author: EDWIN A. LOMBARD, Judge.

text:
    Ashleigh BRANSTETTER v. Ajay PUROHIT.
    No. 2006-CA-1435.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 2, 2007.

      Joan L. Miller, Project SAVE, New Orleans, LA, for Plaintiff/Appellee.
    Eric A. Bopp, Walter R. Woodruff, Jr., Edward S. Bopp — A Law Corporation, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS Sr., Judge MAX N. TOBIAS Jr., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|,Relevant Facts

On May 5, 2005, Ashley Branstetter (“Ms. Branstetter”) filed a Petition for Protection from Abuse against Ajay Puro-hit (“Mr. Purohit”), alleging that Mr. Puro-hit, a complete stranger who formerly lived in her apartment building, was stalking her. On May 5, 2005, a temporary restraining order was issued against Mr. Purohit and the matter was set for hearing on a rule to show cause. Before testimony began at the May 25, 2005 hearing, the parties agreed to enter into a consent judgment, which was read into the record in open court but not reduced to writing. Pursuant to this agreement, the court issued a civil injunction in accordance with the provisions of Louisiana Code of Civil Procedure article 3601 et seq., prohibiting Mr. Purohit from abusing, harassing, and/or contacting Ms. Branstetter in any way. The court warned Mr. Purohit that there would be serious consequences if he violated the injunction. By consent of the parties, the injunction was not forwarded to the Louisiana Protective Order Registry.

On January 15, 2006, despite the civil injunction prohibiting any communication with Ms. Branstetter, Mr. Purohit sent her an email message. As a ^result, on May 10, 2006, Ms. Branstetter filed a rule to show cause why Mr. Purohit should not be held in contempt of court. The hearing on the Rule for Contempt was held on June 21, 2006. Mr. Purohit did not request a jury trial.

Ms. Branstetter, Officer Baehr of NOPD, who initially investigated Ms. Branstetter’s complaint, and Dr. Jason Coe, who had been treating Mr. Purohit for the previous 2 weeks, testified at the hearing. Dr. Coe testified that, in his opinion, Mr. Purohit’s action in sending the email was not done “intentionally, deliberately, or purposely ... but was motivated by a ‘friendly impulse.’ ” Ms. Bran-stetter testified that she was “scared to death” of Mr. Purohit and orally requested that the court issue a registered Louisiana Protective Order against him.

Both parties filed post-trial briefs. In her brief, Ms. Branstetter argued that although she initially agreed that the civil injunction would not be forwarded to the Louisiana Protective Order Registry, Mr. Purohit’s violation of the injunction mandates that the existing injunction be modified and reissued as a registered protective order. In his brief, Mr. Purohit argued that the original allegations of 2005 had been compromised and settled by consent of the parties and, by consent, a civil injunction was issued. Therefore, he argued, Ms. Branstetter was barred from seeking the conversion of the civil injunction into a registered protective order. On August 4, 2006, the court rendered its ruling and issued reasons for judgment finding in favor of Ms. Branstetter and holding Mr. Purohit in contempt of court. The court deferred sentencing, no fine was imposed, and a Louisiana Protective Order was issued and forwarded to the Louisiana Protective Order Registry. Mr. Purohit did not move for a new trial or post verdict judgment of acquittal. Mr. Purohit now appeals from this judgment.

\ ^Assignments of Error

On appeal, Mr. Purohit raises three specifications of error: (1) that the trial court erred when it undertook this “serious contempt” case without a jury, (2) that the trial court erred in converting the civil injunction into a registered protective order, without notice, violating his constitutional right to due process; and (3) that the trial court erred and abused its discretion in finding him in contempt of court because the evidence presented was insufficient to establish beyond a reasonable doubt that he willfully disobeyed the consent injunction.

Law & Analysis

• Contempt

Mr. Purohit argues the trial court abused its discretion in finding him in contempt. He further argues that court’s judgment is void ab initio in light of the fact that he was not afforded his constitutional right to a trial by jury. While Mr. Purohit may be correct on either or both of these points, we do not rule on those issues. Rather, we note that the trial court’s judgment finding contempt, without imposing either monetary sanctions or a criminal sentence, is a non-appealable interlocutory judgment.

Under Article 2083 of the Louisiana Code of Civil Procedure, only final judgments, and interlocutory judgments for which an appeal is provided by law, are appealable. La.Code Civ. Proc. Art. 2083 (West 2006). Prior to the 1999 ^amendments to Louisiana Code of Civil Procedure Article 1915, a contempt judgment was considered a non-appealable interlocutory decree. See, e.g., State ex rel. Hess v. Guste, 603 So.2d 196 (La.App. 4 Cir.1992). However, Article 1915 now allows the appeal of a judgment that “[(Imposes sanctions or disciplinary action pursuant to Article 191, [Article] 863, [Article] 864 or Code of Evidence Article 510(G).” La.Code Civ. Proc. Art. 1915 (West 2006). In the present matter, the trial court found Mr. Purohit in contempt for violating the civil injunction deferring sentencing and without imposing monetary sanctions. Until such time as the trial court actually imposes a criminal sentence or sanctions, there is nothing to appeal. We therefore dismiss without prejudice the portion of the appeal regarding the trial court’s finding of contempt.

• Issuance of the Protective Order

Mr. Purohit also argues that the trial court abused its discretion in issuing a protective order against him and that Ms. Branstetter cannot revive her original petition for protection against abuse since the parties came to a consent agreement on the original stalking claim. Mr. Purohit further argues the issuance of the protective order violated his right of procedural due process and is, therefore, void ab ini-tio.

The court granted Ms. Branstetter’s oral request that the court issue a Louisiana Protective Order pursuant to Louisiana Revised Statute section 46:2136. The purpose behind this statute is to “provide relief to victims of domestic violence by establishing ‘a civil remedy for domestic violence which will afford the victim immediate and easily accessible protection.’ ” Bays v. Bays, 00-1727, p. 5 (La.2/21/01), 779 So.2d 754; La.Rev.Stat. § 46:2131. Section 46:2133 provides that |K“[A]n adult may seek relief under this Part by filing a petition with the court alleging abuse by the defendant.” La.Rev.Stat. § 46:2133. The petition must detail the facts and circumstances concerning the alleged abuse. La.Rev.Stat. § 46:2134. According to the Louisiana Supreme Court, by requiring the party seeking a protective order to file a petition specifying the allegations of abuse, the legislature has ensured that a defendant’s constitutional due process rights, particularly the right of reasonable notice, will be observed. Bays, p. 6, 779 So.2d at 758.

In this case, the only petition for abuse filed by Ms. Branstetter against Mr. Purohit was the May 5, 2005 petition for abuse, which was compromised and settled by the May 25, 2005 consent judgment. Therefore, the only matter pending before the court on June 21, 2006 was Ms. Bran-stetter’s rule to show cause why Mr. Puro-hit should not be held in contempt for violating the civil injunction. The rule to show cause on the contempt issue did not afford Mr. Purohit with reasonable notice that he could possibly be subjected to a registered protective order at the contempt hearing, especially in light of the fact that no new petition had been filed seeking a protective order against him. Under these circumstances, we find that the trial court had no authority to issue a protective order against Mr. Purohit. The law is clear that a protective order under the domestic violence assistance statutes may not be issued without the filing of a petition in compliance with Louisiana Revised Statute 46:2133.

Accordingly, we reverse and set aside that part of the trial court’s judgment issuing a Registered Louisiana Protective Order against Mr. Purohit and we | ^dismiss without prejudice the portion of the appeal regarding the trial court’s interlocutory judgment of contempt.

APPEAL DISMISSED IN PART; JUDGMENT REVERSED IN PART.

      . The Petition specifically alleged that Mr. Purohit stalked her, sent her disturbing handwritten letters, and sent her a package full of various items, including men's underwear.

      . At the time this matter was brought for hearing, La. R.S. 13:4611 provided that the penalty for disobeying or resisting a lawful restraining order, or preliminary or permanent injunction, was a fine of not more than one thousand dollars, or imprisonment for not more than six months, or both, which would entitle the violator to a trial by jury. In June 2006, R.S. 13:4611(A)(2) was amended on the recommendation of the Louisiana State Law Institute to reduce the penalty for contempt in order that it would not be within the serious offense classification of Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970) and thus no jury trial would be required.


source: Caselaw Access Project

author: Judge EDWIN A. LOMBARD.

license: Public Domain

text:
    STATE of Louisiana v. Gerald MITCHELL.
    No. 2006-KA-1606.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 2, 2007.

      Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge MAX N. TOBIAS JR., Judge EDWIN A. LOMBARD).
   Judge EDWIN A. LOMBARD.

h Gerald Mitchell appeals his conviction for attempted possession of crack cocaine. After review of the record in light of the applicable law and arguments of the parties, we affirm the appellant’s conviction and sentence.

Relevant Facts

The appellant and Courtney Conway were arrested on December 31, 2004, and charged with possession of crack cocaine and prohibited drug paraphernalia. On January 27, 2005, the appellant and Conway were charged by bill of information with one count each of violating La.Rev. Stat. 40:967(0(2), possession of crack cocaine. The appellant pleaded not guilty at his arraignment on February 4, 2005, and subsequently filed a motion to suppress the evidence. The trial court held a motion and preliminary hearing on April 29, 2005, and on May 6, 2005, denied the appellant’s motion and found sufficient probable cause to substantiate the charge brought against him by the State.

The following evidence was adduced at the bench trial on June 27, 2005.

Officer Jamie Cohen of the New Orleans Police Department (NOPD) testified that on December 31, 2004, she was on patrol in a marked unit with her partner, Officer Melvin Williams, in the Sixth District, driving on South Robertson |gStreet toward Jackson Avenue. As they approached the intersection of South Robertson and Jackson, Officer Cohen observed a black Chevrolet Malibu (“the Malibu”) parked near the intersection with the appellant and Conway standing near the passenger door. She then observed an arm extend out of the Malibu and hand something to Conway in exchange for currency. After the exchange, the appellant turned and spotted the police unit. According to Officer Cohen, the appellant said something to the Malibu’s passenger, at which point the Malibu left the scene and turned onto Jackson Avenue toward South Claiborne Avenue at a high rate of speed. Officer Cohen and her partner initially followed the Malibu but quickly called off the pursuit because there were numerous pedestrians present, and the Malibu was traveling at a high rate of speed and weaving in and out of traffic. Accordingly, the officers made a u-turn and drove down Jackson Avenue towards the Mississippi River where they saw the appellant and Conway walking together on the uptown side of Jackson Avenue. As the officers approached, the two men turned down an alleyway near 2418 Jackson Avenue. Officer Cohen stopped the vehicle and her partner asked the defendants to step towards him. According to Officer Cohen, after both the appellant and Conway refused Officer Williams’ request and continued down the alleyway, Officer Williams placed them under arrest for possession of crack cocaine. In the search incidental to the arrest, Officer Cohen discovered a rock of crack cocaine on Conway (which was subsequently at trial as part of State’s Exhibit One — a clear plastic bag containing three rocks of cocaine and two glass tubes). Officer Cohen identified the smallest of the three | arocks as the piece of crack cocaine that she confiscated from Conway and identified Conway and the appellant in court as the perpetrators.

Officer Williams testified, confirming Officer Cohen’s testimony. Officer Williams stated that after terminating the pursuit of the Malibu, he and Officer Cohen turned around on Jackson Avenue and, after looking for Conway and the appellant, located them in the vicinity of 2418 Jackson Avenue. After spotting the subjects, the officers stopped their vehicle and got out to investigate. Conway and the appellant noticed the officers and then stepped through a wrought iron gate opening onto an alleyway alongside 2418 Jackson Avenue, heading towards a side door. When Officer Williams ordered them to stop and approach him, Conway looked over her shoulder and handed a clear plastic bag to the appellant who then tossed the bag next to some steps leading into the building at 2418 Jackson Avenue. Officer Williams stated that because the alleyway was tight, and in order to avoid a physical altercation or foot pursuit, he did immediately reveal that he saw the appellant toss the bag to the ground and, therefore, he retrieved the plastic bag only after the appellant and Conway were escorted out of the alleyway. Officer Williams testified that the bag contained two glass tubes (which he recognized as crack pipes) and three pieces of a rock-like substance that he believed to be crack cocaine. When presented with State’s Exhibit One, Officer Williams identified the tubes and the crack cocaine as the items found by him in the alleyway. Further, Officer Williams testified that several other people later came out of the house at 2418 Jackson Avenue and were arrested at the scene for interfering with a police investigation.

1/The State also introduced State’s Exhibit Two, which comprised a report prepared by William Gibbon wherein he stated that he tested the rock-like substances found in State’s Exhibit One and that they tested positive for cocaine.

The appellant and Conway testified in their own defense, offering versions of events which differed greatly from the testimony presented by Officers Cohen and Williams. Conway testified that on December 31, 2004, she was a guest of the appellant at his efficiency apartment at 2418 Jackson Avenue. Conway stated that she was there in the back of the house with “Sweetie” and “Al” to drink, play, cards, and celebrate New Year’s Eve. At some point another friend, “For Sure,” came in and stated that the police were following him. Conway then heard several knocks at the door and a voice announcing that the police were at the door and ordering the occupants to open the door. Conway ordered the occupants of the room to get off of a mattress in the room so that she could hide under it. After Conway hid under the mattress, someone opened the door and allowed the police to come inside the house. The police first ordered the men to lie on the ground and then took the men out of the house. According to Conway, another officer came in later, looked under the mattress, found her, and then took her out of the house. After being placed in a police car with the appellant, “Sweetie,” and “Al,” Conway asked the appellant what happened and he told her that he was in the alley when “For Sure” ran past him followed by the police, only to be wrestled to the ground by the police. When they all arrived at central lockup, Conway noticed that the other men were charged with interfering with a police investigation, while she and the appellant were charged with possession of crack cocaine.

5Conway denied purchasing crack cocaine on the date of the incident and, likewise, denied possessing crack cocaine or crack pipes at the time of the arrest. Further, Conway also denied giving any crack cocaine or pipes to the appellant at any time or being in the alley with the appellant. Conway did admit to having one prior conviction for prescription forgery. When asked to speculate why she was charged with possession when the police had been chasing “For Sure,” Conway stated that she assumed that the police were angry because they could not catch “For Sure” and they had to come into the appellant’s apartment to find him only to find that everyone inside denied possessing the crack found by the police under the house. When asked on cross-examination why the police charged her with possession of crack cocaine instead of “For Sure”, Conway responded by stating: “It doesn’t work like that on the street.” Finally, Conway asserted that she had no reason to lie about the events at issue because her arrest constituted a probation violation that would result in her being sent to jail regardless of her conviction in the present matter.

The appellant testified that on December 31, 2004, at approximately 2:00 p.m. he was returning to his apartment from his girlfriend’s home to meet with several friends and celebrate New Year’s Eve. As he was in the alleyway next to his apartment, he noticed his friend Nathaniel running through the alleyway. After Nathaniel passed, the appellant noticed that Nathaniel was being followed by two police officers. The appellant left the alleyway and was wrestled down by two other police officers and put in a police vehicle. The appellant claimed that he learned the nature of the charges against him only after arriving at Central Lockup. On cross-examination, the appellant admitted to a prior conviction for simple burglary in 1992 but denied ever possessing crack cocaine or purchasing crack | (¡cocaine with Conway. The appellant had no explanation for why he and Conway were charged with possession of crack cocaine when the police had initially been pursuing his friend Nathaniel.

After the close of evidence, the trial court found the appellant and Conway guilty of the lesser-included offense of attempted possession of crack cocaine. On July 21, 2005, the appellant was sentenced to one year in the custody of the Department of Corrections. This appeal was timely filed.

Error Patent Review

A review of the record indicates that the discrete minute entry setting out the appellant’s sentence is missing. However, the record does contain the docket master for his case and a transcript from the sentencing hearing which both set out the appellant’s sentence. Accordingly, the lack of a minute setting out the appellant’s sentence is harmless error.

Assignment of Error No. 1

In his sole assignment of error, the appellant argues that his conviction and sentence should be reversed because the evidence adduced at trial was insufficient to prove that his momentary, incidental possession of the crack cocaine was knowing or intentional. The appellant sets out the argument in support of his assignment of error in a single paragraph, to wit:

While knowledge and intent can ordinarily be inferred from the fact of possession, this is plainly not the ordinary possession situation. On the contrary, Mr. Mitchell’s reaction of immediately discarding the plastic baggie that Ms. Conway suddenly and unexpectedly handed to him can lead to only one inference — that Mr. Mitchell received something that he quickly realized he had no desire to possess.

The appellant’s argument, although novel, is not persuasive.

|7In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4th Cir. 1991). “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992). When circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982).

To support a conviction for possession of an illegal drug in violation of La.Rev.Stat. 40:967, the State must prove that the defendant was (1) in possession of the illegal drug and (2) that he knowingly possessed the drug. State v. Chambers, 563 So.2d 579, 580 (La.App. 4 Cir.1990). The State need not prove that the defendant was in actual physical possession of the drug found; constructive possession is sufficient to support a conviction. State v. Trahan, 425 So.2d 1222 (La.1983). To prove attempt, the State must show that the defendant committed an act tending directly toward the accomplishment of his intent, possession of the drug. See La. Rev.Stat. 14:27; see also Chambers, 563 So.2d at 580. The mere presence of the defendant in the area where the drugs are found, or the mere fact that the defendant knows the person in actual possession, is insufficient to prove constructive possession. However, a person found in the area of the contraband may be considered in constructive possession if the illegal substance is subject to |shis dominion and control or if he is in joint possession of a drug which is in the physical possession of a companion if he willfully and knowingly shares with the other the right to control the drug. Chambers, 563 So.2d at 581. Guilty knowledge is the essential element. Id. In determining whether a defendant exercised sufficient “dominion and control” over the narcotics to constitute constructive possession a reviewing court should consider the following factors: (1) the defendant’s knowledge that illegal drugs are in the area; (2) the defendant’s relationship with the person found to be in actual possession; (3) the defendant’s access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5) the defendant’s physical proximity to the drugs; and (5) any evidence that the particular area was frequented by the drug users. Chambers, 563 So.2d at 581.

In the present case, the appellant argues that the fact that he discarded the baggie containing crack cocaine, immediately after Conway handed it to him, indicates that he did not have the requisite intent to possess the narcotics. However, the testimony presented by the police officers supports the appellant’s conviction and, clearly, the trial court found the police officers’ testimony more credible than that of either defendant. See State v. Huckabay, 2000-1082 (La.App. 4 Cir 2/6/02), 809 So.2d 1093 (a factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence).

Thus, the evidence indicates that the appellant was standing with Conway as she bought crack cocaine from an unidentified individual in the Malibu and, accordingly, given his proximity to the transaction, it is logical to infer that the appellant knew what Conway was purchasing. The police officers also testified that it was the appellant who first noticed their vehicle and warned the occupants |flof the Malibu and Conway of their impending arrival, thereby precipitating the Malibu’s escape and a hasty exit from the scene of the transaction by Conway and the appellant. Based on the appellant’s actions, it is logical to infer guilty knowledge on the part of appellant.

Moreover, a review of the appellant’s actions immediately before his arrest show that he possessed the crack cocaine, if only for a moment. Although the appellant contends that his immediate disposal of the package containing the crack cocaine is indicative of his intent to have nothing to do with it, the record indicates otherwise. Specifically, Officer Williams testified that the appellant, immediately after being handed the plastic bag and without examining its contents, discarded the bag next to the steps leading into his apartment on the side of the steps not visible to the approaching officers. Thus, the action of the appellant in discarding the bag in a place which he believed was not visible to the police, was an act “tending directly toward the accomplishment of his intent,” and, as such, supports his conviction for attempted possession. In addition, it may be inferred from the two crack pipes found in the bag that the crack cocaine was intended for more than one person.

Accordingly, there is evidence in the record to show that: (1) the appellant knew that illegal drugs were in his immediate vicinity; (2) the appellant and Conway were friends; (3) the appellant had access to the discarded drugs because he discarded them next to the steps leading into his apartment; and (4) the appellant was in very close physical proximity to the drugs and, in fact, had actual possession of the drugs for a short moment. Accordingly, we find that sufficient evidence supports the appellant’s conviction for attempted possession of crack cocaine.

| 10 Conclusion

The appellant’s conviction and sentence are affirmed.

AFFIRMED.

      . Officer Cohen stated that they were approximately half a block from the intersection when she observed the activities of the appellant and his co-defendant.

      . Conway explained that she only knew the two men by their nicknames and did not know their legal names.

      . Conway testified that “For Sure's” real first name is Nathaniel but that she did not know his last name.


author: LEON A. CANNIZZARO, Jr., Judge.

text:
    Marta C. FAGOT v. John Douglas PARSONS.
    No. 2006-CA-1528.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 9, 2007.

      Jeffery M. Lynch, Jefferson, LA, for Plaintiff/Appellant, Marta C. Fagot.
    Max Nathan, Jr., Jack M. Alltmont, Danielle M. Ross, Sessions, Fishman & Nathan, L.L.P., New Orleans, LA, for Defendant/Appellee, Adrienne Laborde Parsons.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III, Judge LEON A. CANNIZZARO, Jr.).
   LEON A. CANNIZZARO, Jr., Judge.

I,The trial court granted an exception of no cause of action raised by Mary Adrienne Laborde Parsons (“Ms.Laborde”), one of the defendants in the instant case. The plaintiff, Marta C. Fagot, is now appealing the granting of the exception.

FACTS AND PROCEDURAL HISTORY

Ms. Fagot filed suit against John Douglas Parsons and Ms. Laborde alleging that they were liable to her for the intentional and fraudulent conversion of property owned by Ms. Fagot. Additionally, she alleged that they were liable to her for their unjust enrichment at her expense.

According to the petition in the instant case, Mr. Parsons “intentionally and fraudulently converted” Ms. Fagot’s funds from her brokerage account at the firm of Johnson Rice & Company (“Johnson Rice”) where Mr. Parsons worked as a broker and financial advisor for various clients, including Ms. Fagot. During the time that the fraudulent conversion occurred, Ms. Laborde was married to Mr. Parsons. The petition alleged that funds belonging to Ms. Fagot were converted and deposited into a joint bank account belonging to both Mr. Parsons and Ms. | .¿Laborde as community property. Additionally, the petition stated that converted funds were also deposited into a bank account in Ms. Laborde’s name.

The petition claimed that Ms. Fagot settled her claims against Johnson Rice and reserved “any and all rights against Parsons which did not form a part of the settlement.” Finally, the petition sought damages for unjust enrichment on the ground that the converted funds that were deposited into bank accounts in the names of Mr. Parsons or Ms. Laborde benefited the community of acquets and gains existing between them.

Ms. Laborde filed exceptions of no cause of action and no right of action in the trial court. The exception of no right of action was denied, but the exception of no cause of action was granted. Ms. Fagot was given fifteen days within which to amend her petition to state a cause of action. Because Ms. Fagot did not file an amended petition, the petition was dismissed pursuant to the trial court judgment.

DISCUSSION

Standard of Review

Whether a plaintiff has a cause of action is a question of law. Therefore, this Court is required to conduct a de novo review in determining whether the trial court was legally correct in granting the exception of no cause of action. See, e.g., Badeaux v. Southwest Computer Bureau, Inc., 05-0612, 05-719, p. 7 (La.3/17/06), 929 So.2d 1211, 1217.

| 3Exception of No Cause of Action

The exception of no cause of action is a peremptory exception, the function of which is “to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923. In the Badeaux case, the Louisiana Supreme Court discussed the exception of no cause of action. The Supreme Court stated that “the focus in an exception of no cause of action is on whether the law provides a remedy against the particular defendant.” 929 So.2d at 1216-17. The Supreme Court discussed the function of an exception of no cause of action and stated that an exception of no cause of action “questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition.” Id. at 1217.

In considering the merits of an exception of no cause of action, the trial court is required to decide whether to grant or deny the exception on the basis of the face of the petition. Id. To resolve the issues raised by an exception of no cause of action, “each well-pleaded fact in the petition must be accepted as true.” Id.

Assignment of Error

The sole assignment of error in the instant case is whether the trial court correctly determined that Ms. Fagot had not stated a cause of action against Ms. La-borde. La. Civil Code art. 2298 establishes that there is a remedy for unjust enrichment. Article 2298 provides in relevant part:

|4A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.

(Emphasis added.)

In Baker v. Maclay Properties Co., 94-1529 (La.1/17/95), 648 So.2d 888, 897, the Louisiana Supreme Court enumerated the requirements that must be shown to prove a claim for unjust enrichment. The Supreme Court stated:

The five requirements for a showing of unjust enrichment ... are: (1) there must be an enrichment, (2) there must be an impoverishment, (3) there must be a connection between the enrichment and resulting impoverishment, (4) there must be an absence of “justification” or “cause” for the enrichment and impoverishment, and (5) there must be no other remedy at law available to plaintiff.

See also Quilio & Associates, Inc. v. Plaquemines Parish Gov’t, 05-0803, p. 12 (La.App. 4 Cir. 5/10/06), 931 So.2d 1129, 1137, writ denied, 06-1442 (La.9/29/06), 937 So.2d 850. In the instant case, it is clear that the fifth requirement for proving unjust enrichment cannot be met, because there were other remedies available to Ms. Fagot.

The facts in the petition in the instant case must be accepted as true for purposes of determining whether the exception of no cause of action should have been granted. Badeaux, 929 So.2d at 1217. The relevant facts, as stated in the petition, are (1) that at Johnson Rice Mr. Parsons was a broker and financial advisor for Ms. Fagot, (2) that Mr. Parsons intentionally and fraudulently converted funds in Ms. Fagot’s brokerage account at Johnson Rice by depositing them into accounts owned by Mr. Parsons and Ms. Laborde, (3) that Ms. Fagot was [ ^informed by Johnson Rice that it had discovered Mr. Parsons’ fraudulent conduct, and (4) that Ms. Fagot settled her claims against Johnson Rice and reserved her rights to proceed directly against Mr. Parsons for any claims that did not form part of the settlement with Johnson Rice.

On the face of the petition there are clear grounds upon which Ms. Laborde’s exception of no cause of action was properly granted. Nowhere is it alleged that Ms. Laborde was responsible for the embezzlement or conversion of funds from Ms. Fagot’s brokerage account, and Ms. Fagot stated in the petition that she had settled her claims against Johnson Rice. Thus, Ms. Laborde was not the tortfeasor, and there was a remedy available to Ms. Fagot.

The only remedy available against Ms. Laborde is in unjust enrichment, but that remedy is only available where there is no other available remedy. There are two other remedies that do not involve Ms. Laborde — one against Johnson Rice, which has already been exercised, and another against the actual tortfeasor, Mr. Parsons. Because of the availability of other remedies, under the holding of the Baker case, Ms. Fagot has no cause of action against Ms. Laborde for unjust enrichment.

DECREE

Ms. Laborde was entitled to have her exception of no cause of action granted. The judgment of the trial court holding that Ms. Fagot had no cause of Paction against Ms. Laborde is affirmed, and the dismissal of the case against Ms. Laborde is also affirmed.

AFFIRMED.

      . Mr. Parsons and Ms. Laborde had divorced by the time the instant suit was filed.

      . La. C.C.P. art 927 provides in relevant part:
      A. The objections which may be raised through the peremptory exception include but are not limited to the following:

      (4) No cause of action.

      . Ms. Fagot argued in her brief and at oral argument that La. Civil Code art. 2292, which concerns the receipt of a payment or a thing not owed, applied in the instant case. We have not considered this argument, however, because we are limited to a consideration of what is on the face of the petition to determine whether there is a cause of action. Badeaux, 929 So.2d at 217.


author: PATRICIA RIVET MURRAY, Judge.

text:
    Kimberly PYLES v. Anthony WEAVER and RCI Entertainment Louisiana, Inc. d/b/a Rick’s Caberet, A Division of Rick’s Caberet International, Inc. Kimberly Pyles v. The Estate of Anthony Weaver, Easton Insurance Company, RCI Entertainment Louisiana, Inc., d/b/a Rick’s Cabaret, A Division of Rick’s Cabaret International.
    Nos. 2006-CA-0348, 2006-CA-0644.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 16, 2007.
    Rehearing Denied July 11, 2007.

      Robert G. Harvey, Sr., New Orleans, LA for Plaintiff/Appellant.
    Robert E. Kerrigan, Jr., John Jerry Glas, Kerrie T. Belsome, Keidra J. Phillips, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, for Defendants/Appellants.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. MeKAY III, Judge DAVID S. GORBATY).
   PATRICIA RIVET MURRAY, Judge.

|! Defendant, RCI Entertainment Louisiana, Inc. d/b/a Rick’s Cabaret [hereinafter “Rick’s Cabaret”] appeals the trial court’s judgment, which awarded $450,000 in damages to the plaintiff, Kimberly Pyles, in her personal injury action and assigned twenty percent (20 %) fault to Rick’s Cabaret. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

On September 19, 2001, Kimberly Pyles filed the instant petition against Anthony Weaver and Rick’s Cabaret alleging that she was injured on February 8, 2001, while working as an independent contractor dancer at a gentlemen’s club operated by Rick’s Cabaret on Bourbon Street in New Orleans. Ms. Pyles alleged her injuries were caused by defendant Anthony Weaver, a patron of the club, who deliberately threw a heavy rock glass at her, striking her in the face; and by the negligence of Rick’s Cabaret in failing to provide adequate security to protect her. 12The case was tried March 21-29, 2006, and the jury found in favor of the plaintiff and determined that she suffered damages in the amount of $450, 000 (including $300, 000 for pain and suffering; $100, 00 for mental anguish; and $50, 000 for past medical costs). The jury apportioned fault as follows: 80% to Anthony Weaver, 20% to Rick’s Cabaret, and 0% to the plaintiff. On March 31, 2005, the trial court rendered judgment in accordance with the jury’s findings, thereby rendering Rick’s Cabaret liable for $90,000 of the total award. Both the plaintiff and Rick’s Cabaret moved for a new trial on various grounds. In addition, the plaintiff moved for judgment notwithstanding the verdict. On May 11, 2005, while these motions were pending, the plaintiff filed a motion to recuse the trial judge from consideration of any post-trial motions. The plaintiffs motion to recuse was based upon the fact that six days after rendering the judgment in the instant case, the trial judge had recused himself sua sponte from another matter because of a conflict of interest between himself and two attorneys, one of those being Robert Harvey, who also represents the plaintiff herein. On April 18, 2005, the trial court granted plaintiffs motion and recused himself from considering any post-|trials motions in the instant case. Shortly thereafter, the plaintiff asserted an additional motion for new trial based upon Judge Medley’s failure to recuse himself prior to the trial of the instant case. The plaintiff argued that Judge Medley’s recu-sal from hearing the post-trial motions in the instant case, as well as his sua sponte recusal, within days of the conclusion of this trial, from other cases involving Mr. Harvey, indicated that Judge Medley also had a conflict with Mr. Harvey prior to trying the instant case, and his failure to sua sponte recuse himself provided grounds for a new trial.

On August 19, 2005, Judge Rosemary Ledet heard the post-trial motions, which included the multiple motions for new trial by both parties. On December 21, 2005, she rendered judgment denying all the motions for new trial, as well as the plaintiffs motion for judgment notwithstanding the verdict.

The plaintiff filed an appeal of the original judgment, as well as of the denials of her motions for new trial on the recusal issue and on the issue of a post-trial affidavit plaintiff contended was newly discovered evidence warranting a new trial. Rick’s Cabaret also appealed the judgment, citing as error the trial court’s qualification of the plaintiffs expert on security. On July 19, 2006, this court consolidated the two appeals.

| 4Before addressing the parties’ assignments of error as to the original judgment, we consider whether the district court erred by denying the plaintiffs motions for new trial.

MOTION FOR NEW TRIAL — RECU-SAL

According to the Louisiana Code of Civil Procedure, a trial court may grant a new trial based upon either peremptory or discretionary grounds. Article 1972 specifies three peremptory grounds upon which a new trial “shall” be granted, namely: (1) when the verdict or judgment appears clearly contrary to the law and the evidence; (2) when a party has discovered new evidence important to the cause which he could not, with due diligence, have discovered prior to trial; and (3) when the verdict has been tainted by juror bribery or juror misconduct In addition to these peremptory grounds, Article 1973 provides that a new trial “may be granted in any case if there is good round therefore.... ” In reviewing the trial court’s denial of a motion for new trial, an appellate court may not disturb the trial court’s decision unless there has been a clear abuse of discretion. Warner v. Carimi Law Firm, 98-613 (La.App.5 Cir. 12/16/98), 725 So.2d 592, 597; de la Vergne v. de Lamaze, 95-1866 (La.App. 4 Cir. 2/29/96), 670 So.2d 599, 602; Zatarain v. WDSU Television, Inc., 95-2600 (La.App. 4 Cir. 4/24/96), 673 So.2d 1181, 1186.

In the instant case, the plaintiff first argues that Judge Medley’s failure to re-cuse himself prior to trial provides peremptory grounds for new trial under the second prong of Article 1972: newly discovered evidence. According to plaintiffs argument, the “newly discovered evidence” is Judge Medley’s April 6, 2005 |srecusal from another case [hereinafter “the Reuther case”] and his April 14, 2005 per curiam filed in this court explaining that recusal. In the per curiam, Judge Medley confirmed that he had recused himself from trying the Reuther case because of a perceived conflict between himself and the two defense attorneys (one of whom was Mr. Harvey) stemming from a secretly tape-recorded comment made by one of the attorneys indicating Judge Medley had a bias in favor of them. Because Mr. Harvey is also counsel for the plaintiff herein, the plaintiff argues that the information contained in the April 14 per cu-riam should be considered “newly discovered evidence” justifying a new trial in the instant case because the same conflict of interest existed at the time Judge Medley conducted the instant trial. Specifically, the plaintiff argues that the conflict must have existed in Judge Medley’s mind on March 21, 2005, the first day of trial, because Judge Medley was aware at that time of the alleged comment, which was the basis for the conflict.

We cannot accept plaintiffs argument. Judge Medley’s conflict of interest with Mr. Harvey, even assuming it existed prior to the trial of this case, is not “evidence” within the terms of Louisiana Code of Civil Procedure Article 1972 because the comment has no bearing upon the substance of the matter to be decided. In an analogous situation, the First Circuit held that where the “newly discovered evidence” asserted by the party moving for new trial consisted of the existence of an attorney-client relationship between the trial judge and the opposing counsel, the motion was correctly denied because the so-called “evidence” did not relate to the cause of the case. Bergeron v. Illinois Central Gulf Railroad Co., 402 So.2d 184, 186 (La.App. 1st Cir.1981).

| (¡Moreover, to justify a new trial under Article 1972, the newly discovered evidence must not only relate to the cause of the case, it must also be “important” enough to potentially affect the outcome or change the result of the trial. See Miller v. Miller, 160 La. 936, 107 So. 702 (La.1926). This court has held that to prevail on a motion for new trial under this prong of Article 1972, the movant must prove four elements: (1) that the new evidence was discovered after trial, (2) that the new evidence is not cumulative, (3) that the new evidence would tend to change the result of the case, and (4) that the new evidence could not have been discovered, with due diligence, before the trial was completed. Harris v. Orleans Parish School Bd., 1997-0724, p. 4 (La.App. 4 Cir. 1/28/98), 706 So.2d 223, 225, citing Barker v. Rust Engineering Co., 428 So.2d 391, 394 (La.1983); Wright v. Hirsch, 572 So.2d 783, 791-92 (La.App. 4 Cir.1990). Because the conflict of interest allegedly harbored by Judge Medley at the time of trial does not meet this test, we And that the trial court did not abuse its discretion by declining to grant a new trial on peremptory grounds.

Alternatively, the plaintiff contends that the motion for new trial should have been granted on discretionary grounds, again arguing that the conflict of interest that Judge Medley admittedly had subsequent to the instant trial must also have existed during the trial, and its existence alone would constitute “good ground” for a new trial under Code of Civil Procedure Article 1973. We disagree.

Louisiana Code of Civil Procedure Article 154 provides:

A party desiring to recuse a judge of a district court shall file a written motion therefor assigning the ground for recu-sation. This motion shall be filed prior to trial or hearing unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after these facts are discovered, but prior to judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to 17another judge or a judge ad hoc, as provided in Articles 155 and 156, for a hearing.

One of the grounds for recusal recognized in the Code of Civil Procedure is when the trial judge “[I]s biased, prejudiced, or interested in the cause or its outcome or 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 impartial proceedings.” La. C.C.P. art. 151(B)(5). The plaintiff now contends that this ground for recusal existed during the trial of the instant case. Regardless of whether a valid ground existed, however, Article 154 does not apply to the instant situation because none of the parties made a motion to recuse Judge Medley prior to the rendering of the judgment. Moreover, the record reveals that the plaintiffs counsel clearly knew about “the facts constituting the grounds for re-cusation,” i.e., the statement made concerning Judge Medley’s alleged bias toward Mr. Harvey’s firm, prior to trial.

On the morning of the first day of trial, the attorneys for each side met with Judge Medley in his chambers to resolve certain pretrial issues. According to the transcript of this conference, Mr. Robert Ker-rigan, counsel for the defendants, informed the court that he was aware that a representation had been made “on the public records” by a lawyer in another case to the effect that Mr. Harvey had said he had Judge Medley “in his hip pocket.” Mr. Kerrigan then assured those present that he did not believe Mr. Harvey had made such a comment. Judge Medley explained that the representation had been made by another lawyer, whose motion to recuse Judge Medley was subsequently heard and denied by another judge. Judge Medley then stated “for the record” that he was not in anybody’s hip Lpocket, and he considered the comment to be an insult. Mr. Harvey confirmed that he had never made any such statement concerning Judge Medley. Finally, Mr. John Glas, who (along with Mr. Kerrigan) represents Rick’s Cabaret, reiterated that Rick’s Cabaret had not filed a motion to recuse Judge Medley for any reason from the instant case. Judge Medley concluded the discussion by commenting that he nevertheless was glad Mr. Kerrigan had brought the matter up, because Judge Medley liked to have everything “on the table.”

Despite having failed to assert a motion to recuse at that time, however, plaintiff now argues that Judge Medley had an ethical obligation to recuse himself under the Louisiana Code of Judicial Conduct. In support of this argument, plaintiff cites Disaster Restoration Drycleaning, L.L.C. v. Pellerin Laundry Machinery Sales Co., Inc., 2005-0715 (La.4/17/06), 927 So.2d 1094. The issue in that case was whether the trial court properly denied an attorney’s motion to enroll as co-counsel on the basis that the attorney’s enrollment would provide a ground for recusal of the trial judge. After extensive discussion, the Louisiana Supreme Court remanded the matter to be randomly allotted to another judge for an hearing on the motion to enroll. In so doing, the Court noted:

In a civil case, a judge’s failure to self-recuse does not violate the Canons of the Code of Judicial Conduct; however, the judge’s exercise of discretion is subject to legal review and resolution in accordance with the provisions of the Code of Civil Procedure.

2005-0715, at p. 10, 927 So.2d at 1100 (citing In re Judge Henry H Lemoine, Jr., 96-2116 (La.1/14/97), 686 So.2d 837, 840).

Upon review, to convince us that Judge Medley abused his discretion by failing to self-recuse, the plaintiff must show some objective evidence that Judge | ciMedley knew at the outset or during the trial he had a conflict that would prevent him from being impartial. In addition, for us to overturn the denial of plaintiffs motion for new trial as an abuse of discretion, plaintiff must show that Judge Medley’s failure to self-recuse affected the outcome of the trial.

To meet the first burden, plaintiff asserts that Judge Medley’s own words written after the instant trial provide objective evidence that Judge Medley had a conflict of interest that also existed prior to the instant trial. Specifically, the plaintiff contends this court should infer from the per curiam and the written reasons that the circumstances which prompted Judge Medley to recuse himself in those instances should also have caused him to recuse himself from the trial of the instant case when the subject was brought to his attention in the pretrial conference in his chambers.

However, our reading of Judge Medley’s words does not support such an inference. To the contrary, the per curiam and the reasons for judgment suggest just the opposite: that the circumstances which prompted Judge Medley’s recusal on April 6 and subsequently may not have existed on March 21 when the pretrial conference took place. Judge Medley emphasizes in the per curiam, that the primary reason for his recusal is to avoid the appearance of impropriety due to “the impression conveyed by this [Mr. Klotz’s] false statement in the minds of the public.” Again in his May 18 reasons for judgment, Judge Medley explains that he is granting plaintiffs motion to recuse to avoid the appearance of impropriety, nevertheless averring: “To the extent that the motion suggest (sic) that the Court cannot be fair with petitioner or has an actual conflict of interest with petitioner, it is totally incorrect.”

|ipBy contrasting these statements with Judge Medley’s reaction on March 21 when the subject of the attorney’s remark was brought to his attention on the morning of trial, it is obvious to this court that although Judge Medley was aware on March 21 that such a comment allegedly had been made, he did not then consider it to be a problem because, in his mind, there was no truth to the remark. Subsequently, however, the situation apparently escalated to a point at which Judge Medley believed the public perception created by the incident became significant in itself, regardless of the truth or falsity of the attorney’s statement. Whether that point occurred before or after March 29, when the instant trial concluded, is impossible for anyone but Judge Medley to know. Nevertheless, we find no evidence in this record that Judge Medley believed at the commencement of or at any time during the trial of this case that he was unable to be fair and impartial toward all parties.

Moreover, even if the plaintiff were able to show that Judge Medley was harboring a secret conflict of interest with regard to her attorney, there is nothing in this record indicating that Judge Medley’s alleged bias affected the outcome of trial. This matter was tried to a jury, and Judge Medley adopted the jury’s verdict as the judgment of the court. The judge’s role in conducting the trial was therefore limited to making evidentiary rulings and instructing the jury in the law. The plaintiff essentially argues that Judge Medley, in his zeal to avoid giving the impression that he was biased toward the plaintiff, made unfair evidentiary rulings in favor of Rick’s Cabaret. Specifically, the plaintiff cites three instances in which Judge Medley excluded testimony or evidence offered by her. Even h -, assuming any of these rulings was legally incorrect, the plaintiff fails to show that their reversal likely would have affected the outcome of the trial.

Considering the record, we cannot say that the district court abused its discretion by denying plaintiffs motion for new trial on the issue of Judge Medley’s failure to self-recuse prior to trying this case. We therefore decline to reverse that decision.

MOTION FOR NEW TRIAL — POST-TRIAL AFFIDAVIT

The plaintiff also argues the trial court abused its discretion by denying plaintiffs motion for new trial based upon the post-trial affidavit of Amanda Galloway, a friend of plaintiff Kimberly Pyles and a co-worker at Rick’s Cabaret. During the trial, Sherif Farag, a defense witness who was the night manager of Rick’s Cabaret, testified that the club’s security included a roving floor host with a radio, but that the floor host was not working on the night of Ms. Pyles’s injury because the club was not very busy. Plaintiffs counsel claims to have been unfairly surprised by this testimony. After the trial, counsel obtained an affidavit from Ms. Galloway in which she stated the Rick’s Cabaret did not have a roving floor host. Plaintiff then moved for new trial on the basis that Ms. Galloway’s affidavit constituted newly discovered evidence that mandated a new trial under Code of Civil Procedure Article 1972.

As we have previously noted, Louisiana courts apply a four-part test to determine whether the evidence asserted warrants a new trial under this prong of Article 1972. See Harris v. Orleans Parish School Bd., supra, 97-0724, p. 4, 706 So.2d at 225. One element of that test is that the evidence could not have been discovered with due diligence prior to the conclusion of the trial. The affidavit of | ^Amanda Galloway does not meet this requirement. Nothing in Ms. Galloway’s affidavit indicates she was unavailable for trial. Prior to trial Kimberly Pyles testified in her deposition that Amanda Galloway was one of her closest friends living in New Orleans. Thus, plaintiffs counsel cannot claim he was unaware of her existence. Nevertheless, even assuming he was surprised by Mr. Farag’s testimony, plaintiffs counsel has made no showing that he attempted to call Ms. Galloway either as a direct or rebuttal witness. Absent such a showing, Ms. Galloway’s affidavit does not qualify as new evidence that could not have been discovered by due diligence prior to the conclusion of the trial. For these reasons, we conclude the trial court did not abuse its discretion by declining to grant plaintiffs motion for new trial on the basis of this affidavit.

ISSUES ON APPEAL

Regarding the merits, appellant Rick’s Cabaret asserts a single issue: the trial court erred by assigning any liability to Rick’s Cabaret because the plaintiff failed to prove adequate security would have prevented the incident that caused her injuries. Specifically, Rick’s Cabaret argues that the trial court committed legal error by admitting the testimony of plaintiffs sole security expert, Larry Preston Williams, despite his lack of qualifications; alternatively, defendant contends that Mr. William’s testimony was insufficient to prove that additional security would have deterred Anthony Weaver from throwing the glass.

| i,Jn answer to the appeal, plaintiff not only refutes defendant’s argument, but also asserts the trial court made several legal errors. Specifically, the plaintiff contends the trial court erred by refusing to admit the following evidence: (1) testimony by Mr. Farag that he heard Anthony Weaver say he was on parole; (2) testimony by Holly Malave that Anthony Weaver was allowed into Rick’s Cabaret on two occasions after the glass-throwing incident; and (3) testimony by Holly Malave that after being questioned by the manager of Rick’s Cabaret about the glass-throwing incident, Anthony Weaver tried to leave the club through the side door before the police arrived. Plaintiff argues that if it were not for these evidentiary errors, the jury would have assigned a higher percentage of fault to Rick’s Cabaret.

Evidence Presented at Trial

Fact witnesses presented on behalf of the plaintiff included Kimberly Pyles herself; Sherif Farag, who was the night manager of Rick’s Cabaret on the evening in question; John Devries and Corey Ward (by deposition), who were door hosts at the club; and the video deposition of Holly Malave, the dancer who preceded Ms. Pyles on the stage that evening. The plaintiff also presented five experts on damages, including her treating physicians (a chiropractor, a neurosurgeon, a neurop-sychologist, and a maxillofacial prostho-dontist); and one security expert, Larry Preston Williams. The defense offered its own security expert, Dr. Wade Schindler, and its own expert in neurosurgery, Dr. Robert Applebaum. Two fact witnesses also testified on behalf of the defendants: Monique Malnado, the accounting manager for Rick’s Cabaret; and Robert Watters, the owner of Rick’s Cabaret.

|uMs. Pyles testified she was an independent contractor who paid a fee to dance at Rick’s Cabaret; therefore, she had no employee benefits. At the time of the incident, she was dancing on stage number two, also known as the piano stage, on the first floor. She testified that Rick’s Cabaret had three floors; the first floor contained the main stage, the second or piano stage, three bars and a lobby. The second floor had a VIP room with its own bar, and the third floor contained the dressing rooms, offices and a general cashier for waitresses and entertainers. Ms. Pyles testified that Rick’s Cabaret had no designated security personnel, but the manager (who moved around) and the VIP host (who was stationed at the bottom of the stairs leading to the VIP room) carried two-way radios. According to Ms. Pyles, other employees present that night included six waitresses, four bartenders, and two front doormen.

On the evening in question, after performing a two-song routine on the main stage, Ms. Pyles moved to the piano stage. As she approached the stage, the dancer who had preceded her, Holly Malave, warned Ms. Pyles that there was a table near the stage that was “rowdy.” Ms. Pyles performed her routine, dancing topless as usual. Near the end of her second song, a man from the rowdy table, whom she later learned was Anthony Weaver, approached the stage with a dollar in his hand, offering it to her if she would expose more of her body. Ms. Pyles testified that she immediately knew there was a problem, because Mr. Weaver had an angry look, his pupils were dilated, and he was obviously intoxicated. She then cut off her routine before her relief arrived, left the stage, grabbed her clothes and put them on as she walked toward the place where the VIP host was stationed, intending to tell him what had happened. Ms. Pyles testified that she tried not to make eye contact with Mr. Weaver, but as she walked away she heard the others at |ishis table laughing. Then, as Ms. Pyles was walking past the men’s room, she was knocked unconscious by something that struck her in the face. Ms. Pyles stated she did not know how long she remained unconscious, but when she awoke she was lying on the ground with blood, glass and teeth in her mouth. Holly Malave, who was crouching over her, told Ms. Pyles that Mr. Weaver had thrown a glass at her. Holly and several waitresses helped her to the ladies room and told the manager, Sheriff Farag, to call the police. Ms. Pyles testified that when the policeman arrived, he did not question her, but that she walked with him to the police station one block away and gave a report.

Ms. Pyles testified that the policy at Rick’s Cabaret was for dancers not to attempt to deal with rowdy customers by themselves, but rather to alert a manager. On the night in question, she did not see a manager in the area where she was dancing. She stated that the piano stage area had only two tables of customers and a few people at the bar; the area was not full. She also testified that on account of the incident, she suffered numerous broken teeth and exposed nerves, requiring four years of specialized dental treatment. She stated that Mr. Watters, the owner of Rick’s Cabaret, met with her shortly after the incident and offered to pay for her dental work, and that he had paid those bills. However, she also had neck pain, for which she saw a neurologist and wore a neck brace for three weeks. In addition, she suffered memory loss that she attributes to the incident. Because of mobility restrictions due to her neck injury, Ms. Pyles was advised by her neurologist not to return to her former job as an exotic dancer. She testified that in December 2003, she graduated from the John Jay beauty college and was making her living as a cosmetologist at the time of trial.

lifiOn cross-examination, Ms. Pyles admitted she continued to dance at Rick’s Cabaret part-time (from four to seventeen nights per month) from about one month after the incident until April, 2004. She also acknowledged that she was issued a citation by the police for public disturbance by fighting based on the incident, and that she drove herself home that night. She did not go to the emergency room until the next afternoon, approximately fifteen hours after the incident.

Sheriff Farag, the night manager at Rick’s Cabaret, testified that the entire staff provided security at the club. There was no specific security training, but there were monthly staff meetings during which all aspects of running the club were covered. The employees were instructed to call the manager, who was primarily responsible for security, whenever there was a problem. There were two front door hosts, who decided whether a patron was too intoxicated to allow into the club. Signs of this level of intoxication included stumbling, aggressiveness, and being rude or demanding. If the door hosts were uncertain about whether to admit someone, they were to call the manager to make that decision. Mr. Farag identified the policy manual given to employees of Rick’s Cabaret, which stated that employees had a duty to warn management of any suspicious activities, such as threats or aggressive behavior by a customer. Mr. Farag had heard of only one prior incident in which a customer, a football player, had hurt an entertainer, but he had not been working that night.

At the time of the incident, Mr. Farag was not in the stage two area. He testified that he was either in the lobby at the front door or on the third floor at the cashier. He stated that he had a two-way radio, as did the two front door hosts, the VIP host, the Dee-jay, the front desk cashier and the third floor cashier; there was 117also a radio behind each bar. He stated that there were also security cameras, but they were pointed at the cashiers and the bars. Mr. Farag testified that normally on busy nights, there would also be a roving floor host with a radio, but there was not one present that evening, presumably because the club was not crowded.

On the night in question, Mr. Farag received a call on his radio about the incident and he went to the location. When he got there, one of the doormen was with Mr. Weaver, and the VIP host was with Ms. Pyles. Ms. Pyles told him the customer had hit her with a glass. He did not know Ms. Pyles had been unconscious. Ms. Pyles appeared to be shaken up, but he observed no blood on her. She pulled down her lip, and he noticed her bottom teeth were not straight, but were at an angle. Mr. Weaver stated that Ms. Pyles had thrown a drink at him and pointed to his wet T-shirt. Mr. Farag determined that there were only two eyewitnesses to the incident: another entertainer (presumably Holly Malave), who confirmed that Mr. Weaver had thrown a glass at Ms. Pyles; and one of Mr. Weaver’s Mends, who confirmed Mr. Weaver’s story. Mr. Farag could not tell whether either Ms. Pyles or Mr. Weaver was intoxicated. However, when he took Mr. Weaver aside to talk to with him, Mr. Weaver did not smell of alcohol, nor was he disoriented, wobbly, or talking with slurred speech; he merely seemed nervous. Mr. Farag called the police, but did not fill out an incident report, which he testified was “his mistake.”

John Devries, a front door host who was not working on the night in question, testified that the employees had no security function. Security was the manager’s job, but the employees, although they were not trained to watch for problems, did have the responsibility to help out if something happened. Mr. Devries stated that although the front door hosts were only a few feet from the 11sentertainers, the door hosts were not facing inside the club; their primary job was to check the I.D.’s of those entering. Finally, Mr. Devries confirmed that there were monthly staff meetings, at which the Rick’s Cabaret employees were trained in dispute resolution.

The deposition testimony of Corey Ward, one of the front door hosts on duty on the night in question, was introduced as evidence. Mr. Ward testified that he did not see the incident. He also did not specifically recall Anthony Weaver having entered the club. Mr. Ward was called on his radio after the incident occurred. When he arrived at the scene, Ms. Pyles appeared upset but she did not appear to be bruised or cut. He could not tell whether either she or Mr. Weaver was intoxicated. Finally, Mr. Ward testified that this occurrence was the type of thing that would normally require the manager to write an incident report.

Plaintiff also introduced the videotaped deposition of Holly Malave, Ms. Pyles’ good Mend, who worked as a dancer at Rick’s Cabaret from 1997 until 2000. She testified that on the night in question, she performed her two-song routine on stage two just before Ms. Pyles’ routine. During her six-minutes on stage, Ms. Malave noticed Mr. Weaver sitting at the front table drinking with his friends. According to Ms. Malave, Mr. Weaver was getting loud and obnoxious, making lewd comments to her and other dancers who walked by. Ms. Malave testified that Mr. Weaver did not seem like most of the club’s clients, who were businessmen or tourists; he seemed to be the “thug” type. According to Ms. Malave, Mr. Weaver appeared to be extremely intoxicated that night. After her routine was over, Ms. Malave went to the restroom; then she returned to the stage two area and stood in front of the men’s restroom watching Ms. Pyles perform. Mr. Weaver had a dollar in his hand, and kept standing up talking loudly to Ms. |19Pyles and apparently trying to tip her, but she would not take the dollar. Ms. Malave did not tell anyone else at the club about Mr. Weaver’s behavior. She did not see the manager in the area where she was. Ms. Malave then saw Ms. Pyles leave the stage, and as Ms. Pyles turned to go around to the main room, Mr. Weaver threw a water glass at her from about three to four feet away; the glass hit her on the side of her head and she fell down to the ground. Ms. Malave and several other employees went over to help Ms. Pyles up. Ms. Malave then took Ms. Pyles, whom she described as “disoriented,” to the ladies restroom because she had blood and teeth chips in her mouth. When Ms. Malave returned to the floor, the manager, Mr. Farag, was questioning Mr. Weaver in the side hall. The police showed up about thirty minutes later and took Mr. Weaver to the police station. Ms. Malave did not talk to the police, but she assumed Mr. Farag had called them. Ms. Malave testified that there was no physical interaction between Mr. Weaver and Ms. Pyles prior to the glass being thrown, only talking. Ms. Ma-lave also stated that she had seen Mr. Weaver at Rick’s Cabaret at least twice before that night. During her four years working at Rick’s Cabaret, Ms. Malave had seen fights break out among customers and also fights between dancers and customers. Once a drunk customer had pushed a dancer off the stage. Ms. Ma-lave stated that after her injury, Ms. Pyles only worked half as much at Rick’s Cabaret as she had before, could not dance as well, and exhibited some noticeable memory loss.

Plaintiffs final witness on liability was security expert Larry Preston Williams, who opined that the failure of Rick’s Cabaret to provide adequate security contributed to Ms. Pyles’ injury.

| j»nThe defendant’s primary witness on liability was security expert Dr. Wade Schindler. To form his opinion, Dr. Schindler reviewed depositions; visited Rick’s Cabaret, looked at a floor plan of the club as it was in February, 2001 ; examined police records and reports showing approximately four hundred instances in which police were called to Rick’s Cabaret in the three years prior to this incident; interviewed Mr. Sherif; considered the nature of the club and its customers; and considered the the number of employees, as well as their training. Based upon these factors, Dr. Schindler opined that there was adequate security at Rick’s Cabaret on the night of the incident, that the incident was not foreseeable by any of the employees of Rick’s Cabaret, and that providing additional security would not have prevented Mr. Weaver from throwing the glass at Ms. Pyles.

The remaining witnesses for the defendants included the accounting manager of Rick’s Cabaret, who authenticated Ms. Pyles’ work records both before and after the incident, and the owner of Rick’s Cabaret, Mr. Robert Watters. Mr. Watters testified that his efforts to make Rick’s Cabaret a safe environment for the employees, dancers and customers included: the design of the club; the imposition of a cover charge; the lack of a “barker”; intense scrutiny at the front door to prevent overly intoxicated people from entering the club; deliberately high-priced drinks; and the hiring of non-industry people as managers (as opposed to bouncers or other persons aggressively trained in security). He testified that employees are taught to handle altercations by first separating the individuals involved and then diffusing the situation by speaking to each individual in a particular way. | ⅞1 Entertainers are instructed not to try to resolve disputes themselves, but to go and find a manager instead. Mr. Watters further testified that at the time of the incident, there were approximately seventy employees and entertainers on the premises of Rick’s Cabaret. Other than the incident with Ms. Pyles, Mr. Watters was aware of only one other occasion in which an entertainer was injured by a patron of the club; that incident occurred in 1998 and involved a professional football player. Mr. Waters stated that the afternoon after Ms. Pyles was injured, he was in his office at the club when he got a call that Ms. Pyles was downstairs. He went downstairs to meet with her. She related to him that she had been involved in a verbal exchange with a customer, who had struck her with a bottle. When asked, Ms. Pyles told Mr. Wat-ters that she could not afford to have her teeth repaired; she also showed him the subpoena she had received for public fighting. Mr. Watters testified that he told Ms. Pyles she should get her teeth fixed and he would pay for it; he also told her she should get a restraining order and file suit against Mr. Weaver, and finally he gave her the name of a criminal attorney whom he advised her to hire to take care of the subpoena for her. When Ms. Pyles asked him about her pain and suffering, Mr. Watters told her he did not believe Rick’s Cabaret was responsible for her injury, but that Mr. Weaver was responsible.

Assignment of Fault to Rick’s Cabaret

The jury assigned 20% fault to Rick’s Cabaret based upon negligence and 80% to Anthony Weaver, the intentional tortfeasor. The only possible basis for the jury to find fault on the part of Rick’s Cabaret is the failure of Rick’s Cabaret to provide adequate security for its dancers. In order to show there was a lack of | ^security at the club, plaintiff presented the testimony of Larry Preston Williams, who was accepted as an expert in security. Rick’s Cabaret first contends that Mr. Williams should not have been qualified as an expert under Daubert. v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Alternatively, defendant argues that plaintiff failed to prove the lack of adequate security noted by Mr. Williams caused Ms. Pyles’ injury because the evidence did not show that additional reasonable security measures would have prevented Mr. Weaver from throwing the glass.

The requirements of expert testimony are set forth in La. C.E. art. 702, which provides:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

See Mistich v. Volkswagon of Germany, 95-0939, p. 8 (La.1/29/96), 666 So.2d 1073, 1079. Formal education or training in a particular field is not always necessary to qualify as an expert in a particular field; experience alone is sufficient. Id. (citations omitted). It is well-established that the trial judge has wide discretion in determining whether to allow a witness to testify as a expert, and his judgment will not be disturbed by an appellate court unless clearly erroneous. Id.; Johnson v. Melton, 03-1132, pp. 5-6 (La.App. 4 Cir. 2/4/04), 867 So.2d 804, 808. The U.S. Supreme Court in Daubert suggested the following factors in evaluating scientific expert testimony: (1) the testability of the expert’s theory or technique; (2) whether the theory or technique had been subject to peer review and publication; (3) the known potential rate of error; and (4) whether the methodology was generally accepted by the scientific community. 509 U.S. at 592-94, 113 S.Ct. at 2796-97. However, the Daubert factors are meant to be helpful, not definitive. Johnson v. Melton, supra, citing Kumho Tire Co., LTD. V. Carmichael, 526 U.S. 137, 151, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999). The Kumho Court explained the purpose of Daubert as follows:

The objective of Daubert’s gatekeeping function is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. We conclude that the trial court must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. The trial court must have the same kind of latitude in deciding how to test an expert’s reliability.... Our opinion in [Daubert ] makes clear that a court of appeals is to apply an abuse of discretion standard when it “reviewfs] a trial court’s decision to admit or exclude expert testimony.” That standard applies as much to the trial court’s decisions about how to determine reliability as to its ultimate conclusion. Whether Daubert’s specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad discretion.

Johnson v. Melton, supra, p. 6, 867 So.2d at 808 (quoting Kumho, supra, 526 U.S. at 152-53, 119 S.Ct. at 1176).

In the instant case, Mr. Williams testified that he had been self-employed as a security consultant since 1993 and as an investigative consultant since 1986. He received a Bachelor’s Degree in Criminology from Loyola University in 1971. From 1968 until 1974, Mr. Williams worked in the Intelligence Division of the New Orleans Police Department, and from 1974 until 1977 he worked as a Special Investigator for the District Attorney’s office. Having received a Juris Doctorate from Loyola in 1976, Mr. Williams practiced law from 1977 until 1985. He admitted he stopped practicing law when the Louisiana Supreme Court first suspended, then revoked, his license for multiple instances of misconduct, including converting client funds to his own personal use. Mr. Williams testified that he had published an article on protecting tourists and another on protecting 124rural churches from firebombs; that he had been appointed in 1998 to a Louisiana Department of Education task force on school violence; and that he had lectured on preventing violence in schools. He also testified that he had been accepted as an expert in a Plaquemines Parish court and in a Florida court, but admitted that he had never testified as an expert on security as it applies to a gentlemen’s club, night club, or other establishment that serves alcohol. He also admitted he had never designed or analyzed security for such an establishment. He testified he was not a certified protection professional, nor did he belong to any organization of security professionals. The trial judge accepted Mr. Williams as an expert in security based upon his “extensive experience in law enforcement and security-related issues.”

Although Mr. Williams lacked the level of expertise possessed by the defendants’ expert, Dr. Schindler, we cannot say the trial court abused its discretion by allowing him to testify as an expert on security. The fact that he was disbarred for misconduct as a lawyer, while it may relate to his credibility, has no bearing upon Mr. Williams’s expertise in security-related issues. His degree in Criminology and experience as a police officer and special investigator provide at least the minimum credentials necessary to qualify him as an expert capable of giving an opinion as to the effectiveness of the security at Rick’s Cabaret. It is well settled that the trier of fact is charged with the determination of what credibility it assigns to expert witnesses and the decision as to which expert among those testifying is more credible. Hayes v. Entergy Corp., 37,190, p. 7 (La.App. 2 Cir. 6/25/03), 850 So.2d 916, 921, citing Lasyone v. Kansas City Southern R.R., 00-2628 (La.4/3/01), 786 So.2d 682. In the instant case it was not error for the | atrial judge to afford the jury the opportunity to hear both experts, to assess their credibility, and to determine what weight it should place on the opinion of each.

Defendants next argue that the plaintiff failed to prove causation; in other words, they argue that even with Mr. Williams’ testimony, there was insufficient evidence to show that had Rick’s Cabaret implemented adequate security, the glass-throwing incident could have been prevented. Mr. Williams based his opinion upon his reading of the witnesses’ depositions, as well as his review of: the New Orleans Police Department records of calls to Rick’s Cabaret between January 1, 1998 and December 30, 2001; the employee handbook of Rick’s Cabaret; a reference book entitled The Night Club, Bar, and Restaurant Security Handbook; and a Minnesota study on harassment and abuse of exotic dancers. He did not physically inspect Rick’s Cabaret, nor did he go to any other similar clubs on Bourbon Street because he believed the level of security at those clubs was irrelevant. Mr. Williams opined that an employee of Rick’s Cabaret should have removed Mr. Weaver from the scene before he picked up the glass and threw it. He testified that there were several security measures Rick’s Cabaret could have taken that would have deterred Mr. Weaver’s behavior. Those measures included having surveillance cameras pointed at the patrons; using trained security personnel and posting identifiable security (such as men wearing t-shirts or uniforms that identified them as security) at various positions inside the club; posting signs or making announcements concerning security; having a security awareness program for dancers; and finally, replacing the heavy glass drinking cups with lighter plastic ones. On cross-examination, Mr. Williams admitted that besides the drinking glasses, there were many other heavy objects in the club that could serve as missiles, such as ashtrays and beer bottles. He also admitted that assign probably would not have deterred an intoxicated person from engaging in violent behavior. Finally, he confirmed that he had not submitted a written expert report in this case.

Defendants contend that Mr. Williams’ testimony failed to prove that any of the measures he recommended would have prevented Mr. Weaver from throwing the glass. Moreover, they argue that Mr. Williams made no attempt to show that Rick’s Cabaret had a legal duty to implement any of the security measures he recommended. In further support of their argument that the incident was not preventable, defendants cite Ms. Pyles’s own testimony on cross-examination, during which she confirmed the allegation in her petition that Mr. Weaver threw the glass at her “without warning.” Finally, defendants cite Dr. Schindler’s opinion that, based upon Ms. Pyles’s testimony, there was no reason for any employee of Rick’s Cabaret to suspect that Mr. Weaver intended to injure Ms. Pyles before he actually picked up the glass and threw it.

The allocation of fault is a factual determination that cannot be overturned on appeal unless it is clearly wrong or manifestly erroneous. Medice v. Delchamps, Inc., 96-1868 (La.App. 4 Cir. 4/30/97), 694 So.2d 528, 530; Declouet v. Orleans Parish School Bd., 96-2805, p. 11 (La.App. 4 Cir. 6/3/98), 715 So.2d 69, 76. The jury’s apportionment of fault is subject to the same analysis on appeal as that applied to its finding of general damages, and will not be set aside absent abuse of the trier of fact’s great, even vast discretion. Lederer v. Famous Entertainment, Inc., 98-2274, p. 18 (La.App. 4 Cir. 5/12/99), 732 So.2d 1277, 1286,. If the appellate court finds a clearly wrong apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively that is reasonably within the trial court’s Indiscretion. Sciambra v. Jerome Imports, Inc., 05-0260, p. 15 (La.App. 4 Cir. 12/14/05), 921 So.2d 145, 154. In apportioning fault, the trier of fact must consider both the nature of the conduct of each party at fault and the extent of the causal relationship between the conduct and the damages claimed. Sagona v. Harris, 97-0129 (La.App. 4 Cir. 6/18/97), 696 So.2d 595; Grant v. Allstate Ins. Co., 96-1028 (La.App. 3 Cir. 6/4/97), 696 So.2d 275.

In the instant case, we do not find the jury’s allocation of 20% fault to Rick’s Cabaret to be unreasonable based on the totality of the evidence. By this allocation of fault, the jury recognized that Mr. Weaver himself was primarily responsible for the plaintiffs injuries, but the fault of Rick’s Cabaret was nevertheless a contributing factor. The plaintiff and Ms. Malave testified that the patrons at Mr. Weaver’s table were rowdy, and that Mr. Weaver’s behavior was loud and obnoxious during both their routines, which encompassed a twelve-minute period. Ms. Pyles also stated that Mr. Weaver was clearly intoxicated, and Ms. Malave testified he was not behaving like a typical club patron. Ms. Pyles further testified that because of Mr. Weaver’s behavior, she left the stage before her relief had arrived, which was a violation of the rules, and as such presumably would have been noticed as unusual behavior by a manager or other employee of Rick’s Cabaret. Although the managers were primarily responsible for security at the club, all witnesses agreed that there was not a manager in the area of stage two at the time of the incident. Under the circumstances, the jury could have reasonably found that an employee of Rick’s Cabaret should have noticed the problem and should have taken some action to calm down or remove Mr. Weaver from the area, which may have prevented the incident. We therefore decline to disturb the allocation of fault determined by the jury.

| mEvidentiary Issues

On appeal, the plaintiff contends the trial court committed legal error by improperly excluding evidence supporting her claim. The excluded items, which were proffered by plaintiff, include: (1) Mr. Farag’s testimony that when he took Mr. Weaver aside to question him after the incident, Mr. Weaver told him he was on parole; (2) Ms. Malave’s testimony that she saw Mr. Weaver at Rick’s Cabaret on two occasions after the glass-throwing incident had occurred; (3) Testimony that Mr. Weaver tried to leave the club through the side door before the police arrived.

We first note that the record does not support the plaintiffs contention that evidence concerning Mr. Weaver’s attempt to leave by the side door was excluded. Ms. Malave testified that she observed him trying to leave but that he was not allowed to do so. Regarding the other two items that were excluded, we find no reversible error on the part of the trial court. The trial court correctly determined that Mr. Weaver’s statement that he was on parole should be excluded as hearsay. Moreover, even if the statement had been admitted, it has no bearing upon the fault of Rick’s Cabaret. Moreover, the statement would have had no probative value in light of the fact that the defendants proffered court records showing Mr. Weaver was not on parole on February 8, 2001, which records would have presumably been admitted had the trial court allowed the statement to come in. Regarding the other excluded item, Ms. Ma-lave’s testimony showing Mr. Weaver was allowed back into the club on two occasions after the incident had occurred, we agree with the trial court that such evidence is not relevant to the determination of whether Rick’s Cabaret had adequate security on the night of the incident; we further agree 129that the prejudicial effect of introducing such testimony would have outweighed its probative value.

Accordingly, we conclude that the trial court did not commit reversible legal error in this case.

CONCLUSION

For the reasons stated, we affirm the judgment of the trial court.

AFFIRMED.

      . Anthony Weaver died on April 16, 2003, and his estate, through the succession representative, was substituted as a defendant in July, 2003.

      . The plaintiffs first motion for new trial asserted that the award of $50,000.00 for past medical expenses was contrary to the evidence, which showed actual past medical expenses in the amount of $50,893.96. In a separate motion, the plaintiff asserted that a new trial was warranted by newly discovered evidence, namely the affidavit of Amanda Galloway, another dancer at Rick's Cabaret. The motion for new trial by Rick’s Cabaret was based upon three grounds: (1) The judgment should be amended to' clarify that Rick’s Cabaret was not solidarily liable with Anthony Weaver for the entire amount of damages awarded; (2) The judgment failed to identify the amount of expert fees awarded; and (3) The judgment improperly contained the names of the jurors.

      . By this motion, the plaintiff sought to have the fault reallocated so that Rick’s Cabaret would be liable for 60% rather than 20% of the damages.

      . Regarding that recusal, the trial judge issued a per curiam on April 14, 2005, pursuant to this court’s consideration of a writ application on the matter. The trial judge explained that a conflict of interest had developed between himself and Mr. Harvey and his associate, Mr. Patrick Klotz, after Mr. Klotz had allegedly made a comment to his client, a party in yet a third case, which comment the client had secretly tape-recorded; the gist of the comment was that the client did not have to worry about the outcome of her case because “we [presumably Mr. Klotz and his associates] have Judge Medley in our pocket.” While denying that there was any truth to Mr. Klotz’s statement, the trial judge nevertheless believed it created a conflict that warranted his recusal to avoid the appearance of impropriety.

      . In written reasons for judgment, the trial court stated that he did not have an actual conflict of interest with plaintiff’s counsel, but because of the freshness of Mr. Klotz’s statement, the trial judge believed he should re-cuse himself to avoid the appearance of impropriety.

      . The trial court had already amended the judgment to delete the jurors' names.

      . See note 4 supra.

      . Because the same rulings are the basis of the plaintiff's alternative argument that the allocation of fault should be adjusted on appeal, we address the propriety of those rulings infra in our discussion of the merits.

      . Defendant also argues that the trial court’s judgment should not be interpreted to mean that Rick's Cabaret and Anthony Weaver are solidarity liable, thereby exposing Rick’s Cabaret to liability for the entire amount of damages. However, the law is clear that at the time of this incident, comparative fault applied in Louisiana, under which the fault of a negligent tortfeasor is to be compared with that of an intentional tortfeasor in just the same way as the fault of multiple negligent tortfeasors would be compared, with each tortfeasor liable in proportion to his own percentage of fault. See La. C.C. arts. 2323, 2324; Dumas v. State, 02-0563 (La.10/15/02), 828 So.2d 530, 537. We find no ambiguity in the trial court’s judgment nor any potential for interpreting its language as providing for solidary liability rather than for comparative fault. Therefore, despite plaintiff's continued attempts to revive this issue (such as by objecting to the amount of the appeal bond filed by Rick's Cabaret), we reiterate that Rick's Cabaret is not liable for more than 20%, or $90,000, of the $450,000 total damages awarded.

      . The evidence showed that Mr. Weaver was also issued a citation for public disturbance by fighting,

      . The evidence regarding damages is omitted from our discussion because quantum is not at issue in this appeal.

      . Mr. Williams' testimony is discussed in detail in our discussion, infra, addressing the assignment of fault to Rick’s Cabaret.

      . Dr. Schindler was qualified as an expert following a pretrial Daubert hearing, and his qualification is not at issue on appeal.

      . The evidence showed that at the time of Dr. Schindler’s visit, there had been some modifications to the floor plan made since the incident.

      . Defendants also presented expert physician testimony to refute the plaintiff’s experts regarding damages. See note 11 supra.