author: PAINTER, Judge.

text:
    Kenneth JOHNSON, et al. v. STATE of Louisiana, Through DOTD, et al. Keith Baham, et al. v. H & S Construction Co., Inc., et al. Narcisse Thibodeaux, et al. v. State of Louisiana, Through DOTD, et al.
    Nos. 06-898, 06-899, 06-900.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 13, 2006.
    Rehearing Denied Feb. 7, 2007.

      W. Alan Lilley, Goforth & Lilley, Lafayette, LA, for Plaintiffs-Appellants: Keith Baham, Chad Baham, and Sherry Baham Cormier.
    William H. Goforth, Goforth & Lilley, Lafayette, LA, for Secondary Plaintiffs-Appellants: Kenneth Johnson and Chrystal Johnson, Individually and on behalf of the minor children, Holden Johnson, Seth Johnson, and Chasity Ozenne.
    Stacey A. Moak, Special Assistant Attorney General, Douglas M. Chapoton, Andrew W. Ralston, Special Assistant Attorney General,- Baton Rouge, LA, for Secondary Defendant-Appellant: State of Louisiana, Through DOTD.
    Scott M. Hawkins, Chris P. Villemar-ette, Hawkins & Villemarette, Lafayette, LA, for Defendants-Appellees: Narcisse Thibodeaux and Roma Thibodeaux.
    Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| following a jury trial in three consolidated cases, the trial court entered judgment in favor of Plaintiffs. Plaintiffs in two of the cases appeal, seeking increases in the awards of damages. Defendant, State of Louisiana, Through DOTD, also appeals, seeking a reversal of the jury’s finding that it was seventy percent at fault in causing the automobile accident at issue herein. For the following reasons, we amend the judgment to increase certain damage awards. In all other respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On April 4, 1998, at approximately 2:16 p.m., an automobile accident occurred at the intersection of LA Highway 1096 (also known as Toby Mouton Road) and LA Highway 95 in Duson, Louisiana, just south of the Duson exit from Interstate 10. Sharon Baham was driving a 1991 Ford Ranger pickup truck east on LA Highway 1096. Her nephews, Seth and Holden Johnson, and her niece, Chasity Ozenne, were passengers in the truck. Seth and Holden were in the rear seats while Chasity was in the front passenger seat. On the date in question, a DOTD construction project was underway, and LA Highway 95 was closed north of the accident site with LA Highway 1096 being used to detour traffic around the construction site. Mrs. Baham did not stop at the stop sign at the intersection of LA Highway 1096 and LA Highway 95 and, instead, drove into the path of Narcisse Thibodeaux’s 1996 Ford F-350 truck which was pulling a forty-foot-long flat-bed trailer and traveling south on LA Highway 95. Despite Mr. Thibodeaux leaving his lane of traffic in an attempt to avoid a collision, the two vehicles collided in the northbound lane of travel on LA Highway 95.

| pMrs. Baham was fatally injured in the accident. Holden, who was rendered unconscious in the accident, suffered severe injuries to his head and face which have allegedly resulted in organic brain syndrome. Seth and Chasity suffered less severe injuries. Mr. Thibodeaux injured his low back in the accident.

Mrs. Baham’s husband, Keith Baham, and her two major children, Chad Keith Baham and Sheri Baham Cormier (the Baham Plaintiffs), filed suit against DOTD, RCS Contractors, Inc., and RCS’s insurer. Kenneth and Chrystal Johnson, individually and on behalf of Chasity, Seth, and Holden (the Johnson Plaintiffs), filed suit against DOTD, RCS, and its insurer. RCS in turn filed a third-party demand against WorkZone, Inc., who it had hired for the purpose of installing temporary construction signs near the accident site. Mr. Thibodeaux and his wife, Roma Thibo-deaux (the Thibodeaux Plaintiffs), filed suit against DOTD, RCS, and its insurer, WorkZone and its insurer, and Lafayette Consolidated Government. All petitions alleged that the stop sign at the intersection in question was obscured from view by detour signs.

DOTD moved to consolidate all three suits, and said motion was granted. Lafayette Consolidated Government was dismissed on its unopposed motion for summary judgment. Prior to trial, RCS and WorkZone settled with all Plaintiffs and were dismissed, leaving DOTD as the sole Defendant at trial. Following a two-week trial, the jury rendered a verdict finding that the site of the accident had defective signage which created an unreasonable risk of harm and that DOTD had actual or constructive notice thereof and time to correct it. The jury found no negligence on the part of RCS, WorkZone, or Mr. Thibo-deaux. The jury, however, did find that Mrs. Baham was negligent in the operation of her vehicle at the time of the accident. |aThe jury went on to apportion seventy percent of the fault to DOTD and thirty percent of the fault to Mrs. Baham. Damages were awarded as follows:

To Kenneth Johnson for the injuries to Holden Johnson, Seth Johnson, and Chasity Ozenne $ 25,000.00
To Chrystal Johnson for the injuries to Holden Johnson and Seth Johnson $ 25,000.00
To Holden Johnson Past, present, and future medical expenses $700,000.00
Past, present, and future pain and suffering $ 50,000.00
Past, present, and future mental anguish and emotional distress $ 50,000.00
Past, present, and future lost wages and earnings capacity $ 0.00
Scarring and disfigurement $ 50,000.00
Loss of enjoyment of life $ 50,000.00
TOTAL TO HOLDEN JOHNSON $900,000.00
To Seth Johnson Past medical expenses $ 14,060.20
Past, present, and future pain and suffering $ 5,000.00
Past, present, and future mental anguish and emotional distress $ 5,000.00
TOTAL TO SETH JOHNSON $ 24,060.20
To Chasity Ozenne Past medical expenses $ 6,036.00
Past, present, and future pain and suffering $ 5,000.00
Past, present, and future mental anguish and emotional distress $ 5,000.00
TOTAL TO CHASITY OZENNE $ 16,036.00
To Sharon Baham for pain and suffering before her death $ 0.00
UTo Keith Baham Loss of love and affection, loss of companionship and guidance, and grief and mental anguish $210,000.00
Loss of services and support $ 0.00
Funeral expenses and medical expenses $ 9,081.00
TOTAL TO KEITH BAHAM $219,081.00
To Chad Baham $ 50,000.00
To Sheri Baham Cormier $ 50,000.00
To Narcisse Thibodeaux Past, present, and future medical eiqienses $ 17,577.95
Past, present, and future pain and suffering $ 50,000.00
Past, present, and future mental anguish and emotional distress $ 25,000.00
Past, present, and future lost wages $ 42,000.00
TOTAL TO NARCISSE THIBODEAUX $134,577.95
To Roma Thibodeaux $ 5,000.00

The judgment, in accordance, with the jury’s verdict, reduced all amounts by the thirty percent of fault attributable to Mrs. Baham.

The Baham Plaintiffs appeal, asserting that the damages awarded to Chad and Sheri for the loss of their mother were inadequate and that the jury erred in failing to award any amount to Mr. Baham for loss of services and support. The Johnson Plaintiffs also appeal, seeking an increase in all damages awarded. Finally, DOTD appeals, asserting errors in the jury instructions, evidentiary errors, and that the allocation of fault was manifestly erroneous. The Thibodeaux Plaintiffs did not appeal the jury’s verdict.

| .DISCUSSION

Evidentiary Matters

We first consider DOTD’s argument that the trial court committed an error of law by allowing Plaintiffs to introduce computer-generated photographs of the accident scene into evidence. Dean Tekell, an expert in the field of traffic engineering who testified on behalf of Plaintiffs, used the computer-generated photographs during his testimony, ostensibly to illustrate his opinion as to the proper placement of the detour sign. DOTD contends that these “photographs” were not relevant to the issue of whether the signage at the intersection in question created an unreasonably dangerous condition and that they misled the jury.

We note that Mr. Tekell testified that he used the actual photographs of the accident scene and had a copy service generate the “photographs” in question using dimensions of the detour sign and stop sign that he gave them. When Mr. Tekell began testifying concerning the “photographs,” DOTD’s counsel objected and was allowed to traverse the witness. The trial court then instructed the jury that: “this is clearly not an actual photograph, but it is an altered photograph for the purposes of testimony.” When the computer-generated photographs were shown to the jury, they were placed side-by-side with the actual photographs.

We consider these computer-generated photographs to be more in the nature of a chart or diagram than of an actual photograph. The trial court has much discretion in determining the relevancy of evidence, and we “must place great weight on a trial court’s ruling of relevancy of evidence and should not reverse such a ruling in the absence of a clear abuse of discretion.” Strawder v. Zapata Haynie Corp., 94-453, p. 7 (La.App. 3 Cir. 11/2/94), 649 So.2d 554, 559-60. We agree with the trial court’s finding that the computer-generated photographs were relevant to the issues [.in this case. Further, based on the cautionary instructions given by the trial court and Mr. Tekell’s testimony concerning the creation of the exhibits, we do not find that there was any prejudice to DOTD or any confusion to the jury by the admission of these computer-generated photographs into evidence. In sum, the trial court did not abuse its wide discretion in admitting this evidence.

Jury Instructions

As we consider DOTD’s specific arguments on its three assignments of error regarding the trial court’s instructions to the jury, we are mindful of the legal principles that guide our review in this respect.

A trial court should give all requested instructions that correctly state the law, provided that they are material and relevant to the litigation. Courts are not obligated to give the specific jury instructions submitted by the parties, but omission of a requested instruction containing an essential legal principal [sic] may .constitute reversible error.

Square v. LeBlanc, 04-1500, p. 10 (La.App. 3 Cir. 6/1/05), 903 So.2d 1178, 1185, writ denied, 05-1746 (La.1/13/06), 920 So.2d 240 (quoting Mathews v. Dousay, 96-858, p. 8 (La.App. 3 Cir. 1/15/97), 689 So.2d 503, 509-10), (citations omitted) (alteration in original).

Louisiana jurisprudence is well established that an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Melancon v. Sunshine Const., Inc., 97-1167 (La.App. 1 Cir. 5/15/98), 712 So.2d 1011. The basis for this rule of law is that trial courts are given broad discretion in formulating jury instructions and it is well accepted that a trial court judgment will not be reversed so long as the charge correctly states the substance of the law. United States v. L’Hoste, 609 F.2d 796, 805 (5 Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980). However, when a jury is erroneously instructed and the error probably contributed to the verdict, an appellate court must set aside the verdict. Smith v. Travelers Ins. Co., 430 So.2d 55 (La.1983). In the assessment of an alleged erroneous jury instruction, it is the duty of the reviewing court to assess such impropriety in light of the entire jury charge to determine if they adequately provide the correct principles of law as applied to the issued framed in the pleadings and evidence and whether they adequately guided the jury in its deliberation. Kaplan v. Missouri-Pacific R.R. Co., 1409 So.2d 298, 304-05 (La.App. 3 Cir. 1981). Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice. Brown v. White, 405 So.2d 555, 560 (La. App. 4 Cir.1981), aff'd, 430 So.2d 16 (La.1982).

Nicholas v. Allstate Ins. Co., 95-2522, p. 8-9 (La.8/31/00), 765 So.2d 1017,1023.

Moreover, we recognize that although misleading or confusing interrogatories may constitute reversible error, the manifest error standard of appellate review still applies except in a case where the jury interrogatories are so inadequate or incorrect that the jury is precluded from reaching a verdict based on the law and the facts. Doyle v. Picadilly Cafeterias, 576 So.2d 1143 (La.App. 3 Cir.1991). For the reasons that follow, we do not find that exception to be applicable in this case. Thus, we decline to review the verdict de novo as requested by DOTD.

The following assignments of error are asserted by DOTD regarding the trial court’s instructions to the jury:

1. The trial court committed an error of law by failing to instruct the jury that DOTD’s duty is only to see that the state’s highways are reasonably safe for persons exercising ordinary care and reasonable prudence.
2. The trial court committed an error of law by re-instructing the jury after they had returned a partial inconsistent verdict.
3. The trial court committed an error of law by instructing the jury that under the facts of this case, DOTD was not entitled to notice of defect and a reasonable opportunity to correct.

First, DOTD contends that the jury instructions failed to include an instruction that limited its duty to providing highways that are reasonably safe for persons exercising ordinary care and reasonable prudence. In so contending, DOTD seems to suggest that it owes no duty to a negligent party. We do not agree. “The law is clear that municipalities have a duty to keep roads safe for both prudent and imprudent, inattentive drivers and their passengers.” Molina v. City of New Orleans, 01-1411, p. 5 (La.App. 4 Cir. 10/2/02), 830 So.2d 994, 998-99, writ denied, 03-0156 (La.3/28/03), 840 So.2d 573.

The trial court instructed the jury as to both the duty owed by DOTD and the duty owed by Mrs. Baham. With respect to DOTD’s duty, the trial court stated, in part: “The department’s duty to the public is to keep the roadways of the state in a reasonably safe condition, and whether the department has failed in this duty depends on the facts and circumstances of each case.” With respect to Mrs. Baham’s duty, the trial court quoted from La.R.S. 32:123 and added:

A driver has a general duty to operate the vehicle with reasonable care under the prevailing circumstances for the benefit of guest passengers who might be injured if the driver fails to do so, and the driver has the general duty to exercise reasonable care in the operation of their vehicles, which duty encompasses the obligation to maintain a proper lookout and control of their vehicle and lookout for hazards which, by use of ordinary care and observation, one should be able to see.”

While we do recognize that the duty owed by DOTD does not include “the obligation to protect a plaintiff against harm which would not have occurred but for the grossly negligent operation of the motor vehicle by plaintiff,” we do not find that the jury instructions in this case were erroneous. Menard v. City of Lafayette, 01—4, p. 4 (La.App. 3 Cir. 5/31/01), 786 So.2d 354, 357 (quoting Burge v. City of Hammond, 509 So.2d 151, 156 (La.App. 1 Cir.), unit denied, 513 So.2d 285 (La.1987)). In Burge, the first circuit held that the DOTD’s “duty to maintain highways in a reasonably safe condition which includes adequate signing and signaling does not extend to the risk of a plaintiff whose injury is caused by her own gross negligence and inattention to a properly working, clearly visible, traffic signal.” Id. In this case, there is no evidence that Mrs. Baham was grossly negligent. We also note that the jury found her to be thirty percent at fault such that it does not appear that the jurors were confused as to the issue of any duty imposed on her. Considering the charge as |9a whole, we find that it “adequately provided the correct principles of law” as to the duties of the parties and did not “mislead the jury to the extent that it was prevented from dispensing justice.” Nicholas, 765 So.2d at 1023. This assignment of error is without merit.

Second, DOTD argues that the trial court improperly instructed the jury when it came back with an inconsistent verdict such that the “scales were imper-missibly tipped in favor of the plaintiffs.” The jury presented a question to the trial court regarding question number two on the verdict form, which asked whether the jury found that DOTD had actual or constructive notice of a defect which created an unreasonable risk of harm at the site of the accident. The jury apparently wanted to have the question explained to them. The jury instructions included a statement that the claimant bore the burden of proving that DOTD had “actual or constructive notice of the defect and failed to take corrective measures within a reasonable time,” but there was no follow-up instruction explaining' the concepts of actual and constructive notice. The parties argued for a considerable length of time concerning how the court should respond to that question, and, before an agreement could be reached, the jury returned with a verdict which found that the signage at the accident scene was defective and created an unreasonable risk of harm, that DOTD did not have actual or constructive notice of the defect, and that DOTD was seventy percent at fault. The trial court then explained to the jury that its answer to question number two was inconsistent with its finding of fault on the part of DOTD. The trial court then went on to instruct the jury as to actual and constructive notice, and the trial court told the jury to return to the jury room and re-deliberate its answer to question number two and then to follow the instructions on the verdict sheet again. The jury returned with a verdict which answered question number two in the affirmative.

| inUpon recognition of the jury’s .inconsistent verdict, the trial court was not required to order a mistrial. Instead, the trial court had discretion, which it appropriately exercised, to return the jury for “further consideration of its answers.” Fleming v. Acadiana Geophysical Serv., Inc., 02-264, p. 7 (La.App. 3 Cir. 10/2/02), 827 So.2d 623, 630, writ denied, 02-2717 (La.1/10/03), 834 So.2d 440. This court has recognized that even after the jury has retired, the trial court “may recall them to correct or withdraw an erroneous instruction, to clarify an ambiguous instruction, to inform them on a point of law, which should have been covered in the original instructions, or to give such further instructions as may be appropriate.” Id. In this case, we find that the trial court correctly instructed the jury as to the applicable law concerning actual and constructive notice, which instruction may well have been more properly given during the original instructions to the jury before it retired for deliberations.

DOTD contends that “the timing and language of the [c]ourt’s instructions were an endorsement of assessing fault to DOTD, in spite of the factual determination which precluded any liability” and was tantamount to telling the jury to change its verdict. We do not agree. There was no improper comment on the evidence in violation of La.Code Civ.P. art. 1791. The trial court in this case did not comment on or recapitulate the evidence; repeat the testimony of any witness; or give any opinion as to what had been proven, not proven, or refuted. Id. What the trial court did in this case was little more than instruct the jury to re-read the instructions on the jury form:

Okay. I’ll do my best here to try to explain to you-all what needs to happen from here. There are two inconsistencies in the verdict form |nthat I need to explain to you, and then you’re going to have to go back and re-deliberate on those issues.
The answer to question No. 2 is inconsistent with your finding of fault on the part of DOTD. They’re not consistent. One explanation would be that you ... need to have question No. 2 explained; so I’m going to do that.
You need to go back now and reconsider, re-deliberate question No. 2, and then follow the instructions again ...

Therefore, this assignment of error is without merit.

Third, DOTD contends that the trial court erred in instructing the jury that under the facts of this case, DOTD was not entitled to notice of defect or a reasonable opportunity to correct. Plaintiffs contend that, because DOTD created the defect, they are not required to prove notice. Based on Whatley v. City of Winnfield, 35,132 (La.App. 2 Cir. 12/5/01), 802 So.2d 988, writ denied, 02-15 (La.3/22/02), 811 So.2d 939, the trial court instructed the jury as follows:

The requirement of notice to the department is inapplicable in a case where .the dangerous condition is attributable to negligent acts of the department or its employees. Only where the negligence relied on is in the failure to repair a defective condition not caused by its own act or neglect is the question of notice an essential element. When the department creates a defective condition by its own substandard conduct, it is presumed to have notice or knowledge of the hazardous condition.

In Whatley, the negligent act was leaving a water main cover out of place. DOTD argues that Whatley is inapplicable because, in that case, the negligent act created the physical hazard in and of itself. But, in this case, DOTD argues that the “placement of a single stake, directing the future installation of one detour sign in an array of signs” did not “create” a physical hazard. We do not agree with DOTD’s narrow interpretation of Whatley and find this assignment of error to be without merit.

| Allocation of Fault

Next, DOTD argues that the jury was misled to assess liability by the flawed jury instructions discussed above. As we have already determined that the jury instructions were adequate and not misleading, we turn to DOTD’s argument that in light of the evidence presented at trial, the jury was manifestly erroneous in finding it seventy percent at fault and in finding Mrs. Baham only thirty percent at fault. In resolving this issue, we must give great deference to the allocation of fault as determined by the trier of fact. Cole v. State ex rel. Dept. of Transp. & Dev., 99-912 (La.App. 3 Cir. 12/22/99), 755 So.2d 315, unit denied, 00-199 (La.4/7/00) 759 So.2d 766. We are compelled to utilize the standards set forth- in Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La.1985):

(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.

Mrs. Baham had a duty to use reasonable care in the operation of her vehicle. We agree with DOTD that she was put on notice that she was approaching an intersection by the stop ahead sign. Any inattentiveness on her part was, therefore, a breach of her duty. The scope of her duty included the risk that her guest passengers might be injured in an accident. Cole, 755 So.2d 315. Therefore, we find that Mrs. Baham’s negligence was a substantial factor in causing the accident and its resulting injuries.

DOTD, however, also owed a duty to Plaintiffs to maintain highways in a reasonably safe condition, which includes adequate signing and signaling. DOTD designed and implemented the plan for the detour of traffic around the construction project on the road in question. Sergeant Roland Lewis of the Duson City Police 11sDepartment testified that the stop sign was obscured for twenty to thirty seconds by the detour sign. Mr. Tekell testified that the detour sign was placed in an improper place according to the Manual on Uniform Traffic Control Devices (MUTCD). It was Mr. Tekell’s opinion that the sign was placed in advance of the intersection when it should have been placed adjacent to the stop sign at the intersection.

Considering all of the evidence, we cannot say that the jury’s decision to apportion fault to both Mrs. Baham and DOTD was clearly wrong. Therefore, we affirm the jury’s allocation of seventy percent of the fault to DOTD and thirty percent of the fault to Mrs. Baham.

Damages

In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-61 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), the Louisiana Supreme Court set forth the standard by which we must abide in reviewing a trial court’s award of general damages:

The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indem. Co. of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967). Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1974).
The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and through Reck [v. Stevens, 373 So.2d 498 (La.1979)] to the present case is that [T]he discretion vested in the trier of fact is “great, and even vast, so that an appellate court should rarely disturb an award |14of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

Thus, it is not for us to decide what we consider to be an appropriate award. Rather, we must review the exercise of discretion by the trier of fact and “review the evidence in the light which most favorably supports the judgment to determine whether the trier of fact was clearly wrong in its conclusions.” Monk v. State ex rel. DOTD, 05-97, p. 8 (La.App. 3 Cir. 6/29/05), 908 So.2d 688, 694, writ denied, 05-2337 (La.10/17/06), 940 So.2d 642.

A. Baham Plaintiffs Damages

In their appeal, the Baham Plaintiffs assert two assignments of error. First, Chad Baham and Sheri Cormier Ba-ham, the adult children of Mrs. Baham, contend that the jury’s awards of $50,000.00 to' each of them for their loss of consortium were inadequate. We disagree. The jury’s awards were well within the range of similar awards. See Turner v. Lyons, 03-0186 (La.App 4 Cir. 1/28/04), 867 So.2d 13, writ denied, 04-741 (La.5/14/04), 872 So.2d 530. At the time of the accident, Chad was eighteen and still living at home. Sheri was twenty-one, married, and living nearby. Both testified that their mother was very involved in their daily lives. The family still had Sunday dinners together. DOTD does not contest the closeness of the children’s relationship with their mother. We find no abuse of discretion in the jury’s awards of $50,000.00 to each of Mrs. Baham’s adult children and they are, therefore, affirmed.

Next, Mr. Baham argues that jury erred in failing to award him damages for loss of services and support. Sheri testified that at the time of her death, Mrs. Baham was employed at Opelousas General Hospital as a housekeeper and that she enjoyed [ )Sher job. Plaintiffs had retained the services of Dr. Douglas Womack, an expert economist, to testify as to Mr. Ba-ham’s economic loss; however, Dr. Wom-ack did not testify at trial in this respect. Instead, the parties stipulated that if Dr. Womack was called to testify as to Mr. Baham’s economic loss, he would say that “the total loss of services to the family and future income or future support of Mrs. Baham would be $193,000.00.” The W-2 records were introduced into evidence. “It is well settled that a plaintiffs uncorroborated testimony is sufficient to prove lost wages as long as the testimony is uncontradicted and reasonably establishes the claim.” Molina, 830 So.2d at 1002, (citing Richard v. Teague, 92-17 (La.App. 3d Cir.5/4/94), 636 So.2d 1160, writ denied, 94-1934 (La.11/11/94), 644 So.2d 388). Thus, we find that the jury abused its discretion in failing to award any amount for loss of services and support. We, therefore, amend the judgment to reflect an award of $193,000.00 to Mr. Baham for his loss of services and support from the death of his wife.

B. Johnson Plaintiffs’ Damages

The Johnson Plaintiffs appeal several damage awards, asserting that they are inadequate. First, the Johnson Plaintiffs contend that the jury erred in failing to award adequate general damages .to Holden Johnson in light of the amount of past and future medical expenses awarded. We agree. Holden, who was four years old- at the time of the accident, suffered traumatic injuries to his brain and face. He required thirteen surgeries to repair the extensive .damage and was left with scarring. Dr. Stephen E. Metzinger, a plastic surgeon who treated Holden, testified that Holden’s injuries represented “the worst pediatric facial trauma injury that [he] had ever seen in his career, which dates back to 1987.” Holden had some teeth which were avulsed (or knocked out) and some that were loose. The loose teeth had to be wired into place. Some teeth were saved, but others were lost. Surgery was -also required to | ^attempt to correct facial asymmetry that resulted when some of the facial bones that were injured did not grow as fast as the ones that were not injured. Dr. Metzinger also opined that Holden’s pituitary gland was damaged in the accident. Dr. Metzinger further testified that Holden faces several more surgeries in the future as his nasal bone graft reabsorbs, for further scar revision, and for muscle transfer to attempt to get better functioning at the corner of his mouth. Dr. Metzinger also testified that Holden can never play contact sports, can never high dive or scuba dive, and must wear protective eyewear for participation in non-contact sports. His visual impairments may prevent him being able to drive when he is older. Holden’s treating psychiatrist, Dr. Joni Orazio, testified that Holden has organic brain syndrome, attention deficit disorder, and seizure disorder. We, therefore, increase the award for past, present, and future pain and suffering from $50,000.00 to $250,000.00. For past, present, and future mental anguish and emotional distress, we increase the award from $50,000.00 to $100,000.00. Finally, for scarring and disfigurement, we increase the award from $50,000.00 to $100,000.00.

The Johnson Plaintiffs also assert that the jury erred in failing to award any amount for Holden’s loss of earning capacity. Other courts have recognized:

Even young children are entitled to an award for loss of earning capacity. See Williams v. City of Monroe, [27,065 (La. App. 2d Cir.7/3/95), 658 So.2d 820] supra. (award for loss of earning capacity to a six-year old affirmed); Hollingsworth v. Bowers, [96-257 (La.App. 3d Cir.12/30/96), 690 So.2d 825] (award for loss of earning capacity for newborn affirmed); Jackson v. Huang, 514 So.2d 727 (La.App. 2d Cir.1987), writs denied, 518 So.2d 1050, 519 So.2d 119 (La.1988) (award for loss of earning capacity for newborn affirmed).
Awards for lost income are speculative and cannot be calculated with absolute certainty. Williams v. City of Monroe, supra. The trial court is accorded broad discretion in assessing them, but there must be a factual basis in the record for the award. Id.
Credibility determinations, including the evaluation of expert testimony, are factual issues to be resolved by the trier of fact. Stobart v. State, Through DOTH, 617 So.2d 880 (La.1993); Orea v. Scallan, 32,622 (La.App.2d Cix.1/26/00), 750 So.2d 483; Nichols v. Nichols, 32,-219 (La.App.2d Cir.9/22/99), 747 So.2d 120. Where the testimony conflicts, the fact finder’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even where the appellate court may feel that its own evaluations and inferences are more reasonable than those of the jury. Stobart v. State, Through DOTD, supra.

Hammock ex rel. Thompson v. Louisiana State Univ. Med. Ctr. in Shreveport, 34,-086, pp. 6-7 (La.App. 2 Cm. 11/1/00), 772 So.2d 306, 311-12.

Given that the testimony of Dr. Douglas Womack and Glenn Hebert is necessarily based almost wholly upon speculation due to Holden’s young age and the vast discretion of the jury, who had the advantage of seeing and hearing the witnesses at trial, we cannot say that the jury abused that discretion in failing to award any amount for Holden’s loss of earning capacity.

The Johnson Plaintiffs next argue that the jury’s total awards of $10,000.00 each to Seth Johnson and Chasity Ozenne for past, present, and future mental anguish and past, present, and future pain and suffering were inadequate. We do not agree. Seth had multiple facial abrasions and a scalp laceration that required stitches. He was required to stay overnight in the hospital. He did receive psychological counseling after the accident. Chasity suffered a broken right humerus in the accident. Given the testimony concerning the injuries to Seth and Chasity, we find that the jury’s award was well within the range of similar awards. Finding no abuse of discretion, we affirm these awards.

Finally, Mr. and Mrs. Johnson assert that the jury’s awards of $25,000.00 to each of them for their losses due to the injuries to their children were inadequate. We do not agree and find that $25,000.00 falls within the range of similar awards to parents for serious injuries suffered by their minor children. Therefore, these awards are affirmed.

1 ^DECREE

For the reasons stated above, we increase the award to Keith Baham for his loss of services and support from $0.00 to $193,000.00. To Holden Johnson for his past, present, and future pain and suffering, we increase the award from $50,000.00 to $250,000.00; for his past, present, and future mental anguish and emotional distress, we increase the award from $50,000.00 to $100,000.00; and for scarring and disfigurement, we increase the award from $50,000.00 to $100,000.00. In all other respects, we affirm the judgment on the jury’s verdict.

AFFIRMED AS AMENDED.

      . The first inconsistency was that the damages awarded to the Baham Plaintiffs did not add up correctly with the total amount of damages indicated on the verdict form. The trial court instructed the jury that it had to either check its addition or decide whether the total amount listed was the amount it really meant to award. This portion of the instruction is not contested on appeal.


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    Debra RUFFIN and Dianne Joseph v. POLAND ENTERPRISES, L.L.C., Department of Social Services and Division Of Administration.
    No. 2006-CA-0244.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 2006.
    Rehearing Denied Jan. 16, 2007.

      Madro Bandaries, Madro Bandaries, P.L.C., Gretna, LA, and Wiley J. Beevers, Beevers & Beevers, L.L.P., Gretna, LA, and Sean D. Alfortish, Sean D. Alfortish, PLC, Gretna, LA, for Plaintiffs/Appellees.
    Charles C. Foti, Jr., Attorney General, James J. Bolner, Jr., Special Assistant Attorney General, Kim Raines Chatelain, Special Assistant Attorney General, Berri-gan Litchfield Schonekas Mann Traína & Bolner, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

| Appellants, the State of Louisiana through the Department of Social Services and the Division of Administration, seek reversal of the trial court’s grant of summary judgment in favor of the plaintiffs and against the defendants. The summary judgment, filed by the plaintiffs, sought to preclude the defense from asserting an affirmative defense that the plaintiffs’ exclusive remedy lies within the Louisiana Worker’s Compensation Act (“WCA”). The effect of the ruling below exposes the state to tort liability.

Plaintiffs, state employees, instituted this suit, alleging they sustained injuries due to exposure to mold and/or other contaminants in and around their workplace at 1641 Poland Avenue, New Orleans, LA. Plaintiffs assert they experienced illnesses and injuries due to their exposure to these elements at this site, and are asserting their cause of action in tort, not under Louisiana’s WCA. Both plaintiffs are employees of the Department of Social Services and worked at leased office space at 1641 Poland Avenue, New Orleans, LA. The Department of |2Social Services has leased this space since February of 1995, renewing this lease for a second five-year term in February of 2000.

Plaintiffs filed suit on November 19, 2004, against the building owner, Poland Enterprises, L.L.C. and their employer, the Department of Social Services and the Division of Administration. Defendants answered the suit asserting the affirmative defense that under the Louisiana WCA, La. R.S. 23:1032, plaintiffs are prohibited from pursuing a tort claim against their employer. Following this assertion and the introduction of this affirmative defense, plaintiffs filed a Motion for Partial Summary Judgment to determine the viability of the State’s workers compensation affirmative defense. Judgment was rendered in plaintiffs’ favor. The court found that exposure to mold and mold spores does not fall under the exclusive remedy provision of Louisiana’s WCA.

Appellants assert three assignments of error. First, they contend the trial court erred because the plaintiffs failed to overcome the presumption that the exclusive remedy against an employer for illnesses and injuries sustained by an employee is the WCA. Second, appellants assert the trial court improperly held that, despite being suffered in the course and scope of their employment, the employees’ injuries/illnesses are not compensable WCA claims if they result from exposure to mold in an office environment. Finally, appellants claim the trial court failed to enforce a legislatively mandated requirement that an employee seek compensation from his employer for injuries or illnesses under the WCA.

DISCUSSION

We conduct de novo review of the granting of motions for summary judgment. George v. Housing Authority of New Orleans, 2004-2167 (La.App. 4 Cir. 6/29/05), 906 So.2d 1282. Louisiana Code of Civil Procedure Article 966 guides us in determining whether or not a Motion for Summary Judgment should be granted. La. C.C.P. art. 966(E) treats the topic of when a Motion for Partial Summary Judgment can be rendered regarding a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment will not dispose of the entire case. Jefferson v. Chevron, U.S.A., Inc., 98-0254 (La.App. 4 Cir.1998), 713 So.2d 785, 789.

The issue before us goes to the heart of why the WCA was enacted and where to strike the balance between employers’ concerns over liability and employees’ concerns over compensation. A motivation for enacting worker’s compensation schemes was that employees were at a disadvantage in proving causation because fellow employees were often fearful of testifying against their employer. See Roberts v. Sewerage & Water Bd., 634 So.2d 341 (La.1994), for the rationale behind the creation of the worker’s compensation scheme in derogation of general tort law.

An enlightening explanation of how two important concepts interact within the WCA was offered by Sean Toomey in the 75 Tulane Law Review 241 at 242-243:

At the heart of all workers’ compensation statutes lies the principle of compromise, a quid pro quo between |4worker and employer in which the worker gains ready access to a limited remedy in exchange for the employer’s immunity from almost all tort liability. The most important element of this bargain is that the employee need not prove that the employer was at fault, a large obstacle in tort law. Rather, the employee must only show that the injury is within the scope of the Act and is causally connected to the employment. The benefit to the employer is that once coverage is established, the employer enjoys immunity from most tort liability, including claims based on negligence. To protect this principle, Louisiana jurisprudence has emphasized the need to take this policy of compromise into account when interpreting the Workers’ Compensation Act, and as such, to interpret the coverage provisions liberally, but the immunity provisions narrowly. The concepts of coverage and causation help define the boundaries of the Act’s quid pro quo. Once coverage under the Act is established, an employer is guaranteed immunity from tort litigation, but the employee is not guaranteed relief. The issue of causation then determines whether relief is actually granted. Therefore, it is possible for an employee plaintiff covered by the Act to be denied relief for want of causation and, at the same time, to be prevented from seeking damages via tort law because of the employer’s immunity, and thus left without remedy of any kind.

La. R.S. 23:1032, entitled exclusiveness of rights and remedies, states:

A. (l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.
(b) This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or any principal or any officer, director, | ^stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine.
C. The immunity from civil liability provided by this Section shall not extend to:
(1) Any officer, director, stockholder, partner, or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment;

Plaintiffs argue that mold exposure is not a danger covered by the Worker’s Compensation Statute. Defendant argues that we should interpret the occupational disease section of the Worker’s Compensation Statute broadly to include mold exposure. However, Scott v. Pontchartmin Materials Corp., 98-1611 (La.App. 4 Cir. 8/12/98) 717 So.2d 682, guides our interpretation of the Statute, in which we stated:

The immunity provision of La. R.S. 23:1032 must be narrowly construed. Stelly v. Overhead Door Co. of Baton Rouge, 94-0569, p. 4 (La.12/8/94), 646 So.2d 905, 910. “Every presumption should be on the side of preserving the general tort or delictual rights of an injured worker against the actual wrongdoer, in the absence of explicit statutory language limiting or excluding such rights.” Roberts v. Sewerage and Water Bd. of New Orleans, 92-2048 (La.3/21/94), 634 So.2d 341, 346.

Plaintiffs consider injury from mold to fall outside the definition of the Statute. La. R.S. 23:1021(8)(a) defines the term “injury” and “personal injuries” as:

(8) (a) “Injury” and “personal injuries” include only injuries by violence to the physical structure of the body and such disease or infections as naturally result there from. These terms shall in no case be construed to | r,include any other form of disease or derangement, however caused or contracted.

The Legislature added the current definition of “injury” in 1983. Subsequently, subparts (b)-(e), dealing with mental injuries, stress and heart related injuries, were added as those issues arose. This indicates the Legislature was cognizant that the Worker’s Compensation scheme was in derogation of the general tort law. It wanted to carve out narrow exceptions to coverage in the scheme, such as in the case of cardiovascular disease, so as to not allow a worker to receive compensation without carrying the burden of proving causation.

The Statute divides those who qualify for compensation into two classifications for claims. The first is via accident, as defined in La. R.S. 23:1031(A), which states:

A. If an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.

and the second is via occupational disease, La. R.S. 23:1031.1, which was added in Acts 1990, and states:

A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment. B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal 17tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

Insofar as the applicability of La. R.S. 23:1031(A), to plaintiffs’ injuries and illnesses, we agree with the trial court that the prolonged exposure to mold and mold spores over a period of several months or years, as substantiated in the record, cannot be deemed a “precipitous event happening suddenly or violently.” Thus, plaintiffs do not fall under the accident classification of the compensation scheme.

As concerns the occupational disease category, La. R.S. 23:1031.1, the test is whether exposure to mold and mold spores are “conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” Defendants argue that the Legislature has not provided any exception within the WCA for injuries or illnesses related to mold in the workplace, which would exempt such claims from coverage. We reject this argument, as the trial court, did because of the history of the occupational disease amendments and the statutory language of the La. R.S. 23:1031.1.

Defendants cite Dunn v. Riverview Medical Center, 2001-1521 (La.App. 1 Cir. 6/21/02), 822 So.2d 736, as support for the proposition that mold exposure should be treated the same as a registered nurse suffering lymphedema. We distinguish Dunn from this case because a nurse’s exposure to lymphedema is a condition characteristic of' and peculiar to the occupation or employment in which the employee is exposed to such.

IsThe trial court’s Partial Summary Judgment is supported by jurisprudence on this issue, albeit dicta. In O’Regan v. Preferred Enterprises, Inc., 1998-1602 (La.3/17/00), 758 So.2d 124, the Supreme Court noted:

The defendant’s argument that the Act provides the exclusive coverage for occupational diseases is misplaced with respect to LA. REV. STAT. 23:1031.1(H). Although the Act provides coverage for occupational diseases, it does' not provide the exclusive remedy if the work-related disease falls outside the basic coverage of the Act. The Act does not and cannot foreclose all types of civil actions between employers and employees. Rather, the exclusivity provisions of the Act preclude only those civil tort actions premised upon the fault of the émployer vis-a-vis the employee for workplace injuries compensable under the Act. A compensable injury under the Act is one contracted ■ in the course of and arising out of the employment and for which the injured employee is entitled to receive compensation. LA. REV. STAT. 23:1031.1(D).
The exclusive remedy provision refers only to injuries for which the employee or his dependent is entitled to be compensated, and the Act becomes the ex-elusive remedy for employees against their employers only for such diseases. See LA. REV. STAT. 23:1031.1(H). Accordingly, injuries non-compensable under the Act by LA. REV. STAT. 23:1031.1(D) are also excluded from the shield against tort liability provided to employers by the exclusivity clause in LA. REV. STAT. 23:1031.1(H).

Id., 758 So.2d at 134, p. 14-15

While the defense correctly notes that the ultimate holding of O’Regan, dealt with a temporal issue of the Statute, the above cited language is certainly applicable to this set of facts and offers support for the trial court’s Judgment.

We articulate a distinction in the WCA, which states that the party seeking application of the WCA should carry the burden of proof. Here the defendant seeks the benefit of the WCA limitation of liability as an affirmative defense, hence, the burden falls upon the defense to prove that the WCA applies. ^Reviewing the statutory history of the WCA, we find that the defendant does not meet its burden of proof. Injuries and illnesses resulting from mold exposure in a clerical job do not fall under the definition of La. R.S. 23:1031.1. The plaintiffs were hired as clerical staff. Contrary to defendant’s assertions, we can find no basis in the statutory language or reasonable explanation as to why exposure to mold and mold spores could be considered “characteristic of and peculiar to” clerical work. Thus, as the trial court found, plaintiffs do not fall into the second classification of those entitled to receive coverage that would bar delictual actions.

For the aforementioned reasons, we affirm.

AFFIRMED.


author: PAINTER, Judge. GREMILLION, J.,

text:
    SUCCESSION OF Andrew M. MOORE.
    No. 06-906.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 2006.
    Rehearing Denied Jan. 31, 2007.

      Susan Ford Fiser, Attorney at Law, Alexandria, LA, for Appellee, Helen Williams Moore.
    Harry Brenner Sadler, Alexandria, LA, for Appellants, Michele Moore Moran and Lorraine Moore Albritton.
    Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| Lorraine Moore Albritton and Michelle Moore Moran, daughters of the decedent, Andrew Moore, appeal the trial court’s rulings on a Motion to Traverse the Amended and Corrected Sworn Detailed Descriptive, an Opposition to the Tableau of Distribution, and a Peremptory Exception of Prescription, based on the determination of which property was community and which was the separate property of the decedent and his wife, Helen Williams Moore. For the following reasons, we affirm in part; reverse and render in part; amend in part; vacate in part; and remand.

FACTS

Andrew Moore was first married to Carmen Oliphant Moore. The two had four children, two of whom are the Appellants herein. Carmen died on June 28, 1977. Her probate proceeding was opened and her four children were recognized as owners of one-half of the community estate. No separate property was listed for Carmen. Andrew was recognized as owner of the other one-half of the community and as usufructuary of the part inherited by his children. On December 28, 1978, Andrew married Helen Williams, Appellee herein. On June 25, 2002, Andrew made a will and named his wife as executrix. He died on August 12, 2003.

Helen filed a Petition for Probate in August 2003. She filed a Petition for ho-mologation of the tableau of distribution along with a detailed descriptive list in which she included 34,292 shares of CLE-CO stock as Andrew’s separate property. On June 28, 2004, Lorraine and Michelle filed a motion to traverse the detailed descriptive list, disputing the community designation of certain assets, and claiming as community certain assets claimed by Helen as her separate property. In response, Helen filed an amended detailed descriptive list in which the CLECO stock was listed has community property. In May 2005, Helen filed an exception to the motion to traverse. A hearing was held on August 16 and 17, 2005. The trial court rendered judgment upholding the amended detailed descriptive list submitted by Helen Moore. Lorraine and Michelle appeal.

DISCUSSION

Burden of Proof

The descriptive list of succession property authorized by LSA-C.C.P. art. 3136 shall be accepted as prima facie proof of all matters shown therein, unless amended or traversed successfully. Any interested person may traverse the descriptive list at any time, on contradictory motion served on the person filing it. LSA-C.C.P. art. 3137. Article 3137 clearly states that the original descriptive list does not constitute prima facie proof once the mover’s motion to traverse has been granted, and a copy of the traversed descriptive list shall be filed with the Department of Revenue.
Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property. LSA-C.C. art. 2340. Article 2340 establishes a presumption in favor of the community which can be rebutted by either spouse. Since this presumption is rebuttable, the article is’ procedural in nature and can be applied retroactively to the facts of this case. See Tullier v. Tullier, 464 So.2d 278, 282 (La.1985). The proper burden of proof in overcoming the presumption of community contained in Article 2340 is a preponderance of the evidence. Talbot v. Talbot, 03-0814 (La.12/12/03), 864 So.2d 590, 600. The party asserting the separate nature of the property acquired during the marriage has the burden of overcoming a strong presumption in favor of the community. Tullier, 464 So.2d at 283.

In re Succession of Hebert, 03-531, 03-532 (La.App. 1 Cir. 9/17/04), 887 So.2d 98, 100-01, writ denied, 04-2571 (La.12/17/04), 888 So.2d 872.

“In evaluating the evidence, some allowance must be made where the acquisition occurred many years before the claim is asserted. Southwest Nat’l Prod. Co. v. Anderson, 239 La. 490, 118 So.2d 897 (1960); Lee v. Manning, [505 So.2d 902 (La.App. 2 Cir.1987) ]” Dance v. Dance, 552 So.2d 658, 662 (La.App. 2 Cir. 1989). Parole evidence may be sufficient to rebut the presumption of community where it is uncontradicted. Reeves v. Reeves, 607 So.2d 626, 628 (La.App. 2 Cir.), writ denied, 608 So.2d 1010 (La.1992) citing Bridges v. Osborne, 525 So.2d 337 (La. App. 1 Cir.), writ denied, 530 So.2d 567 (La.1988).

Standard ofRevieiv

The trial court’s findings regarding the nature of the property as community or separate are factual determinations. Harvey v. Amoco Production Company, 96-1714 (La.App. 1st Cir.6/20/97), 696 So.2d 672, 677. The appellate court’s review of fact is governed by the manifest error — clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is ho reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. See Stobart v. State, through Department of Transportation anti Development, 617 So.2d 880, 882 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882; Morris v. Norco Construction Company, 682 So.2d 332, 335 (La.App. 1st Cir.1993), writ denied, 94-0591 (La.4/22/94), 637 So.2d 163.

Biondo v. Biondo, 99-0890, pp. 4-5 (La. App. 1 Cir. 7/31/00), 769 So.2d 94, 99.

Therefore, we will review the trial court’s determinations under the manifest error standard.

14Community Character of Goodyear and CLECO Stock

Lorraine and Michelle assert that the trial court erred in finding that all the Goodyear and CLECO stock held during the marriage in the name of Andrew was, in fact, community property. They contend that Andrew owned stock at the time he married Helen and that all the Goodyear and CLECO stock attributable to the stock Andrew owned at the time of his marriage should be designated as Andrew’s separate property.

Rodney Hamilton, Investor Relations Specialist with CLECO, testified at trial with regard to the CLECO stock listed in Andrew’s name alone. Documentary evidence was introduced tracing the date of purchase and of surrender of each stock certificate. The evidence adduced at trial indicated that Andrew had in his possession 3,404 shares of CLECO stock at the time of his marriage to Helen. This stock is clearly separate. La.Civ.Code art. 2341. In 1978, all the stock in CLECO was transferred to a holding company, Central Louisiana Energy Holding Corp. Hamilton testified that Andrew disposed of 300 of his separate shares after his marriage but before May 1981, when a two for one stock split occurred. Therefore, at the time of the split, Andrew owned 3,104 shares of holding company stock as part of his separate estate. After the stock split, he owned 6,208 shares as his separate property. In August 1981, Andrew surrendered a number of separate shares and received an equal number, which are traceable and can be identified as corresponding to the separate shares surrendered. In October 1981, the holding company spun-off CLE-CO and issued .43096 shares of CLECO stock for each share owned in the holding | Bcompany. As a result, Andrew’s separate estate then contained 6,208 shares of stock in the holding company and 2,675 shares of CLECO stock. In 1983, Goodyear bought out the holding company, which by that time was known as Celeron. As a result of the buy-out, the holding company shares were cancelled and shareholders were issued 1.15 shares of Goodyear stock for each share of holding company stock. An-(brew's separate estate, therefore, received 7,139 shares of Goodyear stock for his 6,208 shares of holding company stock. The record does not reflect any further surrenders of CLECO or Goodyear stock certificates attributable to Andrew’s separate estate.

Accordingly, we find that the trial court erred in finding that all the CLECO and Goodyear stock held in Andrew’s name was community. The record clearly shows that 2,675 shares of CLECO and 7,139 shares of Goodyear stock should be listed as Andrew’s separate property.

Separate Property of, Helen Wiliams Moore ■.

The Appellants assert that the trial court erred in accepting Helen’s designation as her separate property of certain real estate, stocks, investments, and/or financial accounts which were acquired during the marriage. Since Helen is asserting that these items are separate, she has the burden of proving their separate nature by a preponderance of the evidence. In re Succession of Hebert, 887 So.2d 98. In considering the property which Helen claims as separate, it is important to, note that at the time of her marriage to Andrew, Helen was receiving a pension attributable to her employment with the State of Louisiana and had savings of her own. Additionally, during the existence of the community, she inherited money, real property, and other assets from her parents and an uncle.

| ¿L) Jackson Street Property

The first of these disputed properties is a rental property located on Jackson Street in Alexandria, Louisiana. Helen testified that she acquired-this property with $15,000.00 of her separate funds in 1982 and put an additional $10,000.00 of separate funds into renovation and repair of the property. She further testified that the rental income from the property was put into a community account. While she had no records to substantiate this claim, the record reflects that she had sufficient assets to acquire and renovate this property. See Breaux v. Breaux, 555 So.2d 1001 (La.App. 3 Cir.1990) (in which the trial court rejected a party’s claim that she made mortgage payments out of separate funds where she did not show sufficient separate means for the payments). Further, Lorraine and Michelle have produced no testimony to controvert Helen’s testimony in this regard.

Lorraine and Michelle argue that payment for maintenance and repairs out of community funds evidence the community nature of the property. They point out that Helen testified that the rent from the property was community and was deposited into a community account from which payment of repairs and maintenance were made. We first note that in the testimony cited by Lorraine and Michelle, Helen merely acknowledges that the rental income was deposited into a community business account. There is no testimony of record in which Helen states that repairs were paid from this account. However, she does acknowledge that taxes on the Jackson Street property were paid with a check on the community account from the rental income. However, neither of these transactions is evidence of the community nature of the Jackson Street property. Under La.Civ.Code art. 2339, rental income is a civil fruit and, as such, is community property. Deposit of rental income in a community |7account is, therefore, completely-appropriate. Further, payment of taxes and even repairs and maintenance out of the rent paid is also appropriate as it is the net income from rent after payment of the necessary expenses of the rental property, which constitutes community property. See Sharp v. Zeller, 110 La. 61, 34 So. 129 (La.1902) (wherein the court stated that Zeller was authorized to apply the rents of the property to the mortgage, using only the balance as profits for the benefit of the community).

Given Helen’s testimony and the evidence of her means, we find that she overcame the presumption of community. Accordingly, we find no error in the trial court’s determination that the Jackson Street property is Helen’s separate property.

2) Stock

Lorraine and Michelle further assert that stocks claimed by Helen as her separate property should have been included in the detailed descriptive list as community property. With regard to the Stock in Agilent Corporation, American Electric Power, OGE Energy, Entergy, WalMart, CLECO, and Goodyear, as well as a SunAmerica Securities, Inc. investment account, Helen readily admitted that she purchased them during her marriage to Andrew. However, she further testified that she purchased that stock with her own funds and that some shares were given to her as gifts by Andrew. Given the facts that there is no evidence to contradict these statements, and that the record supports the conclusion that Helen had sufficient separate funds to make these purchases, we find no error in the trial court’s conclusion that the stock was Helen’s separate property.

However, the record indicates that the dividends earned on the SunAmerica account during Helen and Andrew’s marriage were reinvested into that account. The ^dividends earned are community assets and should have been listed in the detailed descriptive list as such. La.Civ. Code art. 2339. However, the evidence of record is insufficient to allow this court to determine the amount of the dividends earned and the percentage of the SunAm-erica account which represents reinvested dividends. Therefore, we remand this matter so that the trial court may make that determination.

S) Bank Accounts

Lorraine and Michelle assert that Pelican State Credit Union account number 003156, held in Helen’s name alone, and Louisiana Capital Federal Credit Union account number 285036, also held in Helen’s name alone, were community accounts and should have been listed on the detailed descriptive list as such. They argue that Helen has introduced no evidence other than her own testimony that the accounts were separate and that since the interest on the account was rolled back in, the accounts have become community as a result of commingling.

As we have discussed, Helen’s testimony alone was sufficient to show that the funds she deposited into the accounts were her separate property. Reeves, 607 So.2d 626. However, while she testified that the interest on the accounts was rolled back into them, we have no evidence of the rate of interest or the amount rolled back in.

Helen had the burden of showing that the funds were her separate funds. Dance v. Dance, 552 So.2d 658(La.App. 2 Cir.1989) Her testimony shows that, while the accounts began as separate accounts, community funds in the form of interest were mingled with the separate funds.

“The mere mixing of separate funds and community funds in a bank account does not alone convert the entire account into community property. However, when separate funds are commingled with community funds indiscriminately so that the separate funds cannot be identified or differentiated from the community funds” all the funds are characterized as community. Biondo v. Blondo, p. 11 99-0890 (La.App. Cir. 7/31/00), 769 So.2d 94, 103 citing Curtis v. Curtis, 403 So.2d 56, 59 (La.1981).

Sharp v. Sharp, 01-0969, pp. 3-4 (La.App. 4 Cir. 10/2/02), 830 So.2d 328, 330. Since she did not show the amount of community funds in the account, we find that Helen has failed in her burden of differentiating the community from the separate funds. Accordingly, the accounts must be characterized as community.

Personal Property

Appellants assert that the trial court erred in finding that only one-half of the personal property listed as community in the estate of Carmen Moore should be listed as belonging to Andrew. The trial court found that any claim by Lorraine and Michelle had prescribed. We disagree.

Until he married Helen, Andrew had a usufruct over an undivided one-half interest in the personal property listed in Carmen’s succession and was outright owner of the other undivided half. Upon his remarriage, that usufruct ended. La.Civ. Code. art. 890. At that point, he possessed the personal property as co-owner with his children. As a co-owner, he is considered to have possessed the property for all owners and “[t]he action for partition is imprescriptible.” La.Civ.Code art. 817. “It is a settled issue that coheirs or coowners do not as a general rule acquire or lose by prescription against each other.” In re Succession of Moore, 97-1668, p. 19, 97-1669 (La.App. 4 Cir. 4/1/98), 737 So.2d 749, 760, writ denied, 99-781 (La.4/30/99), 743 So.2d 207.

Accordingly, we find that only an undivided one-half interest in the personal property listed in Carmen’s succession should be listed as Andrew’s separate property.

| Attorney’s Fee

Lorraine and Michelle assert that the trial court erred in allocating all attorney’s fees of the litigation as succession expenses. They contend that at least part of the attorney’s fees were spent to preserve Helen’s separate property. See Succession of Gilbert, 95-426 (La.App. 5 Cir. 1/30/96), 668 So.2d 1212, judgment se aside in part, 96-949 (La.5/31/96), 673 So.2d 1021. We agree. After considering the record herein, we find that 20% of the attorney’s fees are attributable to Helen’s defense of her separate property. Accordingly, we amend the trial court’s allocation of costs to reflect this.

CONCLUSION

For these reasons, the trial court’s judgment with regard to the community character of the CLECO and Goodyear stock listed in Andrew’s name is reversed in part. Judgment is rendered finding that Andrew’s separate estate contained 2,675 shares of CLECO and 7,139 shares of Goodyear stock at the time of his death. Judgment is rendered ordering the detailed descriptive list to be so amended. The remainder of the stock in CLECO and Goodyear is to remain in the community listing.

As concerns the property claimed by Helen Moore as her separate property, the trial court’s judgment is affirmed except as concerns the Pelican State Credit Union and Louisiana Capital Federal Credit Union accounts. The judgment is revered as it concerns the Pelican State Credit Union account number 003156 and Louisiana Capital Federal Credit Union account number 285036. Judgment is rendered ordering the detailed descriptive list be amended to add these accounts as community assets.

lnWe reverse the judgment of the trial court with regard to the personal property originally listed as community in the estate of Carmen Moore, and render judgment ordering that only one-half of that property should be listed as Andrew’s separate property in the detailed descriptive list.

Finally, we amend the trial court’s judgment allocating as succession expenses all attorney’s fees connected with the trial of this matter, and we allocate 20% of the attorney’s fee to Helen as attributable to the defense of her separate property. Costs of this appeal are to be divided equally between the parties.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART; AMENDED IN PART.

APPLICATION FOR REHEARING

Rehearing denied.

GREMILLION, J.,

would deny rehearing as to all issues except that he would grant the rehearing on the issue of whether the funds in the Louisiana Capital Federal Credit Union and Pelican State Credit Union accounts were co-mingled. In that regard, he would order the case be remanded to take and consider evidence as to the nature and amount of funds that were co-mingled into those accounts.

      . 4,069 shares of CLECO Stock were listed as community property in Carmen's succession. The record indicates that after the close of her succession, Andrew transferred shares of CLECO stock to each of his four children representing their share of the community owned stock.