to conduct fair and impartial proceedings. We fail to see what relevance Mr. Craft’s testimony has to that issue. The trial court did not abuse its discretion in granting the motion to quash Mr. Craft’s testimony.

The May 22, 2003 Judgment Denying Whalen’s Motion to Recuse

Murphy testified at the hearing on the motion to recuse Judge Kelley that the Craft campaign signs in front of his office were placed there without his permission, that he removed them immediately, and that his only statement concerning their removal to Mr. Craft was that he would not support him against an incumbent. Murphy denied telling Mr. Craft that he had a big case in front of Judge Kelley. Murphy also denied that the purpose of his campaign contribution to Judge Kelley was to obtain a favorable outcome in this case. At the hearing on the motion for new trial, Judge IflKelley stated that he was vacating the summary judgment because he had failed to consider Murphy’s opposing affidavit, which created an issue of fact, when granting the summary judgment. Based on the evidence before the court on the motion to recuse, Judge Clark ruled that WTialen failed to meet his burden of proving by a preponderance of the evidence that Judge Kelley was biased in favor of Murphy to such an extent that he would be unable to conduct fair and impartial proceedings.

A judge is presumed to be impartial. Couvillion v. Couvillion, 00-143, p. 9 (La.App. 5th Cir.9/26/00), 769 So.2d 747, 753, writ denied, 00-3185 (La.1/12/01), 781 So.2d 562. The grounds for recusal enumerated in Louisiana Code of Civil Procedure article 151 are exclusive and do not include a “substantial appearance of the possibility of bias” or even a “mere appearance of impropriety” as causes for removing a judge from presiding over a given action. Article 151 requires a finding of actual bias or prejudice, which must be of a substantial nature and based on more than conclusory allegations. Southern Casing of Louisiana, Inc. v. Houma Avionics, Inc., 00-0193, 00-1930, p. 15 (La.App. 1 Cir. 9/28/01), 809 So.2d 1040, 1050.

We find no abuse of discretion in Judge Clark’s denial of the motion to recuse. Although the record establishes that Judge Kelley vacated the previously-granted summary judgment in favor of Whalen after receiving a campaign contribution from Murphy, the evidence simply does not establish actual bias. This assignment of error is meritless.

Assessment of Costs

Whalen’s ninth assignment of error concerns the assessment of costs against him by Judge Kelley. While Whalen does not argue this assignment |inof error, we note that article 1920 of the Louisiana Code of Civil Procedure provides that:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

We find no error in the taxing of all costs to Mr. Whalen.

DECREE

The trial court judgments appealed from are affirmed. Costs of this appeal are to be borne by appellant, Dennis R. Whalen.

AFFIRMED.


source: Caselaw Access Project

author: JAMES C. GULOTTA, Judge, Pro Tempore.

license: Public Domain

text:
    David BUTKIEWICZ v. Warren EVANS, United Fire Group d/b/a Lafayette Insurance Company, Richard Neill, Dorothy Neill, State Farm Insurance Companies and the Department of Public Works for the City of Kenner.
    No. 06-CA-236.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 26, 2006.

      Gayle A. Reynolds, New Orleans, Louisiana, for Plaintiff/Appellee.
    Greta L. Wilson, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JAMES C. GULOTTA, Pro Tempore.
   JAMES C. GULOTTA, Judge, Pro Tempore.

| ^Defendant, the Department of Public Works for the City of Kenner (DPW), appeals from a judgment in a slip and fall matter in favor of Plaintiff, David Butkiew-icz. We affirm.

On October 21, 2003, Plaintiff was walking to his rental apartment on Old Miss Drive in Kenner, Louisiana, when he tripped on a three inch vertical elevation in the concrete public sidewalk. Plaintiff fell to the ground and sustained injuries to his right shoulder, right clavicle and several ribs, one of which punctured his lung. He underwent two surgeries and physical therapy. He has permanent disabilities to his clavicle and shoulder from the fall.

Suit was filed against DPW. After a judge trial in March of 2005, a judgment was rendered in Plaintiffs favor against DPW. The trial judge | sawarded Plaintiff $50,000 in general damages and $35,459 in medical expenses, but reduced the award by 75% for Plaintiffs comparative fault.

On appeal, Defendant asserts that the trial judge erred in finding it at fault because the uneven sidewalk was not a defective condition, and it did not create an unreasonable risk of harm. It further argues that the trial judge erred in failing to find what constituted a reasonable length of time for the Defendant to repair the sidewalk, and in failing to make a determination as to whether Defendant had ownership or custody of the sidewalk.

The evidence shows that the area of the sidewalk in question is broken and cracked in places. One section of the concrete has subsided and has pulled away from the adjacent section, causing a vertical elevation of three inches. This sudden elevation caused Plaintiffs fall. The evidence further shows that this condition existed prior to 1999 when the first complaints to Defendant are recorded. In 1999, DPW was notified of the defective sidewalk through numerous requests made by Warren and Doris Evans, adjacent homeowners. Mrs. Evans wanted the sidewalk replaced because it was “broken up” and not level. Defendant responded with letters informing them that under Defendant’s long established procedures it would fix the sidewalk, but the homeowner requesting the repairs would be responsible for paying for the cost of the concrete. Mr. and Mrs. Evans agreed.

Defendant then inspected and measured the area in order to estimate the concrete cost. The testimony showed that the condition of the sidewalk would have been the same between 1999 and 2003 since the soil was only slowly subsiding. A written confirmation to the Evans’ was sent in 1999. No further action was taken by Defendant at that time.

|4In 2000, Kenner city councilman Philip Capitano discovered the problem while campaigning door to door for the City of Kenner’s Mayor’s office. He spoke to the Evans family about their prior efforts to have Defendant fix the sidewalk. Subsequently, Mr. Capitano became involved and there were various discussions, letters, and memoranda between the Evans family, Mr. Capitano and Defendant. In 2002, Mr. Capitano sent a personal letter request to Defendant to place the Evans’ request on the sidewalk replacement list. The request was received by Defendant and documented. As a result, Defendant measured the area for the second time in 2002. Nothing was done in 2002 or 2003. Defendant finally repaired the sidewalk six months after Plaintiffs accident.

Mr. Holt Fastring, an expert in Mechanical Engineering and Safety, including the safety issues related to sidewalks reviewed the photographs taken after the accident. According to him, the three inch elevation created an “absolutely dangerous condition.” Mr. Fastring pointed out that both the American Society for Testing Materials (ASTM) and the American with Disabilities Act (ADA) contain guidelines for walking surfaces. Each recommends any vertical change on a walking surface ove^ inch to be accessible by a ramp, or gradual gradient change to prevent stumbling or falls.

Defendant presented testimony from its expert engineer, and personnel to show that there are many uneven areas of the sidewalks in the same neighborhood, and some are in worse condition. However, Defendant’s expert failed to apply any accepted standards to determine if the unevenness of the sidewalk was dangerous, and had no opinion as to how much of an abrupt change in the level of the sidewalk would be “too much.”

| sThere were no other reports of injury on the sidewalk. Mrs. Evans testified her family does not traverse that area often. Dr. Fastring added that property owners would likely be more familiar with areas adjacent to their home and conscious of any sections requiring extra care.

La.C.C. art. 2317.1 provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

In Leonard v. Parish of Jefferson, OS-32, p. 4 (La.App. 5th Cir.4/26/05), 902 So.2d 502, 504 we noted this article effectively turns strict liability into negligence claims, citing Reitzell v. Pecanland Mall Associates, Ltd., 37,524, p. 3 (La.App. 2nd Cir.8/20/03), 852 So.2d 1229,1232.

To prevail on a claim against a public entity under C.C. art. 2317.1, a plaintiff must establish: (1) the entity’s custody or ownership of the defective thing; (2) the defect created an unreasonable risk of harm; (3) the entity’s actual or constructive notice of the defect; and (4) causation. See, Oster v. Dep’t of Transp. & Dev., State of La., 582 So.2d 1285, 1288 (La.1991); La. R.S. 9:2800; Joseph v. City of New Orleans, 02-1996, p. 3 (La.App. 4th Cir.3/5/03), 842 So.2d 420, 423.

The manifest error standard of review applies to the trial court’s finding of whether a defect creates an unreasonable risk of harm. Reed v. Wal-Mart Stores, Inc., 97-1174, p. 5 (La.3/4/98), 708 So.2d 362, 365; Joseph, 02-1996 at p. 4, 842 So.2d at 423.

| fiIn determining whether a defect creates an unreasonable risk of harm, the courts use a risk-utility balancing test in which the gravity and risk of harm is balanced against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Leonard, 05-32 at p. 5, 902 So.2d at 504; Joseph, 02-1996 at p. 4, 842 So.2d at 423, citing Reitzell, 37,524 at pp. 3—4, 852 So.2d at 1232. See also: Boyle v. Board of Supervisors, Louisiana State University, 96-1158, p. 5 (La.1/14/97), 685 So.2d 1080, 1083.

Municipalities are not liable for every defect or irregularity in sidewalks that cause injury. Joseph, 02-1996 at p. 5, 842 So.2d at 423. The court in Reed noted:

It is common for the surfaces of streets, sidewalks, and parking lots to be irregular. It is not the duty of the party having garde of the same to eliminate all variations in elevations existing along the countless cracks, seams, joints, and curbs. These surfaces are not required to be smooth and lacking in deviations, and indeed, such a requirement would be impossible to meet. Rather, a party may only be held liable for those defects which present an unreasonable risk of harm.

Reed, 97-1174 at p. 2, 708 So.2d at 363.

CUSTODY

Defendant argues that the trial judge erred in failing to find it had custody of the sidewalk, citing the City of Kenner Ordinances. We disagree. The burden for tort liability arising from a defect in a public sidewalk is generally with the municipality, not the adjoining landowner. Schully v. Hughes, 00-2605, p. 3 (La.App. 4th Cir.6/5/02), 820 So.2d 1219, 1221(and cases cited therein); Graham v. City of Shreveport, 38,953, p. 5 (La.App. 2nd Cir.9/22/04), 882 So.2d 718, 721. Further, an abutting property owner is not generally responsible for the repair or maintenance of a public sidewalk, except where the defect in the sidewalk was caused by that landowner. Schully, 00-2605 at p. 6, 820 So.2d at 1223; Graham, 38,953 at p. 5, 882 So.2d at 721. In Kuck v. City of New Orleans, 531 So.2d 1142, 1144 (La.App. 4th Cir.1988) cited by the Sehully court, the Fourth Circuit noted that a statute that required that “all paved and unpaved banquettes in said City shall be kept in repair by the owners of real property fronting thereon” did not shift tort liability from the municipality to the abutting property owner.

We agree with these principals of law. Thus, we find that the trial judge did not err regarding the question of garde.

UNREASONABLE RISK OF HARM

In Joseph the sidewalk defect was over three inches high. The court there concluded that the trial judge was not manifestly erroneous in finding the sidewalk defect created an unreasonable risk of harm. Joseph, 02-1996 at p. 5, 842 So.2d at 425, and that it was at least, a contributing factor. In the instant case, the elevation was three inches high.

The trial judge concluded that the height of the elevation constituted a defect. He further found that it also created an unreasonable risk of harm based on the photographs and the testimony of Plaintiffs expert. He rejected Defendant’s contention that the condition did not constitute an unreasonable risk of harm because other sidewalk areas in the same neighborhood were in the same or worse condition. The trial judge further rejected Defendant’s argument that because there were no other reports of anyone else claiming injury from tripping on the sidewalk, and because the defect was caused by subsidence, it should be relieved of responsibility. We find no error in this regard.

| «NOTICE

Finally, the notice to the Defendant under C.C. art. 2317.1 was met by Plaintiff. Like the Joseph case, the dangerous condition existed for a substantial period of time before the accident (about five to ten years before the accident in Joseph and three to four years in this case.) Defendant had actual first notice of the condition starting in 1999. From 1999, Mr. and Mrs. Evans continued to pursue the issue, and a city council member became involved in 2000 and 2002 in an attempt to expedite the process. Twice Mr. and Mrs. Evans were informed that Defendant would start repairs. Twice Defendant sent workers out to measure the area. Five years elapsed before the Defendant repaired the area from the time it was notified of the problem. Under these circumstances, we conclude Defendant had ample notice. We further conclude that Defendant failed to take corrective action within a reasonable time.

Based on the evidence, we find that Plaintiff bore his burden of proof under La.C.C. art. 2317.1. We further find the trial judge was neither legally wrong nor committed manifest error in holding Defendant negligent for Plaintiffs injuries.

Accordingly, the judgment of the trial court is affirmed. The Defendant is to pay costs of the appeal in the amount of $179.00.

AFFIRMED.

      . The Plaintiff also sued Warren Evans, Richard Neil and their insurers. The two owned homes adjacent to the area of the sidewalk at issue. Prior to trial, Mr. Evans and Mr. Neill were dismissed from the action pursuant their motions for summary judgment.

      . The ASTM guidelines for sidewalks are provided in its Standard Practice for Safe Walking Surfaces section.

      . Causation is not at issue here.

      . Sections 13 — 52(a)(2), (a)(5)(iv), (c)(1) and (c)(2).

      . Custody of a thing, or garde is a French concept, defined in Louisiana law as the obligation imposed by law on the proprietor of a thing, or on one who avails himself of it, to prevent it from causing damage to others; the fault of a person thus liable is based upon one’s failure to prevent the person or thing from causing unreasonable injury to others. Leaman v. Continental Casualty Co., et al., 00-0292, p. 4 (La.App. 4th Cir. 9/26/01), 798 So.2d 285, 289; Zeringue v. O’Brien Transport, Inc., 05-760 (La.App. 5th Cir.4/11/06), 931 So.2d 377, 381; Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991).

      . See: R.S. 13:5112 which requires the appellate court to assess courts against a municipality in a specific amount.


author: SUSAN M. CHEHARDY, Judge.

text:
    Stephanie Ann Wille, Deanna Wille, Patricia Wille, Wife of/and John WILLE v. Charles G. COURTNEY, Lana M. Howell, Dane R. Howell, U.S. Agencies, Allstate Insurance Co. and ABC Insurance Co.
    No. 06-CA-231.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 26, 2006.

      Jerome M. Volk, Jr., Michael E. Escudier, Kenner, Louisiana, William E. Le-Blanc, Donaldsonville, Louisiana, for Plaintiffs/Appellants, Stephanie Ann Wille, Deanna Wille, Patricia Wille, Wife of/and John Wille.
    Robert M. Johnston, Stacy R. Palowsky, New Orleans, Louisiana, for Defendant/Appellee, Dane R. Howell.
    Richard T. Reed, Daniel A. Reed, Baton Rouge, Louisiana, for Defendant/Appellee, Zurich/Maryland Insurance Company.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

I ¿This appeal arises in an automobile accident case. Most of the defendants have settled except one defendant and his insurer. The trial court granted separate summary judgments in favor of the defendant and his insurer, from which the plaintiffs appeal. We affirm.

FACTS

The accident occurred on May 10, 1998 on Highway 61 near Gramercy in St. James Parish, Louisiana. Stephanie Wille was driving her 1998 Nissan automobile eastbound, with several passengers — Deana Wille, Patricia Wille, and John Wille— when her car collided with a 1998 Ford Escort that was pulling out from a private parking lot. The Ford was driven by Charles Courtney, with Lana Howell as passenger. Courtney and Lana Howell were on a date. Lana Howell was an owner of the Ford, and Courtney was driving with her permission. The Ford’s registration papers also listed Lana Howell’s father, Dane Howell, as an owner.

The Willes all sustained injuries and filed suit against Charles Courtney, Lana Howell, and Dane Howell, and their insurers, as well as against the Willes’ |sown uninsured motorists insurance carriers. All the defendants settled and were dismissed except for Lana Howell, Dane Howell, and Dane Howell’s insurer, Zurich/Maryland Insurance Company (hereafter “Zurich”).

Dane Howell and Zurich each brought a motion for summary judgment. Dane Howell’s motion asserted he is not liable because he acted as a co-signer in the purchase of the Ford Escort only so his daughter could purchase the car through the Ford Credit Program. He had never met Charles Courtney before the accident at issue, and he did not give Courtney permission to operate the Ford Escort. Lana Howell was 21 years old at the time of the accident and she and Charles Courtney were on their first date. Charles Courtney was not on a mission for Dane Howell, Courtney was neither an agent nor an employee of Dane Howell, and Dane Howell was not negligent in entrusting the vehicle to Courtney because he did not give him permission to drive it. Thus, Dane Howell contended he is neither directly nor vicariously liable for the acts of either Charles Courtney or Lana Howell.

Zurich’s motion for summary judgment argued there is no liability by Zurich and no possibility of coverage under any clauses of the policy, because Dane Howell had no ownership interest in the Ford Escort, the Ford was not a replacement vehicle for any vehicle shown in the policy declarations, and it was not a newly acquired additional vehicle. Further, both Lana Howell and her previous vehicle had been removed from the Zurich policy more than 30 days before the Ford Escort was purchased, so that the Ford could not be considered a | replacement of Lana’s previous vehicle for coverage by Zurich. Zurich asserted that the Ford Escort was purchased for Lana Howell’s exclusive use, Dane Howell signed the papers on the Ford only so that Lana could buy the vehicle, Dane Howell never drove, rode in, or used the vehicle, and Dane Howell’s actions amounted to a manual donation of the vehicle to Lana Howell. Thus, Zurich argued, Dane Howell was not the co-owner of the Ford.

The trial court found these arguments persuasive and granted summary judgment, with written reasons for judgment, as to both Dane Howell and Zurich.

On appeal, the plaintiffs assert the trial court erred in the following respects: (1) The trial court completely disregarded jurisprudence of this Circuit regarding the issues of liability and insurance coverage as to third persons as well as automatic coverage, relying instead on jurisprudence of the Second Circuit. (2) The trial court focused on the deposition testimony of Dane Howell and Lana Howell with regard to intent, contrary to the law and the conflicting genuine issues of fact created thereby. (3) The trial court erred in its analysis of the facts in the case of Abbasi v. State Farm Ins. Co., 04-44 (La.App. 5 Cir. 5/26/04), 875 So.2d 988, with regard to the issue of intent and the misapplication to the issue of vicarious liability.

ANALYSIS AND LAW

The liability discussions in the briefs contained much analysis of Dane Howell’s ownership interest in the Ford Escort, because although his name was listed on both the vehicle registration papers as well as the financing documents, Dane Howell asserted he did not intend to own the vehicle, but only signed the papers to facilitate his daughter’s obtaining the car. Except for signing the papers, he had nothing to do with the car.

|KWe look, first, at Dane Howell’s personal liability exposure, and second at the liability of Zurich.

Liability of Dane Howell

The trial court determined that Dane Howell could not be personally liable for the accident because there was no showing that Charles Courtney was on a mission for Dane Howell, Courtney was neither an agent nor employee of Dane Howell, and there was no showing that Dane Howell negligently entrusted the Ford to Courtney. Dane Howell had never met Courtney prior to the accident. Lana Howell was an adult and she was on a date with Courtney. The court pointed out that a “date” does not constitute “an errand for the benefit of both” (“both” referring to Lana Howell and Dane Howell). There was nothing to establish any connection between Courtney and Dane Howell. Under this analysis, even accepting that Dane Howell was a co-owner of the car, he is absolved of liability for the plaintiffs’ injuries.

The trial court relied on Abbasi v. State Farm Ins. Co., 04-44 (La.App. 5 Cir. 5/26/04), 875 So.2d 988, writ denied, 04-2076 (La.9/24/04), 882 So.2d 1135. In that case this Court held,

In Louisiana, owners of motor vehicles are ordinarily not personally liable for damages which occur while another is operating the vehicle. Exceptions to this rule occur only when the driver is on a mission for the owner of the vehicle, when the driver is an agent or employee of the owner, and when the owner is himself negligent in entrusting the vehicle to an incompetent driver. Imputation of negligence of one person to another is allowed only when there exists between them some relation of master or superior and servant or subordinate or other similar relationship. The relationship between them must be one invoking the principles of agency, or the persons must be co-operating in a common or joint enterprise, or the relationship between the parties must have been such that the person to whom the negligence is imputed must have had a legal | Bright to control the action of the person who was actually negligent. [Footnotes omitted.]

Abbasi, 04-44, p. 5, 875 So.2d at 992.

On appeal the plaintiffs assert the trial court erred in relying on the Abbasi case because the situation in that case is not comparable to the facts in this case. There was no co-owner involved. The plaintiffs assert that where, as here, there was a co-owner of the vehicle, the negligence of one co-owner is imputed to the other, so that Dane Howell is vicariously liable through the negligence of Lana Howell.

However, the negligence of one person may be imputed to another only when there exists between them some relation of master and servant, superior and subordinate, or other similar relationship. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149, 152 (1963). The relationship between them must invoke the principles of agency, or they must be co-operating in a common or joint enterprise, or the person to whom the negligence is imputed must have had a legal right to control the action of the person who was actually negligent. Id. “Unless a plaintiff can be held responsible, as a matter of law, for the torts of the person whose negligence is sought to be charged to him the doctrine of imputed negligence cannot be applied.” Id., at 153.

As the trial court pointed out, Lana Howell was an adult, on a first date with Charles Courtney. There is nothing to indicate that the date was for the benefit of Dane Howell, that it was any type of “joint venture” with him, or that he exercised any control or authority over Lana Howell’s decisions in driving the car or allowing another person to drive the car.

Considering the above, we find no error in the trial court’s granting of summary judgment in favor of Dane Howell.

17Liability of Zurich

The plaintiffs argue that Zurich is liable under the terms and conditions of its policy for the acts of Dane Howell, Lana Howell, and Charles Courtney.

The Zurich policy states, “We will pay damages for ‘bodily injury’ or ‘property damage’ for which any ‘insured’ becomes legally responsible because of an auto accident.” (Part A — Liability Coverage, Insuring Agreement, A)

“Insured” as used in this Part means:

1. You or any “family member” for the ownership, maintenance or use of any auto....
2. Any person using “your covered auto.”
3. For “your covered auto,” any person ... but only with respect to legal responsibility for acts or omissions of a person for whom coverage is afforded under this Part.
4. For any auto ..., other than “your covered auto,” any other person ... but only with respect to legal responsibility for acts or omissions of you or any “family member” for whom coverage is afforded under this Part.

(Part A — Liability Coverage, Insuring Agreement, B)

The Definitions provide that “you” and “your” refer to the “named insured” shown in the Declarations; and the spouse if a resident of the same household. (Definitions, A) “Family member” means “a person related to you by blood, marriage or adoption who is a resident of your household.” (Definitions, F) ‘Tour covered auto” means:

1. Any vehicle shown in the Declarations.
2. Any of the following types of vehicles on the date you become the owner:
a. a private passenger auto.... This provision (J.2.) applies only if:
a. you acquire the vehicle during the policy period;
b. you ask us to insure it within 30 days after you become the owner....
If the vehicle you acquire replaces one shown in the Declarations, it will have the same coverage as the vehicle it replaced. You must ask us to insure a | sreplacement vehicle within 30 days only if you wish to add or continue Coverage for Damage to Your Auto.
If the vehicle you acquire is in addition to any shown in the Declarations, it will have the broadest coverage we now provide for any vehicle shown in the Declarations.

(Definitions, J)

The policy states, “We do not provide Liability Coverage for the ownership, maintenance or use of ... [a]ny vehicle, other than ‘your covered auto,’ which is ... owned by any ‘family member’ .... ” (Exclusions, B.3)

Thus, the parties and the trial court focused on whether Dane Howell was truly co-owner of the Ford Escort because his ownership status is crucial to establishing whether the car was covered by the Zurich policy. If the car is determined to be owned only by Lana Howell, the ear cannot be covered by the Zurich policy under Exclusion B.3.

The uncontradicted evidence offered in support of the motions for summary judgment established that Dane Howell did not intend to purchase the car on behalf of his daughter. Rather, he signed the vehicle financing and title application papers only because the car dealership required him to do so in order to extend credit to his daughter. He never used the car in any way. Lana Howell paid for an insurance policy on the car with U.S. Agencies, on which policy Dane Howell was specifically excluded from coverage. Dane Howell never notified Zurich of the acquisition of the car and, in fact, several months prior to Lana’s purchase of the car he had her name removed from his policy as an operator of the vehicles listed on the policy. He also removed her prior vehicle (a 1986 Ford Ranger pickup truck) from the listing of covered vehicles on the policy declarations.

In Pendleton v. Ricca, 232 So.2d 803 (La.App. 4 Cir.1970), the issue was whether Ricca, the named insured, was the owner of the vehicle involved in the 19accident. Ricca purchased the vehicle in his own name, but with money supplied by his teenage son, for the purpose of providing his son with transportation. Ricca put the car in his name for convenience only.

In Pendleton, the policy defined “owned automobile” as being, among other things, “a private passenger ... automobile ownership of which is acquired by the named insured during the policy period provided,” provided the named insured notified the company “during the policy period or within 30 days after the date of such acquisition of his election to make this and no other policy issued by the company applicable to such automobile.”

The Fourth Circuit concluded that, “as to third persons, including [Ricca’s insurance company], the father was the legal owner of the car, irrespective of the status of ownership as between the father and his minor son.” Pendleton, 232 So.2d at 807. Thus, the court held, “The Plymouth was automatically covered under the terms of the policy the moment Joseph C. Ricca purchased it and such automatic coverage continued for a period of 30 days or until the end of the policy period, whichever was shorter, irrespective of notice to the insurer.” Id. “Since the accident in this case took place within the notice period the lack of notice to the insurer did not defeat the automatic coverage of the newly acquired automobile.” 232 So.2d at 808.

In contrast, in Dinkins v. Lyons, 295 So.2d 888 (La.App. 2 Cir.1974), defendant Lyons was listed on the title as owner of the car. However, Lyons had intended only to assist his young son-in-law in establishing credit to purchase the vehicle. Lyons could not read and his writing was limited to signing his name. He did not understand he was signing the papers as owner. All payments were made by his son-in-law, and Lyons never drove the vehicle or had possession of it.

JjjThe issue before the court in Dinkins was whether the registration of the automobile title in Lyons’ name was conclusive as to the question of ownership to determine whether Lyons’ automobile liability insurer insured the subject vehicle under the “newly acquired vehicle” clause. The Second Circuit concluded that Lyons was not the real owner of the car at the time it was registered in his name, and thus no coverage was afforded under his policy.

Zurich urges this Court to follow the trial court in finding that the reasoning of Dinkins applies rather than the reasoning of Pendleton, on the ground that in Dane Howell’s case, as in Dinkins v. Lyons, the co-owner (or owner) did not intend to purchase the vehicle as either a replacement or newly-acquired vehicle for his own use, but was merely assisting a family member to obtain transportation for that family member’s exclusive use. Zurich contends that Dane Howell’s action in signing the papers falls within La.C.C. art. 1950’s definition of error as to the nature of the contract, so that his role as to co-ownership should be vitiated through the “error” vice of consent.

In addition, Zurich contends that even if Dane Howell is considered to have been co-owner of the Ford Escort, his actions were tantamount to a manual donation of a corporeal movable: He never acted as an owner of the car; he never took possession of the car, he never sat in the car, he never drove the car, and he never made payments on the car. He did nothing more than sign a document to assist his daughter in purchasing the car.

Zurich points to Touchet v. Guidry, 550 So.2d 308 (La.App. 3 Cir.1989), in which the Third Circuit found that a vehicle owner’s verbal donation of a car to her brother was an effective transfer of ownership between the parties, despite lack of compliance with state requirements on documentation, so that there was no | coverage available for the brother under the original owner’s insurance policy issued after the transfer.

The manual gift of a corporeal movable accompanied by real delivery is not subject to any formality. La.C.C. art. 1539. The Touchet court pointed out that “under Louisiana law, title to motor vehicles, though imperfect, may be transferred between the parties in accordance with the provisions of the Civil Code even though they have not complied with the Vehicle Certifícate of Title Law (LSA-R.S. 32:701 et seq.).” Touchet, 550 So.2d at 313. See also, Scott v. Continental Ins. Co., 259 So.2d 391, 394 (La.App. 2 Cir.1972); Soileau v. Soileau, 95-578 (La.App. 3 Cir. 11/2/95), 664 So.2d 551.

We agree with Zurich’s premise that Dane Howell’s actions were tantamount to a manual gift of a corporeal movable. He gave full possession, use and ownership of the Ford Escort to his daughter, and had no intention of retaining any ownership of the vehicle at all. Because he had no ownership interest in the vehicle when it was acquired, it cannot be covered as either a replacement vehicle or a newly-acquired vehicle under the Zurich policy.

We conclude there is no genuine issue of material fact that would preclude summary judgment.

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.

      . Courtney’s insurer was Kentucky Farm Bureau Mutual Insurance Company ("Kentucky Farm Bureau”); Lana Howell's insurer was U.S. Agencies Casualty Company, Inc. ("U.S. Agencies”); Dane Howell’s insurer was Zu-ricb/Maryland Insurance Company ("Zurich”). The plaintiffs all were insured by Allstate Insurance Company ("Allstate”).

      . The record contains orders that dismissed Charles Courtney and Kentucky Farm Bureau, Allstate, and U.S. Agencies (which had filed a concursus proceeding and had deposited its policy limits in the court registry). All those orders contain reservations of rights against any and all other parties. There are no dismissals of Lana Howell, Dane Howell, or Zurich.


author: JAMES C. GULOTTA, Judge Pro Tempore.

text:
    Robert ARSENEAUX, Sr. v. The GRAY INSURANCE COMPANY, Alphonse Brown and Vaughan Equipment & Trucks, Inc. and/or Vaughan Contractors, Inc.
    No. 06-CA-266.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 26, 2006.

      Paul E. Mayeaux, Robert L. Manard, New Orleans, Louisiana, for Plaintiff/Appellant.
    Bradford H. Walker, Dara L. Baird, Baton Rouge, Louisiana, for Defendant/Ap-pellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JAMES C. GULOTTA, Pro Tempore.
   JAMES C. GULOTTA, Judge Pro Tempore.

| ¡¡.Plaintiff, Robert Arseneaux, Sr., appeals a damage award in an automobile accident matter filed against The Gray Insurance Company (GIC), Alphonse Brown (Brown), and Vaughan Equipment & Trucks, Inc. and/or Vaughan Contractors, Inc. (Vaughan.) We affirm.

On March 21, 2003, Plaintiff was driving west on U.S. 90 B when his car was struck by a pick-up truck driven by Alphonse Brown. Brown was in the course of his employment with Vaughan. Suit was filed against Defendants on February 6, 2004. Prior to trial, Defendants stipulated that Brown was negligent in causing the accident, but disputed Plaintiffs claim that he suffered four levels of cervical disk problems requiring future surgery.

In a jury trial on damages only, the jury rendered a judgment for Plaintiff in the sum of $170, 570. The jury itemized Plaintiffs damages as follows:

UPast Medical Bills — $ 9,520;
Future Medical Bills — $ 25,000;
Future Loss of Earning Capacity — $ 17,000;
Past Physical Pain and Suffering — $ 25,000;
Future Pain and Suffering — $ 50,000;
Past Mental Pain and Suffering — $ 6,250;
Future Mental Pain and Suffering — $ 32,000;
Loss of Enjoyment of Life’s Pleasures (Past and Future) — $ 5,800.

The jury further declined to award past lost wages, lifetime fringe benefits, loss of household services, and past and future disability.

The verdict was reduced to judgment on August 23, 2005. On August 15, 2005, Plaintiff filed a Motion for Judgment Notwithstanding the Verdict and/or New Trial and/or Additur. The motions were denied on November 2, 2005.

On appeal, Plaintiff asserts that the jury erred in failing to award only $25,000 and not $100,000 for future medical expenses; that it erred in failing to award any damages for future disability; erred in only awarding $17,000 for future loss of earning capacity; erred in failing to award damages for loss of household services; erred in only awarding $5,800 for loss of enjoyment of life; erred in only awarding $25,000 for past physical pain and suffering; erred in only awarding $50,000 for future physical pain and suffering; erred in only awarding $6,250 for past mental pain and suffering; and erred in only awarding $32,000 for future mental pain and suffering. Plaintiff further asserts that the trial judge erred in denying Plaintiffs Motion for Notwithstanding the Verdict, New Trial and/or Additur.

Plaintiff testified that seconds after the accident, he blacked out for a few seconds. He then “jerked” and immediately felt that something was wrong. He said he felt extreme pain in his neck and back, with shooting pain down his arms into his fingers. Plaintiff also said his fingers tingled and his hand was numb. Shortly after the accident he went to the Parish’s employees’ physician, Dr. David pReiss at Elm-wood Medical Center, as required by the Parish when an employee is in an accident. He told the doctor he was dizzy and his neck was hurting “real bad.” Later, Plaintiff complained to his wife and adult children about Ms pain, which persisted through the next week. Plaintiff returned to Dr. Reiss five days later with the same complaints. Unsatisfied with Dr. Reiss, he sought treatment at a physical therapy center where he underwent chiropractic manipulations.

Plaintiff went to physical therapy for five or six months. When he did not obtain relief from the pain, he was advised to get a Magnetic Resonance Imaging (MRI) test. Based on those findings of damage to Plaintiffs neck, the doctor at The Center for Physical Medicine referred Plaintiff to Dr. Bradley Bartholomew, a neurosurgeon. Plaintiff complained to Dr. Bartholomew about headaches, shooting pains down his arms, numbness in the hands, and severe pain in his neck. Dr. Bartholomew ordered nerve conduction studies. This doctor concluded that Plaintiff needed a four-level cervical disk fusion. Plaintiff stated he intended to schedule the surgery following the trial, but delayed, because of bills he owed, and because of the residual effects, he may not have a job after the surgery. He noted he has had to balance the risks associated with the surgery against the risks without the surgery. In addition, the Parish of Jefferson, Plaintiffs employer, sent him to Dr. Robert Appleb-aum, a neurosurgeon, for evaluation.

Plaintiff testified that the only other automobile accident he had been involved in occurred when he was fifteen years old. He contended he had never had neck pain that required medical treatment from a doctor until after the accident. Plaintiff also denied having tingling and numbness in his hands before the accident.

Before he was employed by the Parish, Plaintiff worked with or as a self-employed general contractor for at least 15 years. During the two years prior to the ^accident and subsequent thereto, Plaintiff had been employed by the Parish as an engineer. He was responsible for inspecting all of the underground pipe work in new subdivisions. In that job, he was required to climb in and out of manholes, as well as lift and transport manhole covers.

Plaintiff continued to work after the accident. However, he said that he avoided lifting heavy objects. Sometime after the accident, he stated the Parish placed him on light duty work. However, he admitted he worked overtime (over 40 hours per week) in 2003, 2004, and 2005. On the other hand, he stated he started working fewer hours in 2005. Plaintiff explained that he has to work overtime when he is told to do so by the Parish. Plaintiff said he takes off work when his neck is severely painful.

According to Arseneaux, his wife and daughter, Plaintiff was active prior to the accident. He jogged, walked for exercise, played volleyball, and tennis with his wife. He played basketball on the weekends with his grandchildren. Plaintiff performed most of the vacuuming in the house, all of the outside yard work, and routinely washed the car and changed the oil. Since the accident, he walks, but cannot jog. He has stopped the other activities because he is fearful of further damaging his neck. His wife now performs all or most of the house related chores.

Photographs of the accident show that neither car sustained any damage.

The treating physician, Dr. Bartholomew, testified that Plaintiff was 56 years of age when he saw him. He denied any neck injuries prior to the accident. Plaintiff described the current accident, and noted that he went to his employer’s doctor first and then to a chiropractor. Arse-neaux complained of neck pain shooting across his shoulders, headaches starting from the back of the neck, and radiating pain down his arms to his last two fingers, with the pain less severe in the | (¡right arm. The complaints were consistent with herniated disks that were irritating the nerve roots.

After reviewing the MRI taken previous to Dr. Bartholomew’s involvement in the case, Dr. Bartholomew believed that Plaintiff has four levels in the neck causing the majority of the problems. The doctor testified that Plaintiff has herniated disks and bone spurs pushing against the spinal cord at all four levels. The most troublesome areas are at the C5-6 level and between the C5-6 and C6-7 levels, where there is compression of the spinal cord. There was also evidence of an annular tear (outer shell containing the disk material) between the third and fourth disks. That area has nerves that can cause pain if irritated. The doctor noted that everyone has degenerative disk disease to some extent manifested by bone spurs or osteophytes, which may or may not cause pain.

Dr. Bartholomew ordered electromyo-graph (EMG) and nerve conduction tests to obtain information as to whether the nerves were working properly or if the nerves were adversely affecting the muscle. The results showed upper extremity sensory neuropathy (which causes numbness and tingling) and bilateral mid-cervical radiculopathies (which is radiating pain from irritation of a nerve root). He found the test results consistent with nerve compression and Plaintiffs symptoms. He noted that sensory neuropathy is one of the first indications that a nerve is compressed. Plaintiff underwent two more MRIs of the cervical spine. They were unchanged from the first one. Dr. Bartholomew testified that Plaintiffs pain has worsened since his initial visit.

Dr. Bartholomew recommended surgery to the Plaintiff to remove the disk material pushing against the spinal cord and fusing each of the 3^4, 4-5, 5-6, and 6-7 disks to prevent the disks from collapsing. The doctor testified that he was attempting to arrange the surgery for November or early December of 2005. 17Pr. Bartholomew concluded that Plaintiffs four level disk herniations and pain is more probably than not caused by the accident.

Jeffrey Carlisle testified as a vocational rehabilitation expert. He reviewed the records in Plaintiff case, including depositions and reports by Plaintiff; Shael Wolf-son, an economic expert; Dr. William Armington; Dr. William Batherson (Center for Physical Therapy); Dr. Reiss; Dr. Bartholomew; Diagnostic Imaging; Dr. Morteza Shamsnia; Dr. Applebaum; The Center for Physical Medicine; Elmwood Industrial Medical Center; and East Bank Imaging. He concluded that Plaintiff is capable of continuing to work in his present job with or without the surgery since his employer is accommodating Plaintiffs physical restrictions. Mr. Carlisle neither met with Plaintiff nor talked to his employer prior to trial.

Dr. William Armington, an expert in radiology and neuroradiology agreed that Plaintiff has problems along the entire cervical spine. However, he disagreed with Dr. Bartholomew that the trauma caused the problems. While he did not examine Plaintiff, he reached his conclusions after reviewing Plaintiffs three cervical MRIs, one lumbar MRI, the various medical records, and the depositions of Dr. Bartholomew and Dr. Shamsnia. He did not testify relative to the necessity for surgery, or to the level of pain experienced by Plaintiff.

Dr. Armington testified that the tests show degenerative disk disease at all levels in the neck. The tests performed indicated to him that the degenerative disk problem was present prior to the accident. This expert diagnosed Plaintiff with longstanding degenerative disk disease or degenerative facet joint disease of the cervical spine measuring in years.

Dr. Armington further testified that it was unlikely that a single event could cause these changes. Furthermore, he testified that he would be “very surprised” if Plaintiff was not experiencing symptoms prior to the accident given the severity of |sthe findings. However, he admitted that many people have degenerative disk disease or changes in the lumbar and cervical spine, and go about their daily business without any symptoms. He also agreed that asymptomatic disk conditions can become symptomatic from a motor vehicle collision.

1) JNOV

A Judgment Notwithstanding the Verdict (JNOV) is provided for by La. C.C.P. art. 1811, and may be granted on the issue of damages, the issue of liability or on both. Smith v. State, Dept. of Transp. & Development, 04-1317, p. 12 (La.3/11/05), 899 So.2d 516, 524. A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict, not merely when there is a preponderance of evidence for the mover. Smith, 04-1317 at p. 12, 899 So.2d at 524-525. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. Smith, 04-1317 at p. 12, 899 So.2d at 525. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Smith, 04-1317 at p. 13, 899 So.2d at 525.

When reviewing a district court’s grant of a JNOV, an appellate court must first decide if the district judge erred in granting the JNOV by employing the above-mentioned criteria in the same manner as the district judge did in determining whether the motion should have been granted. Id. This is a rigorous standard and is based upon the principle that when there is a jury, the jury is the trier of fact. Trunk v. Medical Center of Louisiana at New Orleans, 04-0181, p. 5 (La.10/19/04), 885 So.2d 534, 537 (citing Joseph v. Broussard Rice Mill, Inc., 00-0628, pp. 4-5 (La.10/30/00), 772 So.2d 94, 99); Smith, 04-1317 at p. 13, 899 So.2d at 525.

In reviewing the evidence and award by the jury in this case, we conclude that the jury agreed with Plaintiff that he suffered some injuries in the accident. However, considering the amount of the award, the jury apparently did not believe that all of the problems with his neck were caused by the accident. The jury was apparently convinced by Dr. Armington’s testimony that Plaintiff had the deteriorating disks and herniations before the accident, and that given the severity of the problems, must have suffered some neck problems in the past. Notably, photographs of the accident show that neither car sustained any damage indicating that the impact was not severe. The photographs cast some doubt on Plaintiffs allegation that he “blacked out” from the impact. Furthermore, while he should not be penalized for continuing to work while in pain, Plaintiff did not corroborate his claim that he was working on light duty with his employer and not lifting heavy objects. Nonetheless, the jury correctly awarded Plaintiff an amount it deemed reasonable for the aggravation of a prior condition. Thus, the trial judge did not err in denying the JNOV.

2) JURY AWARD

An appellate court may not disturb the conclusions reached by a jury regarding factual matters in the absence of “manifest error” or unless a particular finding of fact was “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Duncan v. Kansas City Southern Railway Co., 00-0066, p. 3 (La.10/30/00), 773 So.2d 670, 675. In making this determination, the inquiry is whether the factual findings are reasonable in light of the entire record, not | inwhether the trier of fact was right or wrong. Duncan, 00-0066 at p. 3, 773 So.2d at 675. If, after reviewing the entire record, the trial court’s findings are reasonable, then the appellate court may not reverse, even if convinced it would have weighed the evidence differently sitting as the trier of fact. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990).

In reviewing an award of damages by the trial court, the appellate court is limited to a review for abuse of discretion. The discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Miller v. Clout, 03-0091, p. 7 (La.10/21/03), 857 So.2d 458, 463, quoting Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). Further, only after a court has, for articulable reasons, determined that an award is improper may it look to other awards in comparable cases for guidance as to what might be an appropriate award. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993); Raspanti v. Liberty Mut. Ins. Co., 05-623, p. 5 (La.App. 5th Cir. 1/31/06), 922 So.2d 631, 635.

The answers to the jury interrogatories were meticulous, and it is clear that the jury carefully considered each item of the award. Under these circumstances, we cannot say the jury erred nor can we say that the trail judge erred in denying the JNOV or the motion for new trial and/or additur.

Accordingly, the judgment of the trial court is affirmed. Costs of the appeal are to be paid by Defendant.

AFFIRMED.

      . We applied the criteria for JNOV to this evidence, and concluded the facts and infer-enees do not point so strongly in favor of Plaintiff that reasonable persons could not arrive at a contrary verdict. Smith v. State, Dept. of Transp. & Development, 04-1317, p. 12 (La.3/11/05), 899 So.2d 516, 524-525.


author: JAMES C. GULOTTA, Pro Tempore Judge.

text:
    STATE of Louisiana v. Richard J. LAVIOLETTE.
    No. 06-KA-92.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 26, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark, Douglas Freese, Donald A. Rowan, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Jack E. Truitt, Melissa S. Quigley, Mad-isonville, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and JAMES C. GULOTTA, Judge, Pro Tempore.
   JAMES C. GULOTTA, Pro Tempore Judge.

| .¿Defendant appeals from his conviction for second degree murder and his sentence to life imprisonment, at hard labor, without benefit of parole, probation or suspension of sentence. We affirm.

On December 5, 2002, the Jefferson Parish Grand Jury issued an indictment charging Defendant with first degree murder, a violation of La. R.S. 14:30. Christopher Arceneaux (Arceneaux) was charged as a co-defendant in the same indictment. Defendant was arraigned on December 9, 2002, and pled not guilty.

On January 27, 2008, defense counsel filed a motion to appoint a sanity commission, alleging Defendant was not competent to stand trial. The trial court granted the motion on January 29, 2003, and appointed a sanity commission. The court held a competency hearing on May 7, 2003. After hearing the testimony of Drs. Richard Richoux and Rafael Salcedo, the court found Defendant was competent to stand trial.

|sOn February 27, 2003, Defendant filed a Motion to Sever Parties on the Basis of Antagonistic Defenses. The trial court granted the motion on June 5, 2003. Defendant filed a Motion to Suppress Statements on January 17, 2003. He filed an Amended Motion to Suppress Statements on January 27, 2003. On September 3, 2003, those motions were heard and denied on September 9, 2003. Defendant applied to this Court for supervisory writs, challenging the trial court’s ruling. This Court denied writs. State v. Laviolette, 03-1172, (La.App. 5th Cir.10/30/03).

On April 1, 2004, the State amended the indictment as to Defendant only. The State reduced the charged offense to second degree murder (La. R.S. 14:30.1), and alleged that the murder was committed while Defendant was engaged in the attempted perpetration of an armed robbery. Defendant was arraigned as to the amended indictment on April 6, 2004, and he pled not guilty.

Defendant was tried by a twelve-member jury on April 19, 20, and 21, 2004. The following facts were offered at trial.

Zaina Mansour (Zaina) testified at trial that she is fourteen years old, and she has a brother and a sister who are eight-year-old twins. On the night of October 27, 2002, Zaina and her mother, Deana Mans-our (Mrs. Mansour), returned to their home at 804 Huckleberry in Terrytown after a visit with Zaina’s grandmother. Mrs. Mansour parked the family’s van in the driveway in front of the house, and she and Zaina began cleaning the inside of the vehicle.

Zaina testified that she was standing on the outside of the vehicle on the passenger side, cleaning the back seat. Her mother was standing outside on the vehicle’s driver’s side. Two young men — one black and one white — approached Zaina from behind. She testified that the two men were together. The black man grabbed her shoulder and turned her around to face him. He pointed a gun at her face and said, “[G]ive me everything you got.” The white man did not say anything, but began 14rubbing Zaina’s thigh with his hand. Zaina testified she believed she was being sexually assaulted, and she was afraid. She called out to her mother.

Mrs. Mansour crawled across the back seat of the van and put her arm around Zaina, shielding the girl with her body. Mrs. Mansour told the men to take everything she had. Zaina testified that her mother tried to move her purse toward the men, offering it to them. But the men did not take anything. Mrs. Mansour said, “Zaina, call the police.” The black assailant shot Mrs. Mansour, and both men fled on foot.

Zaina testified that she closed and locked the van doors and began performing CPR on her mother. She tried to call police on a cellular telephone, but the phone was inoperable. Zaina ran to the front door of the house and called to her father for help. Aref Mansour (Mr. Mans-our), Zaina’s father (and the victim’s husband), testified that he was napping inside the house when his daughter knocked on the door. He said Zaina called police, and officers responded quickly. But by the time emergency medical technicians arrived, Mrs. Mansour was dead.

Mr. Mansour testified that police found $1,600 in cash in the van after the murder. He said that Mrs. Mansour worked in her family’s business, and she often handled large sums of money.

Dr. Karen Ross, an expert in forensic pathology, testified that she performed an autopsy on the victim’s body. She determined the cause of death was a gunshot wound to the chest. The doctor testified that the wound was consistent with the victim turning and shielding someone else.

Deputy Stephanie Bartolo (Deputy Bar-tolo), a patrol officer with the Jefferson Parish Sheriffs Office, testified the shooting call originated at 8:45 p.m., and it took her about three minutes to arrive at the scene. Another deputy was already there. Deputy Bartolo testified that the victim was in the vehicle, slumped over the seat and bleeding profusely. Zaina, who was standing next to the vehicle, said “Help my mom. Please Rdon’t let my mom die.” Deputy Bartolo testified that she attempted to administer first aid to the victim. She briefly interviewed Zaina, who described the perpetrators as a white man and a black man.

Lieutenant Grey Thurman (Lieutenant Thurman), a platoon commander with the Homicide Section, testified that his squad was assigned to the investigation. He and Detective Donald Meunier (Detective Meu-nier) processed the scene at 804 Huckleberry. Lieutenant Thurman testified that he grew up near the scene, and he knew there was little foot traffic from outside the neighborhood. He therefore believed that the perpetrators lived in the neighborhood.

Lieutenant Thurman testified that among the items of evidence recovered at the scene were a spent cartridge casing and a projectile from a nine millimeter semi-automatic handgun. The murder weapon was never recovered. The Mans-ours’ vehicle was impounded, and was processed for evidence at the Detective Bureau. Detective Meunier testified that a palm print found on the rear passenger side of the victim’s vehicle was determined to be that of Arceneaux. No fingerprints were found that matched Defendant’s.

Detective Meunier testified that the sheriffs department received a number of anonymous telephone calls from people who suggested Defendant was involved in the murder. Using computer databases, Detective Meunier found a photograph of Defendant. Defendant fit Zaina’s general description of the second perpetrator as a white or Hispanic man. Detective Meunier testified that, on October 29, 2002, he showed Zaina a photographic lineup containing a picture of Defendant, but Zaina was unable to make identification.

Detective Meunier testified that his suspicions were further piqued by the fact that Defendant lived only three or four houses away from the Mansours. Moreover, the detective learned that Dennis Cloud (Mr. Cloud), an associate of Defendant’s, had | (¡reported a nine millimeter handgun stolen from his car on October 24, 2002, while the vehicle was parked in front of Defendant’s house. Based on the evidence found at the scene, the investigators believed the murder weapon was a nine millimeter handgun.

Deputy Kirk Zeagler (Deputy Zeagler) testified that he and other officers canvassed the Mansours’ neighborhood on October 30, 2002, with the hope of uncovering additional information about the perpetrators. Officers went to Defendant’s house and spoke with Defendant and his mother. Deputy Zeagler said Defendant’s mother denied any knowledge of the murder. Defendant did not say that he had seen either the shooting itself or the perpetrators. The deputy said that Defendant’s demean- or suggested he was afraid and he found Defendant’s behavior to be inappropriate.

Mr. Cloud testified, as a defense witness, that he has known Defendant for ten years, and that he was a friend of Defendant’s older brother, Michael. Prior to the murder, he visited the Laviolette house nearly every day. Mr. Cloud testified that on October 24, 2002, he parked his car in front of Defendant’s house during a brief visit. He later noticed the handgun he kept in the car was missing. Mr. Cloud testified that there was not a time during the visit when Defendant could have gotten into his car without being seen. Defendant was in his presence during his entire visit, except when he went to use the bathroom.

Mr. Cloud testified that following the murder, he met with Detective Meunier to inform him about the theft of his gun. Detective Meunier asked Mr. Cloud to help him initiate contact with Defendant. The detective testified that he asked Mr. Cloud to invite Defendant on a social outing. Officers would be stationed at a prearranged location, and they would stop Defendant and Mr. Cloud. In that way, Detective Meunier planned to make contact with Defendant, while ensuring that he would not have an opportunity to “tip off’ his co-perpetrator.

|7The detective testified that he and several other plainclothes detectives waited on Terry Parkway in Terrytown until Mr. Cloud and Defendant approached riding Mr. Cloud’s motorcycle. The officers stopped the two men, informed Defendant about the homicide investigation, and asked him to accompany them to the Detective Bureau. When they arrived there, the officers placed Defendant in an interview room. Detective Meunier testified that he advised Defendant of his Miranda rights, and Defendant agreed to waive his rights and submit to a tape recorded interview. The interview began at 4:15 p.m. on November 1, 2002. During that interview, Defendant said he had no involvement in the murder, nor had he witnessed it. The tape recording of the interview was admitted at trial, and was played for the jury. A transcript of that recording was also admitted in evidence.

Defendant submitted to a second tape recorded interview at 5:15 p.m. on November 1, 2002. That interview was also entered into evidence and was played for the jury. During that interview, Defendant admitted to Detective Meunier that he was with Arceneaux on the night of October 27, 2002, and that he saw Arceneaux shoot the victim. Defendant said he did not participate in the shooting. He further claimed he was not standing close to Arceneaux when Arceneaux fired at the victim. Defendant said that afterwards, Arceneaux held the gun to his head and threatened to kill him if he told anyone he was the shooter.

Detective Meunier testified that he arrested Defendant on November 1, 2002. The Detective testified that he showed Zai-na photographic lineups containing pictures of Defendant and Arceneaux, but she was unable to make an identification. Zai-na did, however, collaborate with Heather Gorman of the sheriffs office to complete a composite drawing of the black suspect.

| ¿Timothy Scanlan (Scanlan), a forensic scientist with the Jefferson Parish Sheriffs Office Crime Lab, was accepted by the trial court as an expert in firearms examination. He testified that he examined the projectile and the copper jacket found at the scene. He determined that they were fired from a Hi-Point nine millimeter handgun.

Scanlan testified that he participated in the examination of the victim’s vehicle after it was impounded. He dusted it for fingerprints and swabbed it for DNA samples. Lieutenant Patricia Adams (Lieutenant Adams) of the latent fingerprint division testified for the defense. She stated that she assisted in collecting latent fingerprints from the vehicle. She testified that of the four slides lifted, three were palm prints and the other was a fingerprint. Two of the palm prints were identified as Arceneaux’s. The fingerprint was identified as belonging to the victim’s sister. There was one palm print that could not be identified because it was of poor quality.

Following trial, the jury returned a verdict of guilty as charged. On May 12, 2004, Defendant filed a motion for new trial. The motion was argued and denied on June 2, 2004. Defendant waived statutory delays, and the court sentenced him that day to a mandatory term of life imprisonment, without benefit of parole, probation, or suspension of sentence. Defendant made a timely oral motion for appeal. He filed a written Motion for Appeal on June 22, 2004. The trial judge granted the motion on June 24, 2004. On appeal, Defendant assigns two errors.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error, Defendant argues the trial court erred in allowing the State to call Arceneaux as a witness before the jury when the prosecutors knew he would invoke his Fifth Amendment privilege against self-incrimination. Defendant contends that Arceneaux’s assertion of privilege in the presence of the jury prejudiced his case, and thus this Court should vacate his conviction and sentence and grant him a new trial.

|flThe State first argues, as a procedural matter, that defense counsel did not make the required contemporaneous objection to the trial court’s ruling allowing Arceneaux to take the stand in the presence of the jury. On the merits, the State argues there was no error in calling Arceneaux to the stand, because he had no Fifth Amendment privilege to assert. Moreover, the State argues, that Defendant was not prejudiced in any way by Arceneaux stating that he would “plead the Fifth,” in response to the prosecutor’s question, “Mr. Arceneaux, how old are you?”

During a break in the trial proceedings, out of the jury’s presence, the judge met with prosecution and defense counsel to discuss the State’s expressed intention to call Arceneaux to testify. Also present were Lee Faulkner and Paul Fleming, who had represented Arceneaux at his separate trial, and Ben Cohen of the Capital Appeals Project. At that time, Arceneaux had been convicted of first degree murder and the jury in his case had recommended the death penalty, but the trial court had not yet imposed the sentence.

Cohen informed the judge of earlier discussions between the State and Arcen-eaux’s counsel regarding an agreement by which Arceneaux would testify for the State at Defendant’s trial. Under said agreement, the State would consent to a sentence of life imprisonment for Arcen-eaux. Prosecutor Douglas Freese responded that, while the State had offered to discuss such an arrangement with Ar-ceneaux’s counsel, the offer had expired at the commencement of Defendant’s trial. Freese further explained that the State would be calling Arceneaux to testify under the provisions of La C.Cr.P. art. 439.1.

|inMr. Faulkner informed the court that, “since the State has retracted it, there’s no deal on the table for Arceneaux to testify and he will invoke his Fifth Amendment privilege and there will be no testimony from Arceneaux on this matter.” Freese responded that Arceneaux could not refuse to testify, and that if he attempted to invoke a Fifth Amendment privilege, the judge should inform him that he was required to answer the questions put to him. The judge ruled that the State could call Arceneaux to the stand before the jury.

The jury was called into the courtroom. Before the trial resumed, the following exchange took place at the bench:

MR. WALKER [defendant’s counsel]:
Your Honor, out of an abundance of caution, not knowing what’s going to come out in front of the jury, I would request that this witness initially be taken out of the presence of the jury to determine whether or not he’s going to testify.
MR. FREESE:
No. They don’t have a right to a preview of what will happen on the stand. We can call the witness and ask the lnwitness what questions we deem appropriate, regardless of what his response is going to be.
THE COURT:
Do you want to respond?
MS. GAULIN [defendant’s co-counsel]:
Under State versus Berry, it would be unethical to put a witness on the stand knowing that he will not testify. It would be very, very prejudicial, for our client, to do that.
MR. FREESE:
That is a misstatement of the law. It would be unethical for me to Call a witness who I know would invoke the Fifth Amendment right that he can invoke.
THE COURT:
But the thing is he has no Fifth Amendment right at this point, because—
MR. WALKER:
But, Your Honor, my concern is that he’s going to refuse to testify, and then Mr. Freese is going to ask him questions knowing that he’s not going to answer, and it’s going to amount to Mr. Freese testifying through his questions.
THE COURT:
And I won’t allow that.
MR. WALKER:
That is what I was concerned about in front of the jury.
THE COURT:
And we’re not going to go through a long list of questions. I will allow him to begin, but if that’s the tact that’s taken, then we’ll just have to leave it at that point.

The bench conference ended, and the State called Arceneaux to the stand. Freese asked Defendant, “How old are you?” and Defendant responded, “I respectfully plead the Fifth.” Freese then explained to him that he was required to | ^respond to questioning under oath pursuant to the court’s order. Arceneaux responded that he understood, but that he would not be testifying.

At that point, the trial judge explained to Defendant that as part of the court order his testimony was compelled and that it could not be used against him in any criminal prosecution except for perjury or giving a false statement. Arceneaux indicated that he understood what the judge was saying but he was still refusing to testify. At that point the trial judge indicated he would take the matter under advisement and excused Arceneaux. Later, the judge ruled that the State would not be permitted to question Arceneaux further.

During the jury’s deliberations, jurors submitted some handwritten questions to the judge. The judge ordered the note entered as Court Exhibit 1, and it is included with the exhibits in the appeal record. The fourth and final written question was: “You indicated yesterday that you would take under advisement the refusal to testify by Chris Arceneaux when he cited the [F]ifth [A]mendment and rule on that. Are we allowed to know the result of your ruling? Should we expect to hear it either before or after our deliberations?” To that question, the judge responded that he would address the matter with the jurors after they completed their deliberations. If the judge ever offered the jurors an explanation of his ruling with regard to Arceneaux, it is not included in the record.

Defendant argues on appeal that when the trial court allowed Arceneaux to invoke his Fifth Amendment privilege before the jury, it likely caused jurors to infer that Arceneaux did not want to incriminate Defendant because in doing so he would implicate himself in the murder.

Considering the State’s procedural objection, that defense counsel did not preserve this issue for review because he failed to make a contemporaneous objection, we find no merit in, it. The purpose of the contemporaneous objection rule 11¾⅛ to put the trial judge on notice of an alleged irregularity, allowing him the opportunity to make the proper ruling and correct any claimed prejudice to the defendant. This prevents the defendant from gambling for a favorable verdict at trial and then later utilizing appellate review to correct errors that might easily have been corrected by the trial judge. State v. Williams, 04-608, p. 8 (La.App. 5th Cir.11/30/04), 889 So.2d 1093, 1100, writ denied, 05-0081 (La.4/22/05), 889 So.2d 559.

The Louisiana Supreme Court has said, “There are no formal requirements detailing any specific form for an objection. All that is required is that a party make clear, at the time an order of the court is made or sought, the action which he desires the court to take, together with an objection and grounds.” State v. George, 95-0110, p. 13 (La.10/16/95), 661 So.2d 975, 981.

The record herein shows that the defense did voice its opposition when the prosecution announced its intention to question Axceneaux in the jury’s presence, and they asked the court for a ruling. It was clear from defense counsel’s argument that Defendant wanted Arceneaux questioned out of the jury’s presence in order to prevent prejudice when the witness invoked the Fifth Amendment. We find that defense counsel’s objection and request for a ruling were sufficient to satisfy the contemporaneous objection rule. See, State v. Berry, 94-249, pp. 4-5 (La.App. 5th Cir.10/25/94), 645 So.2d 757, 760.

Turning to Defendant’s argument on the merits, that Arceneaux’s assertion of his Fifth Amendment privilege in the jury’s presence constitutes reversible error, we disagree.

The privilege against self-incrimination granted by the Fifth Amendment to the United States Constitution is also assured by Article I, § 16 of the Louisiana Constitution (1974), which provides that “No person shall be compelled to give | uevidence against himself.” The jurisprudence favors the determination of claims of privilege outside the jury’s presence, considering the undue weight a jury might give to such a claim. In State v. Wille, 559 So.2d 1321, 1337-1338 (La.1990), the Louisiana Supreme Court stated:

This court has recognized that it is error to allow the prosecutor to call before the jury a witness who he knows will invoke the privilege against self incrimination, when there is no other purpose for calling the witness except to have the jury draw evidentiary inferences from the fact that the witness claimed the privilege.

See also, State v. Berry, 324 So.2d 822, 830 (La.1975), cert. denied, 425 U.S. 954, 96 S.Ct. 1731, 48 L.Ed.2d 198 (1976); State v. Gerard, 96-366, pp. 11-12 (La.App. 5th Cir.11/14/96), 685 So.2d 253, 258.

In the leading case of Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963), the United States Supreme Court considered the question of whether the trial court committed reversible error in allowing prosecutors to question two witnesses about whether they engaged in criminal activity with the defendant, although it was known that the witnesses were going to claim their privilege against self-incrimination. The Court held that reversible error can occur either when “the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege,” Id. at 186, 83 S.Ct. at 1154-1155, or when “in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant” Id. at 187, 83 S.Ct. at 1155.

This Court has employed the two-part Namet test in determining whether the trial court has committed reversible error in allowing a witness to invoke his Fifth Amendment privilege in the jury’s presence. State v. Mills, 04-489, p. 6, (La.App. 5th Cir.3/29/05), 900 So.2d 953, 962, writ denied, 05-1470 (La.1/13/06), 920 So.2d 235; State v. Smith, 04-340, p. 8 (La.App. 5th Cir.10/26/04), 888 So.2d 280, 287.

In State v. Smith, supra, this Court, finding no reversible error, noted that the testifying witness, who was a co-defendant and had already been convicted of the crime, had no valid Fifth Amendment privilege to assert. Similarly, in this case, the Defendant had no valid Fifth Amendment privilege to assert and he was under court order to testify.

Applying the Namet analysis, we find nothing in the record to indicate the State made a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege. To the contrary, it appears that the district attorney did not believe Arceneaux could assert the privilege and was of the view that he could be required to testify under La. C.CrJP. art. 439.1. The entire matter was aired before the court and there is no evidence of prosecutorial misconduct. Second, we do not find that Arceneaux’s assertion of his right not to testify added critical weight to the state’s case in a form not subject to cross-examination or that it unfairly prejudiced the Defendant. The only question asked of Arceneaux before he asserted privilege was how old he was. It is difficult to conclude that his assertion of his Fifth Amendment privilege in response to that question prejudiced the Defendant. No further questions were asked and Arceneaux was excused. The trial judge ruled that Arceneaux could not be recalled, consistent with his earlier ruling that he would not allow the State to ask Arceneaux numerous questions, creating factual inferences, while the witness refused to answer.

Defense counsel had advised the jury during opening argument that Arceneaux was the person who shot the victim and that he had been convicted of first degree murder. The State did not dispute that. Rather, it was the defense |1ficontention that Defendant, although present at the crime, was an innocent bystander. However, the Defendant’s admission that he was with Arceneaux on the night and time of the crime and the victim’s daughter’s testimony that Defendant was not an innocent spectator but a participant, provided sufficient evidence of the Defendant’s guilt. Therefore we find the assertion by Arcen-eaux of his Fifth Amendment privilege was not reversible error. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error Defendant argues the trial court erred in denying his motion for new trial because Arcen-eaux’s refusal to testify deprived him of his Sixth Amendment right of confrontation.

The Sixth Amendment to the United States Constitution allows an accused person in a criminal proceeding to confront any person who offers testimony against them. In this case, there was simply no testimony upon which to confront the witness.

As discussed above, the prosecutor did not ask Arceneaux any substantive questions. He only asked the witness his age and then inquired whether he understood that he was required to testify. Immediately thereafter, Arceneaux was excused and not allowed to return as a witness. Accordingly, we find Arceneaux did not provide any information upon which the defense could have cross-examined him. Thus, for the reasons provided in Defendant’s first assignment of error, as well as the fact that Arceneaux did not give testimony upon which he could be cross examined, we find no merit in the contention that the trial court erred in denying the defense motion for a new trial because the Defendant was denied his confrontation rights. This assignment of error lacks merit.

TERRORS PATENT DISCUSSION

The record was reviewed for errors patent. LA.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). The review reveals the following:

La. R.S. 14:30.1 B requires that a sentence for second degree murder must be served at hard labor. The commitment indicates Defendant was sentenced to life imprisonment at hard labor. We note that in the transcript of the sentencing, the trial judge expressly stated that the sentence was mandatory as prescribed by law, but neglected to state that the sentence was to be served at “hard labor.” If there were some discretion allowed by the applicable sentencing statute, such that some confusion arose over how the sentence was to be served, the failure to indicate whether the sentence was to be served at “hard labor” would be an impermissible indeterminate sentence. However, here, since Defendant was sentenced pursuant to La. R.S. 14:30.1, which requires a mandatory sentence of life imprisonment at hard labor, without the benefit of parole, probation or suspension, the sentence is determinate. The failure by the trial judge to state that the sentence be served at hard labor, where the commitment accurately reflects the sentence to be served, is not an error requiring corrective action. State v. Norman, 05-794, (La.App. 5th Cir.3/14/06), 926 So.2d 657.

Accordingly, we affirm Defendant’s conviction for second degree murder and his sentence to life imprisonment, at hard labor, to be served without benefit of parole, probation or suspension of sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . This appeal pertains only to Richard Laviol-ette.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In its brief, the State indicates that the trial court did not sentence Arceneaux until September 29, 2004.

      . La.C.Cr.P. art. 439.1 provides:
      A. In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a grand jury of the state, at any proceeding before a court of this state, or in response to any subpoena by the attorney general or district attorney, the judicial district court of the district in which the proceeding is or may be held shall issue, in accordance with Subsection B of this article, upon the request of the attorney general together with the district attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on (he basis of his privilege against self-incrimination, such order to become effective as provided in Subsection C of this article.
      B. The attorney general together with the district attorney may request an order under Subsection A of this article when in his judgment
      (1) the testimony or other information from such individual may be necessary to the public interest; and
      (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self incrimination.
      C. The witness may not refuse to comply with the order on the basis of his privilege against self incrimination, but no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement or otherwise failing to comply with the order.
      D. Whoever refuses to comply with an order as hereinabove provided shall be adjudged in contempt of court and punished as provided by law.

      . See State v. Davis, 05-0987, (La.App. 5th Cir.5/9/06), 930 So.2d 1099, where the trial court did allow repeated questioning despite the witness' refusal to answer, and this Court found reversible error.