author: MOORE, J.

text:
    Thomas C. RODSUWAN, M.D., Plaintiff-Appellant v. CHRISTUS HEALTH NORTHERN LA d/b/a Christus Schumpert Health System, Defendant-Appellee.
    No. 41,043-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      McMichael, Medlin, D’Anna & Wedge-worth, L.L.C., by James C. McMichael, Jr., Mark S. Kavanaugh, Jr., Shreveport, for Appellant.
    Cook, Yancey, King & Galloway, by Charles W. Penrod, S. Price Barker, Shreveport, for Appellee.
    Before WILLIAMS, PEATROSS and MOORE, JJ.
   MOORE, J.

[t Dr. Thomas Rodsuwan appeals two provisions of a judgment arising from his contract dispute with his former employer, Christus Health Northern Louisiana, d/b/a Christus Schumpert Health System (“Christus”). For the reasons expressed, we affirm.

Provisions of the Contract

Dr. Rodsuwan, an internist, was hired by Christus in 1998 as director of the hospitalist program. He described a hos-pitalist as a doctor who “specializes in taking care of inpatients; we have no clinic, we don’t [do] any outside followup.” In March 2000, Christus gave him an employment agreement (referred to as the “physician’s agreement”) whereby he would provide medical services, generally 36 “bookable” hours per week of direct patient care, to patients at Christus. Issues on appeal concern only the compensation aspect of the physician’s agreement.

Compensation was based on a production standard called the Relative Value Unit or RVU. An attachment to the physician’s agreement entitled “Exhibit ‘B’— Production Compensation (RVU)” established three elements of compensation: RVU production compensation, bonus RVU production compensation, and on-call coverage compensation It set a maximum annual RVU compensation of $305,000 and allowed Dr. Rodsuwan to take a monthly draw of $12,500, subject to quarterly reconciliation of his RVUs. Rif he fell below quota, he would have to reimburse Chris-tus.

On-call coverage compensation was defined as follows:

5. Oiv-Call Coverage Compensation. For on-call coverage requested by Employer, other than coverage on the Bossier campus of the Schumpert Health System, Physician shall receive as compensation the greater of: (a) $58.30 per RVU generated as a result of such on-call coverage by Physician or (b) the rate of $65.00 per hour of coverage provided by physician. * * * RVUs generated by Physician while on call shall not be included in determining the Physician’s RVU Production Compensation or Physician’s Bonus RVU Production Compensation. * ⅜ *

Other provisions affecting Dr. Rodsu-wan’s compensation were set out in the body of the physician’s agreement:

1.7 Outside activities. Physician may not practice medicine outside the scope of this agreement without the pri- or written consent of the Employer’s administrator or designee. Physician shall not perform or provide any administrative, consultation or medical director services to any other hospital, nursing home, or other medical or health care related facility without the prior written consent of the Employer’s administrator or designee.
3.3 Billing and collection. With Physician’s advice, Employer will bill and collect for Physician’s professional services. All accounts receivable arising on account of Physician’s services (including without limitation patient fees, medical teaching and lecturing fees, and research grants) and all monies collected in respect thereof shall belong to Employer. Physician hereby authorized Employer to accept or refuse assignment of claims or benefits. Physician agrees to complete all insurance authorizations necessary to enable Employer to bill for Physician’s services. Physician agrees to take all additional steps reasonably requested by Employer to assist in the billing and collection of fees for Physician’s services, including, but not limited to, prompt endorsement and delivery to Employer of all checks for professional services rendered by or in the name of Physician. Under no circumstances shall Physician bill any patient or any public or private third-party reimbursement program for any services misperformed or rendered by Physician pursuant to this Agreement. (Emphasis added.)
4.4 Termination without cause. Notwithstanding anything to the contrary contained herein, either party may terminate this Agreement at any time, with or without cause, upon ninety (90) days prior written notice to the other party.

On August 16, 2001, Christus’s president and CEO, Wayne Sensor, advised Dr. Rod-suwan that Christus would be terminating them agreement pursuant to ¶ 4.4. Sensor’s letter stated that Christus “has elected to provided [sic ] you with ninety (90) days of compensation in lieu of services rendered for this period.” In person, Sensor told Dr. Rodsuwan that the board wanted to “take the hospitalist program in a different direction.” Sensor testified, however, that there had been issues with Dr. Rodsuwan’s plummeting RVU production, his failure to turn in a single time sheet during his 19 months as medical director, and his decreasing availability at Christus’s facilities. Christus gave Dr. Rodsuwan severance payments totaling $37,500, representing three months’ draws.

Procedural Background

Dr. Rodsuwan filed the instant suit in June 2002, claiming 90 days’ “full pay” (not just his draw) under the physician’s agreement, 90 days’ compensation for medical director services, penalties and attorney fees under the Wage Payment Act, La. R.S. 23:631.

Christus reconvened, urging that contrary to ¶ 1.7, Dr. Rodsuwan had been “moonlighting” at other hospitals without the consent of Christus’s administrator, and had generally failed to work the required hours and perform the required services under the physician’s agreement. Christus ^demanded, inter alia, all compensation earned from Dr. Rodsuwan’s moonlighting and reimbursement pursuant to the quarterly reconciliation of RVU production.

Christus later filed a request for admissions, asking Dr. Rodsuwan to admit that his only claims for recovery were “(1) Pay under your Medical Director Agreement with Christus Schumpert; (2) Bossier on-call compensation; (3) Production or bonus compensation under your employment agreement with Christus Schumpert; (4) Penalties under R.S. 23:631; (5) Interest; and (6) Attorney’s fees.” The response: “Rodsuwan admits that his current claims consist of items 1-6 in Request for Admission No. 6.”

The matter proceeded to trial in September 2004. Dr. Rodsuwan admitted failing to turn in time sheets, contrary to the medical director agreement. He also admitted that without Christus’s final approval, he began working at Northwest Developmental Center in July 2001, usually about 12 hours a week, but felt that Christus officials were aware of this and acquiesced in it. He introduced evidence of his total on-call earnings from both Christus Bossier and Christus Schumpert over the life of the physician’s agreement.

Christus’s CPA, Joseph David Taylor, testified that Dr. Rodsuwan’s RYU production had greatly diminished in 2001; for the 10½ months in which he took his $12,500 draw and a first-quarter bonus, he had generated RVUs worth only $92,352.78; consequently, he owed Chris-tus $21,738.60 based on quarterly reconciliation. Christus also introduced time sheets from [(¡Northwest Developmental Center showing that from July 1 through August 16, 2001, Dr. Rodsuwan received compensation totaling $19,169.50 from Northwest.

The district court filed written findings of fact and conclusions of law, first outlining the factual background. Addressing the parties’ respective demands, the court held:

(1) Dr. Rodsuwan owed Christus $21,738.60 in excess compensation (the court explicitly adopted CPA Joseph Taylor’s findings).
(2) Christus owed Dr. Rodsuwan $9,733.33 in severance pay for Christus Bossier on-call service (there is no mention of Christus Schumpert on-call service).
(3) Dr. Rodsuwan owed Christus the $19,169.50 he earned from Northwest while subject to the physician’s agreement, ¶ 3.3.
(4) Christus owed Dr. Rodsuwan nothing for medical director services, as he never filed any time sheets to document this claim.

In accordance with these findings, the court rendered judgment against Dr. Rod-suwan and in favor of Christus for $31,174.77. Dr. Rodsuwan has taken the instant appeal, contesting the denial of his claim for post-termination wages for Christus Schumpert on-call services and the award to Christus of all compensation he earned from Northwest Developmental Center.

Discussion: Christus Schumpert On-Call Wages

By his first assignment of error, Dr. Rodsuwan urges the court erred in denying his claim for post-termination wages for services he would have rendered at Christus Schumpert on-call. He contends that the physician’s | (¡agreement clearly entitled him to 90 days’ post-termination wages, and since the court awarded him Christus Bossier on-call wages, there was no rational basis to deny the Christus Schumpert on-call claim. He also shows that in his original petition, he prayed for “on-call coverage compensation.” Citing Christus’s payment summary, he shows that he averaged $3,413.17 per month in Christus Schumpert on-call compensation, so requests a judgment of $10,239.51 on this claim.

Christus concedes that the court allowed Dr. Rodsuwan to introduce evidence of his Christus Schumpert on-call compensation, but argues that Dr. Rodsuwan did not raise this particular claim in the trial court and cannot raise it for the first time on appeal. State v. Williams, 2002-1030 (La.10/15/02), 830 So.2d 984; Future Trends LLC v. DeGeorge, 05-355 (La.App. 5 Cir. 11/29/05), 917 So.2d 646. Specifically, Christas cites the answer to request for admissions No. 6, in which Dr. Rodsuwan admitted a claim only for “Bossier on-call compensation”; it contends that this conclusively established, under La. C.C.P. art. 1468, that he was not claiming Christas Schumpert on-call.

By reply brief, Dr. Rodsuwan urges that the Christas Schumpert on-call claim was actually regulated by Exhibit “B” to the physician’s agreement and thus was part of the “production or bonus compensation” which he claimed in the request for admissions.

We have closely read the physician’s agreement and find that under Exhibit “B,” ¶ 5, on-call compensation may indeed be calculated as a dollar amount for each RVU generated as a result of on-call service. The issue 17therefore is whether Dr. Rodsuwan waived his claim for Christas Schumpert on-call compensation by response to requests for admissions.

Pursuant to La. C.C.P. art. 1467, a party may serve upon any other party a written request for admission of the truth of any relevant matters of fact. Any matter deemed admitted under Art. 1467 is “conclusively established unless the court on motion permits withdrawal or amendment of the admission.” La. C.C.P. art. 1468. Admissions may be used to establish a controverted issue constituting the crux of the matter in litigation. Guo Jie v. Certified Lloyds Plan, 34,545 (La.App. 2 Cir. 4/4/01), 785 So.2d 118, and citations therein. The district court has broad discretion in regulating pretrial discovery, and its decisions will not be disturbed on appeal absent a clear abuse of that discretion. Moak v. Illinois Central R. Co., 93-0783 (La.1/14/94), 631 So.2d 401; Walker, Tooke & Lyons LLP v. Sapp, 37,966 (La.App. 2 Cir. 12/10/03), 862 So.2d 414, writ not cons., 2004-0088 (La.3/19/04), 869 So.2d 836.

When a judgment is silent with respect to any demand which was at issue under the pleadings, the silence constitutes an absolute rejection of the demand. Sun Finance Co. v. Jackson, 525 So.2d 532 (La.1988); Schaeffer v. Schaeffer, 40,562 (La.App. 2 Cir. 10/26/05), 914 So.2d 631.

Christas correctly shows that the petition alleged only “on-call coverage compensation” and made a general claim for “all amounts due under the employment contracts.” By requests for admission, Chris-tas listed six elements of economic loss— not including Christas Schumpert on-call— and asked Dr. Rodsuwan to admit that these were his only claims. He ^admitted it without clarification or limitation, and never moved to withdraw or amend his admission to include Christas Schumpert on-call. His pretrial memorandum, filed six days before trial, also did not specify any claim for Christas Shumpert on-call. In fact, the first mention of it occurred at trial, during cross examination of Chris-tus’s CPA, Joseph Taylor. Over Chris-tas’s objection, the court permitted Mr. Taylor to testify but made the objection “general” pending a review of the pleadings. The court’s silence is a tacit finding that Dr. Rodsuwan did not properly plead Christas Schumpert on-call; at any rate, the judgment absolutely rejected the claim. Schaeffer v. Schaeffer, supra.

On this record, we cannot say the district court abused its vast discretion. Moak v. Illinois Central R. Co., supra; Walker, Tooke & Lyons LLP v. Sapp, supra. The petition presented general claims arising out of two complex contracts; by discovery, Christas attempted to narrow the issues. Christas reasonably relied on Dr. Rodsuwan’s answer to the request for admissions, effectively denying the claim for Christus Schumpert on-call. The issue was not raised until late in the trial. Notably, Dr. Rodsuwan filed a motion for new trial which did not contest the rejection of Christus Schumpert on-call. While we recognize that a different pretrial strategy would have entitled Dr. Rod-suwan to press this claim, we cannot say the district court abused its discretion in finding that he repeatedly declined to do so. This assignment of error lacks merit.

19Outside Compensation

By his second assignment of error, Dr. Rodsuwan urges the court erred in finding the physician’s agreement contained a clause that entitled Christus to compensation he earned from Northwest Developmental Center. He contends that ¶ 3.3 is ambiguous in that it is limited to “accounts receivable” and “services” rendered at Christus; it does not necessarily extend to services performed elsewhere. He also contends, citing La. C.C. art. 2050, that if this passage is clear by itself, it is ambiguous in context: as a whole, ¶ 3.3 only makes Christus responsible for billing and collecting insurance for services rendered at Christus. He adds that Wayne Sensor, his supervisor, was always aware of his outside work but never took any action to recover his outside wages until after this suit was filed — thus proving the parties did not intend for Christus to own all his outside compensation. In support, he cites the “operation under the contract” rule of Total Minatome Corp. v. Union Texas Products Corp., 33,433 (La.App. 2 Cir. 8/23/00), 766 So.2d 685, and other cases.

Christus responds that ¶ 3.3 explicitly refers to “all accounts receivable” and thus makes Dr. Rodsuwan liable for all monies received from outside sources. It submits that the court’s reading of the physician’s agreement is reasonable and not plainly wrong.

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. The plain meaning rule of construction applies to employment contracts. Green v. New Orleans Saints, 2000-0795 (La.11/13/00), 781 So.2d 1199; Tompkins v. Sobering Corp., 441 So.2d 455 (La.App. 2 Cir.1983). Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050; Shepard v. Phycor of Ruston Inc., 29,181 (La.App. 2 Cir. 5/7/97), 711 So.2d 288. Courts should not resort to construction in pari materia when the contested provision is clear and explicit. Barrera v. Ciolino, 92-2844 (La.5/5/94), 636 So.2d 218.

The physician’s agreement, ¶ 3.3, provides, “All accounts receivable arising on account of Physician’s services (including without limitation patient fees * * *) and all monies collected in respect thereof shall belong to Employer.” Contrary to Dr. Rodsuwan’s argument, this is not limited to services rendered at Christus; it applies to all monies collected in respect to the physician’s services. We also find no ambiguity in the fact that ¶ 3.3 bears the heading “Billing and collection”; other provisions of the paragraph delineate Christus’s obligations in that area. The contested passage is, in our view, clear and explicit, but if corroboration were needed, we would note that ¶ 1.7 declares, “Physician may not practice medicine outside the scope of this agreement without the prior written consent of the Employer’s administrator or designee.” This is consistent with assigning to Christus Schumpert any compensation derived from prohibited outside employment. Dr. Rodsuwan’s suggested interpretation of ¶ 3.3 strikes us as strained and unreasonable, and the district court committed no error in dismissing it. This assignment of error lacks merit.

In Conclusion

For the reasons expressed, the judgment is affirmed. Appellate costs are to be paid by the appellant, Dr. Thomas C. Rodsuwan.

AFFIRMED.

      . Christus also gave him a “medical director agreement” which is not a subject of the appeal but is mentioned to give context to the litigation.

      . RVU was defined in part as "Relative Value Units factors utilized by Medicare associated with professional medical services personally provided by Physician as defined in accordance with the Physician’s Current Procedural Terminology Codes using solely the 'Work RVU’ factors published by the Health Care Financing Administration in its Resource Based Relative Value Scale '1999 National Physician Fee Schedule Relative Value File,' revised June 24, 1999.”

      .Separate provisions for on-call compensation at Christus’s Bossier City facility were set out in a letter dated January 23, 2001, and these are not at issue in the appeal.

      . An explicit finding by the district court in its written reasons would have been helpful to the parties and to this court for purposes of review.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Ardis Taft ALLEN, III, Appellant.
    No. 40,972-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      Randall R. Robinson, Bossier City, Francis E. Mouton, III, Darren C. Giles, for Appellant.
    J. Schuyler Marvin, District Attorney, Karen E. Stubbs, Assistant District Attorney, for Appellee.
    Before WILLIAMS, PEATROSS and MOORE, JJ.
   WILLIAMS, J.

_JjThe defendant, Ardis Taft Allen, III, was convicted of attempted armed robbery, in violation of LSA-R.S. 14:27 and 14:64, and two counts of aggravated battery, in violation of LSA-R.S. 14:34. He was sentenced to serve 35 years at hard labor without benefit of parole, probation or suspension of sentence for the attempted armed robbery conviction and 10 years at hard labor for each of the aggravated battery convictions. The sentences were ordered to be served concurrently. For the following reasons, we affirm the defendant’s convictions and sentences.

FACTS

On September 29, 1996, the defendant and his brother, Russell Allen, went to Boomtown Grocery in Haughton, Louisiana. The defendant entered the store armed with a gun and encountered Thelma Cunningham, the store’s 70-year-old owner, and her sister, Nellie Staton, a 77-year-old employee of the store. The defendant asked Cunningham for two beers. As Cunningham turned to retrieve the beers from the cooler, the defendant jumped over the counter area and began firing his weapon. He demanded money and threatened to kill the two women. Cunningham retrieved a pistol from the money box, turned and shot the defendant in the upper torso. The defendant then opened fire on both women. At some point during the exchange, Cunningham was shot in the arm. The defendant crawled to the door and called for help. Russell Allen dragged the defendant to his vehicle and drove away.

Russell Allen then called the authorities and reported that the defendant had been shot while driving the defendant’s Volvo. However, the ^officers investigating the shooting immediately discovered that the evidence did not match the reported scenario. The officers found that the Volvo’s engine was cool, while the hood of a blue pickup truck, owned by Russell Allen, was warm. Also, a substance that appeared to be blood was observed on the passenger’s side of the pickup truck. Both vehicles were impounded. Russell Allen then showed the officers a .22 caliber revolver that the defendant had asked him to hide.

During the investigations of the defendant’s shooting and of the attempted robbery of Boomtown Grocery, the investigative officers realized that the details of the two crimes coincided. Upon further questioning of witnesses, Russell Allen gave a statement implicating the defendant as the perpetrator of the attempted armed robbery of Boomtown Grocery. Subsequently, the defendant confessed to being the gunman in the attempted armed robbery.

The defendant was charged by bill of information with one count of attempted armed robbery and two counts of attempted first degree murder. He entered a guilty plea to one count of attempted first degree murder with a 30-year at hard labor sentence, and the other two counts were dismissed. The guilty plea was set aside through a post-conviction relief claim. See, State ex rel. Allen v. State, 2000-0220 (La.5/11/01), 792 So.2d 1. On remand, the defendant opted for a jury-trial and was convicted of one count of attempted armed robbery and two counts of aggravated battery. He was sentenced to 35 years at hard labor, without benefit of parole, probation or suspension of sentence for the attempted armed robbery conviction, and 10 years at hard |3labor on each of the aggravated battery convictions. The sentences were ordered to be served concurrently. The defendant was granted an out-of-time appeal.

DISCUSSION

Sufficiency of Evidence

In this assignment of error, the defendant contends the evidence is insufficient to support his conviction. Specifically, the defendant contends the state failed to produce any physical evidence at trial and instead relied on the testimony of “two elderly victims” who had not identified him as the perpetrator prior to the trial. The defendant further argues that no battery took place with regard to one of the victims, Nellie Staton, because she was not struck by a “bullet, flying debris or the defendant.”

Armed robbery is the taking of anything of value belonging to another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. LSA-R.S. 14:64. “Any person who, having a specific intent to commit [armed robbery], does ... an act for the purpose of and tending directly toward the accomplishment of his object, is guilty of an attempt to commit [armed robbery], and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.” See, LSA-R.S. 14:27(A).

At the time of the commission of the instant offense, first degree Rmurder was defined as follows:

(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of ... armed robbery, ... first degree robbery or simple robbery.
⅜ * *
(3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person;
* * *

Aggravated battery is a responsive verdict for attempted first degree murder. See, LSA-C.Cr.P. art. 814(A)(2). Battery is defined as the “intentional use of force or violence upon the person of another.... ” LSA-R.S. 14:33. Aggravated battery is a battery committed with a dangerous weapon. LSA-R.S. 14:34.

The proper standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to | ^conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

This court’s authority to review questions of fact in a criminal case is limited to the suffieieney-of-the-evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, State ex rel. Gilliam v. State, 2002-3090 (La.11/14/03), 858 So.2d 422. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App. 2d Cir.5/8/96), 674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760, 98-0282 (La.6/26/98), 719 So.2d 1048.

In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App. 2d Cir.4/12/96), 677 So.2d 1008 (on rehearing), writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

The record does not reflect that the defendant filed a motion for post-verdict judgment of acquittal pursuant to LSA-C.Cr.P. art. 821. However, lathis court will consider sufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App. 2d Cir.2/26/97), 691 So.2d 1273.

During the trial, Thelma Cunningham testified that the defendant, who had been in the store previously, came into the store and asked for two beers. She stated, “When I turned my back to pick the beer up, just as I picked the beer up out of the box I heard the shelf crack and he started cussing and shooting.” She' said he demanded money and said he “was going to kill us both.” She further testified “I knew that he was going to kill us because I figured he would have because it was the third time I had saw him [sic].” She testified that she got a gun out of the money box, turned and shot him. She was unsure whether she was shot before or after she shot the defendant.

On cross-examination, Cunningham described the area where she was shot as a 10 by 12-foot space, and she admitted that the bullet that hit her arm may have been from a ricochet shot. She stated that because of the close proximity, the defendant could have killed her had he wanted to do so.

Parts of Cunningham’s testimony were corroborated by the testimony of Nellie Staton, who also identified the defendant as the shooter. Staton testified that the defendant was waving the gun and shooting “just as far as his arm would go around.”

Further, the defendant’s brother, Russell Allen, testified that the defendant had a gun in his hand when he helped him leave the store. He identified the “small” gun shown in State’s Exhibit Number 2 as the gun that the defendant had asked him to put away in the house before the j^authorities arrived.

Moreover, the defendant’s own statement implicated him in this crime. In his October 3, 1996 statement to Detective Keith Pierce of the Bossier City Sheriffs Office, the defendant stated:

[W]e took off, got the gas, and went on over there, stopped at Boomtown Grocery. I asked [my brother] did he want a beer and he said yeh [sic], I went in. I ordered two Bud Lights and when the lady went to wait on me I pulled a gun on her and told her to give me the money. She turned towards the beer cooler and while she’s doing that I jumped up on a little shelf that’s on top of that doorway, sets the beer and stuff at [sic], and when she turned back around she shot me off the top of the thing.

The defendant further stated that he pulled his gun out and jumped on top of the counter “to try to get control of the situation.” The defendant expressed that he could have killed the women when he first entered the store, but his intention was “not murder at all.” He stated that he had been to the store at least 20 times prior to the night in question. He stated that he wanted to rob the store before, but when he started to pull his weapon out, another car entered the parking lot.

Based on the foregoing, we conclude that the record is sufficient to show that the defendant was the person who attempted to rob Boomtown Grocery, and he fired the shot that injured Cunningham. Therefore, the convictions for attempted armed robbery and aggravated battery of Cunningham are supported by the record.

| sWith regard to the conviction of aggravated battery of Staton, the defendant contends that no battery occurred because Staton was not struck by a bullet or any debris. The jury returned a responsive verdict of aggravated battery, and the sufficiency of that verdict depends on whether or not the evidence supports the elements of the greater offense of attempted first degree murder.

To convict a defendant of attempted first degree murder, the state must show beyond a reasonable doubt that the perpetrator had the specific intent to kill the victim, was engaged in the perpetration of an armed robbery, and, having such specific intent to kill, did an act for the purpose of and tending directly toward the accomplishment of the murder. State v. Carter, 34,677 (La.App. 2d Cir.5/9/01), 787 So.2d 509, writ denied, 2001-1707 (La.5/3/02), 815 So.2d 93. In Carter, this court stated:

A specific intent to kill may be reasonably inferred from the defendant’s intentional use of a deadly weapon in firing a shot aimed at the intended victim, along with the other circumstances of the case. State v. Tassin, 536 So.2d 402, 411 (La.1988), cert. denied, 493 U.S. 874, 110 S.Ct. 205, 107 L.Ed.2d 159 (1989); State v. Lee, 275 So.2d 757 (La.1973). To prove that the attempted murder occurred during the commission or attempted commission of an armed robbery, the State had to establish beyond a reasonable doubt that Carter took something of value from the victim or from under the control of the victim, through the use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64; State v. Bright, 98-0398 (La.4/11/00), 776 So.2d 1134, 1141. Specific intent is the state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1).

Carter, 787 So.2d at 513.

Although the defendant stated that he did not intend to Mil |3Cunningham and Staton, both women testified that the defendant threatened to Mil them prior to firing the shots. Cunningham testified that she thought that he had Mlled her sister and that he was going to Mil her as well. The defendant’s action in firing a sequence of gunshots into the confined space where the two women were standing implies that the defendant either intended to Mil both women, or he intended to inflict great bodily harm. See, State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/5/03), 852 So.2d 1020; State v. Johnson, 27,522 (La.App. 2d Cir.12/6/95), 665 So.2d 1237. For these reasons, we conclude that the evidence was sufficient to support the elements of the greater offense, attempted first degree murder. Accordingly, we conclude that the responsive verdict for attempted first degree murder, aggravated battery, is supported by the evidence.

Motion to Suppress

The defendant contends the trial court erred in denying the motion to suppress his confession. According to the defendant, his statement was given while he was hospitalized under an armed guard, and he was denied his right to counsel. The defendant also urges that he was under the influence of narcotics, and he was being treated for heroin addiction when the statement was given.

Before a confession can be introduced into evidence, the state must affirmatively prove that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or |inpromises as mandated by LSA-C.Cr.P. art. 703 and LSA-R.S. 15:451. The state must also establish that an accused, who makes a statement during custodial interrogation, was first advised of his Miranda rights. State v. Walker, 28,577 (La.App. 2d Cir.10/4/96), 681 So.2d 1023; State v. Taylor, 30,310 (La.App. 2d Cir.2/25/98), 709 So.2d 883.

A trial court’s findings following a free and voluntary hearing are entitled to great weight and will not be disturbed unless unsupported by the ¡n evidence. State v. Durr, 28,197 (La.App. 2d Cir.6/26/96), 677 So.2d 596; State v. English, 582 So.2d 1358 (La.App. 2d Cir.1991), unit denied, 584 So.2d 1172 (La.1991). Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Pittman, 585 So.2d 591 (La.App. 5th Cir.), writ denied, 586 So.2d 545 (La.1991). Police testimony may overcome a defendant’s claim that his statement was involuntary because he suffered from a wound or lack of sleep. State v. Billiot, 94-2419 (La.App. 1 Cir. 4/4/96), 672 So.2d 361, writ denied, 96-1149 (La.10/11/96), 680 So.2d 655. See also State v. Sharp, 35,714 (La.App. 2d Cir.2/27/02), 810 So.2d 1179.

In the instant case, Detective Pierce testified that the defendant was hospitalized and was being guarded when he gave his statement on October 3, 1996. The officer testified that he advised the defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the defendant understood those rights and voluntarily gave a statement because he “didn’t want to see his brother go to Angola Penitentiary.” The officer testified that the statement was recorded. The record contains a waiver of rights card, signed by the defendant, which shows that he was advised of his rights under Miranda, supra, and he waived those rights. During his testimony on re-direct, Detective Pierce | ^stated that the defendant did not appear to be incoherent when he gave his statement, and he made sure that the defendant understood his rights as set forth on the card. Detective Pierce stated that he would not have taken the statement if he thought the defendant was under the influence of any medications.

The defendant testified that he was being treated for heroin addiction and was under the influence of Methadone and Lor-tab at the time the statement was given. He stated, “You could look at my signature on that rights card and tell that I was on something when I signed my signature.” However, on cross-examination, the defendant admitted that he agreed to give a statement to keep his brother out of trouble.

In State v. Sharp, 35,714 (La.App. 2d Cir.2/27/02), 810 So.2d 1179, unit denied, 2002-1736 (La.6/6/03), 845 So.2d 1081, this court stated:

We likewise find no error in the trial court’s determination that this statement was admissible. The two interviewing officers’ testimony supports the conclusion that Sharp was alert when questioned and gave specific and coherent responses to the questions asked of him. With Sharp presenting no evidence to |iashow his being under the influence of pain medication, we conclude that the officers’ testimony is sufficient to overcome Sharp’s claim that the March 14th statement was not freely and voluntarily given because of the effects of prescription drugs. We, therefore, reject this argument.

In this case, there is nothing to indicate that the trial court erred in denying the defendant’s motion to suppress. Detective Pierce’s testimony supports a finding that the defendant was coherent and knowingly waived his rights and voluntarily gave his confession. A reading of the transcript of the defendant’s statement reveals that the defendant gave a very detailed account of the events of the attempted armed robbery. His responses to the detective’s questions were specific and coherent. Further, the defendant offered no evidence to support his claim that he was under the influence of prescription medication. In fact, his statement to the detective, made four days after the attempted robbery, reflects a clear recall of the events of the crime. Moreover, his testimony at trial indicates that he had total recollection, nearly eight years later, of the details surrounding the making of the statement. He was able to recall the name of the interviewing detective, the number of times the detective visited him during his hospitalization and the name of the armed guard posted in his room. Therefore, we conclude that the evidence is sufficient to overcome the defendant’s claim that his statement to Detective Pierce was not free and voluntarily given.

Furthermore, it should also be noted that even without the confession, the evidence overwhelmingly supports these convictions. Russell Allen | utestified that he drove the defendant to the grocery store. After the defendant entered the store, he “heard sounds ... maybe gunshots,” and noticed that the defendant was “sitting at the door.... He hollered for me to come get him.... He was bleeding.” Russell Allen also testified that the defendant had a “small black” gun in his hand.

Further, both victims identified the defendant as the armed man who attempted to rob the store. Cunningham testified that the defendant had been in the store before and that she could clearly identify him as the man who came in, demanded money and began shooting that evening. Staton also dramatically identified the defendant as the man who was “awaving [sic] that little pistol threatening to kill us every breath.” For these reasons, we find this assignment of error is without merit.

“Best Evidence”

The defendant also contends the trial court erred in allowing the state to present evidence of his confession, absent the best evidence of the same, i.e., the audiotape of the statement. The state, in its opening statement, asserted that it would be presenting an audiotape of the defendant’s confession. When it came time to present the tape, it was discovered that the tapes in the evidence packet did not contain the defendant’s confession. At that point, the defendant moved for a mistrial, which was denied. At a hearing conducted outside the presence of the jury, the trial court allowed a copy of the transcript of the taped conversation to be admitted into the record, ruling that the state had shown that the tape had been lost through no fault of its own, and there was no bad faith on the part of the state. The trial |1scourt further ruled that Detective Pierce could testify about what the defendant told him.

LSA-C.E. art. 1004 provides, in pertinent part:

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;
(2) Original not obtainable. No original can be obtained by any available judicial process or procedure;
* * *
(5) Impracticality of producing original. The original, because of its location, permanent fixture, or otherwise, cannot as a practical matter be produced in court; or the cost or other consideration to be incurred in securing the original is prohibitive and it appears that a copy will serve the evidentiary purpose.

At trial, Detective Pierce testified regarding the contents of the defendant’s statement. Nothing further was mentioned about the missing audiotape, and the transcript of the tape was not read to the jury. The defendant has not articulated how the trial court erred in its finding of “good faith” on the part of the state. The record is clear that the sheriffs department indicated that the tape, which had been in its possession, had presumably been misplaced in the years between the taking of the prior guilty plea in 1997 and the trial in 2004.

LSA-C.E. art. 1004 clearly provides that “other evidence of the |1ficontents of a ... recording is admissible” when “[a]ll originals are lost or have been destroyed” or “[n]o original can be obtained by any available judicial process or procedure ...” Therefore, we conclude that the trial court did not err in allowing Detective Pierce’s testimony and the transcript of the tape to be admitted into evidence.

Excessive Sentence

The defendant contends the sentences imposed are excessive. He argues the trial court failed to adequately consider the factors listed in LSA-C.Cr.P. art. 894.1. He specifically argues that the trial court failed to consider the mitigating circumstance that he is incapable of committing these types of offenses in the future since he is a paraplegic as a result of the gunshot wounds he received during this robbery. He further argues that he previously received only a 30-year term for attempted first degree murder when he entered a guilty plea and that the 35-year term for armed robbery “represents nothing more than punishment for defendant’s exercise of his constitutional rights.”

The record does not show that a motion to reconsider sentence was filed on behalf of the appellant. When a defendant fails to file a motion to reconsider sentence, pursuant to LSA-C.Cr.P. art. 881.1, the appellate court’s review is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App. 2d Cir.2/25/98), 707 So.2d 164. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of | ^justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. White, 37,815 (La.App. 2d Cir.12/17/03), 862 So.2d 1123.

LSA-R.S. 14:64 provides that whoever commits armed robbery shall be imprisoned at hard labor for not less than 10 years and for not more than 99 years, without benefit of parole, probation, or suspension of sentence. The attempt statute, LSA-R.S. 14:27, provides, in relevant part:

* * *
D. Whoever attempts to commit any crime shall be punished as follows:
* * ⅜
(3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

LSA-R.S. 14:34 provides that the penalty for aggravated battery shall be a fine of not more than five thousand dollars, imprisonment with or without hard labor for not more than ten years, or both.

In this case, the record reflects that the trial court considered the factors set forth in LSA-C.Cr.P. art. 894.1, including the fact that the defendant was “severely injured” during the commission of these crimes. The trial court noted defendant’s criminal history and the age of the victims. The attempted armed robbery sentence could have been 49½ years, instead of the 35 years imposed by the trial court. The maximum sentences for the aggravated battery convictions, 10 years each, while the maximum allowed | isby law, are not unconstitutionally excessive. Nothing was presented at the sentencing hearing or in this appellate brief to show that the sentences are too severe considering the circumstances.

Additionally, the defendant argues that the 35-year sentence for attempted armed robbery is excessive, since it is longer than the agreed-upon sentence previously ordered for the guilty plea to attempted first degree murder.

In State v. Rutledge, 259 La. 543, 250 So.2d 734 (1971), the defendant pled guilty to the charge of attempted simple escape and was sentenced to serve one year in prison. Thereafter, his conviction and sentence were vacated and set aside. New proceedings were instituted, and the defendant was found guilty by a jury. The trial court imposed a 2½ year sentence. The defendant objected to the sentence, contending the court could not constitutionally impose a greater sentence than the one-year sentence originally imposed. Quoting North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the court stated:

Whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

Rutledge, 250 So.2d at 737. The court concluded that the sentence was “constitutionally objectionable” under Pearce because the reasons for the ^disparity between the sentences did not appear in the record. The court remanded the matter “for correction of sentence under the rules prescribed by the Pearce decision as in the case of an illegal sentence.” Rutledge, 250 So.2d at 738.

In Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), the United States Supreme Court revisited its holding in Pearce, supra. In Smith, the defendant pled guilty to burglary and rape and was sentenced to concurrent terms of 30 years imprisonment for each conviction. Thereafter, he succeeded in having his guilty plea vacated. Following a trial, the jury found him guilty of burglary, rape and sodomy. The judge imposed a term of life imprisonment for the burglary conviction, a concurrent term of life imprisonment on the sodomy conviction and a consecutive term of 150 years imprisonment on the rape conviction. The trial judge explained that he was imposing a harsher sentence than that imposed following the guilty plea because the evidence presented at the trial revealed that the original sentence had been too lenient. The Supreme Court stated:

While the Pearce opinion appeared on its face to announce a rule of sweeping dimension, our subsequent cases have made clear that its presumption of vindictiveness “do[es] not apply in every case where a convicted defendant receives a higher sentence on retrial.” As we explained in Texas v. McCullough [475 U.S. at 138, 106 S.Ct. at 979], “the evil the [Pearce ] Court sought to prevent” was not the imposition of “enlarged sentences after a new trial” but “vindictiveness of a sentencing judge.”
* * *
|gnBecause the Pearce presumption “may operate in the absence of any proof of an improper motive and thus ... block a legitimate response to criminal conduct,” we have limited its application, like that of “other judicially created means of effectuating the rights secured by the [Constitution],” to circumstances “where its objectives are thought most efficaciously served.” Such circumstances are those in which there is a “reasonable likelihood,” that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority. Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness.

Alabama v. Smith, 490 U.S. at 799, 109 S.Ct. at 2204-05 (internal citations omitted).

In this case, the defendant did not put forth any evidence to indicate that the increased sentence was a product of actual vindictiveness. During the sentencing hearing, the trial court stated:

As it relates to your prior criminal history, the pre-sentence investigation indicates that in 1977, you pled guilty to the charge of simple burglary. You received a three-year hard labor sentence, suspended, three years active supervised probation. While on probation for the simple burglary, you committed the offense of armed robbery. You were convicted of that armed robbery ... and you received a twenty-five year hard labor sentence with the Department of Corrections. You served a majority of that twenty-five year hard labor sentence. It’s my understanding that you had not been released from the Department of Corrections when you committed this armed robbery or attempted armed robbery.

The trial court also noted that the defendant has been incarcerated for most of his adult life.

At the time the trial court imposed sentence based on the defendant’s guilty plea, it had not heard all of the evidence, including the testimony of the two elderly victims, the defendant and his brother. Further, it did not |2ihave the benefit of the pre-sentence investigation report, in which the defendant’s past criminal history and the impact on the victims were detailed. The newfound information about the nature of the instant crimes, the impact on the victims, as well as the defendant’s previous convictions, indicated that it was proper to increase the sentence beyond that which was imposed during the previous plea bargain. For these reasons, we find that the defendant’s argument lacks merit.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences are hereby affirmed.

AFFIRMED.

      . The order granting the out-of-time appeal was signed ex parte, and the state has not objected to this action. Under the holding in State v. Counterman, 475 So.2d 336 (La.1985), the trial court should have treated the motion as an application for post-conviction relief and given the state an opportunity to respond. However, the state's failure to timely seek review of the trial court's ruling precludes it from objecting to the ruling. State v. George, 39,959 (La.App. 2d Cir.10/26/05), 914 So.2d 588

      . We must note that the defendant’s statement was introduced into evidence but was not read to the jury. However, as noted infra, one of the investigating officers testified with regard to the contents of the defendant's statement.

      . LSA-C.Cr.P. art. 703 provides, in pertinent part:

      B. A defendant may move on any constitutional ground to suppress a confession or statement of any nature made by the defendant.

      D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant....

      G. When a ruling on a motion to suppress a confession or statement is adverse to the defendant, the state shall be required, prior to presenting the confession or statement to the jury, to introduce evidence concerning the circumstances surrounding the making of the confession or statement for the purpose of enabling the jury to determine the weight to be given the confession or statement. A ruling made adversely to the defendant prior to trial upon a motion to suppress a confession or statement does not prevent the defendant from introducing evidence during the trial concerning the circumstances surrounding the making of the confession or statement for the purpose of enabling the jury to determine the weight to be given the confession or statement.

      . LSA-R.S. 15:451 provides:
      Before what purposes to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.

      . The card provides:
      Bossier Parish Sheriff’s Office
      Benton, Louisiana
      Larry C. Deen, Sheriff
      I hereby notify you that you have a right to remain silent and you are not required to make any statement unless you want to do so voluntarily. Anything you say will be used against you in a court of law. You also have a right to consult with your attorney and to have him present with you. If you cannot afford an attorney, one will be appointed to represent you.
      While you are not required to make any statement, you may waive those rights just explained to you and you are given the privilege of saying anything you want to about this case. Now with this understanding and waiving those rights just explained to you, do you wish to make a statement and tell how this happened?
      /s/ Ardis T. Allen 10-3-96


author: DREW, J.

text:
    Willie James TYLER, Plaintiff-Appellant v. RAPID CASH, LLC, Defendant-Appellee.
    No. 40,656-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      Anthony J. Bruscato, Monroe, for Appellant, Willie James Tyler.
    Paul Loy Hurd, Matthew Maxwell Courtman, Monroe, for Appellees, Rapid Cash, LLC and James Hampton.
    Before BROWN, GASKINS and DREW, JJ.
   DREW, J.

| gillie Tyler appeals from a judgment of the Monroe City Court rejecting his demands against defendants, Rapid Cash, LLC (“Rapid Cash”), and James Hampton. We reverse.

FACTS

This dispute concerns the surrender by Mr. Tyler of his car to Hampton under an agreement executed by these two men at Hampton’s place of employment, Rapid Cash, in Monroe. Tyler urges that he is entitled to the return of his car or its value because the agreement was illegal.

Rapid Cash is a small finance company with offices in north Louisiana. At the time of the transaction in question, Hampton was the office manager at the Monroe location. He and three other family members own the company.

Tyler owned a 1991 Toyota Camry that he purchased in 2003 for $2,000.00. Tyler is a cancer patient and testified that he needed the car to drive from his home in Monroe to Shreveport for his cancer treatments. In March of 2004, Tyler met with an acquaintance from his neighborhood, Shawn Wilson, whose home had recently been burglarized. Tyler related that Wilson asked him if she could borrow money from him. She suggested that the two go to Rapid Cash, and Tyler agreed.

According to Hampton, Tyler first dealt with another employee of Rapid Cash but did not bring with him sufficient documentation of income that was required to obtain a loan from the business. Hampton testified that the other Rapid Cash employee then referred Tyler to him. Hampton testified that he then offered, in his individual capacity, to buy Tyler’s |2Camry from him for $225.00, and that Tyler accepted the offer. The two men executed a contract, printed from a Rapid Cash computer, which provided as follows:

Motor vehicle Bill of Sale
March 6, 2004
I Willie James Tyler ... sell outright to James Hampton ... one TOYT CAY (White) vin # .
Total agreed to price is $225.00. Payment is agreed by Seller and Buyer as: $225.00 non refundable payment, paid by cash on March 6, 2004. Buyer is responsible for all local, city, county and / or state taxes and / or tariffs resulting from purchase.
The above motor vehicle is being purchased by the buyer in an “as is” condition, with no stated or implied warranties by the seller, which is understood by the Buyer and Seller, at the time of this sale, to be no warranties what so ever.

Rapid Cash was not a named party to the transaction and did not loan Tyler any money. The agreement is signed by both Tyler and Hampton and is notarized and witnessed by two witnesses. Tyler acknowledged in court that he signed the agreement. Tyler also endorsed his certificate of title and gave it to Hampton. Tyler said that Wilson received the proceeds of the “sale” and moved away from the area without repaying the money.

Hampton did not take possession of the car at the time. As he explained in his testimony:

A: [0]n the 6th I told Mr. Tyler that I would take future delivery of the car. That he could either repay me the money after 14 days or I, he could drop the vehicle off at my office. And he did not do either. And so, I’m sure of the exact date uh, in between the 20th and say the 27th I uh, went to Mr. Tyler’s house and I picked up the vehicle personally. I said I’m here to pick up your, uh, the vehicle you sold me and he gave me the keys and uh.
_k- • • •
Q: Because he didn’t bring the money to you in 14 days you went down there and picked up the car?
A: Yes, sir.
Q: If he had brought the money to you within 14 days?
A: I would have voided the transaction.

Hampton recovered the car along with his brother Bill Hampton, another partner in Rapid Cash, whose personal vehicle is equipped with a tow boom. Hampton said that at the time he got the car from Tyler at Tyler’s house, Tyler told him that he wanted to void the transaction and repay the $225.00 by April 3, but Tyler did not come in and repay the money by that date. Hampton, who had performed some repairs on the car, then sold Tyler’s car to a third party at a wholesale price of around $1,000.00. Hampton estimated that he enters into between five and ten similar transactions per month with potential Rapid Cash customers who do not qualify for loans from Rapid Cash.

Tyler testified that when he went into Rapid Cash on March 6, he did not intend to sell his car, and in particular, he did not intend to sell his car for so little money. He explained that the car was in good working order. Tyler stated that he understood that he was putting his car up for collateral for a loan, and that he would lose his car if the loan were not repaid. Tyler did not testify about the time agreed upon for repayment of the loan, nor did he testify that the loan was to be repaid with interest. Tyler testified that when Hampton came to pick up the car from his residence, Hampton | ¿assured him that if he repaid the money, he would get his car back. Again, Tyler did not relate a time period agreed upon for repayment.

Tyler stated that on an unspecified date in late April or early May, Hampton’s secretary at Rapid Cash called to ask him to come in and repay the loan. Tyler stated that when he went to Rapid Cash with the money, likely early in May 2004 after receiving his Social Security check, Hampton told him that the car had already been sold. Tyler testified that in addition to losing the car, he had several hundred dollars’ worth of tools in the trunk of his car that he did not recover.

Orland Lloyd, used car sales manager at a local Toyota dealership, testified that a car like Tyler’s Camry would have been worth roughly $2,450.00, the National Automobile Dealers Association (“NADA”) book retail valuation. The notary who notarized the sale agreement, Marvin Ramsey, is in the used car business as well, and he testified at trial but did not see the car and did not offer a value for the car.

When Tyler was unable to retrieve his ear, he filed suit against Rapid Cash, seeking the value of the car as well as damages under the Louisiana Unfair Trade Practices and Consumer Protection Law (UTPCPL). He did not seek damages for the lost tools in the petition. At trial, Tyler was allowed to verbally amend his petition to add Hampton as a defendant but was not allowed to add a claim for the lost tools. After hearing the evidence, the court provided verbal reasons for deciding the case in favor of the defendants. The court concluded that the transaction was between Tyler and Hampton, so the court found no cause of action against Rapid Cash. IrThe court found that the transaction was lawful, that it was simply a “bad deal” for Tyler, and that Hampton was entitled to keep the car when Tyler failed to repay the money within two weeks. Tyler now appeals.

DISCUSSION

Tyler urges three assignments of error on appeal. The first two challenge the trial court’s ruling that the transaction was a valid conditional sale, and the third challenges the court’s refusal to award damages for conversion or the violation of the UTPCPL.

The written agreement between the parties in this case is a simple contract of sale. Even though the agreement appears to be invalid as an authentic act because no notary was present when the parties and witnesses signed, the agreement appears to be an act under private signature since Tyler acknowledged in court that he signed the document. La. C.C. arts. 1834 and 1836. Testimony may be admitted to prove that such an agreement was, inter alia, a simulation. La. C.C. art. 1848.

Both Taylor and Hampton testified that the written agreement did not encompass their entire agreement. Indeed, both testified that the “sale” agreement would be voided if Tyler repaid the loan. Hampton testified that the term of the loan was two weeks from its inception. Tyler did not testify about the term of the loan, but said that at the time Hampton took the car from his house in April, Hampton told him that he could get his car back if he repaid the money. Tyler did not testify about what time limit he understood to apply to this agreement. These two witnesses also disagreed | fiabout the dates of other events; Hampton said that he came to get the car in March, but Tyler remembered the event happening in April.

Regarding sales with a right of redemption, La. C.C. art. 2567 provides:

The parties to a contract of sale may agree that the seller shall have the right of redemption, which is the right to take back the thing from the buyer.

La. C.C. art. 2569 provides:

A sale with right of redemption is a simulation when the surrounding circumstances show that the true intent of the parties was to make a contract of security. When such is the case, any monies, fruits or other benefit received by the buyer as rent or otherwise may be regarded as interest subject to the usury laws.

It is significant that Tyler retained possession of the Camry after the sale. La. C.C. art. 2480 provides, “When the thing sold remains in the corporeal possession of the seller the sale is presumed to be a simulation-” Accordingly, given the evidence that Mr. Tyler retained the corporeal possession of the car after the “sale,” the sale is presumed to be a simulation. Moreover, La. C.C. art.2027 provides:

A simulation is relative when the pirties intend that their contract shall produce effects between them though different from those recited in their contract. A relative simulation produces between the parties the effects they intended if all requirements for those effects have been met.

Although the trial court’s findings of fact are subject to review under the manifest error standard, Stobart v. State of Louisiana, through Dep’t of Transp. and Development, 92-1328 (La.4/12/93), 617 So.2d 880, we are convinced that the only reasonable interpretation of the evidence is that this transaction was a simulated sale intended to establish a security interest in 17Hampton’s favor for a loan of $225.00. Both parties agreed that Tyler would not have to surrender the car if he repaid the sale price of $225.00, and the auto was likely worth between $1,000.00 (the actual resale “wholesale” price) and $2,450.00, the NADA Guide value. The “sale” was thus intended to serve only as collateral for the loan.

Hampton and Rapid Cash urge in brief that Tyler never raised in the trial court the operation of La. C.C. art. 2567. However, the evidence adduced at trial clearly raised the question of the characterization of this transaction as a conditional sale and, more particularly, a simulation where the true intent was to make a contract of security.

Contracts intended to create security interests have special requirements of form. La. R.S. 10:9-203 provides, in part:

(b) Enforceability. Except as otherwise provided in subsections (c) through (i), a security interest is enforceable against the debtor and third parties with respect to the collateral only if:
(1) value has been given;
(2) the debtor has rights in the collateral or the power to transfer rights in the collateral to a secured party; and
(3) one of the following conditions is met:
(A) the debtor has authenticated a security agreement that provides a description of the collateral....

Conditions (1) and (2) are satisfied in this case: the secured party paid the loan amount to Tyler, the owner of the car. However, we conclude that condition (3) is not satisfied. The evidence shows that no written security agreement was executed. According to La. R.S. 10:9-102:

(7) “Authenticate” means:
Ir(A) to sign; or
(B) to execute or otherwise adopt a symbol, or encrypt or similarly process a record in whole or in part, with the present intent of the authenticating person to identify the person and adopt or accept a record.
(73) “Security agreement” means an agreement that creates or provides for a security interest.

The parties’ verbal agreement fails to meet the formal criteria for authentication required by the commercial laws. See also La. C.C. art.1927.

In summary, the intent of the parties to this transaction was not to consummate the sale of the vehicle as recited in the written contract but rather to perfect a security interest for the loan from Hampton to Tyler. However, because the formal requirements for creating a security interest were not met, the security interest intended to be created never came into being. Ha. C.C. art.2027. Hence, Hampton had no right to take possession of Tyler’s automobile.

The evidence shows that Hampton is no longer in possession of the car. Given the evidence adduced at trial that the value of the car was somewhere between $1,000.00 and $2,450.00 and the fact that the proceeds of the loan to Mr. Tyler were, for various reasons, never returned to Mr. Hampton, we believe that an award of $1,700.00 for the value of the car in favor of Tyler and against Hampton and Rapid Cash is appropriate. Although Rapid Cash was not a listed party to the sale, Hampton had met with Tyler while he was working for Rapid Cash, a Rapid Cash employee | referred Tyler to Hampton who was in his capacity as office manager and part-owner of Rapid Cash, and the bill of sale was printed from a Rapid Cash computer.

The trial court was also clearly wrong in rejecting Tyler’s unfair trade practices demand. The UTPCPL, La. R.S. 51:1401, et seq., does not enumerate those instances of conduct that constitute unfair trade practices, but La. R.S. 51:1405(A) provides that “[ujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” What constitutes an unfair trade practice is determined on a case-by-case basis. A & W Sheet Metal, Inc. v. Berg Mechanical, Inc., 26,799 (La.App.2d Cir.4/5/95), 653 So.2d 158. In Berg, this court explained:

Conduct is deemed unlawful if it involves fraud, misrepresentation, deception, breach of fiduciary duty, or other unethical conduct. A practice is unfair when it offends established public policy and when the practice is unethical, oppressive, unscrupulous, or substantially injurious to consumers, including business competitors.

Id., 26,779, p. 10, 653 So.2d at 164. Citations omitted.

A private right of action for UTPCPL violations is set forth in La. R.S. 51:1409, which provides, in part:

A. Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recover actual damages. If the court finds the unfair or deceptive method, act or practice was knowingly used, after being put on notice by the director or attorney general, the court shall award three times the actual damages sustained. In the event that damages are awarded under this Section, the court shall award to the person bringing such action reasonable _[iSattorney’s fees and costs. Upon a finding by the court that an action under this section was groundless and brought in bad faith or for purposes of harassment, the court may award to the defendant reasonable attorney’s fees and costs.
B. Upon commencement of any action brought under Subsection A of this section, the plaintiffs attorney shall mail a copy of the petition to the attorney general and director, and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the attorney general and director, but failure to conform with this subsection shall not affect any of plaintiffs rights under this section.

This was not the first time that Hampton has used his position at Rapid Cash to acquire vehicles from clients who do not meet Rapid Cash’s loan requirements. He estimated that he enters into such arrangements on an average of five to ten times per month. Hampton’s self-help measure of taking possession of Tyler’s vehicle and selling it without resorting to judicial process offended public policy and was unethical. We award damages of $1,000.00 to Hampton for the inconvenience and loss of use incurred by him as a result of defendants’ actions. Furthermore, we tax reasonable attorney fees of $1,800.00 and costs against defendants.

CONCLUSION

We reverse the judgment of the trial court and award damages of $2,700.00 in favor of Willie James Tyler and against James Hampton and L-iRapid Cash, LLC. Attorney fees of $1,800.00 and court costs are assessed against James Hampton and Rapid Cash, LLC.

REVERSED.

GASKINS, J., concurs without written reasons.

      . La. R.S. 6:966 allows for the possession and disposition of collateral following default without previous citation and judgment to enforce a security interest evidenced by a security interest or lease. Prior to using this procedure, the secured party is to send notice in writing of the secured party's right to take possession of the collateral without further notice upon default. The notice is to include the language, "Louisiana law permits repossession of motor vehicles upon default without further notice or judicial process.”
      Hampton and Rapid Cash did not provide this required written notice. Moreover, there was not a properly executed security interest evidenced by a security agreement. Furthermore, it is not clear that Hampton and Rapid Cash are included within the individuals and institutions described in La. R.S. 6:966(C) that are eligible to use these self-help provisions.


text:
    K & J REFRIGERATION, Plaintiff-Appellant v. Loraine BOWMAN d/b/a Tasty Fried Chicken, Defendant-Appellee.
    No. 41,098-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      Hudson, Potts & Bernstein, L.L.P. by Jan P. Christiansen, Monroe, for Appellant.
    Ronald Kip Gates, Monroe, E. Roland Charles, for Appellee.
    Before BROWN, GASKINS and MOORE, JJ.
   MOORE, J.

_jjK & J Refrigeration (“K & J”) filed a suit on open account for $722.49 plus attorney fees against Loraine Bowman, d/b/a Tasty Fried Chicken in Grambling, Louisiana. Ms. Bowman answered the petition by denying she owed the debt and filed a reconventional demand claiming that, due to plaintiffs poor workmanship, she suffered approximately $34,000 in damages that included lost business, lost cooking shortening from a leaking cooker used to fry chicken, and damage to the floor of the premises. After trial, the court denied K & J recovery on open account and awarded Ms. Bowman $14,250 in damages. K & J filed this appeal. For the reasons that follow, we reverse the judgment of the trial court dismissing the suit on open account and render judgment for K & J Refrigeration. We also reverse the damage award in favor of Loraine Bowman d/b/a Tasty Fried Chicken.

Facts

Kenneth Naul and his son, Jeffery (“K & J”) operate a repair service out of Monroe, Louisiana. They are authorized to work on Frymaster systems of the kind owned and operated by Ms. Bowman’s chicken restaurant. The elder Naul worked for Burger King for 18 years as a service technician for cooking equipment. Ms. Bowman is the sole proprietor of her fried chicken business in Grambling, Louisiana, known as Tasty Fried Chicken.

The dispute between the parties in this instance involves a Frymaster two or three-vat fryer system in Ms. Bowman’s restaurant. According to K & J, Ms. Bowman initially contacted K & J in October of 1998 regarding a 12hood on one of the fryers, which K & J repaired. At that time, Ms. Bowman also asked K & J to check on a leaking fryer. K & J discovered that one of the vats, specifically, the vat on the left, had ruptured. K & J replaced the vat on November 6, 1998, and Ms. Bowman paid the bill. Ms. Bowman testified that despite the vat being replaced, the fryer on the left continued to leak. Additionally, she said that it began to smoke. She testified that K & J told her the smoking was due to cooking oil dripping on the cooker and that the leaking was because the hoses had become brittle.

Some 20 months after K & J replaced the vat, Ms. Bowman contacted K & J again in July of 2000 regarding problems she had controlling the temperature on the vat on the left. She said the problem was causing her to burn her chicken.

K & J made what appeared to be two service calls to replace the thermostat and hoses, as evidenced by an invoice dated July 7, 2000. According to K & J, while Jeff Naul was at Tasty Fried Chicken, he observed one of Ms. Bowman’s employees improperly placing a 50-lb. block of shortening into a fryer vat and turning on the heat. Ms. Bowman admitted at trial that K & J had informed her about this. According to K & J, the shortening must be packed into the fryer before the heat is turned on; otherwise, he said, the vat is subject to rupture. Jeff Naul stated that despite his warning, when he returned to the restaurant on a subsequent service call, one of Ms. Bowman’s employees was still using the incorrect procedure he previously observed. He also observed at that time that the other vat on the right was now ruptured and he so informed Ms. Bowman. He stated that |sMs. Bowman eventually hired another service repair company to bypass the ruptured vat. Mr. Naul also stated that he replaced the thermostat on the right cooker, not the left cooker as Ms. Bowman contends.

Ms. Bowman refused to pay the invoice for the work replacing the thermostat and hoses. K & J presented an invoice and testimony regarding its service calls to Tasty Fried Chicken, including an invoice for the $722.49 bill not paid by Ms. Bowman. The itemized charges for the invoice are $113.00 for two hours labor; $210.49 for a thermostat, $78.00 for three drain hoses; and $280 for 160 miles travel time and mileage; and $10.68 in finance charges.

Ms. Bowman testified that the system never stopped leaking, and, in fact, worsened after the 1998 service call when K & J replaced the vat. She testified that she lost approximately four or five blocks (50 lbs. each) of shortening each week due to the leak at a cost of $20-$23 per block. She stated that she lost between $18,000 to $19,000 over a two and one-half year period. Despite these losses, she did not get the leak fixed for another two and one-half years, when she paid Banner Commercial Kitchen Parts (“Banner”) to bypass the leaking vat for $164.96. Her stated reason for waiting so long to fix the leak was that she feared she would lose her warranty if she did not use a Frymaster-authorized service company, and K & J was the only one in the area. She stated that she called K & J and Frymaster about the problems but they did not fix them. She submitted no documentary evidence of Frymaster’s warranty requirements, nor letters or | ¿telephone records to support either of these claims, both of which are disputed by K& J.

In addition to the worsening leaking problem, Ms. Bowman testified that K & J’s poor workmanship caused her to burn her chicken and the vats to smoke. She said K & J came back and told her that it was not the vat that was leaking, but the cooker itself, and the smoking was caused by oil dripping but it would eventually burn off. She said that it would, in fact, burn itself off; however, the next time the oil was filtered, the smoking problem would start the problem again.

Ms. Bowman said that the third time K & J came out, they said that the hoses needed to be replaced because they had become brittle. She was also informed that the frying vat on the right was ruptured. She attributed the problems with the cooker on the right to K & J’s work on the vat on the left. The hoses were repaired, but Ms. Bowman stated that the leaking still did not stop from the vat system on the left, so she refused to pay the bill.

In addition to the lost cooking oil, Ms. Bowman contends that she had to replace her floor tile at a cost of $1601.35. She admitted that this bill was for replacing the entire floor in the restaurant. Kenneth and Jeffrey Naul contend that the floor around the cooker was in the condition of disrepair Ms. Bowman claims they caused when they initially made a service call. Finally, Ms. Bowman claims she lost business due to her inability to control the temperature of the cooking oil. In particular, she recalled that she could not serve a wedding party, and another customer told her that the chicken tasted bad.

IfiMs. Bowman produced at trial an invoice dated July 16, 2001, from Banner for $164.96. She stated that Banner fixed the leaking problem which was allegedly solved by putting gaskets on the hose connections, and told her that the Banner service man stated that K & J had replaced the hoses but not the gaskets. The Nauls testified that the gaskets replaced by Banner had nothing to do with the hoses, and were in fact, part of the drainage system on the pressure side of the cooker.

Ms. Bowman testified that she continued to have problems with the cooker on the right and that it would cost her more to repair the cooker than to simply purchase a new one. On Banner’s recommendation, Ms. Bowman called Deluxe Refrigeration (“Deluxe”), another service and repair firm, to disconnect the cooker on the right which was apparently still leaking. Mr. Tommy Theotis of Deluxe cut the dual cooker in half and bypassed the hoses leading to the filtration system of the cooker on the right. Mr. Theotis was initially present in the courtroom to testify at Ms. Bowman’s request, but he left the courtroom and did not testify. Ms. Bowman denied that Mr. Theotis did not testify because he would contradict her story, but because Mr. Theotis did not remember what she said he had told her.

After disconnecting the cooker on the right, Ms. Bowman stated that she continued to have thermostat problems with the cooker on the left, so she purchased a new single cooker replacing the disconnected cooker on the right. Now Ms. Bowman said they use only the one frying vat on the right.

One of Ms. Bowman’s employees, Nobie Scott, testified that the fryers were leaking and smoking and the situation worsened after K & J made | ¡^service calls. She did not know exactly what service work K & J performed, but knew K & J had replaced a frying vat. She admitted she never packed or cut up the blocks of shortening when preparing the vat for frying, but simply put the block of shortening in the vat and turned the heat on.

Ms. Scott was unable to recall the amount of time that elapsed between the service call when K & J replaced the vat and the subsequent service call when K & J replaced a thermostat. She also did not know which frying vat in which K & J replaced the thermostat. She stated that eventually they quit using the frying vat on the right. She stated that there were two frying vats for frying chicken, and she stated that the fryer on the left was the one that was leaking even after K & J’s repairs.

K & J disputed many of the contentions made by Ms. Bowman. Essentially, it contends that Ms. Bowman confused the leaking problems with the vat on the right with the vat on the left which it repaired. K & J said that the vat on the left continued to leak because the hoses needed to be replaced, which they eventually did. K & J stated that when it replaced the thermostat, it calibrated the dials on which the numbers to gauge the temperature had been worn away by placing a mark denoting 350 degrees on the dials. At the time it replaced the thermostat, K & J contends that the vat on the right was leaking because it had ruptured due to the improper practices in heating the shortening used by the restaurant.

K & J also disputed Ms. Bowman’s claim that it was the only service representative in the area for Frymaster. In fact, it contended that it had to work through Banner to get the Frymaster cooking vat and to return the 17ruptured vat.

The trial court denied K & J recovery of the $722.49 and its attorney fees, and it also found that K & J was negligent in making repairs. The court awarded Ms. Bowman $14,250 in damages, although it did not specify what damages that amount covered.

K & J filed this appeal raising eight assignments of error in the trial court findings, including the findings that Ms. Bowman was not indebted to K & J due to substandard work or negligence, and in the damage awards. Additionally, it alleges that the trial court erred in not finding that Ms. Bowman’s claim for damages had prescribed.

Discussion

Although the judgment of August 6 and the amended judgment of August 15, 2005 incorporated by reference into the final judgment of September 16 recounts the history of the dispute between Ms. Bowman and K & J, the court rendered no findings of fact, only legal conclusions. Nevertheless, we must give deference to the trier-of-fact under the manifest error standard for any facts in the record which reasonably support the finding of liability. Bolton v. Louisiana State Univ. Medical Ctr., 601 So.2d 677 (La.App. 2 Cir.1992).

A contract for work or service carries an implied obligation on the contractor to perform in a workmanlike manner, in default of which the obligor must respond in damages for the losses that may ensue. La. C.C. arts.1994 and 2769; Platt v. Interstate Dodge, 37,059 (La.App. 2 Cir. 4/9/03), 843 So.2d 1178; Gagliano v. Namias, 479 So.2d 23, 25 (La.App. 4 Cir.1985); Rogers v. Nelson Dodge, Inc., 407 So.2d 443 (La.App. 3 Cir.1981). In addition to contractual liability, this court has recognized that the obligor’s actions can also be considered as giving rise to a tort for the want of skill. Platt v. Interstate Dodge, supra; Moore v. McCullough, 573 So.2d 598 (LaApp. 2 Cir.1991); La. C.C. arts. 2315 and 2316. There must be some showing of want of skill, efficiency or knowledge or some lack of ordinary care in the performance of the work or in the selection of suitable equipment or materials. Platt v. Interstate Dodge, supra; Gagliano, supra.

In response to K & J’s petition on open account, Ms. Bowman denied the debt and filed a reconventional demand claiming that K & J’s repair work, including the work for the unpaid invoice, caused her damages. She contends that K & J’s repairs did not resolve the leaking problem and made matters worse by causing the cookers to smoke and burn her chicken. A plea that repairs are defective or unsatisfactory is an affirmative defense, and a litigant so pleading bears the burden of proving that defense by a preponderance of the evidence. La. C.C.P. art. 1005; Bohn Ford, Inc. v. Lanza, 347 So.2d 935 (La.App. 4 Cir.1977) (Citations omitted).

Our review of this record indicates that Ms. Bowman was having several problems with the cookers, including the oil leakage, smoking and the inability to control or gauge the temperature of the cooking oil. Ms. Bowman argued that all of these problems and resulting damages were causally related to the repair work performed by K & J. The question for this court, then, is whether the trial court’s conclusion that Ms. Bowman carried her burden of proof that K & J’s repairs were defective was manifestly | flerroneous.

After reviewing the record, we conclude that the trial court manifestly erred in finding that Ms. Bowman carried her burden of proof by a preponderance of the evidence that the repairs performed by K & J were defective. Ms. Bowman did not produce any evidence or independent testimony that the work performed by K & J, namely replacing the thermostat and hoses, was substandard or unnecessary. Although Ms. Bowman believed that leak problems were worsened by the work performed by K & J, there is no evidence other than her own testimony and her employee, Ms. Scott, that over time the leaks worsened, and at times, the fryers smoked and they had difficulty gauging the temperature of the cooking oil. There is no evidence that the leaks, smoking or temperature problems had anything to do with the thermostat that was replaced or the hoses that were replaced. Importantly, Ms. Bowman testified that she did not know whether the thermostat and hoses were replaced for the fryer on the left or right. Although her testimony is somewhat confusing, it is clear that the initial leakage was from the vat on the left, which K & J replaced, but the subsequent leakage occurred elsewhere, either from the vat on the right, which she admitted K & J told her was busted and leaking, or from other connections between the vats and the pump and filtration system. It was also clear from testimony that the numbers on the temperature dials on the fryers were completely worn away, so that K & J had to put a mark or piece of tape on the dial to indicate the proper frying temperature.

| inThe only evidence that Ms. Bowman presented that could have been related to replacement of the hoses is her testimony that Banner fixed the leak by putting gaskets on the hoses. However, her testimony was soundly rebutted by Jeffrey Naul, who explained that the gaskets that Banner replaced were completely unrelated to the hoses he replaced and had to do with gaskets on the pressure side of the drain above the pump.

Jeffrey Naul testified that he replaced the thermostat on the fryer on the right. He acknowledged that Ms. Bowman was still complaining about cooking oil leakage, and he informed her at that time that the vat on the right was now busted. He opined that the reason the vat busted was the defendant’s continued improper practice of heating the solid shortening without packing the vat so that the heat could be dissipated evenly. Regarding the hoses, he said that when they replaced the vat, the circulating pump hoses were stiff or brittle and needed to be replaced as a part of routine maintenance.

There was no independent expert opinion testimony presented in this case, however, as to the actual cause or causes of the oil leakage, smoking and temperature control problems in the cooker that resulted from substandard work by K & J. The only evidence in support of Ms. Bowman’s contention that the repair work was defective is the testimony of Ms. Bowman herself that the repair work by K & J did not solve the problems she was having with the cooker, but made them worse, and this was corroborated to some extent by one of her employees, Nobie Scott, whose testimony simply repeated that the cooker had smoking, leaking and Intemperature control problems.

In Bohn Ford, Inc. v. Lanza, supra, the Fourth Circuit reversed the trial court and upheld the plaintiffs suit on open account for automobile repairs it performed where the only evidence in the record relative to the defendant’s affirmative defense that the repairs to her automobile were defective was the testimony of the defendant herself that the car was in worse shape when returned after the first repair and still in bad shape after the second; it continued to have rattling noises in the motor, bucked and “didn’t run right.” Id. at 936. She subsequently brought the vehicle to another mechanic who did the repair work; however, she did not know what kind of repair work he had done. The court concluded that the evidence was not competent to prove the affirmative defense against the debt.

In Ray v. Martin, 117 So.2d 839 (La.App.Orleans 1960), the defendant refused to pay his plumber’s bill for repairs to his water pipe system claiming that the work was defective. In holding that the defendant failed to produce competent evidence to prove the affirmative defense, the court observed:

Defendant neither introduced expert testimony to establish poor workmanship nor did he subpoena a representative of the Sewerage & Water Board to verify noncompliance with its rules and regulations. He more pertinently failed to support his statement of employing another plumber to correct the defective work by having the plumber appear on his behalf herein, or by the introduction into the record of any other corroborative evidence.

Similarly, in this instance, the only proof in support of Ms. Bowman’s affirmative defense against payment of the invoice in question is her own lay testimony and that of Ms. Scott, neither of whom demonstrated any | ^knowledge of the system under repair, much less testified how the repair work done by K & J was defective. Nor is there evidence in this record from Banner or Deluxe to show that K & J’s work was defective or caused the problems in the cookers. The cooking system in her restaurant no doubt leaked cooking oil, smoked and caused other problems. Her frustration over the failure of K & J’s specific repair work to solve the leaking problem is understandable. Nevertheless, our law requires that this defense be substantiated with competent evidence.

For these reasons, we hold that the trial court manifestly erred in finding that Ms. Bowman proved by a preponderance of the evidence her affirmative defense against the open account debt for the repairs made by K & J. Accordingly, we reverse the judgment of the trial court dismissing K & J’s suit on open account and render judgment for K & J Refrigeration for $722.49, together with legal interest on the principal sum from the date payment was due, plus attorney fees in the amount of $1562.50.

The Reconventional Demand

For the same reasons, we also reverse the judgment of the trial court awarding damages for allegedly negligent work by K & J. The evidence to support Ms. Bowman’s claim of negligence in this record is based solely upon her testimony which fails to establish a causal relationship between the work performed by K & J Refrigeration and the damages she suffered due to leakage, smoking and temperature gauging. K & J did not cause the ruptured vat on the left that was causing the leak repaired in 1998, the leaking hoses, [iaor the faulty thermostat, nor did it cause the ruptured vat on the right about which Ms. Bowman acknowledged she was informed in July of 2000. Although Ms. Bowman complains that the leaks continued or worsened on the left side cooker after the left vat was replaced, she apparently waited 20 months before calling K & J again. She testified that K & J would not come to her restaurant unless they had other work in the area, and her warranty would not permit her to use any other service provider; however, she did not produce a copy of the warranty, nor competent testimony to prove this point, which was contested by K & J. She stated that she contacted Frymaster about the problem, but did not obtain permission to use another repair service until 2001 when she contacted Banner and Deluxe. All of these facts alleged are uncorroborated and contradicted by K & J in many instances.

Regarding the alleged damages, Ms. Bowman could not state how much the leaks allegedly worsened after K & J performed the initial repair for the leaking, ruptured vat, nor could she specify how much of the leaking came from the right side of the system. She testified that she was purchasing four to five extra blocks of cooking shortening per week, but she presented no documentary evidence to corroborate this claim nor did she present any documentary evidence of the cost of the shortening, although this latter fact was not contested. Ms. Bowman failed to show that the thermostats were installed improperly or the dials incorrectly calibrated so as to burn chicken, and there was no testimony that K <& J had improperly installed the thermostat or improperly calibrated the gauges to correct the 114problem.

Finally, we note that K & J contends that Ms. Bowman’s reconventional demand has prescribed. Ms. Bowman alleges that she began to incur damages due to K & J’s negligence in November of 1998 when K & J replaced the left side vat. Since the reconventional demand was not filed until March 16, 2001, the claim has arguably prescribed. La. G.C. art. 3482 and 3493; Cf La. C.C.P. art. 424. Because we hold that Ms. Bowman did not prove her claim that K & J was negligent or that its woi'k was defective, we pretermit any determination of whether K & J’s prescription argument has merit.

Conclusion

For the foregoing reasons, we reverse in its entirety the judgment of the trial court denying Ms. Bowman’s indebtedness to K & J Refrigeration and awarding her damages. We render judgment in favor of K & J Refrigeration for $722.49, together with legal interest on the principal sum from the date payment was due, plus attorney fees in the amount of $1562.50. Ms. Bowman is cast in judgment for the costs of this appeal.

REVERSED AND RENDERED.

      . There is some question whether the system contained two or three fryer vats; however, the testimony is fairly consistent that only two vats were used for frying chicken.

      . The record is inconsistent whether the company name is “Banner” or "Bana”.

      . This amount is based upon the affidavit of plaintiff’s attorney for the suit on open account in the record.