author: BILLY HOWARD EZELL, Judge.

text:
    Amanda E. SMITH v. LIL RASCALS CHILD CARE CENTER, INC.
    No. CA 06-628.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Skipper Maurice Drost, Attorney at Law, Lake Charles, LA, for Lil Rascals Child Care Center, Inc.
    Robert Joseph Tete, Jones, Tete, et al., Lake Charles, LA, for Amanda E. Smith.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   BILLY HOWARD EZELL, Judge.

11Amanda Smith appeals a trial court judgment finding that her employer, Lil Rascals Child Care Center, Inc., is not liable for penalties and attorney fees pursuant to La.R.S. 23:632 for failure to timely pay her wages when she voluntarily left her employment. We affirm the judgment of the trial court.

FACTS

Ms. Smith was employed by Lil Rascals on November 19, 2004. She was paid $5.75 an hour to work in the two and three-year-old room. On January 25, 2005, Ms. Smith left her employment with Lil Rascals because she no longer had transportation to work. Ms. Smith stated that she informed Tonya Miller, the director of Lil Rascals, of the situation and asked if she could pick up her paycheck. Ms. Smith testified that she was told that she could pick up her paycheck on the normal payday, Friday, February 4. Payday was every other Friday. Ms. Smith stated that she went to pick up the check and was told that a check in the amount of $113.42 had been mailed.

Maxine Crooks, the executive director of Lil Rascals, testified that she always mails the last check to an employee who no longer works there. She mailed Ms. Smith’s check to the last home address listed on her application. Ms. Smith testified that she no longer lived at that address, which was her mother’s address. She moved in with her mother-in-law in Moss Bluff, which occurred at the same time she quit working for Lil Rascals.

Ms. Smith never received the check that was mailed, so she requested another one. Ms. Crooks issued another check to Ms. Smith on March 22 in the amount of $98.00. The amount of $14.50 had been deducted from the check as half of the stop payment fee of $29.00 which was charged due to loss of the first check. Ms. Smith was informed that she could pick up this check.

| aAt this time, Ms. Smith hired an attorney. Ms. Crooks testified that she received a letter from Ms. Smith’s attorney. She tried to get in touch with him on several occasions. Ms. Crooks testified that the attorney informed her that Ms. Smith would settle the claim for $1,700.00. A check in the original amount of $113.42 was finally issued on May 2.

Ms. Smith obtained new counsel, and the present lawsuit was filed in July asking for penalty wages and attorney fees. The matter was heard on January 19, 2006. The trial court found that Lil Rascals was in compliance with La.R.S. 23:631 and dismissed Ms. Smith’s case.

PENALTY WAGES AND ATTORNEY FEES

Ms. Smith claims that the trial court erred in determining that Lil Rascals had complied with La.R.S. 23:631. She specifically argues that the trial court was in error in determining that wages were timely paid when the check was placed in the mail but there was no evidence of timely mailing.

Regarding the payment of wages owed for an employee who leaves employment, La.R.S. 23:631(A) provides, in pertinent part:

(b) Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday for the pay cycle during which the employee was working at the time of separation or no later than fifteen days following the date of resignation, whichever occurs first.
(2) Payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal | ^Service.

The trial court observed that the original check that was issued was check number 3590 which was in the sequence of checks issued during the February 4 time period. The trial court noted that La.R.S. 23:631 does not require that the check be sent certified mail. Although the trial court could not explain why the check was never received nor returned to Lil Rascals, the court specifically found that the check was mailed to Ms. Smith’s previous address where her family still lived. Therefore, the trial court found that Lil Rascals was in compliance with La.R.S. 23:631.

We agree with the trial court that the statute does not require there be an official postmark or other official documentation to indicate mailing. The statute indicates that proof of mailing “may be shown.... ” When used, “may” is a permissive term as opposed to a mandatory term. La.R.S. 1:3.

The trial court made a credibility determination in finding that Lil Rascals mailed the check to Ms. Smith. The trial court even further determined that Lil Rascals made sufficient efforts to resolve the matter once it was determined that the check was missing. It is well-settled that a fact finder’s reasonable evaluations of the credibility of witnesses will not be disturbed on appeal absent a finding that they are manifestly erroneous. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). The trial court’s credibility determination is supported by the record. Therefore, we find no error in the trial court’s decision that Lil Rascals complied with La.R.S. 23:631 when it mailed a check to Ms. Smith. Ms. Smith is not entitled to penalty wages and attorney fees pursuant to La.R.S. 23:632.

The judgment of the trial court is affirmed. Costs of this appeal are assessed to Amanda Smith.

AFFIRMED.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Joseph JACOBS, Sr., et al. v. SAFEWAY INSURANCE COMPANY, et al.
    No. CA 06-638.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Keith Michael Borne, Borne, Wilkes & Brady, Lafayette, LA, for Defendants/Ap-pellees, Safeway Insurance Company, Unopened Succession of Panzy Dixon Burnett.
    James Thompson Lee, Bunkie, LA, for Plaintiffs/Appellees, Joseph Jacobs, Sr., Joseph Jacobs, Jr., Joemont’e Jacobs.
    Rodney Marchive Rabalais, Rabalais & Roy, Marksville, LA, for Defendant/Appel-lee, Melancon Funeral Home.
    Kerry Lyndon Spruill, Marksville, LA, for Defendant/Appellee, Derek' Coleman.
    Michael Sheldon Koch, Neblett, Beard & Arsenault, Alexandria, LA, for Defendant/Appellee, Valerie Roy.
    Bonita K. Preuetb-Armour, Armour Law Firm, Alexandria, LA, for Defendants/Appellants, State Farm Mutual Auto Insurance Company, Felicia Benjamin.
    Jeffrey Scott Ingram, Attorney at Law, Alexandria, LA, for Defendant/Appellee, Mar-Dan Enterprises.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

hFelicia Benjamin and State Farm Mutual Automobile Insurance Company appeal the decision of the trial court finding Ms. Benjamin to be fifty percent at fault for an auto accident involving a drunk driver. For the following reasons, we reverse the decision of the trial court.

This case involves an automobile accident that occurred on June 28, 2003 on U.S. Highway 71 south of Cheneyville. Ms. Benjamin was driving south on Highway 71 through Cheneyville with her boyfriend, Derek Coleman, when she came upon the car of Panzy Burnett. In the vehicle with Ms. Burnett were Latanya Pearson and Valerie Roy. Ms. Benjamin passed Ms. Burnett’s car and continued south, setting her cruise control around sixty miles per hour. Approximately two miles later, Ms. Burnett’s vehicle tried to pass Ms.. Benjamin. However, Ms. Burnett, who was legally intoxicated at the time, failed to remain in the northbound (passing) lane and sideswiped Ms. Benjamin. Ms. Burnett struck Ms. Benjamin twice before passing in front of her vehicle and ran off the road into a ditch. The collision with the ditch caused Ms. Burnett’s vehicle to flip. The Burnett vehicle eventually hit a utility pole with such force that it wrapped around the pole and spun one hundred eighty degrees around it. Ms. Burnett and Ms. Pearson were killed. Ms. Roy was thrown from the vehicle and suffered serious injuries.

Joseph Jacobs, Sr., filed this suit on behalf of his sons, Joseph, Jr., and Joe-mont’e, for the wrongful death of their mother, Ms. Pearson. Ms. Roy instituted another, consolidated action to recover for the injuries she incurred. Suit was brought against Ms. Benjamin and State Farm, Ms. Burnett’s insurer, Safeway Insurance Company, and the unopened succession of Ms. Burnett. Trial proceeded against Ms. Benjamin and State Farm only. Despite stipulations that the damages suffered by all | ¡.Plaintiffs were each under $50,000.00, the trial court awarded each of the Jacobs children $150,000.00. Ms. Roy was awarded $165,000.00 in general damages and $56,896.72 in special damages. The trial court held that fault for the accident was fifty percent to Ms. Burnett and fifty percent to Ms. Benjamin. The trial court then reduced the awards to $50,000.00. Ms. Benjamin and State Farm appeal this decision, assigning several assignments of error. However, because we find merit in their first assignment of error, that the trial court erred in determining Ms. Benjamin was fifty percent at fault for the accident, we need not address the remaining assignments of error.

Apportionment of fault is a finding of fact and is, therefore, reviewed pursuant to the manifest error-clearly wrong standard of review. Broussard v. Family Dollar Store, 05-645 (La.App. 3 Cir. 12/30/05), 918 So.2d 1148, writ denied, 06-303 (La.4/28/06), 927 So.2d 287. This standard, which is based upon the reasonableness of the factual findings in light of the record reviewed in its entirety, is well established in our jurisprudence following the seminal cases of Rosell v. ESCO, 549 So.2d 840 (La.1989), and Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993). We find, that based on the record as a whole, the decision of the trial court was clearly wrong.

The physical evidence and expert testimony clearly establish that Ms! Benjamin remained at all times in her correct travel lane, while Ms. Burnett failed to do so. According to Trooper Jason Martell, yaw marks and debris found on the road establish that the point of impact between the two vehicles was three feet into the southbound lane, meaning Ms. Burnett was three feet into Ms. Benjamin’s lane when the first collision occurred. Trooper Frederick Stevens, an expert' in accident reconstruction, agreed that based on the physical evidence, Ms. Burnett’s vehicle was 1¡¡astride the center line at the time of impact. Trooper Stevens further testified that based on the speeds of the vehicles and the measurements taken at the scene, the second collision occurred a mere 0.72 seconds after the first, causing Ms. Burnett’s vehicle to further lose control and dart across the path of Ms. Benjamin into the southbound ditch. Blood analysis performed on Ms. Burnett after the accident indicated that she had a blood alcohol content of 0.15. The legal limit was 0.10 at the time of the accident. Trooper Stevens determined that alcohol was a contributing factor to the accident.

The trial court stated that he did not believe Ms. Benjamin’s version of the events to be exactly how the accident happened. Because she stated that she believed Ms. Burnett’s car struck hers first in the front of her vehicle rather than the rear with the physical evidence indicating the opposite, we find the court was correct in that belief. However, the simple fact that Ms. Benjamin confused the timing of two collisions, estimated by Trooper Stevens to be 0.72 seconds apart, does not change the fact that all of the physical evidence indicates that Ms. Benjamin was struck while in her travel lane by an inebriated driver.

The trial court claimed that, based on several inconsistencies between the testimonies of Ms. Benjamin and Mr. Coleman, he found their testimony to be questionable. However, the inconsistencies he relied on in making this determination, such as who drove to bingo seven hours earlier, whether the radio was on prior to the accident, or whether Mr. Coleman said “what are they doing” immediately prior to the first collision or immediately thereafter, were minuscule at best and irrelevant to the cause of the accident. Ms. Benjamin and Mr. Coleman were consistent and never 14differentiated in their testimony that after passing the Burnett vehicle Ms. Benjamin set her cruise control and never sped up. Their claims that she never left her lane were supported by the physical evidence and the testimony of Trooper Stevens, an expert in accident reconstruction. Trooper Martell testified that the statements given by Ms. Benjamin and Mr. Coleman, which were the same as their testimony at trial, match what they told him at the scene of the accident.

The trial court had serious concerns about why the couple did not exit the vehicle after the accident to check on the people in the Burnett car. However, Ms. Benjamin’s and Mr. Coleman’s testimonies were consistent in that Ms. Benjamin, six months pregnant at the time, was incredibly shaken after the accident and prevented Mr. Coleman from leaving her car. This was supported by the testimony of Trooper Martell, who remembered Ms. Benjamin being visibly frightened. The trial court’s determination that there was another, nefarious reason for this delay in exiting the car is mere conjecture based on no evidence whatsoever.

Simply put, the trial court’s concerns about irrelevant differences in Ms. Benjamin’s and Mr. Coleman’s testimonies do not outweigh the physical evidence, which unequivocally establishes that Ms. Benjamin remained in her lane of travel at all times, that Ms. Burnett was intoxicated at the time of the accident, and that Ms. Burnett struck Ms. Benjamin while straddling the center line in a failed attempt to pass Ms. Benjamin.

Louisiana Revised Statutes 32:79 creates a duty for a driver to refrain from switching traffic lanes until it has first been ascertained that such movement can be safely made. The record and evidence clearly show that Ms. Burnett breached this duty. All the fault for this accident, as established by the testimonies of Troopers IfiMartell and Stevens, Ms. Benjamin, and Mr. Coleman, and, most critically, the physical evidence, lies with the drunk driver, Ms. Burnett. The trial court erred in assigning any fault to Ms. Benjamin.

The decision of the trial court assigning Felicia Benjamin fault in this matter is hereby reversed. Costs of this appeal are assessed equally against the Plaintiffs.

REVERSED.

      . Ms. Benjamin’s blood alcohol content was found to be zero.

      . Ironically, the trial court found the testimony of Ms. Roy credible despite the fact that she never mentioned Ms. Benjamin speeding up in any statement or deposition prior to trial, or the fact that she claimed to never have seen Ms. Burnett drinking despite being in a bar for over three hours with Ms. Burnett, who had a blood alcohol content over the legal limit. Until the date of trial, Ms. Roy consistently said she could remember little about the accident.


text:
    Valerie ROY v. SAFEWAY INSURANCE COMPANY, et al.
    No. CA 06-639.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.
    Keith Michael Borne, Borne, Wilkes & Brady, Lafayette, LA, for Defendants/Ap-pellees, Safeway Insurance Company Unopened Succession of Panzy Dixon Burnett.
    Larry Alan Stewart, Stafford, Stewart & Potter, Alexandria, LA, for Defendant/Ap-pellee, State Farm Mutual Auto Insurance Company.
    Michael Sheldon Koch, Neblett, Beard & Arsenault, Alexandria, LA, for Plaintiff/Appellee, Valerie Roy.
    Rebecca T. Hamernick, Armour Law Firm, Alexandria, LA, for Defendants/Appellants, State Farm Mutual Auto Insurance Company Felicia Benjamin.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

For the reasons discussed in the consolidated case of Joseph Jacobs, Sr., et al. v. Safeway Insurance Company, et al., 06-638 (La.App. 3 Cir.11/2/06), 942 So.2d 84, 2006 WL 3093618, the judgment of the trial court is reversed. All costs of these proceedings are assessed equally against the Plaintiffs.

REVERSED.


author: SULLIVAN, Judge.

text:
    COCKRELL OIL & GAS CORPORATION v. Jack CALDWELL.
    Nos. 06-646.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      David M. Culpepper, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant, Cockrell Oil & Gas Corporation.
    James R. McClelland, Franklin, LA, for Plaintiff/Appellant, Cockrell Oil & Gas Corporation.
    Vivian B. Guillory, Attorney at Law, Baton Rouge, LA, for Defendant/Appellee, Oyster Lease Damage Evaluation Board.
    Brandon J. Taylor, Philip F. Cossich, Cossich, Sumich, & Parsiola, Belle Chasse, LA, for Secondary Defendant/Appellant, Van Robin Clear Water Oysters, Inc.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   SULLIVAN, Judge.

11 Cockrell Oil Corporation appeals an award of damages to Van Robin and Clear Water Oysters, Inc. by the Oyster Lease Damage Evaluation Board. Van Robin and Clear Water Oysters, Inc. appeal the Oyster Lease Damage Evaluation Board’s failure to award interest on its damage award. For the following reasons, we amend and affirm as amended.

Facts

In June 2000, pursuant to the rules and regulations promulgated by the Oyster Lease Damage Evaluation Board (the Board), Cockrell Oil Corporation (Cock-rell) requested an arbitration before the Board to establish any potential damage to oyster leases at and/or adjacent to the site of drilling activities it was preparing to begin in the Gulf of Mexico. In connection therewith, Cockrell had Oyster Lease 29122, which is owned by Van Robin and Clear Water Oysters, Inc. (Clear Water), surveyed by Maureen M. Mulino, Ph.D. A portion of Lease 29122 is adjacent to Oyster Lease 29148, the lease on which Cock-rell’s drilling activities were going to be conducted. After a hearing, the Board ordered Cockrell to deposit $20,000 to protect Clear Water’s interests. Cockrell deposited that sum with the Board and commenced its drilling operations in October 2000.

Cockrell’s drilling operations included the placement of a submersible drilling barge on Lease 29148 by means of tugs which moved the rig onto the location and positioned it on the bottom of the floor of the Gulf of Mexico by flooding ballast tanks. The rig and its accompanying tugs approached the well location from the southeast; the rig was sunk at the well along a southeast-northwest axis. The well location was composed of soft mud.

LThe drilling rig occupied approximately 0.4 acres in the southeast corner of Lease 29148. The water depth in the area was approximately ten to twelve feet. A storm displaced the rig, necessitating the removal of the rig from its original location, the placement of a 102' x 80' x 3' rock pad at the drill location, and replacement of the rig on the drill site on the pad. Drilling was completed in November 2000. Because the well was a dry hole, it was plugged and abandoned; no further operations were conducted by Cockrell.

Dr. Mulino conducted a post-drilling survey of Lease 29122 in February and March 2001. Noel Brodtmann surveyed Lease 29122 at the request of Clear Water in March 2001. A hearing was then held before the Board to determine what, if any, damages Clear Water’s lease actually sustained as a result of Cockrell’s drilling activities. The Board concluded that the drilling activities damaged Clear Water’s lease and awarded it $174,270. Cockrell filed an appeal with the Secretary of Natural Resources which reversed the Board’s decision. In his reversal of the Board’s decision, the Secretary stated that the evidence did not establish that Cockrell’s drilling activities damaged oysters on Clear Water’s lease. Pursuant to procedures established by the Board, Clear Water requested that the Board reverse the Secretary’s reversal of its decision. The Board members unanimously voted to reverse the Secretary’s decision.

Cockrell and Clear Water then sought judicial review of the Board’s decision. The two matters were consolidated by the trial court. After remanding the matter to the Board for written reasons, findings of facts, and conclusions of law, the trial court upheld the actions of the Board and affirmed its decision. The trial court did not | .¡address Clear Water’s request for legal interest. Cockrell appealed, seeking reversal of the Board’s decision; Clear Water appealed, seeking an award of legal interest.

Assignments of Error

Cockrell assigns the following errors:

1) The trial court erred in affirming the Board’s Arbitration Decision because the Board’s findings of causation were arbitrary, capricious, contrary to law, inherently self-contradictory, and lacking in competent evidentiary support.
2) The trial court erred in affirming the Board’s award of damages to Clear Water where the Board’s award of damages was contrary to law and unsupported by competent evidence.
3) The trial court erred in affirming the Board’s Arbitration Decision because it contravened §§ 955.G and 956.(3) of the Administrative Procedure Act and violated Cockrell’s rights to substantive procedural due process by secretly basing its damage award on information never officially noticed and never disclosed to Cockrell until over three years after the final damage determination in favor of Robin and Clearwater.

Clear Water assigns as error the Board and trial court’s failure to award interest on the damage award.

Standard of Review

The “manifest error-clearly wrong” standard of review applies to the factual findings of an administrative body. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706. Therefore, we cannot set aside the Board’s findings of fact, unless we find that they are clearly wrong in light of the entire record. Id. To reverse the Board’s decision, we must determine that its conclusions were clearly wrong or clearly without evidentiary support. Benjamin v. Hous. Auth. of New Orleans, 04-1058 (La.12/1/04), 893 So.2d 1. This includes expert opinions. The Board’s evaluation of expert testimony should not be overturned unless the stated ^reasons of the expert are patently unsound. Zimko v. Amer. Cyanamid, 03-658 (La.App. 4 Cir. 6/8/05), 905 So.2d 465, writ denied, 05-2102 (La.3/17/06), 925 So.2d 538.

Discussion

Causation

Cockrell argues that Clear Water failed to carry its burden of proof in establishing that its drilling activities damaged its lease. Clear Water had to prove that Cockrell’s drilling activities were a cause-in-fact of damage to its lease. Lasyone v. Kan. City S. R.R., 00-2628 (La.4/3/01), 786 So.2d 682. Cockrell’s drilling activities were a cause-in-fact of Clear Water’s alleged damage if they were a “substantial factor” in bringing about the damage. Dixie Drive It Yourself Sys. New Orleans Co. v. Am. Beverage Co., 242 La. 471, 482, 137 So.2d 298, 302 (1962). A party’s actions are a substantial factor in causing damage if the damage would not have occurred without it. Id. If Clear Water’s oysters were damaged irrespective of Cockrell’s drilling activities, the drilling was not a cause-in-fact of Clear Water’s damages. Id. Determination of eause-in-faet is a factual determination to be made by the fact finder. Bonin v. Ferrellgas, Inc., 03-3024 (La.7/2/04), 877 So.2d 89.

To prevail, Clear Water had to prove that Cockrell’s drilling activities damaged its lease by a preponderance of the evidence. Direct or circumstantial evi-denee can be used to prove such a claim. Benjamin, 893 So.2d 1. “Circumstantial evidence is ‘evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred.’ ” Nat'l Union Fire Ins. Co. of La. v. Harrington, 02-832, p. 14 (La.App. 3 Cir. 4/17/03), 854 So.2d 880, 890 (quoting W. Page Keeton, Et Al., PROSSER & Keeton on the Law of ToRts § 39, at 242 |s(5th ed.1984)). Circumstantial evidence must “taken as a whole, exclude every other reasonable hypothesis with a fair amount of certainty.” Benjamin, 893 So.2d at 5. However, it does not have to “negate all other possible causes.” Id. If the evidence, both direct and circumstantial, shows that the facts sought to be proved are more probable than not, Clear Water met its burden of proof.

The Board is an administrative agency which was specifically formed to address the types of claims presented herein. It is composed of one member nominated by the Louisiana Oyster Dealers and Growers Association, one member nominated by the Louisiana Oyster Task Force, two members nominated jointly by the Louisiana Independent Oil and Gas Association, Louisiana Mid-Continent Oil and Gas Association and the Louisiana Landowners Association, and an administrative law judge. La.R.S. 56:700.13(B). When evaluating evidence regarding a claim for damage to oyster leases as the result of oil and gas activity, the Board may use its own judgment concerning matters within its area of expertise. See Dravo Basic Materials Co., Inc., 604 So.2d 630 (La.App. 1 Cir.1992); Summers v. Sutton, 428 So.2d 1121 (La.App. 1 Cir.1983).

Dr. Mulino testified on behalf of Cockrell. Her pre-drilling survey established that the oyster reefs on Clear Water’s lease were old, very productive reefs and that there was a large standing crop of oysters at that time. Her post-drilling survey revealed 100% mortality of oysters in the northeast corner of Clear Water’s lease which is approximately 800 feet from the drilling site and is adjacent to the area vessels traveled for the placement of the drilling rig. Dr. Mulino related this oyster mortality to an Act of God and not to Cockrell’s drilling activities. She testified that her post-drilling survey revealed that approximately 177 acres of Clear Water’s lease |fi“were covered to some extent with from one to twelve inches of a material [she] described as a fluid mud or fluff of gel like consistency or yogurt like consistency.” This was the first time she had seen this fluff in her twenty-four years of experience. She believed the fluff was the result of a land building process in the Atchafalaya River area which occurs during the winter. This opinion was not based on personal experience but on information obtained from the engineer who assisted her with her post-drilling survey and other persons who research in this field.

Dr. Mulino concluded that if any damage was caused by Cockrell’s drilling activities, it was “masked by this large area of fluff.” She did not find any physical evidence linking the dead oysters on Clear Water’s lease to Cockrell’s drilling activities because “the magnitude of the fluff or the gel out there ... would have had to have come from somewhere and there was no hole from which it came. There was nothing at the well site except black bottom.”

On questioning by members of the Board, Dr. Mulino testified that this fluff phenomenon occurs annually during the winter and rarely during the summer. One Board member specifically questioned how the oysters on Clear Water’s lease could have grown to the large size she described in her pre-drilling survey, if this phenomenon occurred annually, when it takes several years for oysters to grow to such a size. Dr. Mulino did not have an explanation other than “[mjaybe it doesn’t occur in that spot every year. I don’t know.” She admitted that she did not check to see if other areas adjacent to Clear Water’s lease also had this fluff.

On cross-examination, Dr. Mulino questioned the possibility of a vessel moving the quantity of fluff she found on Clear Water’s lease, which she calculated to be 95,000 cubic yards of material. However, she admitted that she did not do any ^investigation concerning the movement and replacement of Cockrell’s rig and that she did not know if there was a difference in the mud that occurred naturally near the drill site and the fluff that she found on Clear Water’s lease. On further questioning, she testified that the mud at the drilling site was very soft and that it is “very possible” that the material she found on Clear Water’s lease was the same material at the drilling site. Furthermore, she noted in her written report that “the bottom sediments at the well site were similar to the mud samples taken from the reef.”

Cockrell acknowledged in its proposed findings of fact that the water bottom in the area of the drilling rig was “soft mud bottom” and that the vessel traffic required to initially place it traveled over that soft mud bottom to place and sink the rig. Furthermore, when the rig was displaced by bad weather, additional vessel traffic over this soft mud bottom was required to move the rig, sink the limestone pad, then replace the rig on the pad. It took a week to two weeks to get the drill rig back on line for drilling because of the storm that displaced it; however, the entire time was not actually spent moving the rig back in place.

Mr. Brodtmann testified on Clear Water’s behalf regarding causation, the value of the lost oysters, and the cost of repairing Clear Water’s reefs to allow for new oyster growth. He opined that 37.8 acres of Clear Water’s 1000 acre lease were damaged by Cockrell’s drilling activities. His post-drilling damage survey revealed “a lot of mortality ... lot of blackened shell in the northeast corner of Clear Water’s lease which is south of where the drilling activities occurred on Lease 29148.” In his opinion, the damage to Lease 29122 was directly caused by Cock-rell’s drilling activities: “[I]t is pretty straightforward. If you look at the drilling location, if you look at the oyster mortality location, if you look at the oyster mortalities found in|sareas well away from the drilling location on the same reef, it is readily apparent.” This opinion was called into question when a Board member noted that Mr. Brodtmann’s plottings of oyster mortality were not clearly indicative of greater mortality closer to the drill site with mortality declining at greater distances from the drill site. In response, Mr. Brodtmann explained that there was spat (new oyster growth) at some of these locations which indicated mortality then revitalization of the oysters.

On cross-examination, Mr. Brodtmann admitted that he did not know the draft of the rig used to drill Cockrell’s well and explained the basis of his opinion as “twenty-one years of experience and that this area gets very rough. It had to be a sizeable drilling rig.” Mr. Brodtmann was also questioned regarding the tug boats used to place the rig and again admitted that he did not know the draft of the tugs; however, he explained that he knew large vessels were required at the drilling site because the area becomes extremely rough. He also testified that he saw large vessels in the area when he surveyed the lease in March 2001. He admitted that the vessels he saw were not vessels contracted by Cockrell but opined that the vessels he saw at that time were indicative of the vessels needed to conduct operations in that area.

Mr. Brodtmann found Dr. Mulino’s fluff theory “very difficult to believe” because it did not “fit with the facts.” He questioned the fact that the fluff was found only in the vicinity of Cockrell’s drilling activities, explaining that he pulled samples from Lease 29148 and visually inspected another area not far from Clear Water’s lease and did not find any evidence of fluff on these adjacent areas. Additionally, he indicated that Dr. Mulino’s calculation of 95,000 cubic yards of soil having been | fldeposited on Lease 21922 was inaccurate, testifying that when settled mud is fluidized its bulk can be ten times the volume of the settled mud.

We have examined the entire record carefully. The transcript makes it clear that the Board seriously considered the evidence. In doing so, it accepted and rejected portions of each expert witness’s testimony. Questions and comments by members of the Board established that they were knowledgeable and experienced regarding the different aspects of this claim and were aware of conflicts in the evidence. The Board utilized the knowledge and experience of its Board members to assist it in making its determinations as expected and anticipated by the legislation which created it.

Cockrell argues that the Board required that it “prove that its drilling activities were not the cause of the oyster mortalities” on Clear Water’s lease and points to the Board’s rejection of the Secretary’s reversal of its decision in support of this argument. The Board’s statement is written in a manner that might cause one to believe that it placed the burden of proof on Cockrell; however, the evidence supports the Board’s determination that Clear Water established that Cockrell’s drilling was a substantial factor in causing damage to its oysters. We find no manifest error with the Board’s finding that Cockrell’s drilling activities damaged Clear Water’s lease.

Damages

Cockrell urges that the trial court erred in affirming the Board’s award of damages to Clear Water. Clear Water presented the testimony of Mr. Brodtmann on the issue of damages. Mr. Brodtmann calculated Clear Water’s damages as being $348,854 net loss and $186,462 for material to restore the reproductive capacity of the lease. His opinion was based in part on Dr. Mulino’s pre-drilling survey, as he [mfound her calculations of the standing crop of live oysters on Clear Water’s lease prior to Cockrell’s drilling activities, credible. Cockrell did not present any evidence on the issue of damages, other than Dr. Mulino’s testimony that if Cockrell’s operation caused any damage to Clear Water’s lease those damages were was masked by fluff.

The Board was careful in its consideration of the evidence of damage to oysters on Clear Water’s lease and Mr. Brodt-mann’s calculation of Clear Water’s damages and awarded much less than Clear Water sought to recover. It was aware of the fact that Clear Water had not harvested oysters on this lease for some time preceding Cockrell’s operations. We find no abuse in the Board’s award. We also find no merit in Cockrell’s arguments that the Board violated its own rules and denied Cockrell due process in awarding damages to Clear Water because, finding the Board adjudicated this claim in the manner prescribed by La.R.S. 43:3701-3923, La.R.S. 56:700.10-700.14, and the rules and regulations promulgated by the Board.

Clear Water

Legal Interest

Clear Water urges that the Board and trial court erred in not awarding legal interest on its award. Board Rule 43.1.3909(A) provides in part:

If the award exceeds the amount of the deposit the board ... shall order the owner to pay the leaseholder the amount of the difference between the award and the deposit together with legal interest thereon from the date of the initial deposit.

“The word ‘shall’ is mandatory.” La.R.S. 1:3. Therefore, the interest provided for in this rule “automatically attaches until judgment is satisfied, whether prayed for in petition or mentioned in judgment.” George v. Guillory, 00-591 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1211. See also Bourque v. Allstate Ins. Co., 99-1260 (La.App. 3 Cir. 3/22/00), 760 So.2d 411; La. Power & Light Co. v. Parish Sch. Bd. of Parish of St. Charles, 93-249 (La.App. 5 Cir. 2/11/94, 639 So.2d 760), writ denied, 94-604 (La.4/22/94), 640 So.2d 1317. Clear Water is entitled legal interest on the difference between its award and Cockrell’s deposit from the date Cockrell deposited $20,000 with the Board until paid.

Disposition

The Board’s determination that Cock-rell’s drilling operations in October 2000 damaged Clear Water’s oyster lease and its award of $174,270 as compensation for that damage are affirmed. Clear Water is entitled to legal interest on the award from July 26, 2000 until paid. Costs of this appeal are assessed to Cockrell Oil & Gas Corporation.

AMENDED AND AFFIRMED AS AMENDED.


text:
    Van ROBIN, et al. v. COCKRELL OIL & GAS CORPORATION.
    Nos. 06-647.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.
    David M. Culpepper, Attorney at Law, New Orleans, LA, for Plaintifi/Appellant, Cockrell Oil & Gas Corporation.
    James R. McClelland, Franklin, LA, for Plaintiff/Appellant, Cockrell Oil & Gas Corporation.
    Vivian B. Guillory, Attorney at Law, Baton Rouge, LA, for Defendant/Appellee, Oyster Lease Damage Evaluation Board.
    Brandon J. Taylor, Philip F. Cossich, Cossich, Sumich, & Parsiola, Belle Chasse, LA, for Secondary Defendant/Appellant, Van Robin Clear Water Oysters, Inc.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   SULLIVAN, Judge.

For the reasons discussed in the companion case in this consolidated matter, Cockrell Oil & Gas Corp. v. Caldwell, 06-646 (La.App. 3 Cir. 11/2/06), 942 So.2d 88, the Board’s determination that Cockrell’s drilling operations in October 2000 damaged Clear Water’s oyster lease and its award of $174,270 as compensation for that damage is affirmed. Clear Water is entitled to legal interest on that award from July 26, 2000 until paid. Costs of this appeal are assessed to Cockrell Oil & Gas Corporation.

AMENDED AND AFFIRMED AS AMENDED.


author: THIBODEAUX, Chief Judge.

text:
    HAI NAM CHINESE RESTAURANT PARTNERSHIP v. B & B CONSTRUCTION OF NEW IBERIA, et al.
    No. 2006-729.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Roger Chadwick Edwards, Jr., Edwards & Edwards, Abbeville, LA, for Intervenor Appellee — Third Generation Properties, L.L.C.
    Mark Christopher Surprenant, Adams & Reese, New Orleans, LA, for Defendant— GS Roofing Products Co., Inc.
    Paul Gonsoulin Moresi, III, Abbeville, LA, for Plaintiff/Appellant — Hai Nam Chinese Restaurant Partnership.
    Mark Gerard Artall, Lafayette, LA, for Secondary Defendant/Appellant — B & B Construction of New Iberia, Inc.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

| plaintiff-appellant, Hai Nam Chinese Restaurant Partnership (“Hai Nam”), filed an action for breach of contract and breach of warranty against its roofer, defendant-appellee, B & B Construction of New Iberia, Inc. (“B & B”), because of a defect in the new roof that it paid to have installed at its restaurant. The trial court found that the roofing contract had been breached due to the negligent installation of the roof and awarded Hai Nam the return of the full roofing contract cost. Third Generation Properties, L.L.C. (“Third Generation”), the owner-lessor of Hai Nam’s restaurant space, intervened in the action, seeking a recovery of any damages awarded to Hai Nam in the main demand. The trial court relied on the indemnification clause in their lease agreement and ruled in favor of Third Generation. Hai Nam appeals that ruling, and B & B has answered the appeal, seeking a reversal of the trial court’s judgment against it on the main demand.

We affirm the trial court’s judgment in favor of Hai Nam and against B & B Construction. The judgment of the trial court on the incidental demand in favor of Third Generation is reversed. Under the terms of the lease agreement and the record evidence, Third Generation did not suffer a loss because of any act of alleged noncompliance with the lease agreement.

I.

ISSUES

1. Did the trial court err in finding that B & B negligently installed the roof and, therefore, breached the roof construction contract?

2. Did the trial court err in awarding Hai Nam the return of the entire roof construction price that had been paid to B & B?

L3. Did the trial court err in finding that Hai Nam was obligated under its lease agreement to indemnify Third Generation for the failure of the roof?

II.

FACTUAL BACKGROUND

Ke Nong Shi and Xue (a/k/a Linda) Mei Yang are the partners comprising the Hai Nam Chinese Restaurant Partnership (hereinafter referred to collectively as “Hai Nam”). Hai Nam entered into a commercial lease agreement with the entity, Abbeville Associates, for the lease of restaurant space in the strip mall known as the Abbeville Shopping Center. The primary lease term was August 1, 1998, through July 31, 2004. During the primary lease term, the strip mall was purchased by Third Generation Properties, L.L.C., and the existing lease was assigned to Third Generation.

Athough the regular monthly rent was $900.00, Hai Nam was given a $200.00 per month rent credit for the entire primary lease term, resulting in a reduced monthly rent obligation of $700.00. This amounted to a total rent reduction of $14,400.00 during the initial lease term. The basis for the rent credit was explained in the lease agreement as follows:

2.4 BASE RENT: The first payment of rent shall be due on the day that the term of this lease begins and subsequent payments of rent shall be due on the first day of each succeeding calendar month throughout the term of this lease. Except as provided herein the rent for the period from August 1, 1998 through July 31, 2004 shall be a monthly rental of $900.00 and shall be paid as follows:
A. Lessor and Lessees recognize that there is a need for major repairs to the roof, air-conditioning and sewage facilities in the building herein leased. Estimates for those repairs indicate that it will approximate $25,000.00 to make the necessary repairs. Lessees agree to make the repairs which will ^satisfy their needs and place the premises in a condition satisfactorily [sic] to Lessees. However, Lessor will cooperate and make every effort to obtain the municipal or governmental permits necessary to repair the plumbing problems that currently exist. In consideration thereof Lessor agrees to provide a rent credit to Lessees in an amount of $200.00 a month for the entirety of the primary term. It being understood by and between Lessor and Lessees that Lessees shall commence paying the sum of $700.00 per month for the entire primary term. The agreement as herein stated is meant to be an exception to the provisions of this lease expressed in Paragraph 4.1 wherein Lessees must obtain written consent of Lessor prior to making any improvements on the premises.

During the lease term, Hai Nam undertook repairs of the plumbing, air conditioning, and roof. Hai Nam paid $2,500.00 for repair work to the plumbing to unplug drains. Hai Nam also paid $9,692.83 for the installation of new air conditioning duct work and for the replacement of one of the location’s two, roof-top air conditioning units. In addition, Hai Nam paid $12,585.23 for the installation of a new roof.

The roof was replaced because, by all accounts, it was in very poor condition and leaked excessively. According to Hai Nam, an inspection by the state health department determined it would be necessary for the roof leaks to be resolved before the restaurant could be opened. Therefore, in September 1998, prior to opening, Hai Nam accepted B & B’s estimate for the installation of a new roof, which included a twelve-year materials warranty and a five-year labor warranty. B & B completed the installation in October 1998 and was promptly paid. Hai Nam also paid B & B to install new ceiling tiles throughout the restaurant at a cost of $3,200.00. Hai Nam, in sum, paid a total of $27,978.06 for repairs and improvements to the leased space during the primary lease term.

^[^Approximately one year later, the new roof began to leak. Although B & B responded to numerous calls from Hai Nam over the next three years to address the leaking, the problems were never resolved. Ultimately, in 2002, even though the five-year labor warranty was still in effect, B & B refused to respond to repair calls from Hai Nam. As a result, on October 16, 2002, Hai Nam filed suit, alleging breach of contract and breach of warranty. Hai Nam continued its restaurant operations at the leased location until August 31, 2004. When Hai Nam relocated its restaurant (for reasons unrelated to the leaky roof issue), there had been no resolution of the pending roof dispute and the roof was still leaking.

In September 2004, the month following Hai Nam’s move, Third Generation, the lessor-owner of the property, replaced the roof that had been installed by B & B, based on its contractor’s (Glenn Romero Roofing) determination that the six-year-old roof had multiple flaws in its construction. Specifically, Romero’s representative testified at trial that the torch roofing (bitumen membrane) had not been applied to the area surrounding the roof-top air conditioning unit, leaving a perimeter of approximately one foot of exposed roof around the air conditioner. Also, the representative testified that there was no metal flashing or bitumen membrane applied at the intersection of the roof and the walls that extended above the roof line; there was no membrane applied up the sides of those walls that rose above the roof line; and, there was no membrane or flashing installed along the ledge jacks or around the roof jacks. Finally, the representative testified that he observed uncut, bitumen membrane improperly overlapping the roofs ledge in areas.

| ^According to Romero’s representative, the absence of the flashing and the application of the bitumen membrane allowed water to collect in areas and seep into various unsealed joints, causing the roof leaks. The representative testified that a new roof was preferred, rather than patching, in order to avoid creating a large number of seams that would compromise the roofs integrity. Third Generation, consequently, paid $13,500.00 to have a new roof installed and then intervened in the action that had been filed by Hai Nam against B & B.

In its suit, Third Generation tracked the language of its former lease agreement with Hai Nam and asserted that in exchange for the $14,400.00 rent credit that had been given, Hai Nam was obligated to make repairs to the leased space. Third Generation conceded that Hai Nam was only obligated to make the repairs that it determined to be necessary to place the premises in a condition satisfactory to its needs. However, Third Generation claimed that because a satisfactorily installed new roof constituted such a repair — since the restaurant could not be opened without the repair being made— Hai Nam, in effect, breached the lease agreement when the roof failed. Moreover, because of this breach, Third Generation stated that it had to pay $13,500.00 for a new roof because of the poor workmanship performed by B & B on the installation of the first replacement roof. Consequently, Third Generation claimed that it was entitled to the recovery of the $12,585.23 sought by Hai Nam in its principal demand against B & B.

The trial court found in favor of Hai Nam on the principal demand, finding that B & B had negligently installed the roof. Having found the contract breached, the court awarded damages in the amount of $12,585.23, the full cost paid to B & B for the installation of the roof. The court then granted Third Generation’s intervening claim, but relied on the lease agreement’s indemnification clause to | (¡support its ruling, as opposed to Third Generation’s rationale. The court reasoned that according to the terms of the lease agreement, Hai Nam was not obligated to perform roof repairs, but that once it undertook repair of the roof, it became obligated “to hold, the Intervenor, Third Generation, harmless from the effects of defective installation.” The indemnification clause contained in the lease agreement states:

6.5 INDEMNIFICATION: Lessees covenant and agree that it [sic] will protect, save and keep Lessor forever harmless and indemnified against and from any penalty or damage or charges imposed for any violation of any law or ordinance, whether occasioned by the act, omission or neglect of Lessees to those claiming or holding under Lessees, and that Lessees will at all times protect, indemnify and save and keep Lessor harmless and indemnified against and from all claims, loss, cost, damage or expense arising out of or from any accident or other occurrence in or about the lease premises causing injury to any person or property whomsoever or whatsoever, and that it will protect, indemnify, save and keep Lessor harmless against and from any and all claims, loss, cost damage or expense arising out of any failure of Lessees, its agent, employees, licensees, contractors or persons and entities claiming or holding under Lessees in any respect to comply with and perform any of the requirements and provisions of this lease.

(Emphasis added).

The court then ordered Hai Nam to pay to Third Generation the $12,585.23 that it had been awarded as a result of its suit against B & B. Hai Nam has suspensively appealed this judgment, claiming that Third Generation is not entitled to any indemnity because there has been no breach of the lease agreement. Hai Nam contends also that it achieved a satisfactory roof repair because the replacement of the roof allowed the restaurant to be opened and operated, without interruption. Moreover, Hai Nam argues that, despite its defects, the roof that it paid to have installed left Third Generation in possession of a property in significantly better condition than it was in at the beginning of the lease term.

|7On the main demand, B & B answered the appeal, arguing that the trial court erroneously found that it breached the roofing contract. B & B contends that there was insufficient evidence presented of its failure to adequately perform the work described in the agreed upon work estimate. Alternatively, B & B claims that the damage award was excessive and that the trial court failed to apply the proper standard to determine the amount of any damages that might be due.

III.

LAW AND ANALYSIS

Performance or Breach?

A contract defines the respective rights and obligations of the parties and is the law between them. Corbello v. Iowa Production, 02-826 (La.2/25/03), 850 So.2d 686. “Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole,” and any unambiguous terms of that contract must be enforced as written. La.Civ.Code art. 2050; see also, Brown v. Manhattan Life Ins. Co., 01-147 (La.6/29/01), 791 So.2d 74. In other words, when the words of a contract are clear, unambiguous, and do not lead to absurd consequences, the court should not look beyond the contract language to determine the true intent of the parties. La.Civ.Code art. 2046. In the event the contract is found to contain ambiguous terms, those terms are to be interpreted against the party who furnished the text of the contract. La. Civ. Code art. 2056.

Consequently, the ultimate determination of whether a contract has been breached must begin with an analysis of the terms of that agreement. Corbello, 850 So.2d 686. The estimate provided by B & B constitutes the roofing agreement accepted by B & B and Hai Nam. It sets forth an itemized list of work to be 1 ¡¡performed for the replacement of the roof. The relevant part of the agreed-upon estimate states:

After checking the roof the solution is to go with [a] new roof, new tapye [sic] of roof material. G.S. roofing products, flintlastic modified bitrmen [sic]. This bid is to provide labor and material to do the following work.
1. Remove all of the gravel.
2. Check the botton [sic] decking for rotten material.
3. Clean all debri [sic] from roofing area.
4. Install a single ply hot tar roof system.
5. Install a base sheet with hot tar.
6. Install a flintlastice [sic] modified bitrmen [sic] roof.
7. Install two roof drain from deck to drain water from roof.
8. Cleaning and haul all debri [sic] from job site.
Material as 12 YR. warranty.
Labor as 5 YR. warranty.

TOTAL COST = $12,585.53

Accordingly, it is clear that the parties agreed that B & B would replace the flat roof with a certain brand of modified bitumen roofing, using hot tar. During the process, B & B expressly stated that it was to check the bottom decking of the existing roof for rotten material and was to also install two new roof drains.

In this case, it is uncontested that the new roof installed by B & B began to leak about a year after its installation. However, despite the subsequent appearance of new leaks approximately one year after the roofs installation, B & B contends that no evidence was provided at trial that it breached the contract by failing to adequately |3perform the agreed upon work. We disagree. Louisiana codal law governing a contractor’s liability for non-performance of a contract provides that “[i]f an undertaker fails to do the work he has contracted to do, or if he does not execute it in a manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.” La.Civ.Code art. 2769; Austin Homes, Inc. v. Thibodeaux, 01-1282 (La.App. 3 Cir. 5/8/02), 821 So.2d 10, writ denied, 02-2324 (La.11/15/02), 829 So.2d 436. Moreover, implied in every building contract is the notion that a contractor will perform its work in a good and workmanlike manner, that the work will be suitable for its intended purpose, and that the work will be free of defects in workmanship or materials. Austin, 821 So.2d 10.

The record shows that Shane Romero, the representative of Glenn Romero Roofing, offered testimony establishing multiple instances of poor workmanship performed by B & B that either caused or contributed to the recurrence of leaks. B & B’s only refutation of Romero’s testimony was offered by the employee who prepared the estimate for Hai Nam, Edwin Buteau, Jr. He opined that although the presence of leaks had been established, there was insufficient evidence that B & B’s work was responsible for the recurrence of any leaks. Rather, he testified that his company’s inspections of the roof after the recurrence of the leaks showed that there was a buildup of condensation on or around the roof-top air conditioning unit and/or its ductwork located below the roof. This, he claimed, was caused by poor or inadequate construction of the building and/or installation of the air conditioning system, for which B & B was not responsible.

In addition, B & B argues on appeal that it satisfied the terms of its contract and no evidence was presented of its failure to perform any of the seven' work items set forth in the roofing estimate. Finally, B & B urges that Romero’s [^testimony was unreliable because he was eighteen years old at the time of the trial, possessed minimal formal training in roofing, and although he claimed six years of roofing experience and was in charge of the application of the second roof for Third Generation, all of this prior experience was obtained while he was a minor.

At the outset, we recognize that the trial court heard all of this testimony and made a credibility call as to the weight to be given to the witnesses presented, which this court will not disturb on appeal. See Rosell v. ESCO, 549 So.2d 840 (La.1989) (explaining that when findings of fact are based on decisions regarding the credibility of witnesses, respect should be given to those conclusions, because only the factfin-der can be aware of the variations in demeanor and tone of voice that bear so heavily on understanding and believing what is said). That being said, we find B & B’s failure to adequately weatherproof the restaurant to have been substandard conduct and a breach of the contract. The trial court’s findings of fact were reasonable in light of the evidence presented and, therefore, we find no manifest error in its ruling.

Damages

The trial court awarded Hai Nam $12,585.23, which constituted the return of the entire roofing contract price. B & B asserts that this award of damages was excessive, and the determination of damages should have been guided by the degree to which it substantially performed the contract. According to La.Civ.Code art. 2769 and cases interpreting it, the proper measure of damages caused by a breach of a contract to build is what it will take to place the entity who contracted for the work in the position it deserved to be in when the project was completed. See, Austin, 821 So.2d 10 (citing Hageman v. Foreman, 539 So.2d 678 (La.App. 3 Cir.1989); Hebert v. McDaniel, 479 So.2d 1029 (La.App. 3 Cir.1985)). , This necessitates a Infinding of the cost which would be required to rectify and complete each imperfectly constructed component. See id.

In this case, Hai Nam failed to present any detailed information regarding the amount that it would have cost to correct B & B’s substandard work. The trial court offered no explanation for awarding the amount aside from stating that it was granting the amount prayed for in Hai Nam’s suit. Third Generation offered the only testimony of specific findings of substandard workmanship having been performed by B & B and established that it paid $13,500.00 to have the roof replaced. Although the trial court did not reference this evidence when it rendered its decision, we find its reasonable to infer that the trial court accepted this evidence regarding the cost of necessary repairs to achieve a watertight roofing system.

The trial court possesses vast discretion in determining damages, and the appellate court’s role in reviewing this determination is not to decide what it considers to be an appropriate award, but instead, is to review the exercise of discretion by the trier of fact. See Corbello, 850 So.2d 686. In effect, the standard for overturning such awards is whether it is so high or so low in proportion to the injury that it shocks the conscience. See Gravolet v. Fair Grounds Corp., 03-392 (La.App. 4 Cir. 7/4/04), 878 So.2d 900. In this case, we believe the trial court heard sufficient evidence to support its award. The evidence presented established that patching would not have been sufficient to repair the roof. Romero testified that the amount of patching needed would have created numerous seams, compromising the soundness of a new roof. Consequently, we affirm the award of damages to Hai Nam in the amount of the return of its full contract cost.

1 ^Indemnity

Hai Nam asserts that the trial court incorrectly interpreted the indemnification clause in the lease agreement to find that it was obligated to indemnify Third Generation for the failures of the roof installed by B & B. We agree and find that the trial court was legally incorrect in its finding. First, we note that the general rules governing the interpretation of contracts apply in construing indemnity agreements. See Soverign Ins. Co., v. Texas Pipe Line Co. 488 So.2d 982 (La.1986); see also, Soloco, Inc. v. Dupree, 99-1476 (La.App. 3 Cir. 2/9/00), 758 So.2d 851. Most importantly, the language in the indemnity agreement dictates the obligations of the parties. Jessop v. City of Alexandria, 03-1500 (La.App. 3 Cir. 3/31/04), 871 So.2d 1140, writ denied, 04-1529 (La.10/01/04), 883 So.2d 991 (quoting Kinsinger v. Taco Tico, Inc., 03-622, p. 1 (La.App. 5 Cir. 11/12/03), 861 So.2d 669, 671). Also, “[t]he question to be considered in determining whether an indemnity agreement is enforceable is ‘whether the risk that resulted in the injury was one contemplated by the parties to the contract.’ ” Soloco, 758 So.2d at 855 (quoting Perkins v. Rubicon, Inc., 563 So.2d 258, 259 (La.1990)).

In this case, we note that the indemnification agreement, most pertinently, provides that Hai Nam, as lessee, agreed to do the following:

[Pjrotect, indemnify, save and keep Lessor harmless against and from any and all claims, loss, cost damage or expense arising out of any failure of Lessees, its agent, employees, licensees, contractors or persons and entities claiming or holding under Lessees in any respect to comply with and perform any of the requirements and provisions of this lease.

In this case, we reject an interpretation of these facts that would suggest that Third Generation was placed at a risk of a loss, or suffered a loss, due to Hai Nam’s noncompliance with the lease agreement. Instead, we find that Hai Nam performed 113more than the mutually recognized, estimated $25,000.00 of repair work needed by the leased premises, from which Third Generation has benefited.

Moreover, whether it be from unfortunate drafting or otherwise, we cannot deny that the express terms of this contract failed to state that Hai Nam was obligated to perform any of the repairs but, rather, stated that “[l]essees agree to make the repairs which will satisfy their needs and place the premises in a condition satisfactorily [sic] to Lessees.” (Emphasis added). The terms are clear and unambiguous and must be given their commonsense meaning. See Soverign, 488 So.2d 982.

In this regard, the record reflects testimony from Linda Yang on behalf of Hai Nam. She stated that the roof was placed in a far better condition than it was prior to their occupation of the premises and that, although certain leaks reappeared, a satisfactory roof condition was achieved for Hai Nam’s purpose of running a restaurant. We reject Third Generation’s argument that, by virtue of Hai Nam filing suit to pursue the full enforcement of their contract with B & B, Hai Nam was admitting to a breach of the lease agreement, i.e., the failure to obtain a satisfactory repair of the roof. Indemnity, in its most basic sense, is due when fairness requires that one person bear the total responsibility for an injury or loss. See Vaughn v. Franklin, 00-291 (La.App. 1 Cir. 3/28/01), 785 So.2d 79, writ denied, 01-1551 (La.10/5/01), 798 So.2d 969. Additionally, “[t]he basis for indemnity in the civil law is restitution, the indemnitor having been unjustly enriched when the person seeking indemnity has discharged liability that was his responsibility.” Klumpp v. XYZ Ins. Co., 547 So.2d 391, 393 (La.App. 3 Cir.), writ denied, 551 So.2d 1322 (La.1989). Considering this, we do not find that the circumstances triggering indemnification, according to the express terms of the lease agreement, occurred and, therefore, we |14reverse the trial court’s finding of Hai Nam’s breach of the lease agreement and reverse its award of damages to Third Generation.

IV.

CONCLUSION

The judgment rendered in favor of Hai Nam Chinese Restaurant and against B & B Construction, Inc., is affirmed. The judgment on the intervention in favor of Third Generation Properties, L.L.C., is reversed. Costs of this appeal are assessed equally between B & B Construction, Inc. and Third Generation Properties, L.L.C.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Hai Nam also sued the roofing product manufacturer, GS Roofing Products, Inc., and B & B’s liability insurer, Scottsdale Insurance Company. They both were voluntarily dismissed from the action prior to trial.

      . Modified bitumen is an asphalt compound that is applied to roof surfaces. It has been made more water resistant and durable by the addition of polymers. "Flintlastic” is the brand name of a particular modified bitumen membrane on the market.