author: FORET, Judge.

text:
    Todd Edmond MORELAND, Plaintiff-Appellee, v. Kim BRASSEAUX, Defendant-Appellant.
    No. 83-516.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    See also, La.App., 445 So.2d 1236.

      Darrell D. Desormeaux, Sr., Lafayette, for defendant-appellant.
    Bernard F. Duhon, Abbeville, for plaintiff-appellee.
    Before FORET, DOUCET and YELVER-TON, JJ.
   FORET, Judge.

This is an intentional tort action filed by plaintiff, Todd Edmond Moreland, against defendant, Kim Brasseaux, arising out of a fight which occurred outside of a lounge in Abbeville, Louisiana. The issues on appeal are:

(1) Whether Brasseaux acted in self-defense in striking Moreland, and
(2) Whether the trial court abused its discretion in awarding damages.

FACTS

In the early morning hours of September 9, 1981, Todd Edmond Moreland and Eva Brasseaux, wife of Kim Brasseaux, engaged in a conversation in the parking lot of the Starmist Lounge in Abbeville, Louisiana. The two had been speaking to each other that night inside the bar. While out in the parking lot, Moreland hugged and kissed Mrs. Brasseaux. At that very moment, Mr. Brasseaux drove up in his truck. Moments later, defendant struck plaintiff, causing extensive injuries to his left eye. Outside of these aforementioned facts, almost everything else is in dispute.

Plaintiff’s version of the story is that Mrs. Brasseaux requested that he take her to another lounge in Kaplan, Louisiana. He testified that although he heard a vehicle drive up to the parking lot, he did not know that the driver was Mr. Brasseaux. He also stated that he was struck without any warning and never saw Mr. Brasseaux walk up to him and Mrs. Brasseaux.

Defendant’s version is that he drove up to the lounge and saw his wife being handled and kissed by Moreland. He claims that he saw his wife attempting to push Moreland away. He then shouted, “What do you think you’re doing? ... This is my wife; leave her alone.” Moreland responded, “So what”. Mr. Brasseaux then approached the couple and struck Moreland after he saw Moreland clinching his fist and pulling his arm back in preparation to swing.

Eva Brasseaux testified basically the same as her husband. To rebut her testimony, plaintiff called to the stand one Theodore Schirmer. Schirmer testified that he interviewed Mrs. Brasseaux concerning the incident some four months after it happened and, during that interview, she stated that Moreland made no motions which would indicate that he was preparing to throw a punch. Thus, Mrs. Brasseaux’s version of the story during the interview was inconsistent with what she testified to at trial.

After hearing all of the evidence, the trial court found that the defendant was not acting in self-defense and ruled in favor of the plaintiff. Damages were awarded as follows:

$1,000 for pain and suffering
$10,000 for permanent disability
$4,955.75 for medical expenses
$2,000 for lost wages.

From that judgment, defendant appealed. Plaintiff answered that appeal, seeking greater damages.

In battery cases, the plaintiff has the general burden of proof equivalent to that which any plaintiff has in a tort or damage suit. Knuckles v. Beaugh, 392 So.2d 710 (La.App. 3 Cir.1980). The record shows that the plaintiff was struck by the defendant and that he suffered serious damages. The record further shows that the plaintiff never threw a punch and that a full blown fight never occurred. We feel that the evidence adequately shows that plaintiff has carried his burden of proof.

To justify a battery, the defendant must establish sufficient facts to constitute a provocation or a justification for the battery by a reasonable preponderance of the evidence. Ogden v. Smith, 344 So.2d 1099 (La.App. 3 Cir.1977). To establish a provocation, the defendant must show some conduct or action by the plaintiff sufficient to provoke and arouse the defendant to the point of physical retaliation. Squyres v. Phillips, 285 So.2d 337 (La.App. 3 Cir.1973).

The only evidence presented by the defendant was his testimony and that of his wife. The wife’s testimony was successfully impeached by plaintiff's rebuttal witness, Theodore Schirmer. The remainder of the case turns on the credibility of the plaintiff and the defendant. The trial judge found that defendant did not establish sufficient facts to justify his battery on the plaintiff. A trial judge’s determination of fact will not be reversed absent manifest error. Since we do not find that he was manifestly erroneous in this case, we affirm his decision as to liability.

DAMAGES

We now turn to the question of damages. Plaintiff seeks an increase in both general and special damages, while defendant contends the trial judge gave too great an award for permanent disability. A reviewing court cannot disturb a trial court’s award unless there was a clear abuse of discretion. Then, the appellate court cannot grant an award which it deems appropriate, but must adjust the award by lowering or raising it to the lowest or highest point which is reasonably within the discretion of the trial court. Alexander v. Leger, 423 So.2d 731 (La.App. 3 Cir.1982). Each personal injury case must be evaluated according to its own peculiar facts and circumstances. Wilkinson v. Hartford Accident & Indemnity Co., 421 So.2d 440 (La.App. 3 Cir.1982).

The record shows that the plaintiff suffered extensive injuries to his left eye. Surgery had to be performed to remove an organized blood clot (total blackball hyphe-ma) in the anterior chamber of the left eye. Further complications occurred, and another operation (retinal cryopexy) was performed to prevent retinal detachment. Due to these two operations, plaintiff remained bedridden in the hospital for six days, and missed a total of two months’ work. Although the operations appeared to be successful, total visual recovery is uncertain. Also, plaintiff has now become more susceptible to glaucoma and cataracts, and must check the condition of his eyes twice a year.

Under the facts of the case, we find that $1,000 in general damages is too low. Our review of the record shows that the lowest amount the trial court could have reasonably awarded was $5,000, and therefore, amend its award as such.

Furthermore, the record shows that the trial court incorrectly added up the medical expenses. Our calculations show total proper medical expenses to be $5,094.23.

Plaintiff also claims that $250 is due him for expert fees, but there is nothing in the record to substantiate his claim. Thus, that claim is rejected. Dollacker v. Schimek, 411 So.2d 643 (La.App. 4 Cir.1982), writ denied, 413 So.2d 908 (La.1982).

As far as the trial court’s $10,000 award for permanent disability is concerned, we find no abuse of discretion and therefore affirm this portion of the award.

For the reasons assigned, the judgment of the trial court finding defendant liable for personal injuries is affirmed. The quantum judgment of the district court is hereby amended and plaintiff is hereby awarded the sum of $5,000 for general damages. Special damages for medical expenses shall be increased to $5,094.23. In all other respects, the judgment of the trial court is affirmed. All costs of this appeal are to be paid by defendant.

AMENDED AND AFFIRMED.

      . Plaintiff contends that he is due $2,445 for future medical costs. We feel that the $10,000 awarded by the trial court for permanent disability is sufficient to cover any future costs for medical expenses.


source: Caselaw Access Project

author: GARRISON, Judge,

license: Public Domain

text:
    ACME MORTGAGE COMPANY, INC. v. Eva Carolyn (Also Known as Carolyn E.) CROSS, Divorced Wife by First Marriage of Robert E. Bounds, Divorced Wife by Second Marriage of Carl Gwinn Smith and Thirdly Married to Theodore Victor Deagano.
    No. C-1077.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 29, 1983.
    Rehearing Denied Sept. 30, 1983.

      Before BARRY, GARRISON and BYRNES, JJ.
   Relatrix, Carolyn DeAgano, seeks supervisory writs urging she is without right to a suspensive appeal and will suffer immediate and irreparable loss by devolutive appeal.

Respondent, Acme Mortgage Co., Inc. (ACME) attempted to foreclose via executi-va on realty belonging to relatrix. Relatrix sought a preliminary injunction and obtained a temporary restraining order in July, 1981 which was renewed.

After a Commissioner’s hearing, the District Judge denied Ms. DeAgano's motion for a preliminary injunction. Relatrix sought writs and was granted an order by the trial court staying all proceedings.

Ms. DeAgano, under executory process, may either seek injunctive relief to arrest the seizure and sale or suspensively appeal the order directing the issuance of the writ of seizure and sale. LSA-C.C.P. Art. 2642.

Relatrix did not ask to suspend the seizure order, but chose only to seek injunc-tive relief. Had she sought the former, further executory proceedings would have been stayed pending appeal. However, she selected the latter, and under LSA-C.C.P. Art. 3612, only the injunctive proceedings can be stayed during the pendency of the appeal. Since no injunction was granted there is nothing in the executory proceeding to suspend. Tri-South Mortgage Investors v. Rozands, 354 So.2d 669 (La.App. 1st Cir.1977). Hibernia National Bank of New Orleans v. Mary, 167 So.2d 200 (La.App. 4th Cir.) writ denied 246 La. 876, 167 So.2d 826 (1964).

As we stated in Hibernia National Bank, supra, at 203:

To interpret the stay order, as evidently intended by the respondent judge, to apply to the proceeding of exec-utory process would allow to be done indirectly that which there is no authority to do directly, namely, to operate as a suspensive appeal from executory process, after the right to such appeal has passed, and then for a nominal bond. Such interpretation would seriously impair and to a large extend nullify the operation of the laws relating to executo-ry process. This obviously is not the intent of Article 3612. To allow the stay order to stop the executory process amounts to a nullification of the court’s judgment denying injunction. It grants the precise relief the court intended to deny. It is a contradiction on its face. If indeed such was the court’s intent, it should have granted the injunction.

Supervisory writs are inappropriate and relatrix’s remedy is to appeal from the denial of the preliminary injunction.

ACCORDINGLY, the writ is denied. Re-latrix has 15 days from the date of this opinion to file an appeal. (See C.C.P. 3612).

GARRISON, J., dissents with reasons.

GARRISON, Judge,

dissenting.

On the showing made, this court should provide relief as requested by relator. I would grant writs.


author: CRAIN, Judge. PER CURIAM.

text:
    SHREVEPORT-BOSSIER VO-TECH SCHOOL v. Issac BAKER.
    No. CM 83 1192.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Application for Rehearing Untimely and not Considered Feb. 22, 1984.
    Charles E. Welsh, Asst. Atty. Gen., for plaintiff-appellant.
    David Rabb, Jr., Baton Rouge, for defendant-appellee.
    Robert R. Boland, Jr., Baton Rouge, for Civil Service Com’n.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

The Department of State Civil Service filed a motion to dismiss this unlodged appeal of Shreveport-Bossier Vocational-Technical School, on the basis that the appeal was untimely.

Issac Baker was terminated from his position as a Custodial Worker III by appellant on October 15, 1981. He appealed his termination to the Civil Service Commission. Following a hearing, the civil service referee rendered a decision on August 12, 1983, that there was no just cause for appellee’s termination. On September 12, 1983, appellant took the present appeal.

La. Const, of 1974, art. X, sec. 12(A) provides that the decision of a civil service referee is subject to review by the Civil Service Commission if an application for review is filed within fifteen days after the decision is rendered. If no such application is timely filed, the decision of the referee becomes the final decision of the commission as of the date it was rendered. An appeal therefrom must be filed with the commission within thirty calendar days after the decision becomes final in order to be timely. La. Const, of 1974, art. X, sec. 12(A).

In the instant ease, the referee rendered his decision on August 12, 1983. Appellant did not file a timely application for review, so the decision became final as of that date. Accordingly, appellant had thirty calendar days from August 12,1983, within which to file an appeal with the commission. The thirtieth calendar day following the commission’s decision was September 11, 1983, which fell on a Sunday. Even though this was a legal holiday it is clear that the term “calendar days” does not allow extra days for filing of an appeal when the last day of the permitted period falls on a legal holiday. Guillory v. Department of Transportation and Development, Division of Maintenance and Field Operations, 439 So.2d 657 (La.App. 1st Cir.1983); Duhe v. Department of Revenue and Taxation, 432 So.2d 280 (La.App. 1st Cir.1983). Accordingly, the appeal filed by appellant on September 12, 1983, was untimely.

For the above and foregoing reasons, the motion to dismiss this unlodged appeal is granted and the appeal is dismissed.

APPEAL DISMISSED.

ON APPLICATION FOR REHEARING

PER CURIAM.

The decision of this court was rendered and mailed on December 22, 1983. The application for rehearing was filed on January 19, 1984. Pursuant to La.C.C.P. art. 2166, as amended by Act 451 of 1983 and effective August 30, 1983, an application for rehearing must be filed within fourteen days of the mailing of the notice of judgment and the opinion of this court. This application is not timely.

      . Pursuant to a motion filed by him, the Director of the Department of State Civil Service was recognized as an indispensable party to these proceedings by an order signed on October 21, 1983, by this court. Appellant, argues that this order should not have been granted. However, there is precedent for recognizing the commission (in this case through its director) as an indispensable party in a case such as the present one. See Duhe v. Department of Revenue and Taxation, 432 So.2d 280, 280 n. 1 (La.App. 1st Cir.1983).
      In any event, even if this motion had not been filed by the Director, this court would have recognized ex proprio motu that this appeal was untimely once the record was lodged.

      . In the procedural posture of this case, the Shreveport-Bossier Vocational-Technical School cannot be cast for costs. Livingston Parish School Board v. State, Office of Employment Security, 426 So.2d 246 (La.App. 1st Cir.1983).


author: STOKER, Judge. PER CURIAM.

text:
    John MORRIS, Plaintiff-Appellee, v. SCHLUMBERGER, LTD., et al., Defendants-Appellants.
    No. 83-374.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984.
    Writ Denied April 23, 1984.

      Scofield, Bergstedt & Gerard, Richard E. Gerard, Jr., Lake Charles, for defendant-appellant-appellee.
    Deutsch, Kerrigan & Stiles, Bert M. Cass, Jr., New Orleans, Jones, Tete, Nolen, Hanckey, Swift & Spears, Gregory P. Massey, Lake Charles, for defendant-appellee-appellant.
    Onebane and Associates, Frank X. Neuner, Jr., Lafayette, for defendant-appellee.
    McHale, Bufkin & Dees, Louis D. Buf-kin, Lake Charles, for plaintiff-appellee.
    Before STOKER, GUIDRY and CUTRER, JJ.
   STOKER, Judge.

This appeal concerns claims of contractual indemnity in connection with third party demands and a reconventional demand.

In the main demand brought in state court pursuant to the Jones Act and general maritime law, John Morris, plaintiff, sought damages for injuries sustained while working aboard an offshore drilling rig owned by his employer, Transworld Drilling Company (Transworld). Named as defendants were Transworld, Phillips Petroleum Company (Phillips) and Schlumber-ger, Ltd. (Schlumberger).

Schlumberger, which provided wireline and perforation services aboard the Transworld rig for Phillips, the operator of the well, filed a third party demand against Phillips seeking indemnity under a written contract in effect between them. Phillips filed a third party demand against Gilley and Associates, Inc. (Gilley), a contractor hired by Phillips to put a supervisor on the rig, seeking contractual indemnity pursuant to a written contract in effect between them. Gilley filed a reconventional demand against Transworld (in response to a third party demand by Transworld seeking indemnity under a tort theory) seeking indemnity under a written contract existing between Transworld and Phillips.

Prior to trial, Schlumberger settled with John Morris for $180,000 and was dismissed as a defendant. The jury awarded Mr. Morris $150,000 on the main demand and apportioned fault on a percentage basis as follows: (1) Transworld, 50% at fault, (2) Phillips, 40% at fault, (3) Schlumberger, 10% at fault, and (4) Ray Stevens, Phillips’ supervisor on the rig hired through Gilley, 0% at fault. In John Morris v. Schlumberger, Ltd., et al., 436 So.2d 1178 (La.App. 3rd Cir.1983), we resolved issues concerning prejudgment interest, legal interest and solidary liability that related to the main demand. Although in that appeal we noted Gilley was a defendant, it is now our appreciation of the party alignment that Gilley was involved in that suit only as a third party defendant and as a plaintiff in its reconventional demand.

The third party demands of Schlumber-ger and Phillips and the reconventional demand for Gilley, with which this appeal is concerned, were reserved to the trial judge. In a judgment signed on January 14, 1983, the trial court gave judgment (1) in favor of Schlumberger and against Phillips for $185,000 (representing the settlement of $180,000 plus $5,000 in attorney’s fees) and (2) in favor of Gilley and against Phillips, dismissing Phillips’ third party demand against Gilley with prejudice. In a separate judgment signed on March 11, 1983, the trial court gave judgment in favor of Transworld and against Gilley, dismissing the reconventional demand of Gilley with prejudice. Phillips and Gilley appeal. We affirm.

THIRD PARTY DEMAND OF SCHLUM-BERGER AGAINST PHILLIPS

Phillips urges that the trial court erred (1) in holding that Schlumberger properly tendered its defense to Phillips prior to trial and that the amount of the settlement with plaintiff was reasonable and (2) in awarding Schlumberger attorney’s fees under the indemnity contract in the absence of proof thereof. That there was an indemnity agreement in effect between Schlum-berger and Phillips is not contested.

On February 19, 1982, Schlumberger filed a third party demand against Phillips seeking full defense and indemnity, including cost of defense, for all claims being made against Schlumberger by the plaintiff in the main demand. This third party demand was based upon an indemnity clause contained within the standard terms and conditions of a Schlumberger service order and work invoice that was signed by Ray Stevens, Phillips’ supervisor on the rig.

On March 9, 1982, Schlumberger moved for summary judgment on its third party demand. On May 6, 1982, Phillips filed an answer to the third demand denying liability and refusing to defend and indemnify Schlumberger.

Shortly before the day of trial Schlum-berger settled with the plaintiff for $180,-000. Pursuing its third party demand, Schlumberger took the position that it was entitled to indemnity for the full $180,000 paid in settlement to the plaintiff and all attorney’s fees and costs incurred in defense of plaintiff’s claim.

In its reasons for judgment, the trial court found that (1) Schlumberger made a tender of defense to Phillips by filing a third party demand and a motion for summary judgment on its third party demand, (2) that the settlement payment of $180,000 was reasonable in amount, and that (3) Schlumberger was entitled to indemnity from Phillips for the full amount of the settlement. Additionally, based upon the pleadings in the record, the exhibits offered into evidence, the work done under the eye of the court, and the seriousness of the case, the trial court awarded Schlumberger attorney’s fees in the amount of $5,000.

Did Schlumberger tender its defense to Phillips and, if so, was the amount of settlement reasonable?

The interpretation of an indemnity clause in a maritime contract is ordinari]y governed by federal maritime law rather than state law. Corbitt v. Diamond M Drilling Co., 654 F.2d 329 (5th Cir.1981). The indemnitee’s unilateral act cannot bind the indemnitor without prior notice and an opportunity to defend which are indispensable due process requirements. Jennings v. United States, 374 F.2d 983 (4th Cir.1967).

Under equitable principles of indemnity, in order for a settling indemnitee to support his indemnity claim he must prove actual liability to the original plaintiff and that the amount paid in settlement was reasonable. To avoid having to prove actual liability, the indemnitee should offer the indemnitor before any settlement is concluded the choice of (1) approving the settlement or (2) taking over the indemni-tee’s defense. If the indemnitor refuses to take either course, then the indemnitee will only be required to show potential liability to the original plaintiff to support his claim for indemnity. Parfait v. Jahncke Service, Inc., 484 F.2d 296 (5th Cir.1973). There is no rigid requirement that the indemnitee offer the above precise choice to the indem-nitor. The primary concern is fairness to the indemnitor. If it can be shown that the indemnitor was afforded substantially the same protection that the above choice affords, then the indemnitee will have to show only potential liability. Burke v. Ripp, 619 F.2d 354 (5th Cir.1980). A formal tender of defense is not required, rather only an opportunity to defend is necessary. Burke v. Ripp, supra.

The indemnity clause in question is silent on the issue of tender and notification, therefore, equitable principles of indemnity apply. Because Phillips has not contested the trial court’s finding that the potential liability of Schlumberger was clearly established, if Phillips had an opportunity to defend, refused to do so and Schlumberger thereafter settled, Schlum-berger will prevail, provided the amount of settlement was reasonable.

As previously noted, the trial court found that Schlumberger did tender its defense to Phillips prior to settlement through the filing of its third party demand and a motion for summary judgment on its third party demand. The demand was based upon the indemnity agreement existing between them. The facts stipulated to between the parties indicate that under the terms of a contract between Phillips and Transworld, Transworld agreed to defend and indemnify Phillips against all claims made by the plaintiff so long as Phillips continued to direct its efforts “towards defeating the plaintiff’s claim and/or proving that the cause of the plaintiff’s accident was the negligence of” Schlumberger. Phillips could not abide by the terms of this agreement and at the same time undertake the defense and indemnity of Schlumberger under Phillips’ agreement with Schlumberger. That Phillips chose to abide by the terms of the Transworld agreement instead of abiding by its agreement with Schlumberger seems clear from its answer to Schlumber-ger’s third party demand in which it denied liability and refused to defend and indemnify Schlumberger. The trial court, in its reasons for judgment, also found that in addition to the judicial denial made through its answer, Phillips, through all other actions, denied any indemnification obligation to Schlumberger. Given these facts, it was extremely unlikely that Phillips would have seriously considered taking over the defense of plaintiff’s claims against Schlum-berger.

Furthermore, the stipulated facts also indicate that although Schlumberger may have failed to expressly seek Phillips approval of the settlement, Phillips was continuously kept informed of the settlement negotiations and was afforded sufficient opportunity to approve or disapprove the contemplated settlement. In view of the above circumstances, we find Phillips was adequately protected and should, in fairness, be compelled to indemnify Schlumber-ger, provided the amount of the settlement was reasonable.

The trial court, in its reasons for judgment, found that the amount of the settlement was reasonable because “It is equally clear that the possibility existed for an award against Schlumberger in an amount substantially greater than the settlement figure.” After reviewing the record and considering the testimony of Dr. Brown, the treating physician, and Dr. Schneider, a reviewing physician, as well as the testimony of John Chisolm, an expert with a doctorate degree in economics, we cannot say that the trial court’s findings as to the reasonableness of the amount of settlement were clearly erroneous. This assignment is without merit.

Were attorney’s fees properly awarded?

Phillips urges that the award of attorney’s fees to Schlumberger under the indemnity contract by the trial judge was improper, or in any event, was incorrect for two reasons: (1) the amount awarded was not substantiated by evidence in the record (i.e., time records, etc.) and (2) the allowance of attorney’s fees is limited to those for services rendered in defending the claim that the contract indemnified against and are not allowable for services rendered in enforcing the right to indemnity under the contract.

The trial court, in its reasons for judgment in a very brief statement, held that “after having considered the pleadings in the record, the exhibits offered into evidence, the work done under the eye of the court, and the seriousness of the case; the attorney’s fees will be awarded in the amount of $5,000.00.”

Schlumberger contends first that the amount of the award is substantiated by the factors that the trial court listed in its reasons for judgment in support of the award, and that under the specific language of the indemnity contract attorney’s fees were recoverable both for services rendered in defending the claim indemnified against and for services rendered in enforcing the right to indemnity under the contract. In the alternative, Schlumberger contends that the most substantial part of the pleadings, exhibits offered, and work done under the eye of the court was towards defense of the claim and, therefore, the $5,000 award was justified.

The general rule is that the allowance of attorney’s fees is limited to defense of the claim indemnified against, and no recovery can be had for attorney’s services and expenses incurred in establishing the right to indemnity. However, when specifically provided for by contract, attorney’s fees incurred in establishing the right to indemnity may also be recovered. Dillingham Shipyard v. Associated Insulation Co., 649 F.2d 1322 (9th Cir.1981). See also Signal Oil and Gas Co. v. Barge W-701, 654 F.2d 1164 (5th Cir.1981), cert. denied 455 U.S. 944, 102 S.Ct. 1440, 71 L.Ed.2d 656 (1982) and 455 U.S. 944, 102 S.Ct. 1441, 71 L.Ed.2d 656 (1982).

The contract between Schlumber-ger and Phillips provides for attorney’s fees in section 7(b) as follows:

“7(b) Customer [Phillips] further agrees to protect, indemnify and hold us and our officers and employees free and harmless from and against any and all claims, demands, causes of action, suits or other litigation (including all costs thereof and attorney’s fees) of every kind and character whenever arising in favor of Customer or any third party ... on account of bodily injury, death, loss of damage to or loss of use of property ... and financial loss of any kind: ...” (emphasis added)
Section (2) of 7(b) goes on to provide: “(2) in any way by act or omission occurring incident to arising out of or in connection with the presence of our employee or our equipment on premises controlled, leased, operated or owned by Customer, or its agents or contractors. ..”

We find that under the language of the above contract Schlumberger could recover attorney’s fees only for those services and expenses incurred in defense of the claim indemnified against. The contract fails to specifically provide for the recovery of attorney’s fees incurred in establishing the right to indemnification.

In our opinion a consideration of the factors listed by the trial court in its reasons for judgment indicates that the trial court had sufficient basis to make some award of attorney’s fees. However, in view of our finding that no attorney’s fees may be awarded for services rendered in establishing the right to indemnity, the amount of the award must be based solely on the services rendered in defending the claim. The trial court did not make any breakdown to indicate that it made any allocation between the two types of services. Schlumberger urges that “the most substantial part of the work was performed in defense of plaintiffs claim.” On the other hand, in our view, the trial judge may not have considered the defense of the claim services as significant,. We do not know what the trial court’s views were on this point and it is not appropriate for us to attempt to make any division. Under the circumstances, and since all other matters on appeal will be affirmed, we will remand this case in order that the trial court may amplify and clarify its judgment relative to the award of attorney’s fees and to amend the judgment (if necessary) to conform to our views expressed herein.

THIRD PARTY DEMAND OF PHILLIPS AGAINST GILLEY

Phillips urges that the trial court erred in denying its third party demand against Gil-ley for contractual indemnity.

Phillips needed a person aboard the Transworld rig to supervise and coordinate, on Phillips behalf, the completion of its oil well. Ordinarily these duties would be performed by Phillips’ regular “company man.” Phillips hired Gilley to furnish an experienced supervisor capable of relieving Phillips’ regular company man. Gilley, acting essentially as a labor contractor in that transaction, supplied Phillips with Ray Stevens. At all times, up to and including the day that John Morris was injured, Stevens was employed by both Gilley and Phillips.

To accomplish completion of the Phillips’ well, Ray Stevens, acting within his capacity as Phillips’ “company man” and on Phillips’ behalf, hired Schlumberger to provide wireline and perforation services aboard the Transworld rig. Stevens was on the rig on the day that John Morris was injured.

The contract between Phillips and Gilley, under which Gilley supplied Ray Stevens to Phillips, provided for indemnity in Phillips favor in certain cases. The pertinent language provides:

“Contractor [Gilley] shall indemnify and hold Company [Phillips] harmless from any and all claims ... for injury ... resulting directly or indirectly from any and all acts or omissions of contractor [Gilley], his subcontractors, or of anyone directly or indirectly employed by either of them in connection with the performance of any work provided for herein... ” (Emphasis added)

The jury, which awarded Morris $150,000 in damages, found that Ray Stevens, Phillips’ supervisor on the job pursuant to the Phillips — Gilley contract, was guilty of no negligence. Both Phillips and Schlumber-ger were found to be negligent.

Under either of two constructions of the contractual language, Phillips argues that Gilley owes indemnity to Phillips. Phillips first argues that the indemnity language “employed by either of them” was clearly satisfied because the result of Stevens hiring of Schlumberger in Phillips behalf was to make Schlumberger and Phillips contractually related. Under this construction the word “them” is taken to refer to “Contractor” [Gilley] and “Company” [Phillips]. Phillips contends that the trial court overlooked this language in denying indemnity to Phillips. Phillips’ next argument is that Gilley directly, or at least indirectly, “employed” Schlumberger. Phillips reasons that although Stevens was acting as Phillips’ representative in hiring Schlumberger, Stevens nevertheless was still employed by Gilley. Therefore, Gilley through Stevens also “employed” Schlumberger.

In regard to the second construction put forth by Phillips, the trial court, in its reasons for judgment, found that the contract could not be construed to mean that Gilley was responsible for the actions of Schlum-berger. The trial court found “Stevens may have played some part in selecting Schlumberger to perform the perforation services but Schlumberger was not employed by Gilley, not even indirectly” and also found that Stevens represented Phillips as its company man. In view of these findings, the trial court held that Gilley owed no indemnity to Phillips. We agree.

Schlumberger was not directly or indirectly employed by Gilley. Schlumberger was a contractor of Phillips, not of Gilley. Ray Stevens was working within his capacity as company man for Phillips when Schlumberger was hired. Stevens had, as company man, authority from Phillips to hire a wireline and perforation specialist to facilitate completion of the well according to standards put forth by Phillips. Phillips had control over Stevens to the same extent that it would have had over a regular employee. Stevens hired Schlumberger on behalf of Phillips. George Heckler, drilling manager for Phillips, testified that:

“Schlumberger was brought out to perform the perforating operation. In otherwise (sic) we (Phillips) had contracted with Schlumberger for their men and equipment.”

It is clear that although Stevens may have selected Schlumberger, that he did so in his capacity as Phillips’ employee and, therefore, it was Phillips who “employed” Schlumberger and not Gilley. Gilley was in no way responsible for the actions of Schlumberger on the rig and owes no indemnity to Phillips. The second construction of the Phillips — Gilley contract urged by Phillips is without merit.

Since we have determined that Schlumberger was “employed” by Phillips, under Phillips other construction of the contractual language Gilley owes indemnity to Phillips if the word “them” is taken to refer to “Contractor” [Gilley] and “Company” [Phillips]. We reject this interpretation. The word “them” refers to “Contractor” [Gilley] and “his [Gilley’s] subcontractors.” We agree with Gilley that the obvious intent of the contract was that Gilley would indemnify Phillips if an injury resulted from an act of Gilley, a subcontractor of Gilley, Ray Stevens, or by the combined negligence of Phillips and Ray Stevens or a subcontractor of Gilley. Ray Stevens was found by the jury to be free from negligence. Gilley did not subcontract out its work. This construction of the contract is also without merit.

RECONVENTIONAL DEMAND OF GILLEY AGAINST TRANSWORLD

Gilley urges that the trial court erred in (1) holding that the indemnity provisions of the contract between Transworld and Phillips did not extend to Gilley and (2) in failing to award attorney’s fees to Gilley under the indemnity provisions of the contract. Because we find that Transworld does not owe indemnity to Gilley, we do not reach the question of attorney’s fees.

Transworld was performing the completion of an oil well in the Gulf of Mexico for Phillips pursuant to a written contract. That agreement, originally between Transworld and Kerr-McGee Corporation, was assigned by the latter to Phillips with Transworld’s consent.

A few months after this assignment, John Morris, a'Transworld employee, was injured in connection with Transworld’s contractual undertaking with Phillips. When the accident occurred, Phillips’ job supervisor or “company man” was Ray Stevens. Stevens had been furnished to Phillips ,by Gilley under a contract between Phillips and Gilley. Gilley is essentially a labor-contractor. Stevens was Phillips’ agent and borrowed employee, since he was acting for Phillips under its direction and control. At the same time Stevens was the loaned employee of Gilley.

After being named as defendants by John Morris, Phillips, Transworld and Schlumberger each filed third party demands for indemnity against Gilley. Gilley answered the third party demands and filed a reconventional demand against Transworld for indemnity under a contract existing between Transworld and Phillips.

The indemnity provisions of the Transworld-Phillips contract, upon which Gilley’s claim rests, provides in pertinent part:

“11.2 Employees of Contractor [Transworld]. As to any operations eon-templated by this agreement, Contractor [Transworld] shall indemnify and hold harmless Operator [Phillips], its co-owners and joint venturers, and its and their officers, directors, agents and employees, from and against any and all claims, suits or damages ... brought against Operator [Phillips], co-owners and joint venturers, and its and their officers, directors, agents, and employees, or in which Operator [Phillips] ... and its ... agents and employees, may be named as a party defendant by any employee of Contractor [Trans world].” (Emphasis added)
“11.3 Employees of Subcontractor. For the purposes of Section 11.1, any employee of any subcontractor of Operator [Phillips] ... shall be deemed to be an employee of Operator [Phillips] ...” “11.4 Other Persons. Neither party hereto shall be required to indemnify the other on account of any claims, suits or demands asserted on account of injury to or death of any person ijot an employee of Contractor [Transworld] or its subcontractor, or of Operator [Phillips], or its subcontractor.”

Gilley urges that Transworld has an obligation under these provisions to indemnify Gilley for the attorney’s fees and other litigation costs incurred by Gilley in defending against the third party demands because they arose from the alleged negligent acts of Ray Stevens, Phillips’ borrowed employee. Gilley contends that the effect of the contract was to require Transworld to indemnify Phillips and its “agents and employees” from any suits brought by employees of Transworld. Gil-ley claims that when Section 11.3 and Section 11.4 are read in conjunction with Section 11.2, Gilley, through Stevens, is an “agent and employee” of Phillips. However, at this point it should be noted that Section 11.3 is by its own terms limited in application to Section 11.1 and is therefore not applicable to Section 11.2 as we discuss later in this opinion.

The trial court, in its reasons for judgment, found that (1) “An analysis of the agreement, particularly Article [Section] 11.3, indicates that the benefits of indemnity stated in Article, [Section] 11.2, protecting employees and agents, were not intended to extend to subcontractors” and (2) that Gilley “supplied the ‘company man’ on the job through a contractual arrangement and hence was a sub-contractor to the operator (Phillips).” As a result of these findings the trial court held that Transworld owed no indemnity to Gilley, and dismissed Gil-ley’s reconventional demand with prejudice. We agree.

As between Phillips and Gilley, Gilley was clearly a subcontractor of Phillips. Phillips, needing a supervisor to relieve its regular company man on the rig, contracted with Gilley to supply such a person. Gilley furnished Phillips with Ray Stevens. Gilley does not appear to contest this relationship with Phillips in its brief, rather Gilley claims that under the indemnity provisions of the contract, Gilley is also, through Ray Stevens, an “agent and employee” of Phillips.

Gilley’s reliance on Section 11.3 and Section 11.4 is misplaced. An analysis of these sections in view of Section 11.2, convinces us that Gilley is not an “agent and employee” of Phillips under the contract but rather remained a subcontractor of Phillips, and that the indemnity obligations of Transworld under Section 11.2 were not intended to extend to subcontractors. The only places within the indemnity provisions where a reference of any kind is made to a “subcontractor” is in Sections 11.3 and 11.-4. The omission of any reference to a “subcontractor” in Section 11.2 is therefore particularly significant. This shows the parties to the contract, Transworld and Phillips, intended to exclude subcontractors from among those to whom Transworld might owe any indemnity obligation.

Although Section 11.3 provides that any employee of Gilley (a subcontractor of the operator) is deemed to be an employee of Phillips (the operator), the application of this section is specifically limited to Section 11.1. Section 11.1 is a reciprocal agreement on Phillips’ part to provide for indemnity to Transworld. It is the counterpart to Transworld’s indemnity obligation to Phillips under Section 11.2. It simply means that if Ray Stevens was injured that Phillips would agree to indemnify Transworld if Stevens sued Transworld.

Section 11.4 must be read in conjunction with Section 11.3, the only other place within the indemnity provisions which contains a reference to “subcontractor.” Its meaning is that Phillips will not owe any indemnity to Transworld unless Transworld is sued by either an employee of Phillips or an employee of Gilley (a subcontractor of Phillips).

Neither Section 11.3 nor Section 11.4 have any reference whatsoever to Section 11.2, which sets forth the indemnity obligations of Transworld. In view of the omission of any reference in any form tó “subcontractors” in Section 11.2, and in view of our findings with respect to Sections 11.3 and 11.4, we hold that Transworld owes no indemnity to Gilley.

For the reasons assigned we affirm the judgments of the trial court (1) in favor of Schlumberger, Ltd. and against Phillips Petroleum Company for $185,000, (2) in favor of Gilley and Associates, Inc. and against Phillips Petroleum Company and (3) in favor of Transworld Drilling Company and against Gilley and Associates, Inc. We reverse and set aside the award of attorney’s fees in favor of Schlumberger, Ltd. and against Phillips Petroleum Company in the amount of $5,000 and remand this case to the trial court for further proceedings relative to the demand for attorney’s fees and for disposition consistent with the views expressed herein.

The costs of this appeal are to be divided between Phillips, Schlumberger and Gilley on the basis of one-sixth to be paid by Schlumberger, Ltd., three-sixths to be paid by Phillips Petroleum Company, and one-third to be paid by Gilley and Associates, Inc.

REVERSED IN PART AND REMANDED; AFFIRMED IN PART.

ON APPLICATION FOR REHEARING

PER CURIAM.

Phillips Petroleum Company has applied for a rehearing in this case which we deny. However, among the matters on which Phillips bases its application is the contention that we erred in the conclusion of our opinion on rehearing wherein we affirmed the judgment in favor of Schlumberger, Ltd. and against Phillips for the amount of $185,000. This complaint is well taken. As we note in our original opinion Schlum-berger’s basic claim is for the amount of its settlement which was $180,000. The sum of $5,000 represented attorney’s fees awarded to Schlumberger. As we reversed the award of attorney’s fees and remanded this issue to the trial court for clarification of its judgment, our affirmance of Schlum-berger’s judgment against Phillips should have extended only to $180,000. Accordingly, we amend our original opinion, particularly the decree rendered therein, to reflect this correction.

With the correction, Phillips’ application for rehearing is denied.

APPLICATION FOR REHEARING DENIED.

      . The trial court inadvertently termed Gilley’s action against Transworld as a third party demand.


text:
    Jack BROWN, Plaintiff-Appellant, v. DELEGAL CONSTRUCTION CORPORATION & St. Jules Catholic Church, Defendant-Appellee.
    No. 83-388.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      Alfred F. Boustany, III, Lafayette, for plaintiff-appellant.
    y0orhies & Labbe, Robert A. Lecky, Lafayette, for defendant-appellee,
    Before FORET, YELVERTON and KNOLL, JJ.
   FORET, Judge.

Jack W. Brown (plaintiff) brought this action to recover the sum of $22,613.50, representing the amount allegedly due him under the terms of a sub-contract, damages to his reputation, and attorney’s fees. Named defendants are St. Jules Catholic Church and Delegal Construction Corporation. In turn, defendants filed an answer and reconventional demand in which they sought to recover the sum of $49,734.81: for damage to a mobile home and its contents; expenses incurred in providing supervisors to oversee plaintiff’s employees’ work; the cost of correcting construction defects; the cost of replacing a roof; damage to their reputation; and, expenses incurred in bonding out a lien filed by plaintiff.

After trial on the merits, the trial court rendered judgment in favor of plaintiff on the main demand, awarding him the sum of $12,804.42, together with legal interest thereon. The trial court further rendered judgment in favor of defendants on the reconventional demand, awarding them the sum of $8,980.81, together with legal interest thereon.

Plaintiff appeals and raises the following issues:

(1) Whether the trial court committed manifest error in finding that plaintiff’s employees had damaged the mobile home in question, and that plaintiff was liable for said damage.
(2) Whether the trial court committed manifest error in finding the existence of construction defects in the work done by plaintiffs employees, and in assessing the costs of repairing said defects.
(3) Whether the trial court erred in allowing the introduction of certain alleged hearsay evidence by defendants to prove certain charges deducted from the sum paid plaintiff under the terms of the sub-contract.

FACTS

On April 17, 1979, a contract was entered into between St. Jules Apartments for Retired & Senior Citizens, Inc. (as owner) and Delegal Construction Corporation (as contractor) for the construction of an apartment complex (the project) in Franklin. Thereafter, Delegal and plaintiff entered into a sub-contract which provided that plaintiff would furnish the labor to: construct the slab for the buildings; erect the walls and roof; install the windows; hang the sheetrock; place the interior and exteri- or trim; and, install the cabinets therein. The sub-contract specifically stated that the construction of sidewalks and parking pads were excluded therefrom, as was the mechanical work, electrical work, bricklaying, and cement finishing. The sub-contract further provided that the contractor, Delegal, would handle plaintiff’s payroll, and that workmen’s compensation insurance, old age benefits, and unemployment compensation taxes were to be paid by plaintiff. The total amount of the sub-contract was $88,080.00, including payroll and expenses.

Shortly after the sub-contract was entered into, plaintiff provided the labor, and Delegal provided the materials, for construction on the project to begin. The project was being financed by the Farmers Home Administration (FHA), which conducted periodic inspections of the project to insure that the appropriate construction standards of that entity were being met. Almost immediately, the parties began to run into problems with the FHA inspectors regarding sub-standard construction work on the project. In order to correct these problems, certain portions of the project had to be torn down and reconstructed to

meet FHA standards. Finally, the project was completed and accepted by the FHA.

Problems arose between the parties when DelegaF made the last payment to plaintiff under the terms of the sub-contract. Apparently, Delegal deducted the cost of correcting the defective construction work performed by plaintiff’s employees from the amount it was supposed to pay plaintiff. As a result, plaintiff filed the instant suit. Defendants answered and filed a reconventional demand in which they sought to recover, among other things, damages for the destruction of a mobile home that had been placed at the construction site for use by plaintiff’s employees as required by the sub-contract.

DAMAGES TO THE MOBILE HOME

Plaintiff contends that the trial court committed manifest error in finding that his employees damaged the mobile home. Plaintiff further contends that, even if his employees did damage it, the trial court erred in finding that he was legally responsible for said damage. Finally, plaintiff argues that the trial court erred in awarding defendants $4,000 for damage to the mobile home as they failed to prove the amount of said damage.

Joseph C. Delegal, Jr. testified that the mobile home had been purchased from a dealer in Opelousas for $4,900. At the time of trial, the mobile home was sitting in a field near Milton, where it had been junked. A number of witnesses testified that the mobile home was clean and in very good condition when it was placed at the construction site. Apparently, some of plaintiff’s employees did not live in Franklin, and the mobile home had been provided for them to stay in while working on the project. However, shortly after they moved into it, the condition of the trailer began to deteriorate to the point where it was no longer fit for human habitation. There was testimony indicating that: appliances were intentionally damaged; garbage was swept into the floor-mounted air conditioning ducts; walls and doors had objects driven through them; bathroom facilities were broken beyond repair; and, that dirt and filth were allowed to accumulate throughout the mobile home.

James Wells was one of plaintiff’s employees who stayed in the mobile home. He admitted that he broke a copper water line leading to the toilet in order to prevent it from being used because it had become clogged up. He further admitted that another of plaintiff’s employees had found a dog sleeping on a bed, and that this employee picked the dog up and hurled it against a mirror with such force that the mirror broke and a piece of glass stuck in the dog’s back. Wells also testified that plaintiff’s employees had swept garbage into the air conditioning ducts. This was the only direct evidence regarding damage done to the mobile home by plaintiff’s employees. However, Wells stated that one of plaintiff’s employees consumed large amounts of alcohol while staying in the mobile home, and that it was common practice for plaintiff’s other employees to also consume alcohol while staying there. Finally, and most revealing, Wells testified that:

“We’d give duties to everybody down there in the trailer. They’d keep it up for a day or so, but that’d be it. You know, like washing dishes and all. But what can you expect with all them men in the trailer. I mean, there’s nothing to do, away from home. You know, it’s like doing this on a desk. (Witness indicated by tapping fingers on desk.) Breaking a pencil from tension, and stuff like that.”

Wells did testify that the mobile home had been broken into a number of times on weekends and that food had been strewn about. However, the damage was apparently slight as plaintiff’s employees were able to clean it up each time. Finally, the evidence clearly shows that plaintiff’s employees were the only persons living in the mobile home, although other persons would use the restroom facilities and the telephone on occasion.

We agree with the trial court’s finding that the damage to the mobile home was caused to a large extent by plaintiff’s employees.

Plaintiff next argues that, even if his employees damaged the mobile home, he is not responsible for it. It is his position that he employed carpenters to do carpentry work, and that they were not acting in the course and scope of their employment, or in the exercise of the functions in which they were employed, when they intentionally damaged the mobile home.

LSA-C.C. Article 2320 provides:

“Art. 2320. Acts of servants, students or apprentices
Art. 2320. Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.”

In order to find plaintiff vicariously liable for the damage caused by his employees, it must be determined that they were in the course and scope of their employment. The particular circumstances of each case will determine whether an employee’s conduct is within the course and scope of his employment. Camatsos v. Aetna Casualty & Surety Company, 428 So.2d 1320 (La.App. 3 Cir.1983); Miller v. Keating, 349 So.2d 265 (La.1977).

Plaintiff’s employees’ actions must have been “primarily employment rooted” and “reasonably incidental” to the performance of their duties. Camatsos v. Aetna Casualty & Surety Company, supra; LeBrane v. Lewis, 292 So.2d 216 (La.1974); Weysham v. New Orleans Public Service, Inc., 385 So.2d 19 (La.App. 4 Cir.1980), writ denied, 392 So.2d 690 (La.1980). Their conduct is reasonably incidental to the performance of their duties if it is closely connected in time, place and causation to their employment duties as to be regarded as a risk of harm fairly attributable to their employer’s business. Camatsos v. Aetna Casualty & Surety Company, supra; Weysham v. New Orleans Public Service, Inc., supra; Heard v. Blakney, 415 So.2d 487 (La.App. 1 Cir.1982).

Plaintiffs employees occupied the mobile home because plaintiffs business required them to work at a location that was some distance from their homes. The mobile home provided a place for plaintiffs employees to live while they were performing their employment duties.' In addition, the sub-contract required Delegal to provide a mobile home for plaintiffs employees.

It is our opinion that plaintiffs employees’ conduct was reasonably incidental to the performance of their duties and within the course and scope of their employment.

Finally, plaintiff argues that defendants failed to prove the amount of damages sustained by the mobile home. As noted above, the initial cost of the mobile home was $4,900. There was some evidence indicating that Joseph C. Delegal, III had the mobile home cleaned for use as an office after plaintiff’s employees were no longer living there. Apparently, it was used as such for a short while and then junked because of the severe damage it had sustained.

It is axiomatic that when there is a legal right to recovery of damages but the amount cannot be exactly estimated, the courts have reasonable discretion to assess damages based upon all the facts and circumstances of the particular case. Emerson v. Empire Fire & Marine Insurance Co., 393 So.2d 691 (La.1981); Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Coleman v. Victor, 326 So.2d 344 (La.1976). If it is practical to repair the damaged property, the objective of restoring the injured party to his prior position may be achieved by awarding him the difference in the value of the property before the damage was inflicted and immediately afterwards. If this figure cannot be determined with a reasonable degree of certainty, the damage award should be based upon cost to replace the damaged property, less a depreciation factor. Petrol Industries, Inc. v. Gearhart-Owen Industries, Inc., 424 So.2d 1059 (La.App. 2 Cir.1982).

It is apparent that the trial court’s award of $4,000 to defendants for damages to the mobile home was based upon the cost to replace the mobile home (as it was not practical to repair it), less a depreciation factor. We do not consider this award to be an abuse of the trial court’s reasonable discretion to assess such damages.

AWARD FOR CONSTRUCTION DEFECTS

Plaintiff contends that the trial court erred in awarding defendants $4,130.81 for correction of defects in the construction work performed by his employees, and $850 for repair of an improperly constructed roof. He argues that defendants failed to prove the existence of said defects, by whom they were caused, or the cost of repairing them. He further argues that defendants made no objections regarding these alleged defects until after suit was filed and, therefore, they should be held to have accepted the alleged defects.

The record shows that defendants produced numerous witnesses who testified to the existence of defects in the construction work performed by plaintiff’s employees. Joseph Delegal, III testified that most of the walls in the buildings were out of square, and that he and his men had to go back in and straighten them up. Also, moldings had to be placed on the outside of the buildings because joints wouldn’t fit together, and “Deadwood” had to be placed on the walls so that sheetrock could be hung there. Plaintiff’s employees forgot to put this “Deadwood” on the walls. Mr. Delegal went on to testify that numerous problems were encountered with the bathrooms in the apartments. Doors were placed in the wrong place so that they struck the toilets when opened. There were also problems encountered in placing the bathtubs in the bathrooms because plaintiff’s employees had constructed the spaces in which they were to be placed using dimensions other than those called for in the building specifications. Also, the building plans called for cabinets to be screwed to the walls. Instead, plaintiffs employees nailed them to the walls. The list of defects, testified to by the witnesses, goes on, but we see no need to repeat them all. It is apparent that these defects were caused by the poor workmanship of plaintiffs employees.

The fact that the defects were caused by plaintiffs employees is best illustrated by the testimony of James Wells (who was acting as a supervisor for plaintiff at the project) found in the following exchange between himself and defense counsel:

“Q. The carpenters that were working under you in your crew, were they skilled carpenters?
A. I don’t know.
Q. Were they good carpenters?
A. No, I can’t say that they were.
Q. And why not?
A. Lack of experience.”

As to the cost of correcting the construction defects, Joseph C. Delegal, Jr. testified that it amounted to $4,130.81 for labor alone to bring the buildings to the point where the FHA would accept them. He explained that, in the beginning, he was the one who paid for correcting the defects, but that he soon decided that plaintiff should pay for these. At this time, he instructed his bookkeeper and supervisors to be very careful in keeping records of what was being expended to correct the defects. He further instructed them that if there was any question as to whether an item should be charged for the correction of a defect, then Delegal Construction Corporation would pay for it.

Josette Abshire, the bookkeeper for Del-egal Construction Corporation, explained in detail the method by which charges attributable to the correction of the construction defects were posted in the company’s records. These records were introduced in evidence. Mrs. Abshire stated that the cost of correcting the construction defects could be determined from examining these records.

We agree with the trial court’s finding that defendants have proven, by a preponderance of the evidence, the cost of correcting the construction defects caused by plaintiff’s employees. As for the $850 awarded defendants by the trial court for repairs to the roof, plaintiff admitted that this work was necessary and that he authorized defendants to hire people to do it. In the trial court, he stated that he had no dispute with the amounts that were paid to these people for their work.

Finally, plaintiff argues that where a party is aware of, but makes no objections to, alleged defects until after suit has been filed, he will be held to have accepted the alleged defects. He cites Lane Wilson Company, Inc. v. Gregory, 322 So.2d 369 (La.App. 2 Cir.1975), in support of his argument.

The evidence clearly shows that defendants objected many times to the fact that plaintiff’s employees were performing sub-standard construction work on the project prior to suit being filed. Joseph Delegal, Jr. testified that he sometimes contacted plaintiff as many as three times a week by telephone in an attempt to get him to come to the construction site to supervise his employees. However, he was unable to persuade plaintiff to do so. Mr. Delegal stated that he spoke with plaintiff on the telephone approximately ten times regarding problems they were experiencing with the roof. Finally, Mr. Delegal withheld $1,000 from the last payment made to plaintiff under the sub-contract to pay for correction of the defective construction work. Thus, there is no merit to plaintiff’s argument that defendants failed to object to the defects until after suit was filed.

ADDITION OF 19.27% TO GROSS PAYROLL

The sub-contract entered into by plaintiff and Delegal Construction Corporation provided that plaintiff would be paid $88,080, less “payrolls and expenses”. Delegal would handle the payroll for plaintiff. However, plaintiff was to pay workmen’s compensation insurance, old age benefits, and unemployment compensation taxes. Joseph Delegal, Jr. testified that he was the one who computed the rate of 19.27% of gross payroll that was deducted from the sum plaintiff received under the subcontract. He stated that the 19.27% rate was arrived at by taking certain figures from a form sent to him by the “government” each year and adding these figures to those contained in an insurance policy. This additional deduction from the sub-contract price was to cover workmen’s compensation, old age benefits, and unemployment compensation taxes.

Plaintiff objected to the introduction of this testimony as being hearsay because the accountant and insurance agent with whom Joseph Delegal, Jr. conferred in arriving at this figure did not testify. The trial court overruled plaintiff’s objection.

We see no need for deciding the issue of whether the trial court erred in overruling plaintiff’s objection. Plaintiff is the one who is alleging that the 19.27% (of gross payroll) rate used by defendants is incorrect. Thus, plaintiff had the burden of proving this. Plaintiff could have done this through the use of discovery procedures, and by calling Delegal Construction Corporation’s accountant as a witness. This he failed to do.

It is our opinion that plaintiff failed to prove that defendants erred in calculating the rate used to cover his obligations under the terms of the sub-contract.

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . Apparently, St. Jules Catholic Church was made a defendant to this action because it is the owner of the apartment complex which was constructed by Delegal Construction Corporation. However, it has not taken an appeal from the trial court’s judgment, nor has it answered plaintiff s appeal. In addition,it is not named as an appellee to this appeal. Thus, the term “defendants”, used throughout this opinion, will usually refer to Delegal Construction Corporation alone.


text:
    Michael R. THOMAS, Plaintiff-Appellee, v. GREGORY & COOK, INC., et al., Defendants-Appellants.
    No. 83-423.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      Randall K. Theunissen, of Allen, Gooch & Bourgeois, Lafayette, for defendant-appellant.
    Brinkhaus, Dauzat & Falgoust, William A. Brinkhaus and Peter F. Caviness, Opel-ousas, for plaintiff-appellee.
    Before FORET, YELYERTON and KNOLL, JJ.
   FORET, Judge.

Michael R. Thomas (plaintiff) brought this workmen’s compensation action to recover disability benefits, medical expenses, and penalties and attorney’s fees. Named defendants are Gregory & Cook, Inc. (Gregory), plaintiff’s employer at the time he was injured, and its workmen’s compensation insurer, North River Insurance Company

After trial on the merits, the trial court rendered judgment in favor of plaintiff, finding him to be partially disabled and awarding him disability benefits in accordance with the provisions of LSA-R.S. 23:1221(3), viz, 450 weeks, subject to applicable credits. In addition, the trial court ordered defendants to pay plaintiff a penalty of 12% on all compensation benefits found to be due and unpaid, and attorney’s fees in the amount of $2,500.

Defendants appeal and raise the following issues:

(1) Whether the trial court committed manifest error in finding plaintiff to be partially disabled;
(2) Whether the trial court committed manifest error in finding that defendants had acted arbitrarily, capriciously, and without probable cause in terminating the payment of disability benefits to plaintiff.

Plaintiff has answered the appeal and seeks an increase in the amount of attorney’s fees awarded to him.

FACTS

There is no dispute that plaintiff was injured in a work-related accident on May 6, 1980, while employed by Gregory. On that date, plaintiff was working as a laborer on a pipeline being constructed by Gregory, and injured his left knee when he jumped from some pipe to the ground below. He was initially taken to a hospital in New Iberia for treatment and then transferred to Opelousas General Hospital.

EXTENT OF PLAINTIFF’S ALLEGED DISABILITY

Defendants contend that the trial court committed manifest error in finding plaintiff to be partially disabled. They argue that the medical evidence shows that he is not.

Upon reaching Opelousas, plaintiff was treated by Dr. Robert L. Bordelon. After examining and x-raying plaintiff’s knee, Dr. Bordelon diagnosed him as suffering from a knee strain. He then immobilized plaintiff’s knee, placed him on medication for pain and swelling, gave him some crutches, and told him to report back in a couple of days. The next time plaintiff saw Dr. Bordelon, he was complaining of continued difficulty with his knee and was told that he had three choices, i.e., he could go back to work, wait, or have an arthroscopic examination. Dr. Bordelon advised plaintiff to wait as he was undergoing physical therapy. On June 5, 1980, plaintiff saw Dr. Bordelon for the last time and was again told that he had the three choices noted above, although Dr. Bordelon informed him that he didn’t believe he could return to work. At this time, plaintiff decided to have the arthroscopy performed and Dr. Bordelon scheduled him for the examination, and surgery if necessary. Plaintiff never returned to see Dr. Borde-lon, whose final diagnosis was a probable tear of cartilage in the knee.

Plaintiff was treated next by Dr. Frederick L. Mayer, an orthopedic surgeon, on June 24, 1980. After examining his knee and conducting certain tests on it, Dr. Mayer concluded that plaintiff was suffering from a tear of the medial meniscus (a cartilage located in the knee). He was again scheduled for arthroscopy (which confirmed Dr. Mayer’s diagnosis), and underwent surgery to excise the torn cartilage fragment. Plaintiff was then discharged from the hospital and followed by Dr. Mayer on a regular basis until November 10, 1980, at which time he was discharged from Dr. Mayer’s care.

The claimant has the burden of proving to a legal certainty and by a reasonable preponderance of the evidence that he is disabled. Bordelon v. Ranger Insurance Co., 413 So.2d 962 (La.App. 3 Cir. 1982), writ denied, 420 So.2d 448 (La.1982); Elie v. St. Paul Fire & Marine Ins. Co., 408 So.2d 297 (La.App. 3 Cir.1981); Augustine v. Courtney Construction Company of Alexandria, Inc., 405 So.2d 579 (La.App. 3 Cir.1981), writ denied, 407 So.2d 735 (La.1981). The issue of whether or not he has carried his burden must be determined by examining the totality of the evidence, in-eluding both lay and medical testimony. Elie v. St. Paul Fire & Marine Insurance Co., supra; Augustine v. Courtney Construction Co. of Alexandria, Inc., supra; Crawford v. Al Smith Plumbing & Heating Service, Inc., 352 So.2d 669 (La.1977).

Plaintiff testified that he had graduated from high school. He has worked on a survey crew and performed light construction work. In addition, plaintiff worked as a pipeline laborer for Curran Houston, Inc., before going to work for Gregory, and as a warehouseman at his mother’s Western Auto Store in Opelousas. On the date of trial, plaintiff was twenty-four years old.

Plaintiff further testified that his knee was still very weak at the time that he was discharged from Dr. Mayer’s care. He stated that it was painful to stand on and that it would give out on him, making it impossible for him to perform the tasks of a pipeline laborer. He noted that such work was done in mud most of the time, and that he was occasionally required to climb on and off of machinery. On August 28, 1981, plaintiff returned to work with Gregory. He stated that his knee had not improved at this time, and that he injured his right knee the second day he was on the job.

Plaintiff introduced in evidence the deposition of Dr. Mayer to which was attached the discharge summary he sent to defendants on November 10, 1980. That summary provides, in pertinent part, that:

“Examination reveals no swelling or effusion or increased heat. There is no evidence of any varus or valgus laxity. He has a very minimal amount of anteri- or laxity which is secondary to the sprain of the anterior cruciate ligament. The patient has full active range of motion of the knee joint.
I feel that he has reached a maximum plateau of rehabilitation insofar as he does not require further supervised follow-up care. I feel that the patient has a 10% partial permanent physical impairment of his entire left lower extremity based upon surgical removal of the medical semilunar cartilage, no complications and partial tear of the anterior cruciate. I feel that this man may be discharged and feel that he is fit to return to his previous employment in the same capacity as prior to his injury.” (Emphasis ours.)

On January 12, 1981, Dr. Mayer examined plaintiff once again. At that time, plaintiff told him that, “... his left knee was still giving way at times, especially when he bends or twists it”. Dr. Mayer stated that this was occurring, “... probably due to the fact that he hadn’t quite rehabilitated dr gained the full strength back in his quadriceps, the muscles of his thigh”. Dr. Mayer noted that plaintiff had not regained normal strength in his left leg at the time he was discharged. He explained that: “Usually we discontinue the therapy when a patient has eighty percent of the strength in his so-called normal leg.” Dr. Mayer could find nothing objectively wrong with plaintiff’s left knee on this date.

On December 29, 1980, plaintiff was examined by Dr. George P. Schneider, an orthopedic surgeon, for evaluation. Dr. Schneider found some atrophy present in the left leg as compared to the right. Further, the tone of the left quadriceps muscle on comparison with the right was moderately decreased, and slight crepitation or grinding was noted on active motion of the knee. Dr. Schneider was of the opinion that plaintiff was recovering from an injury to the left knee, and was progressing very satisfactorily, but he recommended that he undergo a routine of intensive physical therapy to aid in restoring further strength to the muscles of the left thigh and calf. He felt that plaintiff would need approximately eight weeks of physical therapy before he could resume his employment, and was of the opinion that plaintiff could not return to work as a heavy laborer. He was also of the opinion that the injury to plaintiffs right knee in the second accident resulted from the fact that plaintiff was favoring his left leg. He did find that plaintiff had a 10% permanent partial disability of the left leg.

Finally, on March 26, 1981, plaintiff was examined for evaluation by Dr. James R. Lafleur, an orthopedic surgeon. He too assigned plaintiff a 10% permanent partial disability of the left leg. At the time of his examination, Dr. Lafleur was of the opinion that plaintiff could not return to his job as a pipeline laborer. Dr. Lafleur stated that: “... at the time that I saw him the knee was at risk, implying that it was not a strong knee and any exertion on it would predispose him to further injury of the affected knee and/or other body parts.” Dr. Lafleur was able to visually detect the presence of atrophy in plaintiffs left leg. He believed that extensive physical therapy was indicated.

In order to recover benefits under LSA-R.S. 23:1221(3) (as it read at the time plaintiff was injured), plaintiff must show that his injury prevented him from performing the “duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience”. Stracener v. United States Fidelity & Guaranty Company, 420 So.2d 1101 (La.1982).

Based on the evidence noted above, we conclude that plaintiffs injury prevents him from performing the duties in which he was engaged when injured as well as those for which he is fitted by education, training, and experience. Hence, the trial court correctly found that he is partially disabled within the meaning of LSA-R.S. 23:1221(3), and entitled to recover disability benefits under this provision.

PENALTIES AND ATTORNEY’S FEES

Defendants contend that the trial court committed manifest error in awarding plaintiff penalties and attorney’s fees. They argue that their actions in terminating the payment of disability benefits to him were not arbitrary, capricious, or without probable cause. They note that on November 18, 1980, an offer was made to plaintiff to settle his claim against them. Under the terms of that offer, plaintiff was to receive a lump sum payment of $6,468.

The evidence shows that the above mentioned offer to settle was made to plaintiff by defendants. However, plaintiff rejected this offer by making a counteroffer in which he agreed to accept $17,500 in settlement of his claim. Defendants refused to accept this counteroffer.

Robert L. Wallace testified that he is an employee of Gray & Company, Inc., defendants’ adjusting agency. He handled plaintiff’s workmen’s compensation claim. He stated that he did receive a letter from plaintiff’s attorney, demanding that plaintiff’s disability benefit payments be brought up to date, and admitted that Gray & Company, Inc. had received Dr. Mayer’s discharge summary in which he opined that plaintiff had, “... a 10% partial permanent physical impairment of his entire left lower extremity ... ”. However, Wallace testified that defendant failed to pay plaintiff any disability benefits after November 18, 1980, and that no more payments had been made to him up to the date of trial. Finally, Wallace stated that the offer made to plaintiff was for the total settlement of his potential claim.

It is now well established that if an employee has a partial disability, the insurer is not justified to terminate all compensation. If the insurer arbitrarily withholds compensation for partial disability, the insurer may be assessed penalties and attorney’s fees. See Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977), and authorities cited therein. Further, it has been held that the tender, in full settlement of plaintiffs potential claim, of a greater amount than the amount later judicially determined to be due cannot serve to- relieve the insurer from the assessment of penalties for failure to pay a lower amount undoubtedly due, when the tender was conditioned upon plaintiffs releasing a right to claim a greater sum. See Lopez v. Commercial Union Assurance Companies, 353 So.2d 431 (La.App. 4 Cir.1977), and authorities cited therein.

In the case sub judice, defendants did tender a greater amount to plaintiff than he would have been entitled to under the schedule of benefits (see LSA-R.S. 23:1221(4)(h)) for the undisputed 10% partial permanent physical impairment of his left leg. However, defendants failed to reinstitute the payment of weekly disability benefits to plaintiff (under LSA-R.S. 23:1221(4)(h)) after he rejected their settlement offer, which defendants admit was made in full settlement of plaintiffs potential claim against them. Thus, the trial court correctly found that defendants had acted arbitrarily, capriciously, and without probable cause in terminating the payment of disability benefits to plaintiff.

ANSWER TO APPEAL

As noted above, plaintiff has answered the appeal, seeking to increase the trial court’s award for attorney’s fees from $2,500 to $5,000 and for an additional award for the time, effort, and expenses expended by counsel in handling this appeal.

The factors usually taken into account in determining attorney’s fees in workmen’s compensation cases are the degree of skill and ability exercised, the amount of the claim, the amount recovered, and the amount of time devoted to the case. Naquin v. Uniroyal, Inc., 405 So.2d 525 (La.1981). In determining the amount of penalties and attorney’s fees to be awarded in workmen’s compensation cases, great discretion is afforded the trial court. Carter v. Roy O. Martin Industries, Inc., 336 So.2d 1002 (La.App. 3 Cir.1976); Jackson v. Maloney Trucking & Storage, Inc., 424 So.2d 1037 (La.App. 4 Cir.1982).

The record shows that plaintiff’s attorney participated in the taking of five depositions: one taken at his office in Opelou-sas; two taken in physicians’ offices located in Opelousas; one taken in a physician’s office located in Lafayette, and the last taken in a physician’s office located in Lake Charles. Thus, plaintiff’s attorney had to travel to participate in the taking of four depositions in addition to the time spent preparing for and actually taking them. Further, plaintiff’s attorney participated in the trial (which lasted approximately half a day), filed post-trial memoranda, and filed various pleadings.

It is our opinion that the trial court erred in awarding plaintiff only $2,500 for attorney’s fees. We will increase that award to $4,000. In addition, we will award plaintiff $500 for attorney’s fees for this appeal, a total award of $4,500 for attorney’s fees.

DECREE

For the above and foregoing reasons:

IT IS ORDERED, ADJUDGED AND DECREED that:

(1) that portion of the judgment of the trial court awarding $2,500 attorney’s fees is hereby amended to increase that award to $4,000;
(2) plaintiff is awarded the amount of $500 for attorney’s fees in connection with this appeal; and,
(3) in all other respects, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against defendants-appellants.

AFFIRMED AS AMENDED.

      . Prior to trial on the merits, the parties stipulated that Gray & Company, Inc., originally named as a defendant to this action, would be deleted as a defendant since it is not an insurance company, and that in its place would be substituted North River Insurance Company.

      . The judgment incorrectly refers to plaintiff's disability as permanent partial disability.

      . In this second accident, plaintiff was working on a crane when it began to topple over while handling a section of pipe. He injured his right knee when he jumped from the crane because he, "... favored that left leg at that time because it was very weak”. Plaintiff was receiving disability benefits for the injuries sustained in this second accident at the time of trial.

      . This Court is well aware of the rule that the testimony of treating physicians is usually accorded greater weight than that of specialists who are employed merely to evaluate the claimant. See Thibodeaux v. Dresser Industries, Inc., 407 So.2d 37 (La.App. 3 Cir.1981), writ denied, 412 So.2d 85 (La.1982), and authorities cited therein. However, this rule does not require a court to completely disregard the testimony of physicians employed solely for evaluation.


text:
    STATE of Louisiana, Appellee, v. William WILLIAMS, Jr., Appellant.
    No. CR83-730, CR83-731.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984.
    Writ Denied April 23, 1984.

      Patricia A. Thomas, Abbeville, for appellant.
    Louis G. Garrot, III, Asst. Dist. Atty., Abbeville, for appellee.
    Before FORET, YELVERTON and KNOLL, JJ.
   FORET, Judge.

NUMBER CR 83-730

On June 19, 1981, William Williams, Jr. (defendant) was charged by indictment of the Vermilion Parish Grand Jury with committing the offense of aggravated rape upon one Nanette Marie Callier Broussard (the victim), in violation of LSA-R.S. 14:42. In addition, the same grand jury charged defendant with committing the offense of armed robbery of the victim, in violation of LSA-R.S. 14:64. Subsequently, on June 26, 1981, defendant was charged by indictment of the Lafayette Parish Grand Jury with committing the offense of aggravated kidnapping of the victim, in violation of LSA-R.S. 14:44.

Prior to trial, defendant filed a motion to consolidate the two indictments and the motion was granted. Defendant was tried by a jury in Vermilion Parish, which returned three unanimous verdicts, finding defendant guilty of each of the offenses with which he was charged. On May 81, 1983, defendant was sentenced as follows:

For aggravated kidnapping, life imprisonment; for aggravated rape, life imprisonment; and for armed robbery, thirty years imprisonment, all at hard labor without benefit of parole, probation, or suspension of sentence, and all to run consecutively.

Defendant appeals from his convictions and sentences, and makes the following assignments of error:

(1)' The trial court’s denial of defendant’s motion to suppress evidence which was allegedly obtained as the result of improperly suggestive police procedures;
(2) The trial court’s denial of two motions for continuance filed by defendants;
(3) The trial court’s denial of defendant’s “MOTION FOR ADDITIONAL TIME TO FILE PRE-TRIAL MOTIONS”; and
(4) The trial court’s failing to follow the guidelines set forth in LSA-C.Cr.P. Article 894.1 in sentencing defendant, and in imposing an excessive sentence on him.

FACTS

On the evening of June 4, 1981, the victim traveled from Abbeville to Lafayette to visit a friend, Michelle Mouton. At the time, she was twenty-two years old. The two women went to LaFonda’s Restaurant for dinner at approximately 9:30 P.M., where they remained for about an hour. After that, they went to J.R.’s Saloon, and eventually met Michelle’s boyfriend, Phillip Broussard, there. Around midnight, the victim decided to drive Michelle’s automobile back to her apartment, where she was to spend the night, and she obtained Michelle’s automobile and apartment keys for this purpose.

When the victim reached a dimly-lit area in J.R.’s parking lot and began to unlock the automobile, an unknown male armed with a knife accosted her and told her that he would kill her if she did not do as he said. He then ordered the victim to unlock the door on the driver’s side and to get into the automobile, and to unlock the door on the passenger’s side and push it open. After that, he ran to the other side of the automobile and got in, telling the victim to drive where he told her to go. He then forced the victim to drive to Maurice, where they turned left on La. Highway 92, and proceeded toward Milton. After driving a short distance down La. 92, the victim was directed to pull over to the shoulder of the highway.

The attacker then dragged the victim from the automobile, through a ditch, under a barbed wire fence, and across a bean field into a briar patch. He then forced her to partially remove her clothing, choked her and struck her in the face when she tried to escape, and raped her. Thereafter, he ordered the victim to dress, but she was unable to find all of her clothing in the dark bean field. He then took thirty cents from the victim’s purse.

Thereafter, they returned to the automobile, but this time the attacker drove. When they neared Broussard, he stopped the automobile and fled on foot. The victim drove back to Ms. Mouton’s apartment, and the Lafayette City Police were alerted as to what had happened. They in turn alerted the Vermilion Parish Sheriff’s Office, as it appeared that the rape and armed robbery had occurred in that parish. The victim was transported to Abbeville General Hospital where she was examined by Dr. Ardley Hebert, the Vermilion Parish Coroner. He utilized a standard rape kit in conducting his examination and found evidence of sexual activity. Vaginal swab-bings obtained at this time were sent to the Acadiana Regional Criminalistics Laboratory where they tested positive for the presence of semen.

Later, the victim returned to Lafayette to view mug shot books in an attempt to identify her assailant, but was unable to do so. Accompanied by a sheriff’s deputy, she retraced the route taken during the abduction in an attempt to locate her missing clothing, but was unsuccessful. However, two days after the crimes occurred, the victim and some friends once again retraced the abduction route and were able to locate the bean field where the rape had taken place, along with the victim’s missing clothing and other personal items. They then went to the spot where defendant had exited the automobile and noticed that it was located near a trailer park/campground facility.

While driving through this trailer park, the victim spotted her attacker (the defendant) standing among a group of men. She became upset and nauseous at the sight of defendant. Apparently, she noticed him as he pointed at their automobile, telling them that they had a flat tire. Defendant then entered a van, and the victim’s friends recorded the license number. Shortly thereafter, they called the police and returned to Lafayette. They gave the police the items they had found in the field and the license number of the van. On June 9, 1981, the victim returned to the trailer park with Detective Dale Broussard. She was once again able to identify defendant as her assailant. Detective Broussard noticed that defendant had a strong body odor and a tattoo (both characteristics had been mentioned by the victim in the description she had given to the police), and he was arrested. Defendant’s fingerprints were taken and matched by an FBI expert with prints found in the automobile used in the abduction. Defendant was subsequently indicted on the charges noted above.

ASSIGNMENT OF ERROR NUMBER 1

Defendant contends that the trial court erred in denying his “MOTION TO SUPPRESS IN COURT'IDENTIFICATION”. In his motion, defendant argued that the trial court should have suppressed any evidence of an in court identification by the victim of himself as the alleged perpetrator of the crimes with which he was charged on the ground that the original identification by the victim was made under circumstances suggesting that he was the perpetrator of said crimes. The “original” identification of which defendant complains was made on June 9, 1981, when the victim met Detective Broussard at the trailer park.

However, defendant overlooks the fact that on June 7, 1981 (two days after the crimes were committed), the victim positively identified him as being the man who raped her, while riding through the trailer park with some friends. Plaintiff testified that there was no doubt at all in her mind at this time that defendant was her assailant, and that she became ill upon seeing him. Certainly, there was nothing in the random manner in which the victim rode through the trailer park, viewing the occupants thereof, which could have suggested to her in any way that defendant was the one who had attacked her. All of the cases cited by defendant in support of his argument are concerned with procedures employed by the police in helping victims and witnesses to identify the perpetrators of crime. In the case sub judice, the police were in no way involved in the initial identification of defendant by the victim. Thus, there is no merit to defendant’s argument.

ASSIGNMENT OF ERROR NUMBER 2

Defendant argues that the trial court erred in denying two motions for continuances filed by him. The first was filed on April 25, 1983, and set forth the following ground therefor:

“The names of the arresting officers, any other police officers and anyone else who may have been present at the time Nanette Marie Callier Broussard made identification of William Williams, Jrs. [sic], as the alleged perpetrator of the crime is presently unknown to the undersigned counsel, and such names are necessary to subpoena them for the Motion to Suppress In Court identification.”

We have already found that there was no basis whatsoever for defendant’s motion to suppress the victim’s in court identification of him, and that the trial court properly denied said motion. Thus, we find no abuse of discretion by the trial court in denying the motion for a continuance filed by defendant on April 25, 1983.

Defendant filed a second motion for a continuance on May 6, 1983, ten days prior to trial. There were two grounds set forth in this motion. The first was that more time was needed to provide an opportunity for a hearing on two issues raised in a motion to quash. We will discuss this ground first.

In his motion to quash, defendant set forth the following grounds as the basis for his motion. The first was that the district attorney had failed to furnish him with a sufficient bill of particulars after having been ordered to do so by the trial court. The second was that the certificate of analysis by the FBI (Report of Latent Fingerprint Section, Identification Division) was deficient in that it failed to comply with LSA-R.S. 15:499.

LSA-C.Cr.P. Article 535 provides, in pertinent part:

“A. [Not applicable]
B. [Not applicable]
C. A motion to quash on grounds other than those stated in Paragraphs A and B of this Article shall be filed in accord-, anee with Article 521.
D. The grounds for a motion to quash under Paragraphs B and C are waived unless a motion to quash is filed in conformity with those provisions.
E. The court may, in order to avoid a continuance, defer a hearing on a motion to quash until the end of the trial.”

As can be seen, defendant’s motion to quash is governed by the provisions of LSA-C.Cr.P. Article 535(C), which “shall be filed in accordance with Article 521”.

LSA-C.Cr.P. Article 521 provides:

“Art. 521. Time for filing of pretrial motions
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.”

The record shows that defendant was formally arraigned on the armed robbery and aggravated rape charges on January 27, 1983. He was given thirty days to file pretrial motions. His motion to quash was filed on May 6, 1983, and was, therefore, untimely filed. Similarly, defendant was formally arraigned on the aggravated kidnapping charge on April 6, 1983, and was given twenty days to file pretrial motions. Thus, his motion to quash was also untimely filed with respect to this charge. Under the provisions of LSA-C.Cr.P. Article 535(D), defendant waived the grounds on which he based his motion to quash. As will be shown, defendant made no showing of good cause such that the trial court should have allowed him additional time to file pretrial motions.

For these reasons, we agree with the trial court’s refusal to grant defendant’s motion for a continuance based on the ground that more time was needed to provide an opportunity for a hearing on his motion to quash.

The second ground set forth in defendant’s second motion for a continuance was that more time was needed for defendant to prepare an adequate defense. The record shows that defendant retained counsel to represent him in this matter shortly after his arrest. However, several months later, this counsel filed a “MOTION TO WITHDRAW AS COUNSEL OF RECORD” on the ground that,

“... the services, recommendations and advice of defendant’s attorney can no longer be extended to defendant as he is now a fugitive at large, having escaped ■ from the Vermilion Parish jail ...”.

The record shows that defendant escaped from the Vermilion Parish jail on two more occasions, but was recaptured each time. On one occasion, defendant remained a fugitive at large for a number of months.

On March 23, 1983, the trial court appointed counsel to represent defendant at a sanity hearing, after which it was determined that he had the mental capacity to proceed to trial. Subsequently, defendant retained present counsel to represent him in these proceedings. On April 8, 1983, counsel was given notice that defendant's trial was to begin on May 16, 1983. Thus, counsel had approximately two months to prepare for trial. Defendant argues that this was an insufficient amount of time for him to adequately prepare his defense. We disagree.

LSA-C.Cr.P. Article 712 gives the trial court discretion to grant a continuance if good grounds for such are shown. As a general rule, the denial of a continuance is not grounds for reversal absent an abuse of discretion and a showing of specific prejudice caused by the denial. State v. Haarala, 398 So.2d 1093 (La.1981); State v. Durio, 371 So.2d 1158 (La.1979); State v. Hammontree, 363 So.2d 1364 (La.1978).

It is our opinion that defendant failed to make a showing that good grounds existed for the granting of a continuance. His numerous escapes from the Vermilion Parish jail were the most significant factors limiting the amount of time he had to prepare his defense. Also, defendant has failed to make any showing of specific prejudice resulting from the trial court’s refusal to grant his motion for a continuance. Thus, the trial court properly denied his motion .

ASSIGNMENT OF ERROR NUMBER 3

Defendant contends that the trial court erred in denying his Motion for Additional Time to File Pretrial Motions. He relies on his arguments, advanced in assignment of error number 2, in support of his contention. Similarly, for the reasons assigned by this Court in assignment of error number 2, we find no merit to defendant’s contention. Defendant made no showing of good cause for being allowed additional time to file pretrial motions. See LSA-C.Cr.P. Article 521.

ASSIGNMENT OF ERROR NUMBER 4

Defendant contends that the trial court erred in sentencing him to two consecutive life sentences and a consecutive thirty-year sentence, all at hard labor, without benefit of parole, probation, or suspension of sentence. He further contends that the trial court failed to comply with the provisions of LSA-C.Cr.P. Article 894.1, which sets sentencing guidelines to be used by the trial courts in imposing sentences on defendants.

In contending that the trial court erred in imposing consecutive sentences on him, defendant relies on LSA-C.Cr.P. Article 883, which provides:

“Art. 883. Concurrent and consecutive sentences
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.” (Emphasis ours.)

The record shows that the trial court expressly directed that all of the sentences imposed on defendant be served consecutively, as provided for in LSA-C.Cr.P. Article 883. Further, the trial court noted that defendant had two prior felony convictions.

In State v. Molinario, 400 So.2d 596 (La.1981), the court stated, on page 600, that:

“This court has recognized concurrent rather than consecutive sentences as the general rule for convictions arising out of a single course of criminal conduct at least for a defendant without a previous criminal record and in the absence of a showing that the public safety requires a longer sentence. State v. Ortego, 382 So.2d 921 (La.1980); State v. Underwood, 353 So.2d 1013 (La.1977). However, we have never held that, if convictions arise out of a single course of conduct, consecutive sentences will necessarily be found to be excessive. Other factors must be considered. State v. Ortego, supra. Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentences imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Jacobs, 383 So.2d 342 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979).”

In light of defendant’s prior record and his propensity for violence, we conclude that the trial court did not abuse its discretion in imposing consecutive, rather than concurrent, sentences in the instant case.

Finally, we find no merit to defendant’s argument that the trial court erred in failing to articulate the guidelines set forth in LSA-C.Cr.P. Article 894.1, in imposing sentence on him. Two of the crimes for which defendant was convicted carry mandatory sentences of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Thus, it would have been an exercise in futility for the trial court to set forth those factors indicating that a sentence of imprisonment should have been imposed on defendant, and those factors indicating that a suspended sentence or probation would be proper, when it had no discretion in sentencing defendant.

In State v. Parker, 416 So.2d 545 (La.1982), the court rejected the argument that mandatory life sentences unconstitutionally denied defendants the right to have the trial court exercise its discretion in imposing sentences under LSA-C.Cr.P. Articles 893 and 894.1. On page 552, Parker stated that:

“The decision to assess mandatory life sentences for certain felonies is within the prerogative of the legislature.”

We find no merit to any of the assignments of error raised by the defendant.

DECREE

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

AFFIRMED.

NUMBER CR 83-731

For the reasons assigned this date in State v. Williams, 445 So.2d 1264 (La.App. 3 Cir.1984), with which the instant case was consolidated at trial and on appeal, defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . We note that, in his brief filed in this Court, defendant argues that lack of time for preparation of his defense resulted in specific prejudice to him in that he did not have enough time to locate witnesses who could have corroborated his wife’s testimony, which provided him with an alibi. However, a review of the motion for a continuance filed by defendant on May 6, 1983, shows that it meets none of the requirements of LSA-C.Cr.P. Article 709, which mandates that certain facts be set forth in a motion for a continuance based upon the absence of a witness. Thus, we will not consider defendant’s argument.