author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Billie KARNO and Rosemary Caracci v. BOURBON BURLESQUE CLUB, INC. a/k/a Bourbon Burlesque, Inc.
    No. 2005-CA-0241.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 2006.

      Peter J. Butler, Peter J. Butler, Jr., Richard G. Passler, Jeffrey C. Vaughan, Breazeale, Sachse & Wilson, L.L.P., New Orleans, Counsel for Plaintiffs/Appellants.
    Fred L. Herman, Thomas J. Barbera, Daniel W. Nodurft, Law Offices of Fred L. Herman, New Orleans, Counsel for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge EDWIN A. LOMBARD).
   JOAN BERNARD ARMSTRONG, Chief Judge.

pThe plaintiffs-appellants-lessors, Billie Karno and Rosemary Caraci, appeal a judgment dismissing with prejudice their petition and rule to evict the defendant-appellee-lessee, Bourbon Burlesque Club, Inc., a/k/a Bourbon Burlesque, Inc. We affirm.

At the time they instituted this action on June 7, 2004, the plaintiffs each owned an undivided one-half interest in the property located at 327 Bourbon Street which they leased to the defendant pursuant to an original four year lease commencing on June 1, 1994, and an addendum thereto dated August 18,1997.

The plaintiffs complain that the defendant breached that portion of the lease which obligated the defendant “to comply at the Lessee’s expense with all ordinances and laws, now existing or to be enacted

Consequently, the plaintiffs argue that they are entitled to cancel the lease and evict the defendant pursuant to that section of the written lease entitled “Nonpayment?, of Rent Etc.” which provides that “should the Lessee at any time violate any of the conditions of this lease ... and should such violation continue for a period of TEN (10) days after written notice had been given Lessee,” then the Lessor shall have several options, including the option “to immediately cancel the lease.” Line # 171 of the lease further provides that:

All repairs, additions and improvements to the building is [sic] at lessee’s expense and must be done in accordance with Vieux Carre Commission regulation and City Building Code.

The breach asserted by the plaintiffs arises out of an inspection report from Inspector Thomas St. Germain of the Fire Prevention Division of the New Orleans Fire Department (“NOFD”). Pursuant to this report, a Notice of Hearing set for May 12, 2004 was issued by the Administrative Adjudication Bureau for Public Health, Housing and Environmental Violations, Department of Health, City of New Orleans. The notice was received by the plaintiffs on May 14, 2004. The caption of the notice was: “Case No. 2004-2504 “F”, The City of New Orleans v. 327 Bourbon Street, L.L.C., et al.” The notice cited four violations of ordinances and/or sections of the Code of the City of New Orleans. Consequently, on May 17, 2004, the plaintiffs sent the defendant a letter (referred to by the plaintiffs as the “Default Letter”) demanding that the defendant immediately comply with the Lease and cure the violations of law. Failure to comply would render the lease immediately cancelled. On the same day, a representative of the defendant signed a receipt accepting hand delivery of this Default Letter. The defendant does not dispute having received this letter.

The plaintiffs contend that pursuant to the above quoted portions of the lease, the defendant had ten days from notification in which to cure the defects in |sthe property. The plaintiffs argue that the ten days expired either on March 12, 2004, ten days after the defendant received Inspector St. Germain’s report, or, in the alternative, no later than May 27, 2004, ten days from the May 18, 2004 letter from counsel for the defendant acknowledging receipt of the “Default Letter.” The plaintiffs further contend that the defendant has never fully rectified the four problems for which it was cited to appear by the Department of Health.

The August 18, 1997, addendum to the lease provided for rental increases averaging approximately 1% per annum on a compounded basis over the twenty-five year’ period covered by the addendum. The defendant characterizes these eviction proceedings as plaintiffs’ attempt “to strong arm them into paying more rent.” This characterization is supported by the trial court finding that the testimony of the defendant’s president, Carol Glindmeyer, “establishes that plaintiffs would have not sought to evict defendants if they agreed to pay more rent.”

The building at 327 Bourbon Street is classified as a blue-rated building according to the Vieux Carre rating system. Mr. Larry Hesdorffer, the director of the Vieux Carre Commission, testified that a blue-rated structure is considered to be of major historical significance. Accordingly, his agency subjects any actions regarding the building to very close scrutiny.

The trial court in written reasons for judgment made the following findings:

1. Upon receiving notice of Inspector St. Germain’s report, counsel for the defendant wrote a letter to Inspector St. Germain expressing the intention to request a variance with the Board of Building Standards and Appeals.
2. However, the plaintiffs, who were the only ones who received notice, appeared at a hearing before the Administrative Adjudication Bureau on June 3, 2004, and pled no contest to the violations.
|43. On or about June 5, 2004, plaintiffs filed their Petition and Rule to Evict.
4. Regulatory compliance within ten days is impossible because of the major historical significance of the property. For, example, a hearing must be scheduled before the Vieux Carre Commission and it could take a couple of years to remedy the fire code violations.
5. It was impossible for the defendants to remedy the violations within ten days and obtain the necessary permits.
6. The defendants have spent $1.2 million improving plaintiffs property.
7. Plaintiffs would not have sought to evict defendants if they agreed to pay more rent.
8. Relying on Karno v. Joseph Fein Caterer, Inc., 02-1269 (La.App. 4 Cir. 4/16/03), [846 So.2d 105] the trial court ruled in favor of the defendant.

The plaintiffs seize upon the trial court’s finding that regulatory compliance within the ten-day period called for in the lease was impossible, to- argue that the trial court erred in not dissolving the lease because the remedy for impossibility of performance is dissolution of the contract, not reformation of the contract. In their brief the plaintiffs argue that:

The Reasons for Judgment reflect that the sole focus of the trial court was on the defense of impossibility raised at trial by BBCI.

However, while the trial court’s reasons for judgment refer to the fact that “it was impossible for the defendants to remedy the violations cited by Fire Inspector St. Germain within ten days,” that is just one of a number of findings made by the trial court. Ultimately, the reasons for judgment conclude with a statement showing that the greatest factor considered by the trial court in reaching its decision was this Court’s previous holding in Karno v. Jo seph Fein Caterer, Inc., 02-1269 (La.App. 4 Cir. 4/16/03), 846 So.2d 105, a lease case involving the same plaintiffs:

[s[R]elying on Karno v. Joseph Fein Caterer, Inc.... plaintiffs’ petition and rule to evict defendant is denied.

There is no mention of “impossibility” in Karno v. Fein. Instead of relying on a finding of impossibility, which was not an issue in Karno v. Fein, this Court in that case found that:

The trial court has discretion to decline dissolution of a lease where it finds that the breach of the lease is not major or where the breach was not the fault of the [lessee] or where the [lessee] was in good faith.

Id., 02-1269, pp. 8-9, 846 So.2d 105, 110. [Emphasis added.]

Therefore, implicit in the trial court’s reliance on Karno v. Fein is a finding that the breach in the instant case was not major, that the breach was not the fault of the lessee, and that the lessee was in good faith—all of which is supported by the record. Accordingly, we do not agree with the plaintiffs’ contention that the trial court, in relying on Karno v. Fein, reformed the lease contract based solely on a finding of impossibility.

Instead of reforming the contract based on a finding of impossibility, the trial court’s findings signify that it is well known that the permitting process for historic buildings in the highly regulated French Quarter can be complex because of the overlapping and conflicting authority of various agencies. This is an indication of the reasonableness of the defendant’s actions as well as an indication that the parties to the lease could not possibly have contemplated that every code problem would be considered to be a sufficiently serious breach of the lease to warrant dissolution. In other words, we do not believe that the parties intended the clause in the lease requiring compliance with laws and ordinances to be read as referring to every unresolved citation or to citations that could not be remedied within the contractual grace period. The citation process contemplates appeals and | (¡requests for variances and we do not believe that under the facts of this case the defendant should be considered to be in violation of the lease as long as it is pursuing its administrative remedies in a reasonable and timely manner, which in this case it did. Instead of a clearly defined, hard, fast list of immutable rules, by allowing for variances, the regulations contemplate a process. We find that, in the context of the facts of this case, had the parties intended that the lease be dissolved based merely on the basis of the type of citations issued to the defendant, the parties would have included lease language that would have been more explicit on that issue.

As for what would be a substantial or material violation of a law or ordinance in this context, we believe the standard to be what a reasonable person would consider substantial when weighed against such factors as the magnitude of the lease, the extent of the lessee’s performance to date, how the breach might impact the lessors, and whether the lessee was taking reasonable steps to deal with both the problem(s) and the regulatory process, consistent with the applicable codal provisions.

La. C.C. art. 2729 states that:

The neglect of the lessor or lessee to fulfill his engagements, may also give cause for a dissolution of the lease, in the manner expressed concerning contracts in general, except that the judge can not order any delay of the dissolution.

The reference in La. C.C. art. 2729 to the rules concerning the dissolution of contracts in general, includes La. C.C. art. 2014, entitled “Importance of failure to perform” which is relevant to the instant case. La. C.C. art. 2014 states that:

A contract may not be dissolved when the obligor has rendered a substantial part of the performance and the |7part not rendered does not substantially impair the interest of the obligee.

Thus, La. C.C. art. 2014 sets up two criteria for preventing dissolution in spite of a breach: (1) substantial performance by the obligor (in the instant case, BBCI)' and (2) no substantial impairment of the interest of the obligee (in the instant case, Karno and Caracci).

While this code article was not specifically cited by this Court in its opinion in Kamo v. Fein, its language is consistent with the finding of this Court in Karno v. Fein quoted above referring to non-major breaches. Moreover, La. C.C. art. 2014 is discussed in Quinn Properties, Inc. v. Sabine River Realty, Inc., 95-1714 (La.App. 3 Cir. 5/29/96), 676 So.2d 639, one of the cases cited by this Court in Kamo v. Fein in support of the language from that case concerning non-major breaches quoted earlier in this opinion. The Quinn court found that the breach by the lessee in that case resulting in the lessor’s partial loss of ownership of the property was a “substantial impairment” of the lessor’s interest under La. C.C. art. 2014. We note that the plaintiffs have not alleged the existence of an impairment to their interests in the instant case that could be considered in the least measure comparable to that found to be substantial in Quinn.

Nor does the breach in the instant case affect the plaintiffs’ interest to the extent that the failure of the lessee to obtain required insurance did in Select Properties, Ltd. v. Rando, 453 So.2d 980 (La.App. 4 Cir.1984). Insurance requirements are intended to protect the lessor’s interests from exposure to substantial loss. Safety issues such as those the plaintiffs raise in connection with the defendant’s alleged breaches of the lease are a special concern to the landlord if they can result in uninsured damage to the property or uninsured personal injury | pliability. One would expect serious safety issues to adversely impact the insurability of the property as regards such potential damage or liability, a legitimate concern for any landlord. The plaintiffs do not allege that the insurability of the property was in any way impaired by the defendant’s alleged breaches of the lease. The absence of any such allegations provides another basis to support the trial court’s implicit conclusion that there was no La. C.C. art. 2014 substantial impairment of the interest of the plaintiffs. The trial court could legitimately infer that had there been any problems with the insurability of the property, the plaintiffs would surely have made allegations to that effect, leading to the further conclusion that in the absence of any such allegations, the alleged breaches were not “substantial” in the La. C.C. art. 2014 sense of the word.

Additionally, in Karno v. Fein, this Court made the following finding of particular relevance to this case:

The trial court also held that, to the extent that the failure to obtain approval in written form of the alterations, failure to perform some maintenance items, and failure to give the lessors an opportunity to deal with the hail damage, constituted breaches of the lease, those breaches were not sufficiently serious to justify dissolution of the lease after the lessee spent over $932,000 renovating the premises. We agree.

Id., 02-1268, p. 8, 846 So.2d at 110.

In the instant case the trial court made the following similar finding: “[Djefen-dants have spent $1.2 million improving plaintiffs property.” Just as this Court noted the substantial amount of money that the lessee had paid for improvements to the premises leased from Karno and Caracci, we find that the trial court was correct in the instant case in having weighed the defendant’s substantial investment in the leased premises against what could be characterized as “breaches |9... not sufficiently serious to justify dissolution of the lease after the lessee spent [$1.2 million] renovating the premises.” Id.

The plaintiffs challenge the $1.2 million finding of the trial court. Referring to a “Miscellaneous Materials” document, the plaintiffs contend that many of the items that the defendants claimed as improvements to the property were for movables or for things such as copy expense or parking tickets that might be related to the operation of the defendant’s business, but could not be considered to be improvements to the leased premises. However, this document calls into question at most $128,000.00 of the $1.2 million of improvements the defendant claimed to have made. Thus, even if we were to disregard all $128,000.00 of the items listed in the “Miscellaneous Materials” exhibit, it would have no material effect on our view of the case because we are left with over $1 million in improvements made by the defendant.

This is consistent with the holding in IP Timberlands Operating Co., Ltd. v. Denmiss Corp., 93-1637 (La.App. 1 Cir. 5/23/95), 657 So.2d 282:

The provision that the judge shall grant no delay in the dissolution of a lease is, in practice, subordinated to the court’s preliminary decision concerning whether a dissolution is appropriate in the first place. One of the fundamental concepts of landlord-tenant law in Louisiana is that the court has considerable discretion in deciding whether a breach of the lease is serious enough to justify dissolution. See Palmer, La.Leases, § 5-19.

Id., 93-1637, p. 45, 657 So.2d at 309.

Moreover, where, as in the instant case, the alleged lease violations could be characterized as “technical” the courts are inclined to regard them as non-serious.

No doubt there was a technical violation of the contract, as the premises had been structurally changed without Clin& C Investments’ written consent. However, voiding of lease agreements are not favored by the law, particularly for technical infringements. See Stoltz v. McConnell, 202 So.2d 451 (La.App. 4th Cir.1967), Atkinson v. Richeson, 393 So.2d 801 (La.App. 2nd Cir.1981) and many other cases with similar holdings. Both Dr. and Mrs. Chuck Cucchiara of C & C Investments admitted that they have not been hurt by the alterations. The Supreme Court of Louisiana has stated that the right to dissolve a lease is subject to judicial control according to the circumstances of each case. Brewer v. Forest Gravel Co., 172 La. 828, 135 So. 372 (1931). Also, Baham v. Faust, 333 So.2d 261 (La.App. 1st Cir.1976) and Hebert v. Brasseaux, 399 So.2d 778 (La.App. 3rd Cir.1981).

From the Herbert opinion:

“... our courts, on the basis of equity, are vested with discretion under some circumstances to decline to grant a lessor cancellation of a lease although such right appears to be otherwise available to him.”

Goldblum v. C & C Investments, 444 So.2d 642, 643 (La.App. 5 Cir.1983).

While the plaintiffs refer with a sense of urgency to “substantial violations of the Life Safety Code which places life and limb at risk,” the trial court, relying on Karno v. Fein, implicity found otherwise. Apparently, Inspector St. Germain detected no immediate crisis as his report includes instructions for obtaining variances from the report requirements. The defendant filed a timely application for variance with the Board of Building Standards and Appeals. Pending the defendant’s appeal to the Board of Building Standards and Appeals, we find that the defendant was not in violation of any laws or ordinances within the intendment of the lease language.

The plaintiffs claim that the defendant “had known about the violations since 1998” and made the conscious decision to do nothing to rectify these “violations of Inlaw relating to life safety.” However, the record shows that the State Fire Marshall approved the defendant’s plans for the premises in 1998. Carol Glindmeyer testified that the plans were provided to the plaintiffs prior to construction and that he spoke to plaintiffs throughout the renovation project. When the project was completed the plaintiffs toured the building. Since that time, the defendant has been permitted to operate a nightclub on the premises. The property passed inspection with no deficiencies noted as late as June 17, 2003. Pursuant to the Fire Inspector’s report, an Occupancy Certificate was issued on June 17, 2003. It was only as a result of the inspection of the premises by Inspector St. Germain arising out of the creation by the City of the Division of Fire Prevention and the Adoption of the Life Safety Code and the 2000 International Building Code (M.C.S. 21, 145) that the defendant had code enforcement issues.

The defendant’s problems are exacerbated by the fact that it is subject to the overlapping jurisdiction of several regulatory agencies: the Vieux Carre Commission, the State Fire Marshall, the City Department of Safety and Permits, the City Department of Health and the Fire Prevention Bureau of the New Orleans Fire Department. These agencies, while they may have concurrent jurisdiction in many instances, are charged with different responsibilities, and, accordingly, can have a good faith difficulty agreeing on how to deal with issues such as those faced by the defendant. Consequently, someone in the defendant’s position can find himself in a seeming quagmire of overlapping and conflicting regulatory requirements necessitating sometimes protracted negotiations with the various agencies.

Mr. Larry Hesdorfer, the director of the Vieux Carre Commission, testified that an appeal from his Commission would be to the City Council as would an |iaappeal from the Board of Building Standards and Appeals, whereas an appeal from Safety and Permits would first be to the Board of Building Standards and Appeals and then to the City Council. Counsel for the plaintiffs agreed to this testimony by stipulation. Mr. Hesdorfer next testified that it would be reasonable for an applicant to do as the defendant did in the instant case (on July 15, 2004) and dismissing an appeal to the Board of Building Standards and Appeals and going to the Vieux Carre Commission in an attempt to resolve the problems more expeditiously.

While Inspector St. Germain’s report noted six items, only the following four were presented by the City to the Administrative Adjudication Bureau (“AAB”):

1. No second means of egress (relating to the third and fourth floors).
2. Stairways not properly enclosed (between the first and second floors)— 4912. M.C.S. § 301.
3. Failure to return floor plan submit-tal.
4. No approved exit sign (exterior).

The other two items noted in the inspection report, relating to the alley gates swinging in rather than out and trash in the alleyway causing obstruction of an exit, were apparently considered so insignificant that the AAB did not pursue them.

In response to the first problem cited, no second means of egress, the plaintiff roped off the third and fourth floors in April of 2004 and in July they were barricaded. The defendant obtained an approved fire watch on July 14, 2004.

The second problem cited, the lack of a proper stairway enclosure is complicated by the fact that the stairway is of monumental proportions and | ^constitutes a major historical architectural element of the building built in the 1830-1840’s. The State Fire Marshall accepted and approved defendant’s plans in 1999. At first, the defendant attempted to have a sprinkler system installed in the building, but the City water pipes running to the building were not adequate to deliver a sufficient volume of water to operate a sprinkler system. Moreover, if an enclosure could be constructed, it would require the approval of the Vieux Carre Commission as it would have to exit the building somewhere. With the fire watch in place, the defendant continues to work with the Fire Marshall to determine if some additional fire detection and prevention method could be employed as an acceptable alternative to enclosing the staircase.

In response to the third item cited by the AAB, the failure to return floor plan submittal, the defendant contends that this item is in error and that it had previously submitted the floor plans to the Fire Department Division and that copies of the floor plans exist in the records of the New Orleans Fire Department. In any event, the defendants further contend that out of an excess of caution an additional set of plans was delivered to Inspector St. Ger-main at the AAB meeting. The plaintiffs do not contest this.

Regarding the need for an exit sign, the fourth and last item on the AAB agenda, the defendant’s manager, Mr. Rudy Polise, testified that the defendant was unsure what exactly was being requested. Therefore, in response to this item the defendant put in additional emergency lighting, signs and flood lights in the courtyard as well as emergency lighting and additional signs in the alley. In any event, Inspector St. Germain eventually informed the defendant that all he was seeking was an additional exit sign on the interior of the alley gates. This appears to be an issue no longer.

h.(Regarding the direction of the swing of the alley gates, one of the two items raised in the St. Germain inspection report not raised by the AAB, we note that approval of the Vieux Carre Commission is required in order to reverse the swing of the alley gates so that they swing outwardly instead of inwardly. The defendant applied to the Vieux Carre Commission on July 3, 2004, but the application was denied. Mr. Hesdorffer testified that a change in the door swing “is clearly contra to what the purposes of the VCC’s preservation responsibilities are.” Approval of the Fire Marshall is also required. Under the circumstances, we find that the defendant is doing all that can reasonably be expected of it at this time.

The other item listed in the St. Germain Report, but not cited by the AAB, the trash in the alley, was apparently addressed by the defendant.

After reviewing each of the alleged breaches of the lease, we make the following findings:

1. The alleged breaches are not the fault of the defendant.
2. The alleged breaches are not breaches as long as the defendant continues to pursue the regulatory process in good faith.

We make the following additional findings:

1. There is no manifest error in the trial court’s implicit finding that the defendant has rendered substantial performance under La. ■ C.C. art. 2014.
2. We find no substantial impairment of plaintiffs’ interests under La. C.C. art. 2014.
3. We agree with the trial court’s finding that Kamo v. Fein is applicable to the instant case.
11B4. Therefore, we find that the trial court’s reference to “impossibility” must be read in the context of the foregoing, i.e., the trial court made the reasonable finding that it would be inequitable to dissolve the lease where the defendant had already rendered substantial performance and where the defendant’s failure to immediately do the impossible resulted in no substantial impairment of the plaintiffs’ interests.

For the foregoing reasons, the judgment of the trial court is affirmed at plaintiffs-appellants’ cost.

AFFIRMED.

      . It appears that in the interval between the time suit was filed and the time this matter came to trial the Karno interest may have been transferred to an alter ego interest, but such transfers of ownership among related parties are not at issue and have no bearing on this appeal.

      . This addendum provided for five five-year renewal options running through the year 2023. The rent increased by $ 1,000.00/month every five years, beginning with $12,500.00/ month during the first five year option period and eventually increasing to $16,500.00/ month for the last five year option period. The addendum expanded the leased premises to include "the rear of the 327 Bourbon property” for the consideration of an additional $4,000.00/month rental. Additionally, the addendum required the lessee to make $200,000.00 in repairs during the first five-year option period of 1998-2003 and required "that all structural repairs, additions and improvements to the building ... must receive written consent/approval from Lessors.”

      . We have not found it necessary to the disposition of this case to resolve the defendant's complaints that the plaintiffs have acted in bad faith through their architect and have otherwise been obstructionist and have harassed the defendant in furtherance of their attempts to dissolve the lease and/or increase the rents.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Leonard R. WASHINGTON.
    No. 2005-KA-1006.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 2006.

      Eddie J. Jordan, Jr., District Attorney, Battle Bell IV, Assistant District Attorney, New Orleans, Counsel for Plaintiff/Appel-lee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, Counsel for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III and Judge ROLAND L. BELSOME).
   JOAN BERNARD ARMSTRONG, Chief Judge.

hThe defendant was charged by bill of information on September 2, 2004 with possession of cocaine, a violation of La. R.S. 40:967(0(2). At arraignment on September 14, 2004, he entered a plea of not guilty. The court found probable cause on October 7, 2004 and denied the defendant’s motion to suppress evidence. Following trial on November 9, 2004, a six-member jury found defendant guilty as charged. On January 7, 2005, the court found him to be a third felony offender and sentenced him on March 11, 2005 to serve eight and one-half years at hard labor to run consecutively with any other sentence. On that same day, the court also granted the defendant’s motion for appeal.

At trial, Officer Frederick Carter testified that on August 20, 2004, he and his partner, Officer Kevin Boswell, were assigned to the Fifth District Task Force. Around 12:45 a.m., they saw the defendant staggering down the middle of Flood Street. Being concerned for the defendant’s safety, the officers approached him and asked his name. When he answered, they smelled alcohol on his breath. At that time, they determined that he was intoxicated and prepared to issue him a citation for public intoxication. They ran his name on a field computer and determined that he was subject to an outstanding warrant. He was Mirandized and | ^placed under arrest. Officer Carter then conducted a search of the defendant’s person and found a brown paper bag containing three rock-like substances that he believed to be crack cocaine in the defendant’s pocket.

The defendant testified in his own behalf, maintaining that he had not been drinking that night. He stated that he was coming from the grocery and was walking home on the sidewalk when the police stopped him and informed him that there was a warrant out for his arrest. He was handcuffed and searched. The officers did not find anything illegal on his person. The defendant admitted that he had pled guilty to possession of cocaine twice before, and that several months earlier this same police officer stopped him for obstructing the sidewalk. He had been stopped several times because he lives in a “drug happy” area.

A review of the record reveals no errors patent.

The defendant argues that the district court erred in allowing the prosecutor to suggest to the jury that a guilty verdict could result in defendant’s receiving drug treatment rather than jail time. He complains that during closing argument, defense counsel twice argued that the evidence was not sufficient to permit the jury “to convict a person and deprive him of his freedom.” The State objected, and the court sustained the objection. The defendant asserts that contained in the court’s sustaining of the State’s objection was the suggestion that incarceration was not necessarily the consequence of a guilty verdict. The defendant further maintains that the court abused its discretion by allowing the State to lead the jury to believe that a conviction could result in nothing more than a “rehab program.” The State argued: “The Judge’s job, if you find him guilty, is to determine his punishment, to determine does he need a rehab program that they have for him? Does he need 13other sentencing?” Defendant contends that the State deliberately misled the jury because at the time the statement was made, the State had already signed a multiple bill of information to be filed as soon as the verdict was reached, making jail time mandatory.

In State v. Guillard, 98-0504 (La.App. 4 Cir. 4/7/99), 736 So.2d 273, the defendant argued that the trial court erred in failing to grant his motion for a mistrial due to the erroneous instructions gratuitously given to the jury regarding sentencing. The defendant contended that the trial court volunteered information on the sentencing range for attempted possession of cocaine and said that the defendant could receive a probationary sentence. Because the defendant was a third offender and thus not eligible for probation, defense counsel asked for a mistrial which the court denied. This court found that a possible adjudication as a habitual offender is a separate proceeding that punishes one for his status as a recidivist, not for the most recent conviction. Since a multiple offender bill of information is not mandatory, but at the discretion of the prosecutor, the possibility that a defendant may later be subject to sentence enhancement as a recidivist is speculative.

Here, the statements made by the State regarding sentencing related to defendant’s most recent conviction.

The defendant relies also on our opinion in State v. Richardson, 02-1207 (La. 4 Cir. 10/9/02), 830 So.2d 344. In that case, the defendant moved for mistrial, arguing that the statements made by the prosecutor and trial judge that the defendant could be sentenced up to five years and the prosecutor’s statement that the defendant could walk out of court a free man, was improper. The prosecutor argued to the jury, “The law gives the court the right to impose a fine or probation |4or a jail sentence of not more than thirty months.” This Court upheld the conviction and sentence, citing Guillará. We concluded:

The trial court did not err by allowing argument and instruction concerning the sentencing range without regard to a multiple bill. As the Louisiana Supreme court found in Jackson , the choice to permit an argument about the penalty is within the discretion of the trial judge.

This claim has no merit.

The defendant contends that his sentence for the crime of being a drug addict is excessive. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the needless and purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Lobato, 603 So.2d 739 (La.1992).

The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Walker, 96-112 (La.App. 3 Cir. 6/5/96), 677 So.2d 532, 535, citing State v. Howard, 414 So.2d 1210 (La.1982). A trial court abuses its discretion only when it contravenes the prohibition against excessive punishment set forth in the Louisiana Constitution, Article I, Section 20, which bars “punishment disproportionate to the offense.” Sepulvado, 367 So.2d at 767. A sentence is grossly disproportionate if, when the crime and punishment |Rare considered in light of the harm done to society, it shocks the sense of justice. Lobato, 603 So.2d at 751.

The defendant admitted that he has a drug problem, and asked the court to consider providing him with help. The court then reviewed his arrest and conviction history. In 1988, the defendant pled guilty to possession of cocaine and received a suspended sentence with two years active probation. In 1991, he again pled guilty to possession of cocaine and received another suspended sentence with active probation, notwithstanding the fact that he was a second offender and pled guilty to the multiple bill. His probation was revoked because he violated his supervision and left the state without permission. The court noted that the defendant had been given several opportunities to rehabilitate himself in both the About Face and Impact Programs and failed to do so. The court also noted the defendant’s long history of drug related arrests. Shortly after being arrested and shortly after the case was dismissed, he was arrested again for another drug related offense. The. court sentenced the defendant to serve eight and one half years; the maximum sentence he could receive as a third offender was ten years at hard labor.

In State v. Joseph, 99-1161 (La.App. 5 Cir. 3/22/00), 759 So.2d 141, the Fifth Circuit found a sentence of eight years for a defendant convicted of possession of cocaine as a second offender was not excessive. In State v. Brown, 37,736 (La.App. 2 Cir. 3/12/04) 868 So.2d 289, another sentence of eight years at hard labor, without the benefit of probation or suspension of sentence, for possession of cocaine as a second felony habitual offender, was not excessive.

Sentences within the legislatively provided range are presumed constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. With | ^regard to the habitual offender statute, the burden is on the defendant to rebut the presumption of constitutionality by showing he is somehow exceptional.

The defendant argues that his sentence is excessive because he is being punished for being a drug addict. He was convicted and sentenced for possession of cocaine. Considering the factors enunciated by the court at the sentencing hearing, the defendant’s sentence of eight and one half years cannot be said to be excessive. The defendant has not proven that the trial court abused the liberal discretion allowed in sentencing. This assignment of error is without merit.

The defendant next asserts that La. R.S. 15:529.1 as applied to recidivists whose predicate offenses were the direct result of drug addiction violates the ban on cruel and unusual punishment, citing Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) in which the Supreme Court held that a state may not criminalize the status of being a drug addict. The Court held that the state has the broad power to regulate narcotic traffic within its borders, including imposing criminal sanctions against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics. Mr. Washington was not punished for being a drug addict, but for possessing cocaine in the instant case and for two prior convictions for possession of crack. The Habitual Offender Law has been held constitutional. State v. Johnson, 97-1906, pp. 5-6 (La.3/4/98), 709 So.2d 672, 675. The defendant has not shown that, as applied to him, La. R.S. 15:529.1 is unconstitutional.

The defendant’s final claim is that his habitual offender sentence in excess of the five-year maximum violates his right to a jury trial because the enhancement was based on a finding of fact made by the judge and not the jury. In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the defendant was convicted ^pursuant to his guilty plea to possession of a firearm for an unlawful purpose and unlawful possession of a prohibited weapon. He was sentenced beyond the statutory maximum pursuant to New Jersey’s hate crime statute. The Court held that, other than the fact of prior convictions, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury. Apprendi specifically exempted prior convictions from those factors which must be tried to a jury to increase a penalty beyond the statutory maximum for the substantive offense. Thus, Louisiana’s scheme permitting multiple offender proceedings to be heard before a judge alone does not violate the Due Process Clause.

The Court in Apprendi relied on Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Defendant points out that the Court in Apprendi stated, “[I]t is arguable that Almendarez-Torres was incorrectly decided.” Apprendi, 530 U.S. at 489-490, 120 S.Ct. at 2362. The defendant then argues that as the actual overruling of Almendarez-Torres is both certain and imminent, the practical effect is that this court should hold that his habitual offender sentence violates his Sixth Amendment rights. However, the language cited by the defendant must be considered in context. The Court noted:

Even though it is arguable that Al-mendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision’s validity and we need not revisit it for purposes of our | ^decision today to treat the case as a narrow exception to the general rule we recalled at the outset. Given its unique facts, it surely does not warrant rejection of the otherwise uniform course of decision during the entire history of our jurisprudence. In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. , . Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362.

Until Almendarez-Torres and its progeny are overruled, their holdings are binding on this court. This assignment of error lacks merit.

For the foregoing reasons the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . The parties stipulated that the substance tested positive for cocaine.

        . State v. Jackson, 450 So.2d 621 (La.1984).

      .In Almendarez-Torres, the defendant was convicted of illegally reentering the United States after having been previously deported following his conviction for aggravated felonies. On certiorari, the Supreme Court held that: (1) the statutory subsection authorizing a sentence of up to twenty years for any alien who illegally returned to the United States after having been previously deported following conviction for an aggravated felony was a mere penalty provision and did not serve to define a separate immigration-related offense; and (2) Congress's decision to treat recidivism, and in particular the- fact that an alien is deported following his conviction for an aggravated felony, merely as a sentencing factor upon the alien's subsequent conviction of illegal reentry offense, rather than as an element of that offense, did not exceed due process or other constitutional limits on Congress’s power to define the elements of a crime.

        . Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999).


text:
    Manufacturas Industriales Del Caribe, S. de R.L. de C.V., a.k.a. MINCA v. KATHRYN ARNETT STUDIO, L.L.C. and Kathryn Arnett.
    No. 2005-CA-1174.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 2006.
    Edward J. McCloskey, McCloskey & Langenstein, L.L.P., New Orleans, Counsel for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS Sr. and Judge ROLAND L. BELSOME).
   JOAN BERNARD ARMSTRONG, Chief Judge.

11 This appeal arises out of a suit on open account. The defendants, Kathryn Arnett and Kathryn Arnett Studio, L.L.C., appeal the trial court’s summary judgment in favor of the plaintiff, Manufacturas Industr-iales del Caribe, S. de R.L. de C.V., a/k/a MINCA. For the reasons assigned, we affirm the trial court’s judgment.

On July 3, 2003, the appellee filed a petition on open account and for damages against the appellants alleging an indebtedness of $19,499.64 plus interest, for goods sold and delivered. Service of the motion for summary judgment was made on Kathryn Arnett Studio, L.L.C. through its registered agent, Robert M. Steeg, on July 29, 2004. The record also reflects that domiciliary service was made on Kathryn Arnett on August 3, 2004, through Melissa Terry at 4305 California Avenue in Ken-ner, Louisiana.

The matter came before the trial court on October 1, 2004. In support of the motion for summary judgment, the appel-lee introduced copies of invoices for the goods sold and delivered to the appellants. The appellee also presented the affidavit of its General Manager, Marcio Romeo Villaf-ranca Guerrero. Mr. |¡>Guerrero stated that from the inception of the business relationship in May of 2000, Ms. Arnett personally guaranteed payment of the goods purchased. Mr. Guerrero further stated that sometime in 2001, Ms. Arnett began complaining of quality problems with some of the merchandise and deducted the costs of the alleged defects from her payments. The affidavit also notes that the appellants at no time returned any products to the appellee. In spite of the dispute, the appellants continued to place orders with the appellee. The appel-lee’s memorandum in support of the motion for summary judgment and the attached invoices reflect that the appellants failed to pay $18,586.84 due on invoice No. 30 and $912.80 due on merchandise that Ms. Arnett took possession of in Honduras on May 19, 2003.

The appellants did not file an opposition to the motion for summary judgment and did not appear at the hearing on the motion. The trial court rendered judgment in favor of the appellee and against Kathryn Arnett and Kathryn Arnett Studio, L.L.C., in solido, in the amount of $19,499.64, the total of the two invoices presented, plus court costs, statutory attorneys’ fees and legal interest. The trial court denied the appellee’s damage claim for economic loss. This timely devolutive appeal followed.

The appellants assert two assignments of error on the part of the trial court, alleging improper service on Ms. Arnett and insufficient evidence of Ms. Arnett’s individual liability. We note that the correctness of the account is not in dispute.

Appellate courts review summary judgments de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1182. Favored in Louisiana, the summary judgment procedure “is designed |sto secure the just, speedy, and inexpensive determination of every action” and shall be construed to accomplish these ends. King v. Parish National Bank, 04-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545, quoting La. C.C.P. art. 966(A)(2).

Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B); Jones v. Estate of Santiago, 03-1424, p. 5 (La.4/14/04), 870 So.2d 1002, 1006. The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. La. C.C.P. art. 966 C(2). Hutchinson v. Knights of Columbus, Council No. 574, 03-1533, pp. 6-7 (La.2/20/04), 866 So.2d 228, 233.

Ms. Arnett contends that she was living in Honduras on August 3, 2004, and that she has never lived at 4305 California Avenue in Kenner, Louisiana. Moreover, the appellants argue that there is nothing in the record to support domiciliary service on Ms. Arnett. To the contrary, the record clearly contains the sheriffs return indicating domiciliary service on Ms. Ar-nett through Melissa Terry at 4305 California Avenue on August 3, 2004. Considering the record, we cannot say that the trial court erred in rendering a judgment against Ms. Arnett based on the evidence before it. Accordingly, we find no merit in the appellants’ first assignment of error.

| ¿The appellants argue that there is no evidence that Ms. Arnett bound herself personally for any amounts owed by Kathryn Arnett Studio, L.L.C. The evidence presented in support of the motion for summary judgment consists of the statement made by Mr. Guerrero in his affidavit that Ms. Arnett personally guaranteed payment. The appellants offered no evidence to rebut this claim.

We note that the personal guaranty is not in writing., La. C.C. art. 1847 provides that “[p]arol evidence is inadmissible to establish ... a promise to pay the debt of a third person....” A well-recognized exception to this rule includes instances wherein the oral promise to pay is prompted by a pecuniary or business motivation on the part of the promisor. Deutsch, Kerrigan & Stiles v. Fagan, 95-0811, 95-0812, p. 6 (La.App. 1 Cir. 12/15/95), 665 So.2d 1316, 1320. The exception applies in those instances where the promisor, by promising to pay the debt of a third person, assumes a primary obligation, rather than a collateral or secondary obligation. Fontenot v. Miss Cathie’s Plantation, Inc., 93-926, 93-927 (La.App. 3d Cir.3/2/94), 634 So.2d 1380, 1381-1382. If the agreement to pay is not made primarily to answer for another, but is impelled from the pecuniary or business motives of the promisor, then the promise to pay is, in effect, a new and independent agreement and parol evidence is admissible to establish the existence of the agreement. Leake & Andersson, L.L.P. v. Loo-Hernandez, 97-1077, p. 4 (La.App. 4 Cir. 12/10/97), 704 So.2d 924, 926, quoting Marmedic, Inc. v. Int’l Ship Management & Agency Services, Inc., 425 So.2d 878 (La.App. 4 Cir.1983). In the present case, it is clear that Ms. Arnett had a pecuniary motive to promise to pay her company’s debt.

After our de novo review of the record in its entirety, we must conclude that the appellee has made a prima facie showing that no material issues of fact exist as | Bto Ms. Arnett’s personal obligation for the debts of her company. Furthermore, we conclude that the appellants did not meet their required burden of presenting evidence of a material factual dispute. The summary judgment statute clearly states if the party in opposition to the motion for summary judgment “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966 C(2). In the case before us, the appellants had ample opportunity during the two months between the service of the motion for summary judgment and the date of the hearing to present evidence in opposition to the motion for summary judgment. An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La. C.C.P. art. 967; Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.

Accordingly, we find that the appellee has met its burden of proving the grounds for its motion for summary judgment in the absence of any contrary evidence of record.

For the foregoing reasons, we affirm the October 10, 2004 judgment of the trial court.

AFFIRMED.

      . MINCA is a manufacturing company located in Puerto Cortes, Honduras.


author: TERRI F. LOVE, Judge.

text:
    QUILIO & ASSOCIATES, INC. v. PLAQUEMINES PARISH GOVERNMENT.
    No. 2005-CA-0803.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 2006.

      Raymond G. Hoffman, Jr., Bryan D. Haggerty, Hoffman & Haggerty, L.L.C., Metairie, Counsel for PlaintiffiAppellant.
    Michael L. Mullin, Assistant Parish Attorney, Plaquemines Parish Government, Belle Chasse, Counsel for Defendant/Ap-pellee.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS Jr., Judge EDWIN A. LOMBARD).
   TERRI F. LOVE, Judge.

11 This litigation arises from consulting work performed by Quilio & Associates, Inc. for the Plaquemines Parish Government, after the Plaquemines Parish Council refused to renew Mr. Quilio’s yearly contract in June of 1992. The Plaque-mines Parish President, Luke Petrovich, entered into further consulting contracts with Mr. Quilio, including a contingency fee contract in connection with litigation between Plaquemines Parish Government and Tennessee Gas Pipeline- Company. After the litigation settled, Mr. Quilio sought payment based on the contract. The trial court held that Mr. Quilio was not entitled to compensation under the contract because: 1) Luke Petrovich did not have actual authority to enter into contract with Mr. Quilio without the Plaquemines Parish Council’s approval; 2) Luke Petrovich did not possess apparent authority to enter into the contract; 3) the Council did not ratify the contract by settling the litigation; and 4) the doctrine of unjust enrichment did not apply due to Mr. Quilio’s own fault. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Joe Quilio (“Mr. Quilio”), president and sole owner of Quilio & Associates, Inc., began consultant work for the Plaque-mines Parish Government (“Parish”) in 1985 by auditing oil and gas production on Parish owned lands. The Parish, | ¡.through Parish President Luke Petrovich (“Mr. Petrovich”), retained Mr. Quilio on a yearly contractual basis and paid him by the hour for his consulting services. During his work with the Parish, Mr. Quilio began auditing mineral leases with Tennessee Gas Pipeline Company (“Tenneeo”). Mr. Quilio discovered that Tenneeo had been repeatedly underpaying the Parish for mineral leases on Parish owned lands.

The Parish continually renewed Mr. Qui-lio’s contract until June of 1992. In 1992, the Plaquemines Parish Council (“Council”) unanimously refused to renew Mr. Quilio’s contract. However, Mr. Quilio continued to work on the Tenneeo matter. In 1993, Mr. Quilio urged Mr. Petrovich to continue seeking money owed from Tenne-co. Mr. Petrovich retained Sal Anzelmo (“Mr. Anzelmo”) as his special counsel to investígate whether he had the authority to enter into contracts with Mr. Quilio without the Council’s approval. Mr. An-zelmo, as special counsel to Mr. Petrovich and not in representation of the Council or Mr. Quilio, stated that he believed Mr. Petrovich did have the authority to enter into a new contract with Mr. Quilio pursuant to the Parish Charter. Mr. Petrovich and Mr. Quilio then met with the law firm of Brook, Morial, Cassibry, Pizza & Ad-cock (“Brook firm”) to discuss the possibility of pursuing litigation against Tenneco. The Brook firm was also retained as special counsel and advised Mr. Petrovich that Mr. Quilio should be hired to work on the auditing for the future Tenneco litigation. However, the Brook firm expressed concerns about Mr. Petrovich’s authority to enter into the contract.

On January 7, 1994, Mr. Quilio entered into a contingency fee contract (“Contract”) with Mr. Petrovich, as Parish President and acting on behalf of the Parish, to retain Mr. Quilio for work on the Tenneco litigation. The Contract stated [sthat Mr. Quilio was entitled to ten percent of the first $2,000,000.00 of recovery and twelve and a half percent of any recovery over $2,000,000.00. Tenneco agreed to settle with the Parish and the Council authorized Mr. Petrovich to sign the settlement, dated October 13, 1994. Tenneco agreed to pay the Parish $3,215,523.00 in cash and spend $4,000,000.00 for future expenditures in the Bastían Bay field development. The Parish refused to pay Mr. Quilio’s demand of $851,940.00, based upon the total settlement recovery of $7,215,523.00, predicated on the invalidity of the contract. The Parish paid the Brook firm for their services in connection with the Tenneco litigation in 1995.

In 1996, Mr. Quilio filed suit seeking specific performance, a declaratory judgment, and damages. The Parish, through the Council, filed a motion for summary judgment. The trial court denied the motion and the matter proceeded to trial. The trial court held that Mr. Quilio was not entitled to compensation based on the Contract. The trial court reasoned that Mr. Petrovich lacked the actual or apparent authority to enter into the Contract, the Council did not ratify the Contract by accepting the Tenneco settlement, and the doctrine of unjust enrichment did not apply to the facts in the case, sub judice. Mr. Quilio’s devolutive appeal timely followed.

Mr. Quilio asserts that the trial court erred by finding that: 1) Mr. Petrovich did not have actual authority to bind the Plaquemines Parish Government to the Contract; 2) Mr. Petrovich did not have apparent authority to bind Plaquemines Parish Government to the Contract; 3) the Parish Council did not ratify the Contract by accepting the settlement with Tenneco; and 4) Mr. Quilio was not entitled to compensation under the doctrine of unjust enrichment.

\ ¿STANDARD OF REVIEW

Appellate courts review factual findings of the trial court using the “manifest error” or “clearly wrong” standard. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The Louisiana Supreme Court developed a bifurcated test for reviewing and reversing factfinder’s determinations that requires: 1) the reviewing court must find that the trial court’s findings have no reasonable factual basis and 2) the record shows that the findings are wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). The reviewing court must view the record in its totality to determine if the factfinder was clearly wrong and if the decision was reasonable. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). This rationale stems from the fact that the trial court has “better capacity to evaluate live witnesses.” Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). “[W]here two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, 617 So.2d at 883.

ACTUAL AUTHORITY

The laws or rules governing a political office grant actual authority. The Charter of the Parish of Plaquemines (“Charter”) governs the duties, roles, powers, and qualifications of the Parish President and the Council. The Charter provides, in pertinent part:

Section 3.01: Powers of the President
The Parish President shall be the Chief Executive officer of the Parish and shall have power, subject to this Charter and the Constitution of the State, to supervise and direct all activities and functions of Parish Government and provide administrative and logistical support to all other political subdivisions and districts therein as provided in this Charter and may delegate such authority to the offices and agencies of the Parish as hereinafter provided.

J^The Charter also details the duties of the President. It states, in pertinent part:

Section 3.10: Duties of the President
The Parish President shall have the following duties:
A. Carry out policies adopted by the Parish Council;
B. Exercise general oversight of the activities of boards, agencies, and special districts;
C. Exercise supervision over all other executive and administrative work of the Parish and provide for the coordination of administrative activities;
D.Assure the provisions of the Charter, the Ordinances of the Parish and all laws are enforced;
H. Submit annually to the Council for its consideration and approval an operating budget and a capital improvement budget;

The powers outlined above do not specifically grant the Parish President the power to enter into contracts regarding Parish owned lands without the approval of the Council.

Article Four of the Charter delineates the powers of the Council. The Article reads, in pertinent part:

Section 4.01: Legislative Powers
A. All legislative powers of the Parish of Plaquemines shall be vested in the Parish Council and exercised by it, subject to any applicable provisions of this Charter, and shall include, but not be limited to, the power to:
(1) Represent, as governing authority, the Parish of Plaquemines and all political subdivisions and districts therein, in any and all matters and actions, all rights of action and warranties, and all rights, title, and interest in and to all lands and property owned by them, and to' all resources and revenues derived therefrom.
(25) Provide for the employment of any employee and personnel which, in its judgment, may be necessary and proper to perform the work and carry out the duties and functions of Parish government and the conduct and operation of the other political subdivisions and districts situated within the Parish.
(26) Have the exclusive authority to provide for the compensation and the terms and conditions of employment under which all of its employees shall be employed and work for the Parish of Plaquemines and all other political subdivisions and districts therein.

IfiThe legislative powers reserved for the Council include any actions concerning interests in Parish owned lands. This would include- the Tenneco litigation regarding mineral leases on Parish owned land. The Charter also reserves the power of employing people to work for the Parish and the “exclusive authority” of determining the compensation of the employees.

Additionally, the Charter also describes how debts may be incurred. It’ states, in pertinent part:

Section 7.06: Administration of Operating and Capital Budgets
A. No payment shall be made or obligation incurred against any allotment or appropriation except: (a) in accordance with the approved operating and capital budgets and appropriations duly made and (b) unless the President first certifies that there is a sufficient unencumbered balance in such allotment or appropriation ' and that sufficient funds therefrom are or will be available to cover the claim or meet the obligation when it becomes due and payable. However, this provision shall not limit the authority of the Council to borrow funds in anticipation of revenue as provided in the general laws of the State. Any authorization of payment or incurring of obligation in violation of the provisions of this Charter shall be void and any payment so made illegal; such action shall be cause for removal of any official, officer or employee who knowingly authorized or made such payment or incurred such obligation or who caused such payment to be authorized or made or obligation to be incurred. Such person shall also be personally liable for reimbursement, with interest, to the Parish Government of any amount so paid.
B. Nothing in this Charter shall be construed so as to prevent the making or authorizing of payments or making of contracts for capital improvements to be financed wholly or partly by the issuance [sic] of bonds or to prevent the making of any contract or lease providing for payments beyond the end of the fiscal year, provided that such action is authorized by Ordinance, except that contracts for services not covered by the public bid law (R.S. 38:2181, et seq., as amended) shall not be for a period in excess of two (2) years.

The Parish Charter states that all obligations must be included in the “operating and capital budget.” Mr. Petrovich did not submit the Contract with Mr. Quilio to |7the Council, nor did he include the obligation in the budget. Mr. Quilio asserts that the recovery from the Tenneco settlement should be considered a sufficiently “unencumbered balance” to justify Mr. Pe-trovich’s lack of Council approval. However, the record is devoid of evidence that demonstrates that Mr. Petrovich first certified that the Tenneco recovery would be a sufficiently unencumbered balance to pay Mr. Quilio, prior to signing the Contract.

Mr. Petrovich stated that he did not include the Contract in the Council’s agenda because he did not think it would pass. Additionally, Mr. Petrovich and Mr. Anzel-mo never consulted with the Council’s attorney regarding Mr. Petrovich’s authority to execute the Contract because the Council attorney would “report to the council” and, in Mr. Petrovich’s opinion, destroy the Parish’s position with Tenneco. Mr. Quilio testified that Mr. Petrovich stated that he did not discuss the Contract with the Council because of the adversarial relationship between the Council and Mr. Petrovich. Mr. Quilio also testified that Mr. Petrovich told him that the Council would not approve any further contracts with Mr. Quilio. Then, Mr. Quilio testified that Mr. Petrovich said they would have to find “some other form, some alternate source,” to compensate Mr. Quilio for future work on the Tenneco matter.

In his deposition, Mr. Anzelmo, working as Mr. Petrovich’s special counsel and not as the Parish or Council’s attorney, relied upon Section 5.02 of the Charter to justify Mr. Petrovich’s actual authority to enter into the Contract with Mr. Quilio. That section states, in pertinent part:

Section 5.02: Legal Services
B. The Parish President shall also have the power and authority to employ attorneys, with the approval of the Parish Council, to handle all legal and financial work with reference to the issuance of bonds, notes, or other evidences of indebtedness, whether in the original |smstance, or for refunding purposes. In other matters as the Parish President may deem advisable, the Parish President may employ special counsel pursuant to the provisions of this Charter. In all cases, the Parish shall compensate said special counsel for their services.

However, this section of the Charter only refers to employing and compensating special counsel; therefore, Mr. Petrovich had the authority to hire Mr. Anzelmo and the Brook firm as his attorneys, but not the authority to hire and compensate consultants without the Council’s approval.

After reviewing the Charter, we find that Mr. Petrovich lacked actual authority to enter into the Contract with Mr. Quilio. Actions regarding rights and interests in Parish owned lands are specifically reserved as powers of the Council. Also, the power to employ and compensate people for work necessary to “carry out the duties and functions” of the Parish specifically lies with the Council. Mr. Petrovich never included the Contract in a budget proposal or submitted it to the Council. Thus, Mr. Petrovich did not have the authority to enter into the Contract with Mr. Quilio. Therefore, we find that the trial court did not commit manifest error, nor was clearly wrong by finding that Mr. Petrovich lacked actual authority to enter into the Contract with Mr. Quilio.

APPARENT AUTHORITY

Apparent authority was juris-prudentially created to protect third parties from “unauthorized acts of an apparent agent.” Boulos v. Morrison, 503 So.2d 1, 3 (La.1987). “An agent is one who acts' for or in the place of another by authority from the latter.” Anderson Window & Patio Co. v. Dumas, 560 So.2d 971, 975 (La.App. 4 Cir.1990). For apparent authority to apply, Louisiana law requires two elements: 1) that the “principal must first act to manifest the alleged agent’s authority to an innocent third party;” and 2) that the “third party must rely | treasonably on the manifested authority of the agent.” Boulos, 503 So.2d at 3. The third party also has a “duty to inquire into the nature and extent of the agent’s power.” Id. After conducting an inquiry, the third party must have a “reasonable belief,” based on the facts of the case, that the agent has authority. Salley v. Colonial Marine Indus., Inc., 95-2215 (La. App. 4 Cir. 09/11/96), 680 So.2d 1242, 1250. “The burden of proving apparent authority is on the party relying on the mandate.” Boulos, 503 So.2d at 3, citing Bamber Contractors, Inc. v. Morrison Eng’g & Contracting Co., 385 So.2d 327, 330 (La.App. 1 Cir.1980).

The first element of apparent authority requires that the third party be “innocent.” Mr. Quilio asserts that he relied upon the statements of Mr. Anzelmo as the Parish attorney. However, Mr. Anzlemo was retained as Mr. Petrovich’s special counsel and not as the Parish or Council attorney. Additionally, Mr. Quilio knew that the Council refused to renew his yearly contract beginning in 1992, yet he continued to work on the Tenneco matter. Mr. Quilio testified that he knew the Council would be unlikely to rehire anyone who worked with Mr. Petrovich. Mr. Quilio also testified he knew that the Council never approved any contracts with him after 1991. Mr. Quilio admitted that he suggested the contingency fee contract after he discovered that the Council would not approve any further contracts with him. He and Mr. Petrovich also met with an attorney from the Brook firm to discuss the Contract and the firm never advised either Mr. Quilio or Mr. Petrovich that Mr. Petrovich had the authority to enter into the Contract. However, the Brook firm had concerns about Mr. Petrovich’s authority to enter into the Contract.

Mr. Petrovich and Mr. Quilio then met with Mr. Anzelmo three times to discuss the validity of the Contract. Mr. Anzelmo, as Mr. Petrovich’s special counsel, stated that he did not want them to ask him any further questions about the | ^Contract because, based on his interpretation of the Charter, he believed that Mr. Petrovich had the authority to sign the Contract. Mr. Quilio could not rely on Mr. Anzelmo’s statements because he was not the Parish’s or Council’s attorney. Additionally, Mr. Anzelmo did not represent Mr. Quilio and Mr. Quilio never hired his own attorney. Mr. Quilio took no independent steps to verify Mr. Petrovich’s apparent authority-

After reviewing the facts in the record, we cannot find that Mr. Quilio was an innocent third party as required by the doctrine of apparent authority. He knew that the Council was required to approve his previous yearly contracts from 1985 to 1992. Mr. Quilio knew the Council did not want to approve any new contracts with him beginning in 1992. The facts also show that he knew a legal issue existed regarding Mr. Petrovich’s authority to sign the Contract because they consulted attorneys four times regarding the Contract. Mr. Quilio also admitted that Mr. Petro-vich never discussed the Contract with the Council. Thus, he was not an innocent third party. Therefore, we find that the trial court was not manifestly erroneous or clearly wrong when it held that Mr. Quilio could not recover under the doctrine of apparent authority.

RATIFICATION

Ratification occurs when someone consents to an “obligation incurred on his behalf by another without authority” and it may occur expressly or tacitly. La. C.C. art. 1843. Ratification occurs when the facts “indicate a clear and absolute intent to ratify the act, and no intent will be inferred when the alleged ratification can be explained otherwise.” Bamber Contractors, Inc. v. Morrison Eng’g & Contracting Co., 385 So.2d 327, 331 (La.App. 1 Cir.1980), citing Nationwide Fin. Co. of Gretna, Inc. v. Pitre, 243 So.2d 326, 328 (La.App. 4 Cir.1971). The person who allegedly ratified the act must be “apprised of the facts” and have “full knowledge” of the act. Sunray Servs., Inc. v. City of Minden, 29,260, p. 5 (La.App. 2 Cir. 02/28/97), 690 So.2d 970, 973. The party asserting ratification bears the burden of proof. Bamber, 385 So.2d at 331.

Mr. Quilio was present at the settlement meetings with Mr. Petrovich and Tenneco. Mr. Quilio testified that Mr. Petrovich only told the Council that attorney’s fees and consultant fees had to be paid in conjunction with accepting Tenneeo’s settlement agreement. Benny Rouselle, a Council member from 1987 — 1994, testified that Mr. Petrovich never formally or informally discussed the Contract with the Council. Mr. Petrovich stated in his deposition that he could not recall if he ever mentioned the Contract to the Council or if he ever included it in an agenda. Mr. Petrovich further stated that he never told the Council that Mr. Quilio was the consultant referred to in conjunction with the Tenneco settlement. He only mentioned that attorney’s fees and consultant fees needed to be paid, but not to whom or how much.

After reviewing the testimony, we cannot find that the trial court committed manifest error or was clearly wrong when it found that the Council did not ratify the Contract by accepting Tenneco’s settlement agreement. The record shows that the Council was not fully apprised of all the facts. The Council also lacked full knowledge of who the consultant was or how much the Parish owed him. Mr. Pe-trovich knew the Council did not desire to further employ Mr. Quilio. Additionally, the trial court made a credibility determination regarding Mr. | ^Petrovich’s truthfulness and understanding of whether the Contract had to be approved by the Council. Mr. Petrovich repeatedly stated that he could not recall facts when specifically questioned about the Council’s knowledge of the Contract. Thus, the trial court concluded that the Council was not “fully apprised” of the facts and was denied “full knowledge” sufficient to satisfy the requirements for ratification.

UNJUST ENRICHMENT

The Louisiana Civil Code’s doctrine of unjust enrichment provides a remedy for people who have enriched someone without just compensation. La. C.C. art. 2298. To recover, the claimant must prove: 1) enrichment of the defendant; 2) impoverishment of the plaintiff; 3) a connection between the enrichment and the impoverishment; 4) no justification for the alleged unjust enrichment; and 5) the lack of any other remedy at law. Minyard v. Curtis Prods., Inc., 251 La. 624, 205 So.2d 422, 432 (1967). However, the plaintiffs impoverishment cannot be a result of his “own fault or negligence.” Gray v. McCormick, 94-1282 (La.App. 3 Cir. 10/18/95), 663 So.2d 480, 487.

Unjust enrichment cannot be due to the fault or negligence of the plaintiff. The record shows Mr. Quilio to be partially at fault for not entering into a legally binding contract. He knew the Council did not wish to employ him past June of 1992. Mr. Quilio also stated that he knew the Council had to approve his yearly contracts. Mr. Quilio testified that he was aware that the Council was unanimously opposed to renewing his contract. Mr. Petrovich did not assure Mr. Quilio, after the Council refused to approve the 1992 yearly contract, that he would be | ^compensated for work that he was proposing to conduct on the Tenneco matter. Mr. Quilio also testified that Mr. Petrovich did not discuss the Contract with the Council because of their adversarial relationship. Thus, we find the trial court did not commit manifest error or was clearly wrong by holding that unjust enrichment did not apply to Mr. Quilio.

DECREE

We find that the trial court did not commit manifest error, nor was it clearly wrong in its findings that Mr. Petrovich did not possess the actual authority to enter into the contract with Mr. Quilio, that Mr. Petrovich did not possess apparent authority, that the Council never ratified the contract, and that Mr. Quilio was not entitled to compensation under the doctrine of unjust enrichment.

AFFIRMED.

      . La. C.C. art. 1843: Ratification
      Ratification is a declaration whereby a person gives his consent to an obligation incurred on his behalf by another without authority.
      An express act of ratification must evidence the intention to be bound by the ratified obligation.
      Tacit ratification results when a person, with knowledge of an obligation incurred on his behalf by another, accepts the benefit of that obligation.

      . La. C.C. art. 2298: Enrichment without cause; compensation reads, in pertinent part:
      A 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 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.


author: MICHAEL E. KIRBY, Judge.

text:
    Martinell JACKSON and Ida Williams v. Jerry J. COCKERHAM, Lou Gioe Trucking D/B/A Chalmette Truck Corporation and U.S. Capital Insurance Company.
    No. 2005-CA-0320.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 2006.

      Robert G. Harvey, Sr., 3431 Prytania Street, Tamara Kluger Jacobson, New Orleans, Counsel for Plaintiffs/Appellees.
    Terrill W. Boykin, Kriste L. Taitón, Bor-denave Boykin & Ehret, New Orleans, Counsel for Appellants (Rta and Tmsel).
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. MCKAY, III, Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

[ defendants, Regional Transit Authority (“RTA”) and Transit Management of Southeast Louisiana (“TMSEL”), appeal the October 18, 2004 trial court judgment in favor of plaintiffs, Martinell Jackson and Ida Williams, and against defendants.

On February 13, 1996, a tractor-trailer truck owned by Lou Gioe Trucking and operated by Jerry Cockerham struck a bus owned by the defendants and operated by plaintiff Ida Williams. Martinell Jackson was a guest passenger on the bus. U.S. Capital was the insurer of Mr. Cockerham and Lou Gioe Trucking, but later became insolvent and the Louisiana Insurance Guaranty Association (“LIGA”) became the successor in interest to U.S.Capital.

LIGA filed a motion for summary judgment seeking enforcement of La. R.S. 22:1386, known as the LIGA Credit Statute. LIGA argued that this statute required plaintiffs to recover against all other sources before the statutory LIGA limits would be available. At the time of the accident, the bus was self-insured by RTA/TMSEL for the first $1 million of liability, with Lexington Insurance 1 ^Company (“Lexington”) providing an additional $14 million in coverage. No uninsured/underinsured (“UM”) rejection form was signed when the Lexington policy was issued. In its motion for summary judgment, LIGA claimed that the $1,000,000.00 self-insured retention and the $14 million Lexington policy limits provided a total of $15 million in UM benefits that had to be exhausted before the LIGA limits would be available. At this point in the litigation, neither RTA nor TMSEL had yet been named as a defendant.

The trial court granted LIGA’s motion for summary judgment, finding that there was $1 million in UM coverage under the self-insured retention of the defendants and $14 million in UM coverage provided by Lexington. The court ruled that LIGA was entitled to a credit for the full $15 million in UM coverage, and dismissed LIGA from further proceedings after plaintiffs stipulated that their total damages did not exceed that amount. Following this judgment, the plaintiffs moved for a new trial and amended their petition to add RTA and TMSEL as defendants. While the motion for new trial was pending, LIGA filed another motion for summary judgment against defendants, urging the same argument as in its first motion for summary judgment, i.e. that under the applicable statutes, the self-insured retention of the defendants and the policy limits of the Lexington policy had to be exhausted before the LIGA limits would be available. The trial court granted LIGA’s second motion for summary judgment, and dismissed LIGA from the proceedings. Defendants appealed the trial court’s granting of the LIGA’s second motion for summary judgment.

| sThis Court affirmed the trial court’s judgment in Jackson v. Cockerham, 2002-2493 (La.App. 4 Cir. 5/21/03), 847 So.2d 698, writ denied, 2003-2207 (La.11/14/03), 858 So.2d 429. In that appeal, RTA and TMSEL argued that the self-insured retention does not qualify as a “policy” for purposes of the application of the LIGA Credit Statute, La. R.S. 22:1386. La. R.S. 22:1386(A) states as follows:

Any person having a claim against an insurer under any provision in an insurance policy, other than a policy of an insolvent insurer which is also a covered claim, shall be required first to exhaust his rights under such policy. Such other policies of insurance shall include but shall not be limited to liability coverage, uninsured or underinsured motorist liability coverage, or both, hospitalization, coverage under self-insurance certificates, coverage under a health maintenance organization or plan, preferred provider organization or plan, or similar plan, and any and all other medical expense coverage. All entities that are prohibited from recovering against the association, as specified in R.S. 22:1379(3)(b), shall also be considered insurers for purposes of this Subsection. As to the association, any amount payable by such other insurance shall act as a credit against the damages of the claimant, and the association shall not be liable for such portion of the damages of the claimant. In the case of a claimant alleging personal injury or death caused by exposure to asbestos fibers or other claim resulting from exposure to, release of, or contamination from any environmental pollutant or contaminant, such claimant must first exhaust any and all other insurance available to the insured for said claim for any policy period for which insurance is available before recovering from the association, even if an insolvent insurer provided the only coverage for one or more policy periods of the alleged exposure.

This Court noted that La. R.S. 22:1379(3)(b), which is referred to in La. R.S. 22:1386(A), specifically mentions entities that have a certificate of self-insurance. Applying La. R.S. 22:1386 as amended in 1999, this Court found that this statute conferred the status of “insurer” upon RTA/TMSEL. Because LIGA is to be an 1¿obligor of last resort, this Court held that plaintiffs had to exhaust the self-insured retention of RTA/TMSEL and the Lexington policy limits before the LIGA limits would become available. Furthermore, when considering La. R.S. 22:1406(D), governing the issuance of uninsured motorist coverage, along with public policy considerations favoring UM protection in general and for bus patrons in particular, this Court found that when read together, La. R.S. 22:1386 and 1406 lead to the result that RTA/TMSEL is an “insurer” and must provide UM coverage unless specifically rejected. Accordingly, this Court held that the plaintiffs were required to exhaust all $15 million in UM coverage afforded collectively by RTA/ TMSEL and Lexington before LIGA had exposure. This Court affirmed the trial court’s granting of LIGA’s second motion for summary judgment and dismissal of LIGA from this case due to the fact that the plaintiffs stipulated that their damages did not exceed $15 million.

Following this Court’s decision affirming the trial court’s dismissal of LIGA, plaintiffs’ claims against RTA and TMSEL proceeded to trial. Following trial, the trial court rendered judgment in favor of plaintiffs and against defendants. The court awarded plaintiff, Ida Williams, $10,000.00 in general damages, $2,145.00 in medical expenses and $1,781.28 in lost wages, together with judicial interest from the date of demand until paid and all costs of the proceedings. The court awarded plaintiff, Martinell Jackson, $300,000.00 in general damages, $11,741.46 in medical expenses and $19,800.00 in loss of earning capacity, together with judicial interest from the date of demand until paid and all costs of the proceedings. Defendants now appeal.

On appeal, the defendants argue that this Court’s previous decision- in Jackson v. Cockerham, 2002-2493 (La.App. 4 Cir. 5/21/03), 847 So.2d 698 was | incorrect, and that this Court should revisit its earlier ruling. The defendants argue that such reconsideration is allowed because the law of the case doctrine is discretionary and should not be invoked in cases of palpable error. Specifically, the defendants argue “the 1999 amendment to the LIGA Credit Statute did not overrule the long established precedent that self-insurers are not required to provide UM benefits.” We find no merit in the defendants’ argument that we should reconsider this Court’s previous decision in this matter, as we find that the earlier decision was well founded. The defendants provided UM coverage for this accident.

The defendants next argue that the trial court erred in finding that Mr. Jackson’s second knee surgery was causally related to the present accident, and in awarding excessive general damages to Mr. Jackson. The record shows that Mr. Jackson underwent arthroscopic surgery on July 9, 1997 for a tear to the anterior cruciate ligament (“ACL”) in his left knee and a large tear in the meniscus, which the trial court found were injuries sustained in the bus accident. In June 1998, Mr. Jackson was in another vehicular collision. He underwent an arthroplasty, or complete knee replacement, in June 1999. The defendants argue that the second knee surgery in 1999 was not related to the bus accident, citing the deposition testimony of Dr. Andrew Kucharchuk, Mr. Jackson’s orthopedic surgeon. Dr. Kucharchuk stated that the knee arthroplasty (second surgery) was 95% due to Mr. Jackson’s arthritis and 5% due to the vehicular collision that occurred after the bus accident at issue. Dr. Kucharchuk performed the 1997 arthroscopic surgery, but did not perform the 1999 arthroplasty. Dr. Kuchar-chuk’s deposition testimony was the only testimony by a physician in this case. Mr. Jackson’s medical records, [^including those relating to the 1997 arthroscopic surgery and the 1999 arthroplasty, were also introduced at trial.

In reasons for judgment, the trial court specifically rejected the defendants’ argument that the second knee surgery was not related to the bus accident. The court stated that prior to the second accident, Mr. Jackson had knee pain due to the tear in his meniscus and ACL. The tears were noted in an MRI taken two months after the bus accident and before the second accident in 1998. The trial court stated that the operative report of the second surgery at Charity Hospital indicates that the tears in the meniscus and ACL were repaired during the second surgery. The meniscus was removed, and the ACL was repaired. Noting that Dr. Kucharchuk assessed 95% of the need for the second surgery to Mr. Jackson’s arthritis and 5% to the second accident, the court found that the defendants are responsible for the repair of Mr. Jackson’s ACL and meniscus, and this was only accomplished in the second surgery.

A trial court’s findings of fact will not be set aside in the absence of manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). The operative report of the Medical Center of Louisiana at New Orleans (commonly referred to as Charity Hospital) regarding the June 14, 1999 arthroplasty supports the trial court’s conclusion that the repairs the Mr. Jackson’s ACL and meniscus were accomplished in that surgery. The medical records also show that an MRI taken several months after the bus accident and before the second accident revealed that the tears to the ACL and meniscus were present at that time and were causing Mr. Jackson pain. After reviewing the record as a whole, we conclude that the trial court’s finding that defendants are responsible for Mr. Jackson’s arthroplasty is reasonable, and will not be disturbed on appeal.

1 ./Defendants next complain that the trial court erred in awarding excessive general damages to Mr. Jackson. The trial court awarded Mr. Jackson general damages in the amount of $300,000.00. Most of defendants’ argument hinges on their earlier argument that the trial court erred in finding them hable for Mr. Jackson’s second surgery. As stated above, we find no merit in that argument. Furthermore, we note that the discretion vested in the trier of fact in the awarding of general damages is great, and even vast. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). Considering the injuries suffered by Mr. Jackson that have been related to the 1996 bus accident, and the surgical procedures performed as a result thereof, we do not find that the award of $300,000.00 in general damages to Mr. Jackson was excessive. This argument is also without merit.

Defendants also argue that the trial court erred in its award of special damages to Mr. Jackson. The trial court awarded Mr. Jackson $11,741.46 in medical special damages. Again, defendants’ argument regarding this item of damages hinges on its earlier argument that they are not responsible for Mr. Jackson’s second surgery. Having found that argument without merit, we likewise find that the argument that the trial court awarded excessive special damages is without merit.

The defendants’ next argument is that the trial court erred in awarding Mr. Jackson damages for loss of earning capacity. The trial court awarded Mr. Jackson $19,800.00 for loss of earning capacity. Defendants contend that there was no evidence presented to justify this award. Plaintiffs counter that the trial court’s award of damages for loss of earning capacity was supported by testimony presented at trial.

filn determining loss of earning capacity, the factfinder must consider the following factors: (1) the plaintiffs condition prior to the accident; (2) his work record prior to and after the accident; (3) his previous earnings; (4) the likelihood of his ability to earn a certain amount but for the accident; (5) the amount of work life remaining; (6) inflation; and (7) the plaintiffs employment opportunities before and after the accident. Fryson v. Dupre Transport, Inc., 2000-0858, p. 15 (La.App. 4 Cir. 8/29/01), 798 So.2d 1012, 1022-1023, citing Kennedy v. Columbus America Properties, L.L.C. ex rel. Joseph C. Canizaro Interests, 99-0940 (La.App. 4 Cir. 1/12/00), 751 So.2d 369. Under some circumstances, the plaintiffs own testimony, if credible and factually supported, will provide a sufficient basis for the factfin-der’s measurement of a loss of earning capacity. Id., p. 15, 798 So.2d at 1023, citing Lederer v. Famous Entertainment, Inc., 98-2274 (La.App. 4 Cir. 5/12/99), 732 So.2d 1277.

The trial court considered these factors, and stated in reasons for judgment that Mr. Jackson’s testimony regarding the number of hours he worked as well as the kind of work he performed prior to the accident was credible. The court noted that Mr. Jackson quit his job one week prior to the accident in order to search for a better-paying job, but was unable to find employment after the accident due to severe knee pain. The court found Mr. Jackson’s testimony regarding his knee pain to be credible.

However, the court found that there was no evidence showing that Mr. Jackson was physically unable to work after recuperating from his 1997 arthroscopic surgery. Accordingly, the trial court found that Mr. Jackson sustained a loss of earning capacity from February 14, 1996 until January 1, 1998, or six months after the 1997 arthroscopic surgery. The court found that a six-month | recuperative period following arthroscopic surgery was reasonable. The court awarded Mr. Jackson $19,800.00 for loss of earning capacity, and based this award upon his earning minimum wages and working forty hours per week.

Defendants incorrectly state in their appeal brief that the trial court only intended to award Mr. Jackson loss of earning capacity for the six-month recuperative period following the 1997 arthroscopic surgery. The court clearly stated that the award for loss of earning capacity was calculated from the date of the bus accident until after the six-month recuperative period following the 1997 surgery. In reasons for judgment, the court stated that Mr. Jackson sustained a loss of earning capacity from February 14, 1996 until January 1, 1998. The date of January 1, 1998 represented the end of the six-month recuperative period following Mr. Jackson’s July 1997 surgery.

Although Mr. Jackson’s testimony is the only evidence in the record presented on the issue of loss of earning capacity, the trial court found this evidence to be credible and a sufficient basis for measuring plaintiffs loss of earning capacity. We find no error in the trial court’s conclusion that Mr. Jackson is entitled to this award. Furthermore, we do not find that this item of damages was excessive or unreasonable.

Defendants next argue that the trial court erred in denying their motion for summary judgment regarding the exclusivity of the worker’s compensation scheme with respect to the claims of the bus driver, Ida Williams. They further argue that the trial court erred in awarding damages to Ms. Williams. Defendants also note that an exception of no cause of action was filed in this case asserting the Ms. Williams’ exclusive remedy is in worker’s compensation. Defendants contend that the exception was not heard or ruled upon by the trial court prior to the previous | inappeal, and this Court did not address the issue of the exclusivity of worker’s compensation in the previous appeal. After the previous appeal but prior to trial, defendants filed a motion for summary judgment, reiterating their position that Ms. Willliams’ exclusive remedy in this case is in worker’s compensation.

In the trial court’s March 23, 2004 judgment, the court denied defendants’ motion for summary judgment, finding that the trial and appellate courts have already addressed the issues presented in that motion. Ms. Williams argues that the trial court is correct in its statement that the issue of the exclusivity of worker’s compensation has already been considered. Specifically, Ms. Williams points out that the previous opinion of this Court referred to Ms. Williams as “the bus driver,” and included discussion of a Louisiana Supreme Court case that involved a claim for worker’s compensation benefits and its relationship to LIGA.

We disagree with Ms. Williams’ argument that this Court, in the previous opinion in this case, considered and rejected the defendants’ argument that Ms. Williams’ exclusive remedy is in worker’s compensation. A reference to Ms. Williams as the bus driver and the discussion of another case involving worker’s compensation did not constitute consideration of this argument. Ms. Williams does not allege in her brief that the trial court ruled on defendants’ exception of no cause of action, and there is no evidence in the record of any such ruling. We conclude that the trial court erred in finding that this Court in its previous opinion addressed the issue whether Ms. Williams’ exclusive remedy in this case is to receive worker’s compensation benefits. Having reached this conclusion, we must now consider the issue of whether Ms. Williams’ exclusive remedy is in worker’s compensation.

_LuLa. R.S. 23:1032 provides that an employee’s exclusive remedy against an employer for a work-related injury is the right to worker’s compensation benefits. An exception to this general rule exists when the employee’s injury or disease is the result of an intentional tort. There has been no allegation of intentional tort in this case.

It is undisputed that Ms. Williams was within the course and scope of her employment as a bus driver for defendants at the time of the accident at issue. Thus, the trial court erred in ruling that Ms. Williams is entitled to recover UM benefits from defendants for this accident. Ms. Williams’ exclusive remedy is worker’s compensation. Accordingly, the judgment awarding UM benefits to her is reversed.

Finally, defendants argue that the trial court erred in awarding judicial interest from the date that the original petition was filed because the defendants are political subdivisions that were not named as defendants in this lawsuit until almost five years after the filing of the original petition. Because we are reversing the portion of the trial court judgment awarding damages to Ms. Williams because her exclusive remedy against defendants is in worker’s compensation, this final argument only applies to the judgment in favor of Mr. Jackson. In its judgment, the trial court awarded judicial interest from date of demand on all damages. When the trial court stated its oral reasons for judgment following trial, the defendants questioned whether judicial interest would run from the date of the filing of the petition against the original defendants or from the date that the defendants in the instant appeal were served. The trial court clarified that its award of judicial interest was from the date of the original petition in this case.

| ^Defendants argue that La. R.S. 13:5112 dictates that judicial interest against a political subdivision accrues only from the date service is requested on it after the political subdivision has been sued. However, this argument ignores the fact that TMSEL was not granted political subdivision status by the Louisiana Legislature until 2004 when La. R.S. 13:5102 was amended to reflect this change in status. The original petition in this case was filed in 1997, and defendants were sued in 2001. The 2004 amendment to La. R.S. 13:5102 is substantive in nature, and is not entitled to retroactive application. See La. C.C. article 6.

The general rule is that legal interest runs from the plaintiffs first judicial claim against any party responsible for a single tortious act. Edwards v. Daugherty, 2003-2103, p. 23 (La.10/1/04), 883 So.2d 932, 947. Under the facts of this case, we conclude that the trial court correctly awarded judicial interest from the date of the original petition.

For the reasons stated above, the portion of the trial court judgment in favor of Mr. Martinell Jackson and against defendants is affirmed. The portion of the judgment in favor of Ms. Ida Williams and against defendants is reversed. Ms. Williams’ exclusive remedy for her injuries sustained in the February 13, 1996 accident is under the Louisiana Worker’s Compensation Act, La. 23:1201 et seq. Ms. Williams’ claims against defendants are dismissed with prejudice.

AFFIRMED IN PART; REVERSED IN PART