author: PETTIGREW, J.

text:
    Ronald and Bethany DIXON v. FIRST PREMIUM INSURANCE GROUP, et al.
    No. 2005 CA 0988.
    Court of Appeal of Louisiana, First Circuit.
    March 29, 2006.
    Writ Denied June 16, 2006.

      Bradley Berner, Thomas B. Waterman, Ponchatoula, for Plaintiffs-Appellees Ronald & Bethany Dixon.
    James A. Rowell, Travis L. Bourgeois, New Orleans, for Defendant-Appellant Copenhagen Re (UK) Limited.
    Before: GUIDRY, PETTIGREW, and GAIDRY, JJ.
   PETTIGREW, J.

| ¡.In this case, defendant challenges the trial court’s judgment in favor of plaintiffs awarding $163,284.50 in damages. For the reasons that follow, we reverse in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Ronald and Bethany Dixon (“the Dixons”), filed suit against Copenhagen Re (UK) Ltd. (“Copenhagen”) and Charter Insurance Agency, Inc. (“Charter”) on September 15, 2000, alleging damages from a fire that destroyed their home located at 298 President Hoover Street in Ponchatoula, Louisiana. According to the record, the Dixons obtained a homeowners’ policy with Copenhagen, through their insurance agent, Charter, in September 1998, insuring their home on President Hoover Street. The Dixons renewed the policy for another year in September 1999. Subsequently, on November 28, 1999, the Dixons purchased another home in Pon-chatoula, on Southeast Railroad Avenue. The Dixons moved into the Southeast Railroad Avenue home in December 1999, and a tenant, Cabay Route, began renting the house on President Hoover Street the following month. Mr. Route was residing in the President Hoover Street house at the time of the fire on February 1, 2000. Copenhagen denied the Dixons’ claims arising from the fire, on the grounds that the home was not their residence premises at the time of the loss.

Upon completion of discovery, the Dix-ons filed a motion for partial summary judgment against Charter on the issues of liability and damages. The Dixons also filed a motion for summary judgment against Copenhagen on the issue of coverage. In response to the Dixons’ motion, Charter filed a cross-motion for summary judgment alleging that the Copenhagen policy provided coverage for the Dixons’ loss, thus warranting summary judgment in favor of Charter dismissing the Dixons’ suit with prejudice. Copenhagen also filed a cross-motion for summary judgment asserting there was no coverage under the policy for the Dixons’ loss.

pOn August 26, 2002, the trial court heard arguments on the motions for partial summary judgment filed by the Dixons on the issues of liability, coverage, and damages. After considering the allegations contained in the,motion and the evidence submitted in support thereof, the trial court granted the Dixons’ motion for partial summary judgment, finding in favor of the Dixons and against Copenhagen and Charter in the amount of $56,000.00, reserving to the Dixons their claim for penalties and attorney fees, and reserving to Copenhagen and Charter their respective cross claims. The trial court signed a judgment to this effect on September 17, 2002, and later certified same as a final judgment.

Under our docket number 2002 CA 2653, Copenhagen and Charter appealed the September 17, 2002 judgment. In an unpublished opinion (“Dixon 1”) rendered on December 31, 2003, this court concluded there were material issues of fact remaining as to Charter’s liability and whether the Copenhagen policy provided coverage. Accordingly, we reversed the summary judgment and remanded for further proceedings.

While the above appeals were pending in this court, the Dixons’ claim that they were entitled to penalties and attorney fees pursuant to La. R.S. 22:658 and La. R.S. 22:1220 proceeded to a bench trial. Finding that Copenhagen breached its duties of good faith and fair dealing in failing to pay the Dixons’ claim, the trial court signed a judgment on April 9, 2003, awarding $10,000.00 to each plaintiff for emotional distress, $40,000.00 in penalties, and $46,400.00 in attorney fees. Copenhagen appealed. In a May 14, 2004 unpublished opinion (“Dixon 2”) under docket number 2003 CA 1506, this court concluded that because the question of Copenhagen’s liability remained unanswered, there could be no finding that Copenhagen breached its duties of good faith and fair dealing. Thus, we reversed the judgment and remanded for further proceedings.

14The matter proceeded to a bench trial on August 17, 2004, at which time the trial court learned that Charter was no longer a party to the litigation and would be dismissed without prejudice. Thereafter, the remaining parties, the Dixons and Copenhagen, presented testimony and various joint exhibits for the court to consider regarding the issues of coverage and damages. At the close of the evidence, the court took the matter under advisement and asked for post-trial briefs from the parties.

Subsequently, on November 10, 2004, the court issued written reasons for judgment finding that the Copenhagen policy provided coverage for the Dixons’ claim and that Copenhagen was arbitrary and capricious in its failure to timely pay the claim. With regard to damages, the court noted as follows:

The value of the loss of the dwelling was in the amount of $56,000.00. Plaintiffs are entitled to a loss of rentals in the amount of $350.00 per month beginning February 1, 2000 through the date of the trial and this amount [$18,900.00] is assessed as damages. Plaintiffs are entitled to 10% damages under [La.] R.S. 22:658 on the based sum of $56,000.00 or a sum of $5,600.00. Plaintiffs are entitled to double damages under R.S. 22:1220 on the amount of the foregone rent [$37,800.00].
Plaintiffs are entitled to general damages for mental anguish and emotional distress in the amount of $10,000.00 each.
Attorney’s fees are awarded in the amount of $24,984.50.

The court signed a judgment to this effect on January 10, 2005, awarding $163,284.50 in damages to the Dixons. Copenhagen timely filed a motion for new trial, which was denied by the court on January 24, 2005. It is from these judgments that Copenhagen has appealed, assigning the following specifications of error:

1. The District Court erred in finding that [Copenhagen’s] policy provides coverage.
2. The District Court erred in finding that [Copenhagen] breached its duties of good faith and fair dealing to the Dixons under La. R.S. 22:658 and La. R.S. 22:1220.
|fi3. The District Court erred in denying [Copenhagen’s] motion for involuntary dismissal and motion for new trial.
4. The District Court erred in granting penalties under both statutes.
5. The District Court erred in awarding lost rental income; alternatively, the award is excessive.
6. The District Court erred in awarding damages for emotional distress under La. R.S. 22:1220; alternatively, the award is excessive.
7. The District Court erred in awarding penalties under La. R.S. 22:1220.
8. The District Court erred in awarding attorney fees under La. R.S. 22:658; alternatively, the award is excessive.

COVERAGE UNDER COPENHAGEN’S POLICY

The issue of whether the Copenhagen policy provides coverage for the Dixons’ loss presents a question of law. When a decision by a trial court involves a legal question, this court owes no deference to the legal conclusions of the trial court. Rather, appellate review regarding questions of law is simply a review of whether the trial court was legally correct or legally incorrect. Snyder v. Belmont Homes, Inc., 2004-0445, p. 3 (La.App. 1 Cir. 2/16/05), 899 So.2d 57, 60, writ denied, 2005-1075 (La.6/17/05), 904 So.2d 699.

In Bennett v. Ragon, 2004-0706, pp. 5-6 (La.App. 1 Cir. 3/24/05), 907 So.2d 116, 120, this court addressed the general principles of insurance policy interpretation as follows:

An insurance policy is an agreement between the parties and should be construed according to general rules of contract interpretation. The judiciary’s role in interpreting insurance contracts is to determine the common intent of the parties to the contract. Unless the words of the policy have acquired a technical meaning, they are to be construed using their plain, ordinary, and generally prevailing meaning. The agreement must be enforced as written if the policy wording at issue is clear and expresses the intent of the parties. An insurance company may limit coverage in any manner, as long as the limitations do not conflict with statutory provisions or public policy. The exclusionary provisions of an insurance contract are strictly construed against the insurer, and any | fiambiguity in the exclusion is construed in favor of the insured. (Citations omitted.)

Section I of the Copenhagen policy provides, in pertinent part, as follows with regard to property damage and what is covered by the policy:

COVERAGE A — Dwelling
We cover:
1. The dwelling on the “residence premises” shown in the Declaration, including structures attached to the dwelling; and
2. Materials and supplies located on or next to the “residence premises” used to construct, alter or repair the dwelling or other structures on the “residence premises.”

The term “residence premises” is defined in the policy as follows:

“Residence premises” means:
a. The one family dwelling, other structures, and grounds; or
b. That part of any other building; where you reside and which is shown as the “residence premises” in the Declarations.
“Residence premises” also means a two family dwelling where you reside in at least one of the family units and which is shown as the “residence premises” in the Declarations.

As we did in Dixon 1, we acknowledge this language in the Copenhagen policy concerning “residence premises.” However, we are mindful of the provisions of La. R.S. 22:691 that set forth the form for all standard fire insurance policies issued in the State of Louisiana. “No policy or contract of fire insurance shall be made, issued or delivered by any insurer, or by any agent or representative thereof, on any property in this state, unless it shall conform as to all provisions, stipulations, agreements and conditions, with such form of policy.” La. R.S. 22:691(33). Pursuant to La. R.S. 22:691(F), the pertinent provisions of the standard fire insurance policy form provide as follows:

(2) SECOND PAGE OF STANDARD FIRE POLICY
Conditions suspending or restricting insurance. Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring:
(a) While the hazard is increased by any means within the control or knowledge of the insured; or
|7(b) While a described building, whether intended for occupancy by owner or tenant, is vacant, or unoccupied beyond a period of sixty consecutive days; or (c) As a result of explosion or riot, unless fire ensue, and in that event for loss by fire only.

Louisiana law statutorily incorporates these standard policy provisions in all fire insurance policies issued in the State of Louisiana. Thus, a sixty-day grace period is statutorily mandated wherein an insurance company is effectively prevented from terminating coverage unless the insured property remains vacant or unoccupied beyond a period of sixty consecutive days. Moreover, if the hazard is increased by any means within the control or knowledge of the insured, an insurance company can deny coverage for any loss occurring during such a period.

In the instant case, the Dixons moved out of their President Hoover Street home in December 1999. According to Mrs. Dixon, she notified Charter they intended to sell the President Hoover Street house but in the interim would rent the house and use the rental income to help pay for their new house on Southeast Railroad Avenue. As reflected in the record, Mrs. Dixon went to Charter on November 23, 1999, to discuss this matter, advising Charter that they only wanted insurance on the dwelling. The joint exhibit introduced into the record by the parties reads as follows: “Needs to just have dwelling insurance. Please drop contents, adj. structures, liability, loss use. Just $56,000 on dwelling.”

Mr. Route began renting the President Hoover Street house in January 2000. He was living there when the fire occurred approximately one month later. Thus, the President Hoover Street house was not vacant or unoccupied beyond the aforementioned sixty-day grace period. Accordingly, Copenhagen could not deny coverage unless, as it argues, the Dixons increased the hazard by renting the property to Mr. Route.

In Dixon 1, we noted the absence of any specific evidence that the Dixons increased the risk to Copenhagen by renting the property to Mr. Route. Moreover, we found various provisions in the Copenhagen policy that seemed to imply knowledge on the part of Copenhagen that the insureds may, at times, temporarily rent or lease the | Sinsured premises. Accordingly, we reversed the summary judgment on the issue of coverage and remanded for further proceedings.

The issue of coverage was again submitted to the trial court for consideration on August 17, 2004. At that time, Copenhagen failed to call any witnesses, instead relying on various joint exhibits that were introduced by the parties. Included in the exhibits was the transcript of the October 24, 2002 bench trial on the issue of penalties and attorney fees. On appeal, Copenhagen points to the October 24, 2002 testimony of Kevin Carter, Charter’s owner and manager, as support for its position that its risk was increased when the Dix-ons rented the President Hoover Street house to Mr. Route. However, we have reviewed the October 24, 2002 trial transcript and find very little difference between Mr. Carter’s testimony at that time and Mr. Carter’s deposition testimony that we previously considered and found to be insufficient to support Copenhagen’s position.

As further support for its position, Copenhagen contends this court should consider the affidavit of Ken Matlin, Copenhagen’s Claims Manager. However, according to the record, Copenhagen submitted this affidavit with its motion for new trial. The motion for new trial was denied by the trial court, and we have declined to disturb the court’s judgment in that regard. Thus, Mr. Matlin’s affidavit is not properly before us; we cannot consider the allegations contained therein in our review of this case.

This ease seems to have come full circle. We are back where we started when we first considered the coverage issue in Dixon 1. Again, Copenhagen has failed to produce evidence sufficient to support its allegation that the Dixons increased the hazard by renting the house to Mr. Route. Reviewing the Copenhagen policy and considering the pertinent provisions of the standard fire insurance policy form that must be incorporated therein, we see no valid basis for Copenhagen to deny coverage. Based on the unique facts and circumstances of this case, we conclude that the Dixons’ actions in renting the property to Mr. Route was not a “violation of the residency requirement” of the policy as is argued by Copenhagen on appeal. Accordingly, we find no legal error in the trial court’s decision that the Copenhagen policy provided coverage to the Dixons for their loss.

^PENALTIES AND ATTORNEY FEES

Several of Copenhagen’s assignments of error on appeal relate to the trial court’s award of penalties and attorney fees. Copenhagen contends the evidence does not support a finding that it breached its duties of good faith and fair dealing to the Dixons pursuant to La. R.S. 22:658 and La. R.S. 22:1220. Copenhagen maintains “[tjhere is simply no evidence in this record, nor any opinion from any persons, expert or lay, that [it] acted with a dishonest purpose or evil intent sufficient to constitute ‘bad faith,’ or that it acted ‘vexatiously,’ with willful and unreasoning abandon in denying coverage over the structure at issue.” Copenhagen argues further that even if the Dixons are entitled to penalties, the trial court erred in awarding penalties under both La. R.S. 22:658 and La. R.S. 22:1220. Moreover, with regard to the court’s award of attorney fees, Copenhagen alleges the award is grossly excessive and not supported by the- record. Thus, Copenhagen asserts, the award of attorney fees must be reduced.

At the outset, we note that the trial court’s conclusion with respect to the assessment of penalties and attorney fees is, in part, a factual determination. Thus, great deference must be accorded to the trial court. Its decision should not be disturbed on appeal in the absence of a finding that it was manifestly erroneous or clearly wrong. Ibrahim v. Hawkins, 2002-0350, p. 5 (La.App. 1 Cir. 2/14/03), 845 So.2d 471, 477. The issue to be resolved by the reviewing court is not whether the trial court was right or wrong, but whether the court’s conclusion -was a reasonable one in light of the record evidence. Stobart v. State through Dept. of Transp. and Development, 617 So.2d-880, 882 (La.1993).

At all times pertinent hereto, La. R.S. 22:658 mandated the imposition of penalties and attorney fees when an insurer fails to pay its insured in accord with the statutory provisions. It provided, in pertinent part, as follows:

A. (1) All insurers issuing any type of contract .. .■ shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.
|inB. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor, ... when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of ten percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, ... together with all reasonable attorney fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, ten percent of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney fees for the prosecution and collection of such amount.

Louisiana Revised Statutes 22:658 is penal in nature; as such, it must be strictly construed. Vaughn v. Franklin, 2000-0291, p. 15 (La.App. 1 Cir. 3/28/01), 785 So.2d 79, 91, writ denied, 2001-1551 (La.10/5/01), 798 So.2d 969. When an insurer is arbitrary or capricious in failing to unconditionally tender the undisputed amount due within thirty days of satisfactory proof of loss, La. R.S. 22:658 subjects the insurer to the mandatory imposition of penalties and attorney fees for the collection of such amount. Ibrahim, 2002-0350 at 4, 845 So.2d at 476.

Another statute allowing a court to impose penalties for an insurer’s failure to deal with its insured in good faith is La. R.S. 22:1220, which states, in pertinent part:

A. An insurer ... owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.

In Under this statute, when an insurer is found to have acted arbitrarily, capriciously, or without probable cause, the insurer shall be liable for damages sustained as a result of the breach, and may be assessed penalties not to exceed two times the damages sustained or five thousand dollars, whichever is greater. La. R.S. 22:1220(A) and (C); Calogero v. Safeway Ins. Co. of Louisiana, 99-1625, p. 5 (La.1/19/00), 753 So.2d 170,173.

There is a close relationship between the conduct described in La. R.S. 22:658(B)(1) and the conduct described in La. R.S. 22:1220(B)(5). See Theriot v. Midland Risk Ins. Co., 95-2895, p. 14 n.14 (La.5/20/97), 694 So.2d 184, 192 n. 14. In fact, the conduct is virtually identical, i.e., failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause. The primary difference is that under La. R.S. 22:658(A)(1) and (B)(1), the insurer must pay the claim within 30 days of receiving satisfactory proof of loss, rather than the longer 60-day period allowed under La. R.S. 22:1220(B)(5). Calogero, 99-1625 at 6-7, 753 So.2d at 174. Where La. R.S. 22:1220 provides the greater penalty, it supersedes La. R.S. 22:658, such that the insured cannot recover penalties under both statutes. However, because La. R.S. 22:1220 does not provide for attorney fees, the insured is entitled to recover the greater penalties under its provisions and attorney fees under La. R.S. 22:658 for its insurer’s arbitrary or capricious failure to timely pay his claim after receiving satisfactory proof of loss. Calogero, 99-1625 at 7, 753 So.2d at 174.

Arbitrary and Capricious

According to the record, the fire occurred on February 1, 2000. The Dix-ons reported the loss on the following day. Charter sent a Notice of Cancellation to the Dixons on March 8, 2000, advising them that their policy was cancelled effective February 2, 2000, because of the “TOTAL FIRE LOSS,” and returning $257.00 of the original policy premium to the Dix-ons. Subsequently, on May 3, 2000, an attorney representing Copenhagen sent a certified letter to the Dixons indicating that because l^they no longer resided at the President Hoover address, they were no longer afforded coverage under the Copenhagen policy. Thus, clearly relying on the wording of its policy, Copenhagen, through its attorney, advised the Dixons as follows: “Because you no longer resided at 298 President Hoover Street at the time of the fire loss, no coverage is available under the policy for destruction of the premises.”

In Dixon 1, this court considered the issue of coverage on review of a summary judgment granted in favor of the Dixons. While we acknowledged the language in the Copenhagen policy concerning the “residence premises,” we also noted the pertinent provisions of the standard fire insurance policy form that must be incorporated into the Copenhagen policy; i.e., that Copenhagen could not deny coverage unless the insured property remained vacant or unoccupied beyond a period of sixty consecutive days or if the hazard was increased by any means within the control or knowledge of the insured. See La. R.S. 22:691(F)(2). Noting that the premises were not vacant or unoccupied beyond the sixty-day grace period, this court concluded that Copenhagen could not deny coverage unless, as they argued, the Dixons increased the hazard by renting the property.

We concluded there were material issues of fact remaining as to Charter’s liability and whether the Copenhagen policy provided coverage. We noted that Charter’s owner and manager, Kevin Carter, had testified, by deposition, that in general insurance terms, when a homeowner moves out of a house and rents it to a tenant, it creates a greater risk for the insurer. Nonetheless, we found an absence of any specific testimony about the facts and circumstances of the instant case and whether there was an increase in risk for Copenhagen when the Dixons moved out of their President Hoover Street home and rented the house to Mr. Route. Accordingly, we reversed the summary judgment and remanded for further proceedings.

The matter proceeded to a bench trial on August 17, 2004, at which time Copenhagen failed to call any witnesses to testify. Rather, Copenhagen simply relied on various joint exhibits that were introduced, including the transcript of the October 24, 2002 bench trial. In the instant appeal, Copenhagen relies on Mr. Carter’s testimony from 1 iathe October 24, 2002 trial as support for its position that its risk was increased when the Dixons rented the house to Mr. Route. As previously indicated, we have reviewed the October 24, 2002 trial transcript and still find Mr. Carter’s testimony unpersuasive on this issue.

With regard to Copenhagen’s handling of the Dixons’ claim, the trial court made the following findings:

At the trial on the merits herein held on August 11, 2004, the defendant produced no evidence whatsoever in their case in chief and, in particular, no evidence that the rental of the dwelling in any fashion increased the moral hazard, thereby defeating coverage.
For these reasons, and for reasons previously assigned in awarding damages, the following supplemental facts are found to be true. The property was insured by Copenhagen. The property was totally destroyed in January, 2000. The insureds promptly filed a satisfactory proof of loss in writing on February 2, 2000, immediately after the loss. Copenhagen refused to pay under the terms of the policy and indicated their position by certified mail on May 3, 2000. Copenhagen has consistently refused to pay since that time. Copenhagen has consistently refused to pay since the Court of Appeal decision in this matter on December 31, 2003 which specifically pointed out that Copenhagen was required to rely more upon merely the fact that the insureds had rented the premises within the 60 day grace period. Copenhagen has produced no facts of record, and has uncovered no facts since the Court of Appeal decision and has not paid since the date of the trial, August 11, 2004, nor as of the date of this decision. I cannot envision a more arbitrary and capricious position for an insurance company to take.

Having thoroughly reviewed the record, we agree. We conclude there is sufficient evidentiary support for the trial court’s findings in this regard. Accordingly, we find no manifest error in the trial court’s conclusion that Copenhagen was arbitrary and capricious in its handling of Dixons’ claim.

La. R.S. 22:1220 Damages and Penalties

In awarding damages and penalties to the Dixons pursuant to La. R.S. 22:1220, the trial court concluded the Dixons were “entitled to a loss of rentals in the amount of $350.00 per month beginning February 1, 2000 through the date of the trial” ($18,900.00) as damages and double that amount ($37,800.00) as penalties.

On appeal, Copenhagen argues the trial court erred in awarding damages and penalties under La. R.S. 22:1220 based on the loss of rental income because there is no record evidence to support same. We find no merit to this argument. Whether a party |14has proven that he or she actually suffered damages as a result of an insurer’s breach is a factual determination to be made by the trial court. Graves v. Businelle Towing Corp., 95-1999, p. 6 (La.App. 1 Cir. 4/30/96), 673 So.2d 311, 315. As such, the court’s finding in this regard cannot be disturbed on appeal in the absence of manifest error. Stobart, 617 So.2d at 882.

Mrs. Dixon testified that it was their intent to rent the President Hoover Street house until such time that they could sell the house. The Dixons planned to use the rent money to help pay the mortgage note on their new house. Mr. Route began renting the house in January 2000 for $350.00 monthly rent, which is evidenced not only by Mrs. Dixon’s testimony, but also by the rent receipt that appears in the record. We have thoroughly reviewed the evidence in this case and are convinced that the trial court’s findings with regard to loss of rental income are reasonable in light of the record in its entirety. We see no manifest or reversible error in the court’s award of $18,900.00 in damages and $37,800.00 in penalties pursuant to La. R.S. 22:1220.

La. R.S. 22:658 Penalties

In addition to the damages and penalties awarded under La. R.S. 22:1220, the trial court imposed a penalty pursuant to La. R.S. 22:658 in the amount of $5,600.00, or “ten percent damages on the amount found to be due from the insurer to the insured.” Copenhagen contends on appeal that the court erred in awarding penalties under both statutes. We agree. Under the jurisprudence, where the provisions of La. R.S. 22:1220 provide the greater penalty, it supersedes La. R.S. 22:658, such that the insured cannot recover penalties under both statutes. Calogero, 99-1625 at 7, 753 So.2d at 174. Thus, the court’s award of La. R.S. 22:658 penalties in the amount of $5,600.00 must be reversed.

La. R.S. 22:658 Attorney Fees

In determining an award of attorney fees to be assessed under La. R.S. 22:658, the trial court should consider the services needed to effect recovery, the degree of professional skill and ability exercised, the volume of work performed, the time devoted to the case, the result obtained, the amount in controversy, the novelty and difficulty of |1fithe questions involved, and the percentage fixed for attorney fees in the plaintiffs contract. Kharled v. Windham, 94-2171, p. 11 (La.App. 1 Cir. 6/23/95), 657 So.2d 672, 680, writ dismissed, 95-1914 (La.11/1/95), 661 So.2d 1369. The trial court must base its award of attorney fees on the attorney’s efforts expended for “the prosecution and collection of’ the loss, that being the amount of any claim due the insured, rather than on the total recovery awarded. See Desoto v. Balbeisi, 2002-0169, p. 6 (La.App. 1 Cir. 12/20/02), 837 So.2d 48, 52, writ denied, 2003-0672 (La.5/9/03), 843 So.2d 399.

We have reviewed the evidence in this case and find that the record provides ample support for the trial court’s award of $24,984.50 in attorney fees. This matter was before the trial court numerous times over the past three years and is now before this court for the third time on appeal. The trial court was very familiar with the case and the work of the Dixons’ attorney. Moreover, the parties introduced a joint exhibit at the trial of this matter setting forth the pertinent contingency fee agreement and a statement of account itemizing the time spent by the Dixons’ attorney on the case. Counsel for both sides stipulated that if the Dixons’ attorney was called to testify, he would testify in accordance with same. Thus, the court’s award of $24,984.50 in attorney fees was appropriate and we decline to disturb the award on appeal.

MENTAL ANGUISH AND EMOTIONAL DISTRESS

Copenhagen argues on appeal that this court should reverse the trial court’s award of $20,000.00 to the Dixons in general damages for mental anguish and emotional distress. Citing La. Civ.Code art. 1998 and various cases concerning this issue, Copenhagen maintains that because the Dixons’ claims were based on an alleged breach of an insurance contract, their damages were limited to pecuniary losses flowing from the breach. We agree.

Article 1998 provides as follows with regard to damages for nonpecuniary loss:

Damages for nonpecuniary loss may be recovered when the contract, because of its nature, is intended to gratify a nonpecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss.
11fiRegardless of the nature of the contract, these damages may be recovered also when the obligor intended, through his failure, to aggrieve the feelings of the obligee.

It is well settled in Louisiana law that the object of a contract of insurance is the payment of money. Nickels v. Guarantee Trust Life Insurance Company, 563 So.2d 924, 927 (La.App. 1 Cir.1990). Thus, absent any evidence that Copenhagen intended to aggrieve the feelings of the Dixons, damages for nonpecuniary loss are not recoverable. There is no such evidence before us. Accordingly, we reverse that portion of the trial court’s judgment that awarded $20,000.00 to the Dixons in general damages for mental anguish and emotional distress.

CONCLUSION

For the above and foregoing reasons, we reverse the trial court’s judgment insofar as it awarded $5,600.00 in La. R.S. 22:658 penalties and $20,000.00 in general damages for mental anguish and emotional distress. In all other respects, the judgment is affirmed. All costs associated with the appeal of this matter are assessed against Copenhagen.

REVERSED IN PART; AFFIRMED IN PART.

      . The Dixons originally named First Premium Insurance Group, Inc. as a defendant, but later filed an amending petition correctly naming Copenhagen as their insurer.

      . According to the August 26, 2002 minute entry, the trial court also considered the motions for summary judgment filed by Copenhagen and Charter. The court took these matters under advisement and, later that same day, denied both motions. Copenhagen moved for a new trial on its motion for summary judgment, which was summarily denied by the trial court.

      . We note that Copenhagen has abandoned this argument by not briefing the issue. See Uniform Rules — Courts of Appeal, Rule 2-12.4. Nonetheless, even if Copenhagen had briefed the issue, the established rule in this circuit is that the denial of a motion for new trial is not an appealable judgment absent a showing of irreparable harm. LeBlanc v. City of Donaldsonville, 2003-2533, p. 5 (La.App. 1 Cir. 10/29/04), 897 So.2d 104, 107. There has been no showing of irreparable harm in this case.

      . Louisiana Revised Statutes 22:658(B)(1) was amended by 2003 La. Acts 790, § 1 to increase the "ten percent damages on the amount found to be due from the insurer to the insured” to twenty-five percent. The amendment also removed the award of attorney fees from this section of the statute.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Michael ALLEN.
    No. 2005 KA 1622.
    Court of Appeal of Louisiana, First Circuit.
    March 29, 2006.

      Hon. Camille A. Morvant II, District Attorney, Steven M. Miller, Assistant District Attorney, Thibodaux, for State of Louisiana.
    Katherine M. Franks, Slidell, for Defendant-Appellant Michael Allen.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

| sThe defendant, Michael Allen, was charged by amended bill of information with one count of second degree robbery, a violation of La. R.S. 14:64.4, and pled not guilty. He waived his right to a jury trial, and following a bench trial, was found guilty as charged. He was sentenced to twenty-five years at hard labor. He now appeals, designating five assignments of error. For the reasons that follow, we affirm the defendant’s conviction and sentence.

FACTS

The victim, Todd Anthony Cheramie, testified at trial. On August 17, 2004, at approximately 3:00 a.m., he was walking to work on Highway 1. Three men in a car offered the victim a ride, and he thanked the men, but declined the offer. Thereafter, the men returned and again offered the victim a ride. This time the victim accepted the offer and got into the back of the car. The back-seat passenger, later identified as Earl Anthony Curóle, Jr., struck the victim on the side of his head. The driver of the car, later identified as the defendant, drove the vehicle behind a car wash. The front-seat passenger, later identified as Troy Loupe, stated, “It won’t take long[,]” and indicated he had to take care of something. The defendant then exited the vehicle, went to the back of the car, and opened the door next to the victim. The defendant pulled the victim by his feet, while Curóle pushed him out of the car. The defendant dragged the victim onto the cement. The defendant repeatedly told the victim to, “Give it up, bitch,” held his legs, and searched through the victim’s shoes, while Curóle and Loupe kicked the victim in the face and the ribs. The defendant took a pack of cigarettes, the victim’s wallet, one dollar and fifty cents cash, some keys, and some marijuana from the victim’s pockets.

As a result of the injuries to his face and eye socket, the victim suffered pain and stayed home from work for approximately one week. He also suffered injuries to his l.jhands and ribs. When asked if the injuries he suffered hurt him, he stated he cried like a baby. At the time of trial, he was still having problems with his eyesight. He had good eyesight prior to being attacked.

The victim initially went to The Lady of the Sea Hospital for treatment, but then went to Terrebonne General Medical Center. At the latter hospital, his treating physician told him the bones of his left eye socket were fractured and that his eyes might come out of their sockets if he blew his nose and sneezed at the same time.

Dr. Jonathan Allen of Terrebonne General Medical Center also testified at trial. He treated the victim following the attack. The victim indicated he had been hit with an unknown object and punched and kicked. He rated his pain level, on a scale of one to ten, as a ten. He had soft tissue swelling in his hands, abrasions and contusions to both sides of his face, swelling and bruising to his left eye, and bruising to the left side of his face. A CAT scan of his face revealed an inferior orbital fracture or an inferior blowout fracture. Orbital fractures are generated primarily with trauma, usually from something small enough to fit inside the orbital rim. Dr. Allen indicated even a minor fracture of the orbital bone would be considered a serious injury, and based on his experience evaluating and treating patients with the injury, it would be painful.

The State also played the defendant’s August 25, 2004 audiotaped statement at trial. The defendant claimed he was driving a car with “Troy” in the back seat and “Earl” in the front seat and gave “a dude” a ride. According to the defendant, it was Troy’s idea to give the victim a ride. The defendant claimed the victim talked about marijuana, and he (the defendant) pulled the car over by the car wash. He claimed it was his, Troy’s, and Earl’s idea to pull the car over, and he intended to take the victim’s marijuana from him. The defendant claimed he then jumped out of the car and told the victim to “give it here.” The defendant claimed Earl started hitting the victim, and he (the defendant) “grabbed [the victim] out of the car” and put him down on the cement, where Troy and Earl kicked and punched the victim. The defendant denied taking off the victim’s shoes, but conceded he took a bag of marijuana out of the victim’s pocket.

I ¿SUFFICIENCY OF THE EVIDENCE

In assignment of error number 1, the defendant contends he was denied due process when the evidence introduced by the State was legally insufficient to support the verdict rendered by the trial court. He argues there was no testimony that he beat the victim, and thus, the trial court’s decision to convict him was irrational and must be overturned.

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, which states in part, “assuming every fact to be proved that the evidence tends to prove, in order to convict,” every reasonable hypothesis of innocence is excluded. State v. Wright, 98-0601, p. 2 (La.App. 1 Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157, 2000-0895 (La.11/17/00), 773 So.2d 732 (quoting La. R.S. 15:438).

When a conviction is based on both direct and circumstantial evidence, the reviewing court 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 the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 98-0601 at 3, 730 So.2d at 487.

Louisiana Revised Statutes 14:64.4, in pertinent part, provides:

A. (1) Second degree robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another when the offender intentionally inflicts serious bodily injury.
(2) For purposes of this Section, “serious bodily injury” means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

|fiThe defendant argues the language “when the offender intentionally inflicts serious bodily injury” contained in La. R.S. 14:64.4 is identical to language contained in La. R.S. 14:34.1, and thus, jurisprudence concerning the latter provision is instructive in analyzing whether La. R.S. 14:64.4 requires proof of general or specific intent. We agree, and find that La. R.S. 14:64.4 requires proof of specific intent. See State v. Fuller, 414 So.2d 306, 309-310 (La.1982) (holding the requirement in La. R.S. 14:34.1 that the serious bodily injury be intentionally inflicted indicated the legislature intended that second degree battery be a crime requiring specific criminal intent).

Specific criminal intent is that 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). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant’s actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the factfinder. State v. Buchanon, 95-0625, p. 4 (La.App. 1 Cir. 5/10/96), 673 So.2d 663, 665, writ denied, 96-1411 (La.12/6/96), 684 So.2d 923.

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24. However, the defendant’s mere presence at the scene is not enough to “concern” an individual in the crime. A principal may be connected only to those crimes for which he has the requisite mental state. State v. Hampton, 98-0331, p. 13 (La.4/23/99), 750 So.2d 867, 880, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999).

The trial court provided a detailed analysis of the proof offered by the State against the defendant and why that proof was sufficient to prove the charge. In regard to the proof of the intent element, the court noted:

|BThe State must further prove that the offender intentionally inflicted serious bodily injury. On this issue the evidence proves that Mr. Allen did not strike Mr. Cheramie, nor did he kick Mr. Cheramie. The issue then becomes whether or not Mr. Allen acted as a principal to the crime of second degree robbery.
Therefore, Mr. Allen can be a principal to the crime of second degree rob-
bery even if he did not physically strike the victim or kick the victim if the State proves beyond a reasonable doubt that he was concerned in the commission of the crime. In proof of this element of the crime, the State offered the testimony of Todd Cheramie. Todd Cheramie testified that the defendant dragged him by his feet from the motor vehicle and the defendant held the victim’s feet as he completed dragging him out of the vehicle at a position approximately two feet from the motor vehicle and began to remove the shoe or shoes of Mr. Cheramie apparently in some effort to locate some item of property upon Mr. Cheramie. And then began to touch the body of Mr. Cheramie and removed from Mr. Chera-mie’s pocket or pockets the dollar bill, approximately fifty cents in change, pack of cigarettes, wallet, driver’s license and marijuana all at the same time that Earl Curóle, Jr. and Troy Loupe were standing on either side of Todd Cheramie kicking him and striking him. Clearly this evidence proves beyond a reasonable doubt that the defendant, Michael Allen, was concerned in the commission of the crime of second degree robbery, or stated in another way set forth in the case law, that he participated in the commission of the crime of second degree robbery. He was accomplishing the taking of anything of value from the person of the victim while two codefendants were attempting to inflict bodily injury to Mr. Cheramie by striking him and kicking him.
Therefore, there is proof beyond a reasonable doubt that the defendant had the intent to inflict serious bodily injury upon Mr. Cheramie.

After a thorough review of the record, we are convinced the evidence presented herein, viewed in the light most favorable to the State, proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree robbery and the defendant’s identity as a perpetrator of that offense. The facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence were sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant had the specific intent to inflict serious bodily injury on the victim during the offense. The defendant was not merely present at the scene. He knowingly participated in the execution of the offense against the victim and played an integral part in the completion of the offense. The defendant drove the vehicle while the victim was beaten by Curóle and Loupe. Furthermore, the defendant dragged the victim |7out of the vehicle, demanded the victim’s property, and forcefully removed the property from the victim while the defendant’s accomplices viciously beat the victim to prevent his resistance. This assignment of error is without merit.

WAIVER OF RIGHT TO JURY TRIAL

In assignment of error number 2, the defendant contends he was denied his right to a jury trial pursuant to U.S. Const. amend. VI, and La. Const. art. I, § 17, when the trial court tried this case without obtaining a clear, knowing, and voluntary waiver from him.

Both the United States Constitution and the Louisiana Constitution expressly guarantee a criminal defendant the right to a jury trial. U.S. Const. amend. VI; La. Const. art. I, §§ 16,17. However, some criminal defendants may, pursuant to statute, waive this constitutionally guaranteed right, provided the waiver of the right is knowingly and intelligently made. La. Code Crim. P. art. 780(A). State v. Brooks, 2001-1138, p. 5 (La.App. 1 Cir. 3/28/02), 814 So.2d 72, 76, writ denied, 2002-1215 (La.11/22/02), 829 So.2d 1037.

A valid waiver of the right to a jury trial must be established by a contemporaneous record setting forth an apprisal of that right followed by a knowing and intelligent waiver by the accused. Waiver of this right is never presumed. See La. Code Crim. P. art. 780(A). Brooks, 2001-1138 at 5, 814 So.2d at 76. However, prior to accepting a jury trial waiver, the trial court is not obligated to conduct a personal colloquy inquiring into the defendant’s educational background, literacy, and work history. Brooks, 2001-1138 at 7, 814 So.2d at 77.

In the instant case, the trial court correctly accepted the defendant’s waiver of his right to a jury trial as knowingly and intelligently made. Prior to trial, the defendant appeared before the court with counsel, and counsel indicated that the defendant wished to waive his right to a jury trial. The court advised the defendant he had the right to a trial by a jury composed of twelve jurors and asked him if he understood that right. The defendant answered affirmatively. The court advised the defendant that he also had the right to waive his right to a jury trial and have his case decided by a judge. The defendant indicated he understood. The court advised the defendant that if he waived |Rhis right to a jury trial, he would not be able to change his mind and request a jury trial later. The defendant indicated he understood. The court gave the defendant the opportunity to again confer with his attorney before deciding whether he wanted to waive his right to a jury trial, and the defendant declined that opportunity. The court then asked the defendant if he wanted a trial by jury or did he waive his right to trial by jury. The defendant replied, “Waive a trial by jury. Trial without a jury.” The court asked the defendant if he was requesting a trial without a jury, and the defendant answered affirmatively. Clearly, this colloquy establishes that the defendant was apprised of his right to waive a jury trial and that he knowingly and intelligently did so. This assignment of error is without merit.

EXCESSIVE SENTENCE/INEFFECTIVE ASSISTANCE OF COUNSEL

In assignment of error number 3, the defendant contends the sentence imposed by the trial court was unconstitutionally excessive and was based upon his decision to exercise his constitutional right to a trial, an impermissible sentencing factor. In assignment of error number 4, the defendant contends trial counsel was ineffective in failing to ask for reconsideration of the twenty-five year sentence based in part upon an impermissible sentencing factor. We will address assignment of error number 3, even in the absence of a timely motion to reconsider sentence or a contemporaneous objection, because it would be necessary to do so as part of the analysis of the ineffective assistance of counsel claim. See State v. Bickham, 98-1839, pp. 7-8 (La.App. 1 Cir. 6/25/99), 739 So.2d 887, 891-892.

A claim of ineffectiveness of counsel is analyzed under the two pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorney’s performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense. This element requires a showing that the errors were so serious that defendant was deprived of a fair trial; the |ndefendant must prove actual prejudice before relief will be granted. It is not sufficient for defendant to show that the error had some conceivable effect on the outcome of the proceeding. Rather, he must show that but for the counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Further, it is unnecessary to address the issues of both counsel’s performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 859-860 (La.App. 1 Cir.1992), writ denied, 614 So.2d 1263 (La.1998).

The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence. La.Code Crim. P. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision. State v. Hurst, 99-2868, p. 10 (La.App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La.10/5/01), 798 So.2d 962.

Article I, section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one’s sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. Hurst, 99-2868 at 10-11, 797 So.2d at 83.

hoWhoever commits the crime of second degree robbery shall be imprisoned at hard labor for not less that three years and not more than forty years. La. R.S. 14:64.4(B). The defendant was sentenced to twenty-five years at hard labor.

At sentencing, the court noted the defendant’s criminal history indicated he had three prior felony convictions, specifically, convictions for simple burglary, and two convictions for possession of cocaine. As a result of those convictions, the defendant had been incarcerated on two occasions and his parole had been revoked on one occasion.

In regard to the evidence introduced at trial, the court found the evidence proved beyond a reasonable doubt that the defendant’s conduct during the commission of the offense manifested deliberate cruelty to the victim. The court also noted the instant offense was a crime of violence, and the defendant had committed the crime to obtain a controlled dangerous substance. The court rejected the alleged mitigating circumstance feat the defendant was “only considered a principal” to the offense, noting that being a principal to an offense was not a mitigating circumstance, especially when the defendant had physically held the victim while the defendant’s accomplices kicked the victim. The court also rejected the alleged mitigating circumstance that Curóle had received “only” an eight-year sentence, noting Curóle had availed himself of a plea agreement and it had not been necessary for a trial to be undertaken to prove his guilt.

The court also rejected the alleged mitigating circumstances that the defendant was mentally challenged, a high-school drop out, addicted to cocaine, and homeless. The court noted it did not consider any of the aforesaid conditions to be mitigating factors, and moreover, no evidence had been presented that the defendant suffered from mental illness or had an IQ of 70 or less. The court stated it had considered the defendant’s age of twenty-eight years in determining an appropriate sentence. The court also stated it had considered the fact that the defendant had no other convictions for crimes of violence.

The court conceded the defendant’s pri- or criminal history included many misdemeanors, but noted it also included three felony convictions, two terms of incarceration, and a revocation of parole. The court rejected the defendant’s claim that In he had shown remorse for the victim, noting the only time the defendant showed remorse was after he was being investigated as one of the parties who committed the robbery.

The court did not dispute that the victim did not lose any bodily organs or limbs as a result of the offense, but noted the evidence proved beyond a reasonable doubt that he suffered a fracture of the orbit of his eye during the offense and had to take narcotic pain medication over ten hours after being attacked. The court noted it had taken into consideration the fact that there was no proof of permanent impairment of the victim’s eye.

Additionally, the court determined there was an undue risk that during the period of a suspended sentence, the defendant would commit another crime; that the defendant was in need of correctional treatment; and that a lesser sentence would minimize the seriousness of the defendant’s offense.

A thorough review of the record reveals the trial court adequately considered the criteria of Article 894.1 and did not manifestly abuse its discretion in imposing the sentence herein. Further, the sentence imposed was not grossly disproportionate to the severity of the offense, and thus, was not unconstitutionally excessive.

The defendant argues the trial court’s comment concerning the fact a trial had not been necessary for Curóle indicated the court punished him (the defendant) for exercising his constitutional right to stand trial. We disagree. The court’s comment concerning Curole’s case was made in addressing the defendant’s claim that Curole’s eight-year sentence for committing the offense mitigated against a lengthier sentence for the defendant.

The defendant also argues the court should not have considered the fact the defendant was a convicted felon and had a lengthy arrest record because those facts were not encompassed within the verdict. We disagree. The sources of information relied upon by the sentencing court are varied and may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrest as well as conviction records. State v. Myles, 94-0217, p. 2 (La.6/3/94), 638 So.2d 218, 219 (per curiam).

|12Any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 2355, 147 L.Ed.2d 435 (2000); Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 1224 n. 6, 143 L.Ed.2d 311 (1999). The statutory maximum for Ap-prendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004). (Emphasis in original.)

Neither the defendant’s prior convictions nor his prior arrests increased the maximum penalty for the instant offense.

In regard to the defendant’s ineffective assistance of counsel claim, we note, even assuming arguendo, defense counsel performed deficiently in failing to timely move for reconsideration of the sentence, the defendant suffered no prejudice from the deficient performance because this court considered the defendant’s excessive sentence argument in connection with the ineffective assistance of counsel claim.

These assignments of error are without merit.

PATENT ERROR

In reviewing the record for patent error, pursuant to La.Code Crim. P. art. 920(2), we have discovered the bill of information filed against the defendant in this matter was not signed by the district attorney or by one of his assistants on his behalf.

Louisiana Code of Criminal Procedure article 384, in pertinent part, provides, “[a]n information is a written accusation of crime made by the district attorney ... and signed by him.” However, by presenting the case at trial, the prosecution fully ratified the filing of formal charges; and, therefore, any protection afforded to the accused and to society by the requirement that the district attorney’s signature appear on the bill of information was 11sfully accorded herein. Further, although the failure of the district attorney to sign the bill of information is a ground for quashing the information, the defendant’s failure to file a motion to quash waived his right to complain of the failure of the prosecutor to sign the bill of information. See State v. Thompson, 543 So.2d 1132, 1135 (La.App. 1 Cir.1989).

CONCLUSION

For the above and foregoing reasons, we affirm the defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . Assignment of error number 5 alleges patent error due to the lack of a signed bill of information and lack of an affirmative jury trial waiver. We address the lack of a signed bill of information in the patent error section of this opinion and address the jury trial waiver issue in connection with assignment of error number 2.

      . In any event, the rule of Apprendi makes exception for prior convictions because they are the product of proceedings that afford crucial procedural protections, particularly, fair notice, the right to jury trial, and proof beyond a reasonable doubt. State v. Brown, 2003-2788, p. 22 (La.7/6/04), 879 So.2d 1276, 1290, cert. denied, 543 U.S. 1177, 125 S.Ct. 1310, 161 L.Ed.2d 161 (2005).


text:
    David M. GASPARD v. Cecil M. GRAVES, Jr. and Debbie H. Graves.
    No. 2005 CA 1042.
    Court of Appeal of Louisiana, First Circuit.
    March 29, 2006.
    Writ Denied June 16, 2006.

      Donald G. Cave, Baton Rouge, for Plaintiff-lst Appellant David M. Gaspard.
    Stephen W. Glusman, Baton Rouge, for Intervenor-2nd Appellant Louisiana Automobile Dealers Association.
    David M. Lefeve, Baton Rouge, for Defendants-Appellees Cecil M. Graves, Jr. and Debbie H. Graves.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

pin this case, plaintiff challenges the trial court’s judgment granting summary judgment in favor of defendants and dismissing his claim for damages. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 26, 1998, plaintiff, David M. Gaspard (“Mr.Gaspard”), filed suit against defendants, Cecil M. Graves, Jr. and Debbie H. Graves, seeking damages for injuries he sustained on premises owned by defendants when he allegedly fell down a flight of stairs due to a defectively attached handrail. At the time of Mr. Gas-pard’s accident, defendants had leased the building in question to Cecil Graves Chevrolet, Inc. (“Graves Chevrolet”), Mr. Gas-pard’s employer. Mr. Gaspard asserted defendants were negligent under La. Civ. Code art. 2317.1 as the owners of a defec-five thing. In the alternative, he alleged defendants were guilty of negligence or fault pursuant to La. Civ.Code art. 2315. Louisiana Automobile Dealers Association, S.I.F. intervened, seeking reimbursement for workers’ compensation benefits paid to Mr. Gaspard as a result of this accident.

In response to Mr. Gaspard’s petition for damages, defendants filed an answer generally denying the allegations contained therein. Thereafter, defendants filed a motion for summary judgment seeking dismissal from the lawsuit as to claims filed by Mr. Gaspard. Defendants argued that they were entitled to protection from tort liability pursuant to La. R.S. 23:1032. Following a hearing on said motion, the trial court signed |sa judgment on February 26, 2003, granting defendants’ motion and dismissing Mr. Gaspard’s suit. Mr. Gaspard appealed.

Finding that defendants failed in their burden on the motion for summary judgment by not introducing any evidence in support thereof, this court reversed the trial court’s judgment and remanded the matter for further proceedings. Gaspard v. Graves, 2003-0844, p. 4 (La.App. 1 Cir. 2/23/04), 874 So.2d 181, 183. Defendants then filed a second motion for summary judgment, raising the same argument regarding tort immunity proscribed by La. R.S. 23:1032. In support of their motion, defendants submitted a copy of Mr. Gas-pard’s petition for damages, the affidavits of Mr. and Mrs. Graves, and a copy of the commercial lease between defendants and Graves Chevrolet. Mr. Gaspard opposed defendants’ motion, offering the deposition of Mr. Graves as support for his position.

On August 25, 2004, the trial court heard arguments on the motion for summary judgment. After considering the applicable law and evidence in the record, the trial court granted summary judgment in favor of defendants, dismissing, with prejudice, Mr. Gaspard’s claim for damages. The trial court signed a judgment in accordance with these findings on March 29, 2005, designating said judgment as a final judgment pursuant to La.Code Civ. P. art. 1915. It is from this judgment that Mr. Gaspard filed the instant appeal, arguing the trial court erred in granting summary judgment in favor of defendants. The narrow issue presented for our review is whether the exclusivity or immunity provision of La. R.S. 23:1032 bars Mr. Gaspard from suing defendants as stockholders, directors, and employees of Graves Chevrolet.

In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Henderson v. Kingpin Development Co., 2001-2115, p. 4 (La.App. 1 Cir. 8/6/03), 859 So.2d 122, 126. Summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in the light of the substantive law applicable to the case. Davis v. Specialty Diving, Inc., 98-0458, 98-0459, p. 5 (La.App. 1 Cir. 4/1/99), 740 So.2d 666, 669, writ denied, 99-1852 (La.10/8/99), 750 So.2d 972.

On a motion for summary judgment, the initial burden of proof remains with the mover. If, however, the moving party will not bear the burden of proof at trial on the matter before the court on the motion, the moving party must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and summary judgment must be granted. La.Code Civ. P. art. 966(C)(2); Boland v. West Feliciana Parish Police Jury, 2003-1297, p. 4 (La.App. 1 Cir. 6/25/04), 878 So.2d 808, 813.

The dual capacity theory or doctrine cited in La. R.S. 23:1032 was discussed by the Louisiana Supreme Court in Stelly v. Overhead Door Co. of Baton Rouge, 94-0569, p. 5 (La.12/8/94), 646 So.2d 905, 910, as follows:

Louisiana’s dual capacity theory or doctrine pertains to employers with multiple relationships, connections or involvement to the employee’s injury and/or the cause of the injury, which ordinarily would result in liability being imposed upon the employer by operation of law in addition to the provisions of the Worker’s Compensation Act. The dual capacity doctrine limits the injured employee’s recovery to worker’s compensation benefits, precluding the pursuit of their tort claims against their employer.

Thus, La. R.S. 23:1032 bars suits by employees against their employers, and those others grouped with employers, such as officers and stockholders, under a dual capacity theory. In such a case, “an employer’s second capacity is inextricably intertwined with his capacity as employer.” Wright v. State, 93-3095, p. 4 (La.7/5/94), 639 So.2d 258, 260. The employer “occu-pie[s] dual roles with dual responsibilities toward the employee at the time of the work-related accident.” Wright, 93-3095 at 5, 639 So.2d at 260.

15We have thoroughly reviewed the instant record and agree with the trial court’s conclusion that summary judgment was appropriate in this case. Although Mr. Gaspard argues that his suit against defendants is based on their personal liability as owners of the building in question, it is clear that he is attempting to circumvent the tort immunity prescribed in La. R.S. 23:1032.

It is undisputed that Mr. Gaspard was in the course and scope of his employment with Graves Chevrolet at the time of the accident. As set forth in Mr. Gaspard’s petition for damages, the accident allegedly occurred when he was walking down a set of stairs at Graves Chevrolet and the wooden handrail came out of the wall causing him to fall down approximately fourteen steps. According to the evidence in the record before us, defendants are the sole owners of both Graves Chevrolet and the building in question, which was leased to Graves Chevrolet. Furthermore, defendants are stockholders, directors, and employees of Graves Chevrolet.

Based on the facts and circumstances herein, defendants have made a prima far-cie showing that they are entitled to the immunity afforded by La. R.S. 23:1032 and that there is an absence of factual support for one or more of the elements essential to Mr. Gaspard’s claim. Thus, we find defendants successfully shifted the burden on the motion to Mr. Gaspard to produce factual support sufficient to establish that he would be able to satisfy his evidentiary burden of proof at trial. La.Code Civ. P. art. 966(B). The only evidence submitted by Mr. Gaspard is Mr. Graves’ deposition, which does not offer any support for his claim that defendants should be held liable in tort for the injuries he sustained. Rather, Mr. Graves’ testimony actually solidifies defendants’ position that their second capacity as owners of the building leased to Graves Chevrolet is inextricably intertwined with their capacity as Mr. Gas-pard’s employer such that they cannot be held liable in tort.

| (/The arguments made by Mr. Gaspard on appeal concerning these issues are without merit. Mr. Gaspard failed to bear the burden of producing evidence to establish any genuine issues of material fact remaining as to defendants’ liability in tort. Accordingly, summary judgment in favor of defendants was warranted. Therefore, we affirm the trial court’s judgment in accordance with Uniform Rules— Courts of Appeal, Rule 2-16.1 B and assess all costs associated with this appeal against Mr. Gaspard.

AFFIRMED.

      . Louisiana Revised Statutes 23:1032 provides, in pertinent part, as follows:
      A. (l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages

      (b) This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine.

      C. The immunity from civil liability provided by this Section shall not extend to: (1) Any officer, director, stockholder, partner, or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment .... (Emphasis added.)

        . According to the 1989 Articles of Incorporation for Graves Chevrolet, there were three original "incorporators,” Cecil M. Graves, Jr. (President), C. Merlin Graves, Sr. (Vice-President), and Ellen Monte Graves (Secretary-Treasurer). In 1990, the Louisiana Secretary of State was notified of changes in the Board of Directors and Officers to reflect that Debbie H. Graves was the new Secretary-Treasurer. C. Merlin Graves, Sr. died in 1992, leaving defendants as the sole officers and owners of Graves Chevrolet.


author: PARRO, J.

text:
    STATE of Louisiana v. Donald S. PHILLIPS, Jr.
    No. 2005 KA 1338.
    Court of Appeal of Louisiana, First Circuit.
    March 29, 2006.

      Richard J. Ward, Jr., District Attorney, Becky L. Chustz, Assistant District Attorney, Port Allen, for State of Louisiana.
    Frederick Kroenke, Louisiana Appellate Project, Baton Rouge, for Defendant-Appellant Donald S. Phillips, Jr.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   PARRO, J.

| PThe defendant, Donald S. Phillips, Jr., was charged by grand jury indictment with: one count of attempted simple burglary (count I), a violation of LSA-R.S. 14:27 and 62; one count of simple burglary (count II), a violation of LSA-R.S. 14:62; one count of aggravated rape (count III), a violation of LSA-R.S. 14:42(A); one count of aggravated burglary (count IV), a violation of LSA-R.S. 14:60; one count of armed robbery (count V), a violation of LSA-R.S. 14:64; and one count of possession of a firearm after being convicted of forcible rape (count VI), a violation of LSA-R.S. 14:95.1. On August 4, 2003, he was arraigned and pled not guilty on all counts.

On November 4, 2003, the trial court ordered that a sanity commission examine the defendant and report its findings to the court. On March 2, 2004, following a hearing, the trial court found the defendant competent to stand trial. On May 4, 2004, on motion of the state, the court continued the trial of motions to June 2, 2004. On May 7, 2004, the state gave notice of intent to use a certificate of analysis. On May 12, 2004, the defendant provided the state with notice of his intent to file an ex parte motion for funds for expert witnesses and filed an ex parte motion for funds for expert witnesses. In the motion, the defendant alleged he was indigent and, in order to prepare for trial, he needed the services of experts in the fields of psychiatry, psychology, and DNA evidence. The motion was denied as untimely. Thereafter, the state dismissed counts I, II, TV, V, and VI, and amended count III to one count of forcible rape, a violation of LSA-R.S. 14:42.1. Pursuant to a plea agreement, the defendant pled guilty to count III, as amended, reserving his right to seek review of the court’s ruling on his ex parte motion for funds pursuant to State v. Crosby, 338 So.2d 584 (La.1976). He was sentenced, pursuant to the plea agreement, to thirty years of imprisonment at hard labor. He now appeals, designating one counseled assignment of error. We vacate the guilty plea and sentence and remand with instructions.

J¿FACTS

Due to the defendant’s guilty plea, there was no trial, and thus, no trial testimony concerning the facts of count III. Additionally, the state did not set forth a factual basis for count III at the Boykin hearing. The indictment returned against the defendant indicated that count III was committed on May 11, 2003.

MOTION FOR FUNDS TO RETAIN EXPERTS

In his sole assignment of error, the defendant contends the trial court erred in denying his motion for funds for expert witnesses. He argues the trial court’s ruling denied him the opportunity to show that his motion was timely, given the late filings of the sanity commission report, the crime lab report, the state’s notice of intent to use the crime lab report, and the request by the state to continue the hearing on motions until the following month.

Louisiana Code of Criminal Procedure article 561 provides:

The defendant may withdraw a plea of “not guilty” and enter a plea of “not guilty and not guilty by reason of insanity,” within ten days after arraignment. Thereafter, the court may, for good cause shown, allow such a change of plea at any time before the commencement of the trial.

Louisiana Code of Criminal Procedure article 650, in pertinent part, provides:

When a defendant enters a combined plea of “not guilty and not guilty by reason of insanity,” the court may appoint a sanity commission as provided in Article 644 to make an examination as to the defendant’s mental condition at the time of the offense. The court may also order the commission to make an examination as to the defendant’s present mental capacity to proceed.

Louisiana Code of Criminal Procedure article 651, in pertinent part, provides:

When a defendant is tried upon a plea of “not guilty”, evidence of insanity or mental defect at the time of the offense shall not be admissible.

Louisiana Code of Criminal Procedure article 521 provides:

Pretrial motions shall be made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by the court at arraignment upon a showing of good cause why fifteen days is inadequate.
Upon written motion at any time and a showing of good cause, the court shall allow additional time to file pretrial motions.

14An indigent defendant may file a motion for expert funding ex parte. Notice of the filing of the motion should be given to the state, which may file an opposition to the hearing being held ex parte and/or to the request for funding. The trial court should first determine, in camera, either on the face of the allegations of the motion or upon taking evidence at an ex parte hearing, whether the defendant would be prejudiced by a disclosure of his defense at a contradictory hearing. If so, then the hearing on expert funding should continue ex parte. If not, then the hearing should be held contradictorily with the district attorney. If either side seeks appellate review of a ruling as to the ex parte nature of the hearing, the motion and other proceedings to this point should remain under seal until the appellate review is completed, and thereafter if the ruling is in favor of an ex parte hearing. State v. Touchet, 93-2839 (La.9/6/94), 642 So.2d 1213,1221.

At the hearing on expert funding, whether ex parte or contradictory, the defendant must first show a need for the funding. The defendant must show with a reasonable degree of specificity what type of expert is needed and for what purpose. In other words, the indigent defendant requesting governmental funding for the securing of expert assistance must show that it is more likely than not that the expert assistance will be required to answer a serious issue or question raised by the prosecution’s or defense’s theory of the case. If the defendant meets this burden, then the court is to order that the funds be provided by the state. If the defendant fails to meet this burden, and the proceedings were held ex parte, both the written reasons for denial and the record of the proceedings are to remain under seal during the pendency of the defendant’s prosecution, including appellate review. Tou-chet, 642 So.2d at 1221-22.

In the instant case, the defendant alleged a need for funding for two separate categories of experts. He requested funding for a DNA expert to address the state’s DNA evidence. He also requested funding for experts in the fields of psychiatry and psychology to investigate an insanity defense.

There was no abuse of discretion by the trial court in denying the request for funding for psychiatric and psychological experts. Absent a change of plea from “not guilty” to “not guilty and not guilty by reason of insanity,” the motion for funding for | Spsychiatric and psychological experts was premature. See LSA-C.Cr.P. arts. 561, 650, and 651. The record indicates the defendant failed to move to change his plea to “not guilty and not guilty by reason of insanity” prior to requesting funding for psychiatric and psychological experts.

In regard to the request for funding for a DNA expert, however, the trial court abused its discretion in denying the motion as untimely. The defendant’s written motion and supporting brief, setting forth that he needed the services of a DNA expert, were filed less than one week after the state gave notice of intent to use the certificate of analysis at trial. Further, given the findings of the certificate of analysis (regarding DNA test results), we find the defendant’s motion met the required showing of good cause under Article 521. Our decision is not that the defendant is automatically entitled to the requested DNA expert, but only that, given the particular expert requested in the defendant’s motion, a hearing was warranted to address the merits of the motion.

Accordingly, the guilty plea and sentence on count III are vacated and this case is remanded to the trial court to address the defendant’s ex parte motion for funds for a DNA expert in accordance with Touchet, 642 So.2d 1213. If the trial court determines that the defendant is entitled to funding for a DNA expert, the defendant must be given the opportunity to go to trial or to plead anew. Otherwise, we reserve to the defendant the right to timely appeal any adverse ruling in regard to his motion for funds for a DNA expert.

This assignment of error has merit in part.

GUILTY PLEA AND SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.

      . The scientific analysis report attached to the motion was stamped received on May 3, 2004, and indicated the DNA profile of a hair from the defendant's pubic hair combings was consistent with the DNA profile of the victim.

      . If the defendant is again sentenced for forcible rape, at least two years of the sentence imposed should be imposed without benefit of probation, parole, or suspension of sentence. See LSA-R.S. 14:42.1(B).


author: CARTER, C.J.

text:
    Randall M. HARRISON v. CD CONSULTING, INC.
    No. 2005 CA 1087.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      Marvin E. Owen, Baton Rouge, for Plaintiff/Appellee, Randall M. Harrison.
    Christine S. Goldberg, Stephen P. Stroh-schein, Baton Rouge, for Defendant/Appel-lee, C.D. Consulting, Inc.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   CARTER, C.J.

[2An employer appeals a summary judgment dismissing its reconventional demand and awarding its former employee unpaid wages, penalty wages, and attorney fees. For the reasons that follow, we amend the judgment, and affirm as amended.

FACTUAL AND PROCEDURAL HISTORY

In August 2003, Randall Harrison was hired by CD Consulting, Inc., (CDCI) to work as an instrumentation and controls engineer on a project in Abu Dhabi, United Arab Emirates, for CDCI’s foreign client, Taisei. In accepting the employment, Harrison signed an agreement setting forth various terms, including the amount of his wages and his work schedule. This employment agreement was for an indefinite term and made no reference to any notice requirements should Harrison decide to resign.

Following his supervisor’s return to the United States (U.S.), Harrison was the only CDCI employee working in Abu Dha-bi. In early December 2003, Taisei employees began approaching Harrison and demanding that he turn over “for safekeeping” the airline ticket previously provided to him for his return passage to the U.S. Harrison repeatedly refused. Eventually, a Taisei employee he had never seen before demanded that Harrison turn over his passport. Feeling threatened by Taisei’s escalating demands and anxious regarding the legality of his passport, Harrison left Abu Dhabi without notifying either CDCI or Taisei of his departure. Upon his return to the U.S., he contacted CDCI to inform it of his actions and to request his wages. Despite his demands, CDCI refused to pay Harrison for his final two weeks of work in Abu Dhabi. In April 2004, Harrison filed suit against CDCI to 1 scollect unpaid wages, attorney fees, and penalty wages pursuant to LSA-R.S. 23:631 et seq.

CDCI conceded that Harrison was an “at-will” employee; however, in its answer to his petition, it averred that Harrison had no right to leave its employ “in such a manner as to harm CDCI and to cause it damage and loss of the contract with its client.” Rather, CDCI maintained that the “employment arrangement” between it and Harrison “incorporated an obligation that Harrison act in good faith [such] that if he decided to leave the employment of CDCI, he provide proper notice and leave ... in a manner that minimized disruption or damage to CDCI.” Due to the circumstances surrounding Harrison’s departure, CDCI alleged that its foreign client heading the Abu Dhabi project terminated and/or declined any future projects with CDCI. Arguing that it was entitled to a setoff or compensation, CDCI further denied that it owed any money to Harrison on his claim since “Harrison willfully and maliciously caused damages to CDCI ... in an amount far in excess of that amount” sought for unpaid wages. In addition, CDCI asserted a reconventional demand against Harrison alleging damages due to his breach of contract, breach of fiduciary duty, and intentional interference with contractual relations between it and Taisei.

Thereafter, Harrison filed a motion for summary judgment. In opposition, CDCI argued that a genuine issue of material fact existed regarding the amount of unpaid wages, if any, that were “due and owing,” considering its reconventional demand and claim for a setoff. Following a hearing, the trial court granted summary judgment in favor of Harrison, awarding him $6,804.00 in past wages, $51,030.00 in penalty wages, and |4$11,200.00 in attorney fees together with legal interest and dismissing CDCI’s reconventional demand. From this judgment, CDCI now appeals. Harrison has answered the appeal seeking additional attorney fees.

APPLICABLE LAW

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Duplantis v. Dillard’s Dept. Store, 02-0852 (La.App. 1 Cir. 5/9/03), 849 So.2d 675, 679, writ denied, 03-1620 (La.10/10/03), 855 So.2d 350. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B. The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows there is no genuine issue of material fact. LSA-C.C.P. art. 966 C(2); Duplantis, 849 So.2d at 679-80.

Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Davis v. Specialty Diving, Inc., 98-0458, 98-0459 (La.App. 1 Cir. 4/1/99), 740|BSo.2d 666, 669, writ denied, 99-1852 (La.10/8/99), 750 So.2d 972. The following statutes are pertinent to this matter.

Louisiana Revised Statutes 23:631 A(l)(b) provides:

Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday for the pay cycle during which the employee was working at the time of separation or no later than fifteen days following the date of resignation, whichever occurs first.

Louisiana Revised Statutes 23:632 provides:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

DISCUSSION

In the present case, it is undisputed that Harrison was an at-will employee of CDCI who subsequently “resigned” his employment. It is further undisputed that he provided notice to CDCI subsequent to his return to the U.S. rather than prior to his departure from Abu Dhabi. CDCI neither disputes Harrison’s rate of pay nor the fact that it refused to pay him for the final two weeks of work he performed despite his demand. Under these uncontested facts, Harrison clearly has the right to receive his unpaid wages pursuant to LSA-R.S. 23:631.

| (^Nevertheless, on appeal, CDCI contends that: (1) it is entitled to setoff Harrrison’s claim for unpaid wages against the damages it incurred due to Harrison’s breach of his fiduciary duty as alleged in its reconventional demand; or alternatively, (2) it should not be liable for penalty wages since it had a good faith belief that it was entitled to such a setoff.

Setoff for Breach of Fiduciary Duty

CDCI claims that Harrison breached the fiduciary duty he owed to it when he walked off the jobsite without notice to anyone of his intent to resign and knowing that he was the only CDCI employee on the jobsite at that time. However, under the undisputed facts in this case, we discern no breach of duty by Harrison.

Employees and/or mandataries owe a duty of fidelity to their employers and/or principals. ODECO Oil & Gas Co. v. Nunez, 532 So.2d 453, 462 (La.App. 1 Cir.1988), writ denied, 535 So.2d 745 (La.1989). An employee is duty bound not to act in antagonism or opposition to the interest of the employer. Every one, whether designated agent, trustee, or servant, who is under contract or other legal obligation to represent or act for another in any particular business or line of business must be loyal and faithful to the interest of such other in respect to such business or purpose. Boncosky Services, Inc. v. Lampo, 98-2239 (La.App. 1 Cir. 11/5/99), 751 So.2d 278, 287, writ denied, 00-0322 (La.3/24/00), 758 So.2d 798.

However, historically, an employee’s breach of his fiduciary duty to his employer has been contemplated in instances when an employee has engaged in dishonest behavior or unfair trade practices for the purpose of his own financial or commercial benefit. See ODECO Oil & Gas, 532 So.2d at 459-64; Realty Mart, Inc. v. Greenwell Commercial Properties, Inc., 343 So.2d 459, 461-462 (La.App. 1 Cir.), writ refused, 345 So.2d 902 (La.1977); Martinez Management, Inc. v. Caston, 39,500 (La.App. 2 Cir. 4/13/05), 900 So.2d 301, 304-05; Cenia Physical Therapy & Rehabilitation Agency, Inc. v. Lavergne, 94-1538 (La.App. 3 Cir. 5/3/95), 657 So.2d 175, 177-78. CDCI cites no jurisprudence wherein an at-will employee’s inadequate notice of resignation was held to be a breach of his fiduciary duty to his employer. This is understandably so.

At-will employment has a strong presence in Louisiana law and jurisprudence. The principle is codified at LSA-C.C. art. 2747, which states: “A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.” Under LSA-C.C. art. 2747, an employer is generally at liberty to dismiss an employee at any time, for any reason, without incurring liability for the discharge, provided the termination does not violate any statutory or constitutional provision. Quebedeaux v. Dow Chemical Co., 01-2297 (La.6/21/02), 820 So.2d 542, 545-46. Likewise, an at-will employee is free to quit at any time without liability to his or her employer. Clark v. Acco Systems, Inc., 39,532 (La.App. 2 Cir. 4/6/05), 899 So.2d 783, 786. Aside from federal and state statutory exceptions, there are no broad public policy considerations creating exceptions to employment at-will and affecting relationships between an employer and employee. Quebedeaux, 820 So.2d at 546.

^Louisiana Civil Code article 2024 provides that a contract of unspecified duration, such as the employment contract herein, may be terminated at the will of either party by giving notice, reasonable in time and form, to the other party. Brannan v. Wyeth Laboratories, Inc., 526 So.2d 1101, 1103-04 (La.1988). However, when the notice to terminate is unreasonable, the result is that the employment contract simply remains valid until properly terminated by one of the parties. See Washington-St. Tammany Elec. Co-op., Inc. v. St. Tammany Parish Police Jury, 612 So.2d 773, 779-80 (La.App. 1 Cir.1992), unit denied, 614 So.2d 86 (La.1993). In the case sub judice; CDCI does not contend that due to Harrison’s unreasonable notice, the employment contract - remains valid. To the contrary, both parties herein agree that the contract was terminated.

Finally, we recognize that employers have been allowed a setoff against a former employee’s unpaid wage claim for damages pertinent to physical property or for definitive amounts of money owed by the employee for salary overpayment, loans, or outstanding account balances. See Richard v. Vidrine Automotive Services, Inc., 98-1020 (La.App. 1 Cir. 4/1/99), 729 So.2d 1174, 1178, and cases cited therein. However, this court has expressly held that the fact that an employee quits a job abruptly without notice to the employer does hot justify employers withholding payment of the employee’s earned wages. Blankenship v. Southern Beverage Co. Inc., 520 So.2d 440, 442 (La.App. 1 Cir.), writ dismissed, 522 So.2d 574 (La.1988); Soday v. Mall Snacks, Inc., 374 So.2d 138, 140-41 (La.App. 1 Cir.1979). Accordingly, we find no merit in CDCI’s argument that Harrison breached his fiduciary duty by giving inadequate notice, thereby entitling it to a setoff against his claim for unpaid wages.

Liability for Penalty Wages

Alternatively, CDCI contends that it is not liable for penalty wages because it had a good faith, reasonable belief that it was entitled to a setoff. To recover penalty wages under LSA-R.S. 23:632, a claimant must show that (1) wages were due and owing; (2) demand for payment was made where the employee was customarily paid; and (3) the employer did not pay upon demand. Becht v. Morgan Bldg. & Spas, Inc., 02-2047 (La.4/23/03), 843 So.2d 1109, 1112, cert. denied, 540 U.S. 878, 124 S.Ct. 289, 157 L.Ed.2d 142 (2003). Being penal in nature, LSA-R.S. 23:632 must be strictly construed and its provisions may yield to equitable defenses. Wyatt v. Avoyelles Parish School Bd., 01-3180 (La.12/4/02), 831 So.2d 906, 916. However, it is only a good faith, non-arbitrary defense to liability for unpaid wages that will permit the courts to excuse the employer from the imposition of penalty wages. Generally, when there is a good-faith question of whether the employer actually owes wages or whether there may be a setoff to wages owed, resistance to payment will not trigger penalty wages. Cochran v. American Advantage Mortg. Co., Inc., 93-1480 (La.App. 1 Cir. 6/24/94), 638 So.2d 1235, 1239-40.

As previously noted, Louisiana courts have recognized an employer’s claim of setoff as an equitable defense to a penalty wage claim in particular circumstances. Richard, 729 So.2d at 1178. However, notice regarding an employee’s resignation has never been recognized as the basis of such a hnclaim. Indeed, the decisions rendered by this court in Blankenship and Soday clearly demonstrate that it cannot be.

Moreover, employment-at-will is firmly established in Louisiana law. Pursuant to this doctrine, an at-will employee is free to quit at any time without liability to his employer. Had it needed additional security, CDCI was certainly free to contract with Harrison for a definite term or regarding particular notice requirements. This it did not do. Accordingly, we conclude that CDCI’s claim does not constitute a good faith, non-arbitrary defense to liability for unpaid wages. Thus, penalty wages were properly imposed. See Beard v. Summit Institute of Pulmonary Medicine and Rehabilitation, Inc., 97-1784 (La.3/4/98), 707 So.2d 1233, 1236-37.

Additional Attorney Fees

Harrison timely filed an answer to CDCI’s appeal seeking additional attorney fees. Additional attorney fees are usually awarded on appeal when a party appeals, obtains no relief, and the appeal has necessitated additional work on the opposing party’s counsel, provided that the opposing party has appropriately requested the increase. Loup v. Louisiana State School for the Deaf, 98-0329 (La. App. 1 Cir. 2/19/99), 729 So.2d 689, 694. For the work necessitated by this appeal, including reviewing the appeal, preparing a response, and appearing for oral argument, we find that an additional award of attorney fees in the amount of $1,000.00 is warranted.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. We further order CD Consulting, Inc. to pay an additional $1,000.00 in attorney L&ees to Randall Harrison for the defense of this appeal. CD Consulting, Inc. is cast with all costs of this appeal.

AFFIRMED AND RENDERED WITH ORDER.

      . CDCI obviously abandoned its allegations regarding breach of contract and intentional interference with contractual relations.