source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    James E. ALLBRITTON, Jr., Plaintiff-Appellant v. LINCOLN HEALTH SYSTEM, INC., Ruston Louisiana Hospital Company, and CHS/Community Health Systems Professional Services Corporation, Defendants-Appellees.
    No. 45,537-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 20, 2010.

      Watson, McMillin & Harrison, L.L.P., by W. Michael Street, for Appellant, James E. Allbritton, Jr.
    McNew, King, Mills, Burch & Landry, L.L.P., by Brady D. King, II, for Appel-lees Community Health Systems Professional Services Corporation and Ruston Louisiana Hospital Company, L.L.C.
    Hayes, Harkey, Smith & Cascio, L.L.P., by Bruce M. Mintz, Laura S. Achord, for Appellee Lincoln Health System, Inc.
    Before BROWN, GASKINS and DREW, JJ.
   DREW, J.

|, The underlying dispute is whether a claimant who believed he was to be employed by his company’s new owners has a cause of action when the employment did not materialize. We affirm the judgment sustaining the exceptions of no cause of action and dismissing the action with prejudice.

Employed as Chief Financial Officer (CFO) for Lincoln Health Systems (Lincoln), James E. Allbritton took part in negotiations in 2007 between Lincoln and Community Health Systems Professional Services Corporation (Community) resulting in a purchase agreement. In his initial petition, Allbritton alleged that:

• He was offered a $270,000 financial package including a $90,000 severance payment and a one-year consulting contract for $180,000.
• Based upon statements by employees, officers and agents of Lincoln and Community and by silence, Allbritton was led to believe that his position as CFO was to continue with the new owners; the representations were false.
• Relying on the misrepresentations, Allbritton did not accept the severance package and attempted to negotiate a different package; had he not been misled about future employment, he would have accepted the severance package initially offered.
• Allbritton ultimately received a $93,000 severance payment and a six-month consulting contract for $62,000, totaling $155,000 as part of the transition from Lincoln to the new ownership.

In his suit for damages, Allbritton sued Lincoln, Community, and Ruston Louisiana Hospital Company, L.L.C. (the hospital). Community and the hospital responded with an exception of no cause of action and an alternative exception of vagueness, noting the petition failed to assert which 1 ^defendant offered the consulting contract and to whom Allbritton was to render services. Which defendant made representations about employment and which remained silent is unclear and there were no specific misrepresentations alleged. Asserting Allbritton failed to state a cause of action for detrimental reliance, defendants also asserted the petition was impermissibly vague.

Lincoln also filed alternative exceptions of no cause of action and vagueness based upon grounds similar to those raised by Community and the hospital. Essentially, Lincoln asserted that Allbritton’s detrimental reliance action was based upon the defendants’ failure to provide him at-will employment.

On September 15, 2008, the trial court sustained the exceptions of vagueness and no cause of action. The trial court allowed plaintiff 30 days to amend his petition. In Allbritton’s amended petition, he alleged:

• The Asset Purchase Agreement among Lincoln (seller), the hospital (buyer) and Community (guarantor of the hospital’s obligations) provided that at closing Lincoln would terminate all its employees at the hospital and the hospital would hire substantially all active employees as of the closing date in positions and compensation consistent with those provided by Lincoln just prior to closing.
• Allbritton was advised by Lincoln’s corporate counsel and by Lincoln’s CEO, Tom Stone, that Allbritton was included among Lincoln’s employees who would be hired by the hospital.
• Community’s CEO, Doug Sills, advised Allbritton that Allbritton was included among Lincoln’s employees who would be hired by the hospital.
• The actions and inactions of other Community employees and agents (including Bill Heburn, Brent White, and David Miller) led Allbritton to believe that Allbritton was included among Lincoln’s employees who would be hired by the hospital.
Is* On or about March 15, 2007, Lincoln offered Allbritton the initial buyout package detailed in the original petition.
• Lincoln’s corporate counsel urged All-britton (who also relied upon representations made to him by Lincoln and Community personnel) to refuse the initial financial offer; Allbritton also attempted to negotiate a different package which he submitted to the Lincoln Health Systems Transition Committee on or about March 19, 2007.
• The committee and representatives of Community met on March 20 to consider Allbritton’s proposal; they also requested that Argent Financial Services submit a proposal for the work Allbritton was seeking; the CEO of Argent was among the committee members who rejected Allbritton’s proposal and requested that Argent submit a proposal for Allbritton’s work.
• On March 28, 2007, the Lincoln Transition Committee accepted the Argent proposal after which Shaun Carpenter of Community advised Allbritton he would not be hired by the hospital.
• On March 30, 2007, Terry H. Hendon, vice president of the hospital, confirmed by letter that Allbritton would not be hired by the hospital.
• On April 5, 2007, the Lincoln Transition Committee approved a financial package from Lincoln, including the Allbritton package totaling $155,000 detailed previously.
• Allbritton alleged that had he been accurately advised about his lack of future employment, he would have accepted the initial offer but because he relied upon the representations, misrepresentations and silence of the parties’ officers, agents and employees, he was damaged financially.
• Lincoln permitted Allbritton’s competitor, Argent, to participate in the decision not to hire him and asked Argent to submit a proposal competing with Allbritton’s.

Community, the hospital, and Lincoln responded to Allbritton’s amended petition with exceptions of no cause of action. Community and the hospital asserted that Louisiana is an at-will employment state in which an employer owes no obligation to hire or to continue employment. The trial court again sustained the exceptions of no cause of action, stating, “How can a person say he has been damaged when he was promised an |4at-will position?” Allbritton appealed the judgment which sustained the exceptions of no cause of action and dismissed his suit with prejudice.

DISCUSSION

In Gipson v. Fortune, 45,021-CA (La.App.2d Cir. 1/27 /10), 30 So.3d 1076, unit denied, 2010-0432 (La.4/30/10), 34 So.3d 298, this court stated that the purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Triable on the face of the pleadings, the peremptory exception is resolved by the trial court on the well-pleaded facts in the petition, all of which are accepted as true. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court conducts a de novo review, because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition.

On appeal, Allbritton argued that his petition stated a cause of action based upon detrimental reliance in La. C.C. art. 1967:

Cause is the reason why a party obligates himself.
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

In Suire v. Lafayette City-Parish Consol. Gov’t, 2004-1459 (La.4/12/05), 907 So.2d 37, the supreme court explained that the doctrine of detrimental reliance prevents injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. |,No establish detrimental reliance, a party must prove three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance.

Proof of detrimental reliance does not require proof of an underlying contract, because detrimental reliance is not based upon the intent to be bound. Detrimental reliance rests on “the idea that a person should not harm another person by making promises that he will not keep.” Suire, supra.

Evaluation of a detrimental reliance claim examines not whether the parties intended to perform, but whether a representation was made in a way that the promisor should have expected the promis-ee to rely upon it, and whether the promis-ee so relied to his detriment. Suire, supra.

In May v. Harris Management Corp., 04-2657 (La.App. 1st Cir.12/22/05), 928 So.2d 140, the court stated that recovery under detrimental reliance is difficult, because estoppel is not favored in our law. Estoppel claims must be examined with care and strictness.

Lincoln was in the process of selling its facility to the hospital entity. The Lincoln Health Systems Transition Committee was negotiating a severance package with All-britton, Lincoln’s Chief Financial Officer. Allbritton alleged he rejected an initial offer of severance pay and consulting work worth $270,000 because Lincoln’s CEO, Tom Stone, and Lincoln’s counsel had both advised him that he would be hired by the new hospital owners. Instead, Allbritton made a counteroffer which was | ¿rejected. Informed he would not be hired by the hospital, Allbritton accepted a counteroffer worth $155,000 for severance pay and consulting work. Another proposal from Argent Financial Services was accepted, apparently for work Allbritton had expected to perform.

Allbritton cited Baines v. Young Men’s Christian Ass’n of Greater New Orleans, 06-1423 (La.App. 4th Cir.10/3/07), 969 So.2d 646, writ denied, 07-2146 (La.1/7/08), 973 So.2d 727, which found a cause of action had been stated by Baines who quit her previous job relying on a specific offer of employment made on at least three occasions for a particular salary and a specific start date. When the job did not materialize, Baines was unable to find employment for several months and sued for damages. Although Louisiana is an at-will employment state, there is a duty of good faith. The Bains court stated that if Baines proved bad faith, “there may be a remedy under our civil code.”

Allbritton also relied upon the factually and proeedurally inapplicable case of N-Y Associates, Inc. v. Board of Commissioners of Orleans Parish Levee Dist., 04-1598 (La.App. 4th Cir.2/22/06), 926 So.2d 20, twit denied, 06-0666 (La.5/26/06), 930 So.2d 31. The disputed contract provided either party could terminate the contract with 30 days’ written notice and payment for completed work. Following the trial, the court found the contract was wrongfully terminated and in bad faith by the levee board. While we have no disagreement with N-Y Associates, supra, the opinion following a trial on the merits of a contract dispute does not assist Allbritton.

|7We have already acknowledged an “overriding duty” of good faith exists in employment matters. Bains, supra. La. C.C. art. 2024 states, “A contract of unspecified duration may be terminated at the will of either party by giving notice, reasonable in time and form, to the other party.” Comment (e) thereto provides that “the parties must comply with the overriding duty of good faith.”

In May v. Harris, supra, May was hired as administrator of a nursing home. After accepting the offer of employment, May resigned her job as administrator of another nursing home. Prior to May assuming her duties, she visited the new nursing home on several occasions to ease her transition. Based upon complaints and conflicts in management styles, Harris withdrew the employment offer five days before May’s scheduled start date. She could not return to her old position which had been filled but May found a position as administrator of another nursing home within a short time and at an increased salary.

The majority found that May could not recover, since she unreasonably relied upon a promise of at-will employment. Concurring in the result, Judge Downing stated that the at-will employment doctrine does not apply to a party who is not yet an employee. However, May found comparable employment at an increased salary and failed to prove damages. Therefore, Judge Downing agreed with the denial of damages sought by May. May v. Harris, supra.

Our review of this record does not require a resolution of the conflicting views on whether at-will employment principles apply to a | ^person who has been offered employment but has not yet been hired. Accepting as truthful the original and amended petitions, the Allbritton allegations do not establish a cause of action based upon the three required elements of detrimental reliance.

Detrimental Reliance

Reliance on a Promise

Unlike claimants in Bains and May, supra, Allbritton did not resign employment based upon a more desirable job offer. Employment of all Lincoln employees including Allbritton was ending with the sale of the hospital when all Lincoln employees were being terminated.

Based upon statements, actions, and silences which we accept as true for the purpose of reviewing the exceptions of no cause of action, Allbritton had hoped that he and other Lincoln employees would be hired by the new owners of the hospital. Lincoln and Community personnel conveyed to Allbritton that the new owners planned to employ Allbritton and others. Allbritton did not allege that any specific salary or other employment terms and conditions were ever discussed or that a specific job offer to be CFO was made by the new owners of the hospital.

While Allbritton would have accepted the initial severance package had he known he would not be hired by the new hospital owners, his allegations show that he considered and rejected that initial severance offer in an apparent effort to obtain a more advantageous severance deal for himself. During these active negotiations, the new owners apparently decided that Allbritton’s future services as CFO would not be required.

13Reasonableness of Reliance

Even if all of Allbritton’s allegations are true, the transfer of hospital ownership from Lincoln to the new owners was in a state of flux with ongoing negotiations. The new owners at one point intended to hire “substantially all active employees” at compensation levels “consistent with those being provided by Lincoln.” However, “substantially all” is not the same as all and compensation “consistent with” is not the same pay.

Allbritton expected to be among those Lincoln employees rehired by the new owners and had received some assurances from his old employer, Lincoln, and from personnel with Community, the guarantor of the new hospital’s obligations. There are no allegations concerning any discussions about future employment between Allbritton and the new hospital owners. Allbritton relied upon statements, actions and silences of his soon-to-be former employer, Lincoln, and Community, the guarantor of the obligations of the new hospital owners.

In both Bains and May, discussed previously, the employers themselves made specific job offers with definitive terms of employment which were accepted by both Bains and May. By contrast, Allbritton had nothing more than a hope of being employed as CFO of the hospital. His allegations accepted as true do not contain any information about direct discussions of terms, duties, compensation, or any other aspects of employment; there was no indication that Allbritton had accepted employment with the new owners. Allbritton apparently misjudged his bargaining strength and failed in his attempt to negotiate a better severance.

ImLincoln personnel conveyed to Allbrit-ton their understanding that he was among Lincoln employees to be hired by the new owners. Allbritton made no assertions which establish how his former employer could be responsible for the new owner’s decision not to hire him. Moreover, Allbritton cited no authority making Lincoln responsible for Allbritton’s understanding of future employment by another legal entity.

Along with the failure to allege he received a specific job offer, Allbritton makes no statements that he specifically accepted a job offer from the new hospital owners or even had some direct understanding with them. While we accept that he rejected the initial severance package based upon an understanding of future employment, his hope and expectation of future employment did not constitute reasonable reliance on a promise of employment under the facts presented in his petitions.

Detriment or Damages

The severance package Allbritton ultimately received was $115,000 less that the original offer made. Because Allbritton’s petitions do not assert that he reasonably relied to his detriment on a promise of employment, it is unnecessary to address damages.

Good Faith

In a effort to bolster his claim based upon the reasoning in Bains, supra, Allbritton made vague allegations that a representative of Argent Financial Services served on Lincoln’s transition committee which ultimately awarded a contract to Argent for transition work that Allbritton apparently expected to do. All-brittoris amended petition did not estab-lishjjjthe status of the Lincoln transition committee and did not state how any of the defendants breached any promise to Allbritton based upon the actions of the committee.

Louisiana recognizes the overriding duty of good faith in employment matters. Bains, supra; Judge Downing’s concurrence in May, supra; La. C.C. art. 2024 and comments thereto.

Allbritton sought to infer that somehow the transition committee and Argent were in bad faith in ultimately awarding a contract to Argent. However, Allbritton provided no basis for that inference. Allbrit-ton has not set forth any actions by the defendants which constitute bad faith in the fluid situation involving the transfer of the hospital to the new owners. Allbritton himself was relying on his own role as CFO of Lincoln prior to the sale and as a negotiator of the terms of the hospital sale to secure for himself a more favorable severance package and future employment with the new hospital owners. This action followed the unsuccessful conclusion of his efforts.

CONCLUSION

Because the original and amended petitions accepted as true for the purposes of reviewing this record do not establish that Allbritton reasonably relied on a promise of employment, the trial court correctly sustained the exceptions of no cause of action.

DECREE

As plaintiffs costs, the judgment of the trial court sustaining the defendants’ exceptions of no cause of action and dismissing the action with prejudice is AFFIRMED.

      . This was a financial loss to him of $115,000.

      . Community was named as Community Health Systems and CHS/Community Health Systems Professional Services Corporation, but stated in pleadings that its correct name was CHS/Community Health Systems Professional Services Corporation.


author: DAVID S. GORBATY, Judge. BONIN, J.,

text:
    STATE of Louisiana v. Ronald NICHOLAS.
    No. 2010-K-1188.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 20, 2010.
    Writ Denied Nov. 10, 2010.

      Janette Jurado, Orleans Public Defenders, New Orleans, LA, for Relator, Ronald Nicholas.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Respondent, State of Louisiana.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY, Judge PAUL A. BONIN).
   DAVID S. GORBATY, Judge.

lain this pretrial defense writ application, the defendant-relator seeks supervisory review of the trial court’s denial of his motion to suppress evidence. Because we find that the trial court’s ruling is erroneous, we grant the writ and suppress the physical evidence and defendant’s confession.

PROCEDURAL HISTORY OF THE CASE

The State filed a bill of information on June 4, 2010 charging the defendant with one count of possession of cocaine with the intent to distribute. The court denied the defendant’s motions to suppress the physical evidence and his statement. He objected and gave notice of intent to file a writ.

STATEMENT OF THE FACTS

The only witness at the motion hearings was Detective Harry Stovall. Det. Stovall testified that he was working with the narcotics unit on May 25, 2010. On that date, he met with a reliable confidential informant who stated that he knew of |sa person named Ronald who was selling crack cocaine from his room, number 305, at the Gladstone Hotel. The informant explained that prospective buyers would approach the hotel and throw rocks at the window of the defendant’s room. The defendant would then go outside and conduct the narcotics transaction. The confidential informant provided Det. Stovall with a description of Ronald.

Based on this information, Det. Stovall established a surveillance of the Gladstone Hotel. He watched as a black male arrived, picked up a few rocks, and then threw them at a window. The detective saw the defendant come outside and talk with the male who had tossed the rocks at the window. Det. Stovall watched the black male hand the defendant currency; the defendant spit an object out of his mouth into his hand and gave it to the black male. The two men then parted. The defendant went back inside the hotel. The black male left the scene. Det. Sto-vall related the pertinent information regarding the suspected buyer to the backup officers; however, they were unsuccessful in their attempts to locate and stop the suspected buyer.

As Det. Stovall continued his surveillance, he saw the defendant leave the hotel, get on a bicycle, ride to the intersection of Danneel Street and Louisiana Avenue, and enter a store. While Det. Stovall maintained his watch on the store, he advised the back-up officers of the situation and that, when the defendant left the store, he should be stopped. The officers stopped the defendant as Det. Stovall planned. After he was detained, Det. Stovall advised the defendant of his rights and the nature of the investigation; the defendant was then transported back to the Gladstone Hotel. Det. Stovall asked the defendant in which room he resided, and the defendant responded that he resided at 1901 Delachaise, Room 805.

Upon arrival at the Gladstone Hotel at 1901 Delachaise, Det. Stovall went to the office where he encountered Belinda Jones, who identified herself as the owner of the hotel and as the defendant’s mother. Ms. Jones was advised of the nature of l4the investigation and was asked to confirm that the defendant resided in Room 305, which she did. Det. Stovall then asked Ms. Jones to assist or guide the police officers to the defendant’s room. At some point during this interaction with Ms. Jones, Det. Stovall learned that the defendant’s girlfriend, Quintella Rison, was in Room 305. Also at some point, Det. Sto-vall asked for and received written consent from Ms. Jones to search the defendant’s room.

After receiving consent from Ms. Jones, the defendant’s room was searched. In the freezer section of the refrigerator the officers found twenty-six pieces of crack cocaine. In the bottom drawer of a dresser they found various items of paraphernalia (plastic bags consistent with those used to wrap the cocaine, a razor with residue, and a grinder). On the top of the dresser they found and seized documents bearing the defendant’s name.

After the items were seized, Sergeant Palumbo went outside to where the defendant was being detained. He advised the defendant of what was seized and asked the defendant to whom the contraband belonged; the defendant replied, “Me.” The defendant executed a written waiver of rights form. He further stated that, “They didn’t have a slightest idea about it.” According to Det. Stovall, after the defendant admitted that the contraband was his, he was “placed under arrest at that point.”

At the July 16th continuation of the motion hearing, Det. Stovall testified on cross-examination that no contraband or evidence was seized from the defendant’s person when he was detained, placed in the police vehicle, and transported back to the hotel. The detective conceded that neither the. defendant nor his girlfriend, Quintella Rison, consented to a search of the defendant’s residence, Room 305, nor was a search warrant obtained. Det. Sto-vall also testified that there were no exigent circumstances involved in the decision to search the defendant’s room without a warrant.

1 -Det. Stovall testified further that neither Ms. Jones nor Ms. Rison was detained during the incident. Instead, according to the detective, they were free to leave. Det. Stovall stated that the defendant was in the police car while the detective talked with Ms. Jones and also when he spoke with Ms. Rison.

Other testimony elicited by defense counsel during her cross-examination of Det. Stovall was when and how many times the defendant was advised of his rights before admitting that the evidence found in his residence belonged to him. Det. Stovall stated that the defendant was given his rights when he was initially detained and again after he admitted the drugs were his, when Det. Stovall gave him the written waiver of rights form to sign. Det. Stovall testified that the audio recorder in the police unit did not record the defendant’s statements.

During redirect, the prosecutor questioned Det. Stovall again about when the defendant was provided with his rights.

No defense witnesses were presented.

DISCUSSION

Trial Court Arguments and Ruling

Following Det. Stovall’s testimony, defense counsel made multiple arguments to the trial court. Of relevance here is the argument regarding the warrantless search of the defendant’s room. Defense counsel argued that the hotel owner had no authority to allow the police to search the defendant’s living quarters. She noted that the items seized were not out for view by a maintenance or cleaning person, but instead were in a dresser drawer and the freezer; thus the defendant had clearly manifested an expectation of privacy in the hotel room in which he was residing.

The trial court made several comments during counsel’s argument which indicated that the court assumed that the building was not a true hotel, but rather was some kind of a boarding house or family home. The court took the position | fithat Belinda Jones, as the defendant’s mother and the property owner, had the authority to allow the police to search her child’s room located in her home. Defense counsel argued that the court was not properly describing the property, which was more akin to an apartment building, the court stated, “But this isn’t an apartment building with a separate door and a separate key. Am I wrong on that, State?” The prosecutor responded, “It’s a hotel.” In accordance with this comment, when making the State’s argument, the prosecutor described the events surrounding the search as follows:

He [Det. Stovall] goes back, speaks to the hotel owner. The hotel owner grants consent to search via New Orleans Police Department consent to search form. Detective Stovall and other detectives conduct a search of the residence, of the hotel room. They find in there twenty-six pieces of crack.

[Emphasis added.] The excerpt above demonstrates clearly that the State agreed with the defense that the property known as the Gladstone Hotel is an actual hotel. Nevertheless, when the court denied the motion to suppress, the court stated:

The Court finds that based upon what it’s heard today that everyone may be calling it a hotel, but it’s just, again, if the owner of that hotel/room gives consent to search, this is certainly a mother/son relationship on this — there’s been no showing that the defendant pays for his room or has a lease agreement for the room. And, based upon what I’ve heard, the mother had full consent and full knowledge and ability to give that consent.

The defendant is now before this Court arguing strenuously that the trial court erred as the jurisprudence clearly prohibits a hotel owner or employee from giving the police consent to search a room in which the hotel guest has manifested an expectation of privacy, citing Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964).

17Law and Analysis

In State v. Hopkins, 04-1268, pp. 10-11 (LaApp. 4 Cir. 12/8/04), 891 So.2d 707, 714, this Court set forth the standard for determining whether evidence was properly seized pursuant to the consent exception to the warrant requirement:

The State has the burden of proving valid consent. State v. Green, 376 So.2d 1249 (La.1979). The voluntariness of the consent must be determined based on the overall facts and circumstances of the case. State v. Edwards, 434 So.2d 395 (La.1983). A trial judge’s factual determination on this issue is entitled to great weight on appellate review. Franklin, 95-1876 (La.1/14/97) at p. 5, 686 So.2d [38] at 41; See also State v. Nogess, 98-0670 (La.App. 4 Cir. 3/3/99), 729 So.2d 132; State v. O’Shea, 97-0400 (La.App. 4 Cir. 5/21/97), 696 So.2d 115.

Here, the defense does not contend that Ms. Jones did not voluntarily consent to the search of Room 305. The real issue is whether she had the authority or apparent authority to consent to the search merely because she was the owner of the hotel and the individual hotel room in which her adult son resided.

The Louisiana Supreme Court addressed the issue of the authority to consent to a search in State v. Edwards, 97-1797 (La.7/2/99), 750 So.2d 893. The defendant shared a bedroom with his girlfriend in the girlfriend’s mother’s house. Officers obtained consent from both the mother and the girlfriend to search the bedroom, where they found evidence of a crime. In addressing whether the mother and girlfriend could consent to the search of the bedroom the defendant shared with the girlfriend, the Court stated:

Warrantless searches and seizures fail to meet constitutional requisites unless falling within one of the narrow exceptions to the warrant requirement, such as a search conducted pursuant to consent. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Owen, 453 So.2d 1202, 1206 (La.1984); State v. Packard, 389 So.2d 56, 58 (La.1980), cert. denied, Packard v. La., 450 U.S. 928, 101 S.Ct. 1385, 67 L.Ed.2d 359 (1981). Consent may be given by one having “common authority” over the premises sought to be searched. Common authority is based on “mutual use of the property by persons generally having joint access or control for most purposes.” Matlock, 415 U.S. at 171, 172 n. 7, 94 S.Ct. 988, 39 L.Ed.2d 242. A warrantless search may be valid even if consent was given by one 1 Rwithout authority, if facts available to officers at the time of entry justified the officers’ reasonable, albeit erroneous, belief that the one consenting to the search had authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 185-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); State v. Stewart, 27,049 (La.App. 2 Cir. 5/10/95), 656 So.2d 677, writ denied, 95-1764, 95-1768 (La.12/8/95), 664 So.2d 420. It is clear that, under the facts, officers reasonably believed the consent to be valid.
Nevertheless, defendant argues that consent was invalid because defendant had a reasonable expectation of privacy in his own bedroom. However, the facts do not support a position that defendant had a reasonable expectation of privacy because there was no area over which he had exclusive use. State v. Cover, 450 So.2d 741, 746 (La.App. 5 Cir.), writ denied, 456 So.2d 166 (La.1984); See also State v. Abram, 353 So.2d 1019 (La.1977), cert. denied, 441 U.S. 934, 99 S.Ct. 2058, 60 L.Ed.2d 663 (1979). Therefore, defendant failed to rebut the valid consent to the search given by one whom the detectives reasonably believed had authority to permit the search. See State v. Owen, 453 So.2d 1202 (La.1984) (where trailer owner’s consent to search of premises, including areas used by guest, resulted in seizure of admissible evidence against the guest); State v. Washington, 407 So.2d 1138 (La.1981).

Edwards, 97-1797 at pp. 11-12, 750 So.2d at 901. The Court found that the girlfriend and her mother, the owner of the house, had the authority to consent to the search of the bedroom.

The trial court in the instant ease appears to have adopted the rationale of the Edwards case without making a distinction between a bedroom in a single-family residence and a hotel room in a hotel which happened to be owned by the defendant’s mother. Relator argues that the court was clearly in error in not applying the jurisprudence applicable to hotels, especially as the State had the burden of proving that Ms. Jones had authority or apparent authority.

The case relied upon by the relator is Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). In that case the police linked the defendant to an armed robbery when they found his checkbook in the parking lot adjacent to the store where the robbery occurred. The police obtained a photograph of the defendant, which was identified by the two eyewitnesses to the robbery as that of the perpetrator. The officers identified the hotel where the defendant was staying from checks which he 18had written to the hotel. When they arrived at the hotel, without either a search warrant or an arrest warrant, they spoke with the hotel night clerk and confirmed that the defendant was living at the hotel. The clerk also gave the officers the room number and advised them that the defendant was not in at the moment. The clerk knew this because the hotel had a practice of having a guest leave the room key in the appropriate mail box at the front desk whenever the guest left the premises. The police officers then asked the clerk for permission to enter the defendant’s hotel room, explaining that they intended to arrest the defendant and wished to look for a weapon. The clerk accompanied the officers to the defendant’s room and opened the door with the room key. The police then entered and conducted a search, which resulted in the seizure of items of clothing and a pistol. The defendant was subsequently arrested.

After the defendant was convicted, and the state courts denied relief, the constitutionality of the search was brought to the United States Supreme Court for consideration. The court first stated that the search clearly was not incident to the defendant’s arrest, which the district court of appeal had concluded. The State subsequently dropped that argument and instead argued to the Supreme Court that “the search of the hotel room, although conducted without the petitioner’s consent, was lawful because it was conducted with the consent of the hotel clerk.” Stoner, 376 U.S. at 487-88, 84 S.Ct. at 892. The Court found “this argument unpersuasive.” Id. The Court expounded on its conclusion:

It is important to bear in mind that it was the petitioner’s constitutional right which was at stake here, and not the night clerk’s nor the hotel’s. It was a right, therefore, which only the petitioner could waive by word or deed, either directly or through an agent. It is true that the night clerk clearly and unambiguously consented to the search. But there is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner’s room.
|inAt least twice this Court has explicitly refused to permit an otherwise unlawful police search of a hotel room to rest upon consent of the hotel proprietor. Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59. In Lustig the manager of a hotel allowed police to enter and search a room without a warrant in the occupant’s absence, and the search was held unconstitutional. In Jeffers, the assistant manager allowed a similar search, and that search was likewise held unconstitutional.
It is true, as was said in Jeffers, that when a person engages a hotel room he undoubtedly gives ‘implied or express permission’ to ‘such persons as. maids, janitors or repairmen’ to enter his room ‘in the performance of their duties.’ 342 U.S., at 51, 72 S.Ct. at 95, 96 L.Ed. 59. But the conduct of the night clerk and the police in the police in the present case was of an entirely different order. In a closely analogous situation the Court has held that a search by police officers of a house occupied by a tenant invaded the tenant’s constitutional right, even though the search was authorized by the owner of the house, who presumably had not only apparent but actual authority to enter the house for some purposes, such as to ‘view waste.’ Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828. The Court pointed out that the officers’ purpose in entering was not to view waste but to search for distilling equipment, and concluded that to uphold such a search without a warrant would leave tenants’ homes secure only in the discretion of their landlords.
No less than a tenant of a house, or the occupant of a room in a boarding house, McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436. That protection would disappear if it were left to depend upon the unfettered discretion of an employee of the hotel. It follows that this search without a warrant was unlawful.

Stoner, 376 U.S. at 489-90, 84 S.Ct. at 893.

The language used by the court in Stoner clearly shows that a person’s right to be free from a warrantless and unreasonable search and seizure cannot be waived by a third party simply because that person has some type of proprietary interest in the premises. This rule was recognized again recently by the Louisiana Supreme Court in State v. Brown, 09-2456 (La.5/11/10), 35 So.3d 1069:

Longstanding Fourth Amendment jurisprudence precludes a landlord from consenting to the search of his tenant’s residence unless he also lives in the premises or the tenant has vacated the residence. Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961). When a defendant challenges a warrantless search conducted l^on the basis of third-party consent, the validity of the consent is tested against the rule of United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), in which the Court explained that “the consent of one who possesses common authority over the premises or effects is valid as against the absent, nonconsent-ing person with whom that authority is shared.” Commenting on Matlock, the Supreme Court stated in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006):
It is ... easy to imagine different facts on which, if known, no common authority could sensibly be suspected. A person on the scene who identifies himself, say, as a landlord or a hotel manager calls up no customary understanding of authority to admit guests without the consent of the current occupant.... A tenant in the ordinary course does not take rented premises subject to any formal or informal agreement that the landlord may let visitors into the dwelling, and a hotel guest customarily has no reason to expect the manager to allow anyone but his own employees into his room. In these circumstances, neither state-law property rights, nor common contractual arrangements, nor any other source points to a common understanding of authority to admit third parties generally without the consent of a person occupying the premises.
Randolph, 547 U.S. at 111, 126 S.Ct. at 1521.

Brown, 09-2456, pp. 4-5, 35 So.3d at 1072. In Brown, the police made a warrantless search into one-half of a double residence about which they had information from a citizen informant who told them that she had authority over the premises. The citizen, Ms. Brown, lived on the other side of the double. She told the police that the entire building was owned by her grandmother and that her grandmother had given her “control over the entire building.” Id., p. 2, 35 So.3d at 1070. Ms. Brown said that people inside the other side of the double had weapons and were distributing drugs from the unit; she also said that they were trespassers. Ms. Brown gave the officers permission to enter the apartment, and when they entered they discovered the defendant and his brother sitting on the sofa with drugs on the table in front of them. The defendant subsequently argued that the entry was unlawful as the officers had no warrant, no valid consent, and no exigent circumstances which necessitated the entry without a warrant. The defendant | ,2argued that the police acted unreasonably in relying on Ms. Brown’s simple assertion that she had been given control over the property by the owner. The trial court denied the motion to suppress; the appellate court reversed, finding that the officer acting unreasonably in accepting Ms. Brown’s unsubstantiated assertion of authority. The Supreme Court reinstated the trial court’s ruling, but did so on the grounds that Ms. Brown was a credible informant who stated that the persons in the apartment were trespassers engaged in illegal activity, a report which was bolstered by the fact that the persons inside did not respond to the officers’ knock on the door.

Notably, the Court in Brown did not resolve the issue on the grounds that the police reasonably accepted Ms. Brown’s authority to give consent for a search. The court opined:

For purposes of applying the Rodriguez test for apparent third-party authority to consent, we need not dwell on whether a reasonable police officer in Barrere’s position could have believed that Patrina Brown, who stated she lived in 721 Philip Street, had common authority over 719 Philip Street sufficient to consent to his entry even if he believed that her grandmother had ostensibly given her that authority. Chapman instructs that Ms. Brown’s grandmother herself could not have given consent to enter the premises without the tenant’s permission.

Brown, 09-2456, p. 7, 35 So.3d at 1073.

Thus, as either a landlord or hotel owner, Ms. Jones could not consent to the search. Stoner; Brown. However, as held in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), a search does not violate the Fourth Amendment if the police have obtained the consent of a third party who possesses common authority over the premises. Thus, in the instant case, the defendant’s girlfriend, who apparently was staying in Room 305 with the defendant, would arguably possess such common authority. However, there was no evidence presented by the State to show that Ms. Rison was a co-occupant of Room 305.

| ^Nevertheless, the search could be upheld if it passed the constitutional test of reasonableness under Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), in which the Court considered an issue left open in Matlock: “Whether a warrantless entry is valid when based upon the consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not do so.” Rodriguez, 497 U.S. at 179, 110 S.Ct. at 2796.

In Rodriguez, the defendant’s girlfriend had lived with him, but she moved out a few weeks before his arrest. She contacted the police to report that he had beaten her, and she told them that he was asleep in his apartment. She told the officers that she had a key to the apartment, referred to the apartment as “our” apartment, and told them that she still had clothing and furniture at the apartment. She unlocked the apartment and invited the officers inside, where they saw drugs lying in plain view. They entered the defendant’s bedroom, where he was sleeping, and found more contraband. In support of his claim that the evidence found in the apartment should be suppressed, the defendant pointed out that his girlfriend had moved out of the apartment weeks before, and her name was not on the lease. Based upon these facts, the Court found that the girlfriend had no actual common authority over the apartment to permit her to consent to its search. The Court found, however, that the evidence need not be suppressed if the officers reasonably believed that the girlfriend had apparent common authority over the apartment. The Court remanded the case for a determination of whether the officers’ belief was reasonable.

Likewise, in State v. Wheeler, 04-0953 (La.App. 4 Cir. 3/9/05), 899 So.2d 84, this Court found that the owner of an apartment where the defendant had stayed for a few days could consent to its search. Citing Illinois v. Rodriguez, this Court found that the officers reasonably believed that the owner of the apartment had | ucommon control over the apartment. Wheeler had been released from prison only a few days before his arrest, and the owner of the apartment, who was also Wheeler’s employer, had allowed Wheeler to stay in an unfinished apartment in the front of a building where the owner lived. The owner had granted Wheeler access to the living room in the owner’s apartment. This Court found that Wheeler had no reasonable expectation of privacy in the apartment where he slept, and the owner had control over that apartment.

In State v. Gettridge, 08-0786, (La.6/6/08), 987 So.2d 247, the person who consented to the search told the officers she was the lessee of the apartment. In finding that the officers were justified in accepting her offer of consent, citing Illinois v. Rodriguez, the Court stated: “A warrantless search may be valid if facts available to the officers at the time justified their reasonable, albeit erroneous, belief that the one consenting to search had authority over the premises.” Gettridge, 08-0786, p. 1, 987 So.2d at 247. Likewise, in State v. Molette, 01-194 (La.App. 3 Cir. 10/3/01), 798 So.2d 1113, the court found a reasonable belief in apparent common authority where the person who consented to the search told the officers that her uncle owned the residence and allowed her and her friends to “hang out” there.

After a review of the testimony of Det. Stovall, we conclude that the trial court in this case erred in upholding the authority of Ms. Jones to consent to the search of the hotel room in which the defendant resided. Contrary to the trial court’s references to the premises as something other than a hotel, the testimony of Det. Stovall can only lead to the finding that the Gladstone Hotel in fact was a hotel. Furthermore, the fact that the detective asked the defendant in which specific room of the hotel he resided, and obtained a response which corroborated the information provided by the informant, undercuts any arguable reasonable belief on Det. Sto-vall’s part that Ms. Jones had common authority over the 115individual hotel room as if the premises were a family home, over which the parent has full unfettered common access and authority (as the trial court concluded), and not an actual hotel in which the individual tenants/guests have some reasonable expectation of privacy.

Moreover, in marked contrast to Get-tridge, Molette, and even Brown, the State presented no testimony indicating that Ms. Jones ever represented to Det. Stovall that she had the authority to consent to a search of her adult son’s residence, which she happened to own. The only testimony was to the effect that she was asked to give consent and did so, not that the detective was in possession of any facts upon which he could rely to find that she had any authority. Instead, it appears that Det. Stovall simply believed that a hotel owner can give valid consent to the search of a hotel room. Considering the jurisprudence, such a belief is not reasonable nor does it justify the failure to seek a warrant before searching.

The sole basis for his argument regarding the statement is that it was the direct result of the illegal seizure of physical evidence from his room, and thus is “fruit of the poisonous tree.” This doctrine was explained at length is Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Essentially the doctrine serves to exclude from evidence the direct and indirect products of illegal violations of the Fourth Amendment. The Court in Wong Sun, recognized, however, that not all evidence which is arguably the fruit of the poisonous tree requires exclusion. Rather, the United States Supreme Court has specifically rejected a per se “but for” causation test as a basis for a decision to suppress evidence. Id.; see also Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975); United States v. Ceccolini, 435 U.S. 268, 276, 98 S.Ct. 1054, 1060, 55 L.Ed.2d 268 (1978); State v. Hill, 97-2551 (La.11/6/98), 725 So.2d 1282; and, State v. Broussard, 99-1054 (La.App. 4 Cir. 5/22/02), 819 So.2d 1141.

1 [(¡There is no evidence in the record before us to indicate that there was any temporal break or any intervening circumstance between the seizure of the evidence and the defendant’s statement, both factors which show that the illegal police conduct is sufficiently attenuated from the confession. See Brown v. Illinois, supra. Thus, we also reverse the trial court’s ruling on the motion to suppress the statement.

CONCLUSION

Accordingly, based on the above, we grant the writ and suppress the physical evidence and defendant’s statement.

WRIT GRANTED; REVERSED.

BONIN, J.,

CONCURS WITH REASONS.

hi respectfully concur in the grant of the relief to suppress the evidence of the crack cocaine and drug paraphernalia seized from Mr. Nicholas’ hotel room without a warrant. See Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (“No less than a tenant of a house, or the occupant of a room in a boarding house, ..., a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures.... ”). With respect to the suppression of the statement, which followed the unconstitutional seizure, I also concur, but only because on the particular facts of this case the prosecution did not satisfactorily establish that Mr. Nicholas’ statements were an “act of free will.” See Wong Sun v. U.S., 371 U.S. 471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441.

The Fourth Amendment violation was not flagrant. While is true that the police did not obtain a warrant to search, they did seek to obtain the consent of the hotel owner, who is Mr. Nicholas’ mother. Consent provides a well-recognized exception to the warrant requirement. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). “[T]he purpose and flagrancy of the official misconduct” is a particular factor to be considered in determining whether the post-violation inculpatory or incriminating statement is attenuated from the violation. Brown v. Illinois, 422 U.S. 590, 603-604, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The police in this case were not rogues, set |2on violating Mr. Nicholas’ constitutional rights. They were simply wrong in their assessment that the hotel owner’s consent was sufficient.

The prosecution did not contend in the trial court any of the factors which might have resulted in a finding that the post-seizure statement was attenuated and should not be excluded as a “fruit of the poisonous tree.” See Kaupp v. Texas, 538 U.S. 626, 633, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003). In this case, the deterrent purpose of the exclusionary rule might have been adequately served by the exclusion of the crack cocaine evidence alone. “Attenuation also occurs when, even given a direct causal connection, the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.” Hudson v. Michigan, 547 U.S. 586, 593, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006).

ARMSTRONG, C.J., DISSENTS.

hThe defendant-relator has an adequate remedy on appeal if convicted. Therefore, I would deny the writ application.

      . This factual conclusion is bolstered by the testimony of Det. Stovall; he stated that upon arriving at the Gladstone Hotel, he went into the hotel and then into the office where he encountered Ms. Jones (7/13/10 Tr. 7).

      . Again, it should be noted that none of the contraband was in plain view in the hotel room.

      . Notably, the experienced trial judge, learned in the law, considered that the owner’s consent under the circumstances was sufficient.


author: TERRI F. LOVE, Judge.

text:
    Angela Reilly CHERRY v. AUDUBON INSURANCE COMPANY, Disaster Master Restoration/Cleaning L.L.C. and Kenneth J. Taylor.
    No. 2009-CA-1646.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 20, 2010.

      John W. Redmann, Robert W. Tschirn, Law Office of John W. Redmann, LLC, Metairie, LA, for Angela Reilly Cherry.

      John W. Waters, Jr., Kristin G. Mosely Jones, Bienvenu, Foster, Ryan & O’Ban-non, LLC, New Orleans, LA, for Audubon Insurance Company.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

_LjThis appeal arises from a dispute regarding the amount of insurance proceeds disbursed following a fee in the plaintiffs home. The trial court held that Audubon Insurance Company owed the plaintiff additional monies pursuant to the dwelling coverage and $1,300 for a security deposit. The trial court also awarded $25,000 for bad faith penalties, $25,000 for mental anguish, and forty percent attorneys’ fees. We find that the trial court did not err in qualifying Earl Carr as an expert witness, in awarding the dwelling policy limits, and bad faith penalties. However, we find that the trial court erroneously awarded the security deposit and mental anguish damages and reverse.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On May 4, 2002, Angela Reilly’s front study caught fire, which caused damage to her home (“Property”). On the same day as the fee, Ms. Reilly contacted Disaster Master Restoration/Cleaning, L.L.C. (“DM”) to clean and store her salvageable belongings. She signed an agreement stating that her insurance company could pay DM directly. Audubon Insurance Company (“Audubon”), Ms. Reilly’s insurer, sent Nolan Allain, a property claims adjuster, to inspect the Property two days after the fire. During the inspection, Ms. Reilly expressed | concern regarding temporary housing and Mr. Allain informed Ms. Cherry of CRS Temporary Housing (“CRS”). Ms. Reilly then contacted CRS and signed an agreement for Audubon to pay CRS directly for her temporary additional living expenses (“ALE”).

On May 20, 2002, Mr. Allain sent Ms. Reilly a $21,457.21 dwelling estimate to repair the fire damage to the Property. Ms. Reilly disagreed with Mr. Allain’s estimate. Mr. Allain then contacted Rip Bar-berio, a licensed Louisiana contractor, to conduct a second inspection of the Property and to prepare an additional estimate. Mr. Allain received Mr. Barberio’s $31,858.06 estimate on June 7, 2002, and forwarded the estimate to Ms. Reilly on June 12, 2002. Also on June 12, 2002, Audubon paid CRS $12,010 for three and a half months of rent plus a deposit.

After receiving Mr. Barberio’s estimate, Ms. Reilly hired Carr & Associates as her loss consultants. David Powell, of Carr & Associates, sent a letter to Mr. Allain on July 9, 2002, to advise him that he would be preparing an estimate and to designate Carr & Associates as an additional payee on checks issued by Audubon. Audubon then tendered a check made payable to Ms. Reilly and Carr & Associates for $31,358.06, Mr. Barberio’s dwelling estimate for damage to the Property, on July 23, 2002.

Audubon received a $29,795.22 invoice from DM in August. Upon learning of DM’s estimate, Ms. Reilly instructed Audubon not to pay DM. Ms. Reilly did not complete the inventory lists of her damaged/lost contents to Mr. Allain as instructed. However, on September 25, 2002, Audubon paid an additional $1,898 to Ms. Reilly for ALE.

[aOn October 10, 2002, Audubon received a dwelling estimate of $149,589.50 and a $196,229.14 contents estimate from Carr & Associates. On October 28, 2002, Audubon paid Ms. Reilly $40,000, her policy limits on her contents claim. Ms. Reilly was also paid $2,092, her policy limits, for ALE.

Subsequently, Ms. Reilly filed a petition for damages against Audubon, DM, and Kenneth Taylor, her insurance agent. Ms. Reilly alleged that Audubon failed to pay her claim within thirty days pursuant to La. R.S. 22:658, that DM failed to return her belongings after overcharging and performing unauthorized services, and because Audubon sent her a letter cancelling her insurance policy on November 19, 2002, as a result of the “total loss” of the Property. DM then filed a cross-claim against Ms. Reilly seeking $41,026.50 for services rendered, penalties, and storage fees. Ms. Reilly filed a supplemental and amended petition in order to seek La. R.S. 22:1220 penalties against Audubon for failure to pay within sixty days.

Ms. Reilly dismissed Mr. Taylor from the present suit with prejudice. The trial court granted a joint motion to bifurcate Ms. Reilly’s claims against Audubon from those of DM. Following a five-day bench trial regarding Ms. Reilly’s claims against Audubon, the trial judge entered a judgment awarding Ms. Reilly $48,141.94 for the balance of her dwelling policy limits and $1,300 for a security deposit paid to CRS. The trial judge also awarded Ms. Reilly $25,000 for bad faith penalties, $25,000 for mental anguish, and forty percent attorneys’ fees.

Audubon asserts that the trial court erred in qualifying Earl Carr, Jr. as an expert in loss adjustment, by awarding further damages under Ms. Reilly’s policy, by awarding the security deposit, and for awarding bad faith and mental anguish 14damages.

STANDARD OF REVIEW

When reviewing findings of fact made by the trial court judge, appellate courts utilize the manifest error/clearly erroneous standard of review. S.J. v. Lafayette Parish Sch. Bd., 09-2195, p. 12 (La.7/6/10), 41 So.3d 1119, 1127. To effectuate a reversal, the appellate court must find that no reasonable factual basis exists for the trial court’s findings and that the record connotes the findings are clearly wrong. Id. Thus, we must determine whether the trial court judge’s factual conclusions were reasonable. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). “Accordingly, where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous.” S.J., 09-2195, p. 13, 41 So.3d at 1127.

“When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). This is because “only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Id. An appellate court may find manifest error when “documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story.” S.J., 09-2195, p. 13, 41 So.3d at 1127. However, if “a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.” Rosell, 549 So.2d at 845.

Legal questions are reviewed with the de novo standard of review. Friedman v. Louisiana State Bd. of Dentistry, 08-0882, p. 2 (La.App. 4 Cir. 1/07/09), 3 So.3d 565, 567.

EXPERT WITNESS QUALIFICATION

Audubon asserts that the trial judge erred in qualifying Mr. Carr, of Carr & Associates, as an expert because he is neither a licensed public adjuster nor a licensed contractor and is under an injunction to enjoin him from engaging in the unauthorized practice of law.

La. C.E. art. 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

“It is well-established that the trial judge has wide discretion in determining whether to allow a witness to testify as an expert, and his judgment will not be disturbed by an appellate court unless clearly erroneous.” Versluis v. Gulf Coast Transit Co., 08-0729, p. 5 (La.App. 4 Cir. 7/29/09), 17 So.3d 459, 463. The trial court’s discretion “includes the determination of how much and what kind of education and/or training adequately qualify an individual as an expert.” Tadlock v. Taylor, 02-0712, p. 4 (LaApp. 4 Cir. 9/24/03), 857 So.2d 20, 26. Formal education is “not always necessary” and experience may be sufficient. Becnel v. Lafayette Ins. Co., 99-2966, p. 7 (La.App. 4 Cir. 11/15/00), 773 So.2d 247, 251.

Following Mr. Carr’s extensive testimony regarding his background, the trial judge qualified him as an expert because his “background certifies him to be able to testify as to the loss estimate given to” Ms. Reilly. The trial judge also limited the scope of Mr. Carr’s testimony due to the injunction and disallowed any preference to Mr. Carr advising or consulting Ms. Reilly. Further, the trial judge stated that Audubon’s objections to Mr. Carr’s expert status “may affect the weight given to his testimony,” but that Ms. Reilly would be prejudiced if Mr. Carr was not permitted to testify.

The trial was non-jury, meaning only the judge would weigh the testimony of witnesses as opposed to a jury. Given the trial judge’s limitation of Mr. Carr’s testimony and the qualified weight to be given to his testimony, we do not find that the trial judge abused her discretion or manifestly erred in qualifying Mr. Carr as an expert witness.

DWELLING COVERAGE

It is undisputed that Audubon insured Ms. Reilly’s dwelling up to $80,000. The trial court ordered Audubon to pay Ms. Reilly $48,141.94, the remainder of her dwelling policy limits. Audubon adamantly protests that it paid all of the monies due to Ms. Reilly for her dwelling coverage and that she failed to prove entitlement to the policy limits. Ms. Reilly contends that she is owed the remainder of her policy limits due to extensive damage to her home exceeding Audubon’s payment, which included damage to her roof allegedly caused by firefighters extinguishing the fire.

Ms. Reilly stated that the fire was “engulfing the entire front room,” that “the flames were leaking out of the doorway,” and “over the front door and towards the front windows.” During the fire, she remembered seeing three fire trucks, one or two “giant” fire hoses being brought in through the front door, and at least one firefighter climbing onto her roof. After the fire was extinguished, Ms. Reilly testified that the Property was covered in smoke and water. She further testified that it seemed like the smoke went into the walls. The firefighters also 17smashed the ceiling in the study to inspect how far the fire spread. The Property was uninhabitable. Therefore, she telephoned DM and asked it to board up her house and save the furniture/contents that could be saved.

As to Mr. Allain’s inspection of the Property, Ms. Reilly recounted that he was only on the Property for about 10 minutes and she thought that was an insufficient amount of time to view all of the damage. Ms. Reilly also testified that Mr. Allain told her that he was “from Audubon Insurance, a subsidiary of AIG and AIG is on the hook for the World Trade Centers and we’re not giving out much money.” When Ms. Reilly became concerned about temporary housing, Mr. Allain suggested CRS. Ms. Reilly thought that Audubon would negotiate rent for her temporary apartment. However, when Ms. Reilly discovered the high cost of her apartment, $2,970 a month, she moved to a less expensive one bedroom studio apartment with $350 of rented furniture.

Ms. Reilly stated that the roof was in “bad condition” after the fire and water entered the Property. However, Ms. Reilly did admit that her roof had “ponding” since she bought the Property. Ms. Reilly also stated that mold began to grow within weeks of the fire because the ceiling and walls were soaked with water. As for the_ exterior of the Property, Ms. Reilly testified that there was smoke damage on the stucco and smashed windows. After receiving both Mr. Allain’s and Mr. Barber-io’s estimates, Ms. Reilly testified that she felt the need to hire Carr & Associates for a loss estimation because of the low estimates provided by Audubon.

David Johnston, a fact witness for Ms. Reilly who lived across the street at the time of the fire, testified that there was at least one firefighter on the roof of the Property. Jerri Johnston, another fact witness, stated: “I remember specifically at |sleast one firefighter on the roof with a hose.” He then testified that he realized that the damage was going to be from the water being used to extinguish the fire.

A1 Schmolke, Jr., a New Orleans Fire Department (“NOFD”) captain, testified that the fire in the Property was a standard one-room fire, which did not breach the ceiling, but had heavy smoke damage. Capt. Schmolke stated that he did not get on the roof and does not remember any other firefighters getting on the roof. He testified that they do not go onto roofs unless it is necessary and does not remember any reason to in the current case, but admitted that it was possible. While he witnessed heavy smoke damage to the walls, he did not see the heat melt anything two or three rooms away. Capt. Schmolke thinks that they only used one hose, but he could not honestly remember. He had a rough firefighter estimate of $60,000 dwelling damage and $35,000 contents damage. Capt. Schmolke conjectured that water could damage the Property after they left and that they might have broken some windows for ventilation when trying to get the smoke out of the Property.

Gerard Aitken, another NOFD captain, remembered only one hose being used in the Property and did not see any firefighters on the roof. While the fire damage was “more or less” confined to the study, the rest of the Property experienced smoke damage. Capt. Aitken remembered putting one hole in the ceiling of the study to check for fire. He also testified that smoke can get into walls and that just painting the walls will fail to rid the Property of the smell of smoke. He did not break any windows, but other firefighters could have.

Robert Anderson, Ms. Reilly’s expert in structural engineering who inspected the house before and after the fire, testified that the membrane of the roof was “compromised with punctures” after the fire “probably due to a significant 19amount of activity on the surface of the roof.” He stated that “dragging a fire hose probably did more damage to the membranes than the actual firefighter” and that a firefighter’s foot could go through the roof sheathing. After the fire, Mr. Anderson observed damage to the bridging of the roof, trusses, and decking on the roof. He also noticed water damage. Mr. Anderson recommended removing everything down to the sheathing, reinforcing all of the trusses, and repairing cracked beams prior to putting a on a new roof. However, he did not see any fire damage on the roof. He also documented damage to the exterior walls, which he thought was caused by an effort to extinguish the fire. When questioned about his pictures of the inside of the Property, he stated that more probably than not, the discoloration in the photos was mold. Mr. Anderson concluded that the HVAC system was damaged and needed to be replaced. Based on his observations, Mr. Anderson concluded that demolishing and rebuilding the Property was more prudent than the cost of restoration. On cross-examination, Mr. Anderson testified that it was possible that ponding water caused roof damage, but he thought it was related to extinguishing the fire.

Mr. Carr visited Ms. Reilly’s home four or five times and observed that everything in the study was destroyed with very heavy smoke and heat damage in the living/dining room. Mr. Carr stated that the Carr and Associates’ estimate provided that the plaster and sheetrock should be removed and replaced. Mr. Carr also observed smoke and water damage in all of the rooms with heavy condensation and water streaking down the walls. Smoke also entered the cedar closet, which necessitated changing out the cedar because the aromatic wood would be irreparably damaged by smoke. Mr. Carr stated that the HVAC system appeared damaged with a vent or filter that was pretty black. Further, he testified |10that he recommended replacing the interior HVAC unit, air handler, and ductwork.

As a result of the mold growth since Audubon’s inspection and his “chimney effect” wherein smoke gets into crevices in the walls, Mr. Carr suggested that all walls be replaced. He further stated that the smoke created a caustic or corrosive situation in the bathrooms, which necessitated the complete renovation of the bathrooms. Also, Mr. Carr thought the heat from the fire could have damaged the wax seals around the toilets. As for the kitchen, Mr. Carr observed mold. He recommended that the acoustic tile ceiling be replaced due to buckling and sagging. Overall, the estimate of Carr and Associates encompassed replacing all of the walls, flooring, ceilings, bathrooms, roofing, light fixtures, electrical outlets, electrical switches, doors, door casings, the thermostat, kitchen cabinets, and the HVAC system. The Carr & Associates estímate included replacing all walls that were comprised of plaster and drywall to be replaced with plaster and drywall to avoid the windows and sockets no longer being flush with the walls.

The software Mr. Carr and Mr. Powell utilized to create the estimate was licensed and contained up-to-date unit costs. Carr & Associates computer software allowed for substituting unit costs, but those substitutions would be denoted by asterisks or highlighting. Mr. Carr also stated that he attempted to arrange for Mr. Allain to meet him at the Property to no avail because Mr. Allain did not want to inspect additional damage.

Mr. Allain, the Audubon claims adjuster handling Ms. Reilly’s claims, testified that he inspected the Property within two days after the fire and remained for three hours minus travel time. Mr. Allain did not inspect the roof or the HVAC system, but stated that it was possible that some HVAC damage existed. He did |T , testify that the moisture resulted from “[wjhatever reason caused it” during or after the fire. During his inspection, Mr. Allain looked into the hole in the ceiling of the study and found no evidence of fire, flames, smoke, or soot on the rafters. He recommended that the study and the living/dining room be completely gutted and replaced with sheetrock only because any plaster placed beneath it would be ruined. Mr. Allain suggested cleaning and painting the bedrooms, replacing the carpet in the kids’ bedrooms, and refinishing the floors in the master bedroom. His recommendation was to clean the bathrooms because each one only had smoke damage. The hallway and the kitchen needed to be cleaned and painted. The floors in the hallway could be refinished, while the kitchen floors needed replacing. Mr. Al-lain did not smell any smoke in the cedar closet. In the den, Mr. Allain suggested that everything could be cleaned and painted except that the acoustic tile ceiling needed replacing along with the vinyl flooring. As for the exterior of the Property, Mr. Allain recommended pressure washing the stucco. Mr. Allain claimed that he intended to inform Ms. Reilly that his estimate was a starting point.

Because months elapsed between Mr. Allain’s estimate and Carr & Associates’ estimate, Mr. Allain testified that it was possible that the dwelling check issued to Ms. Reilly was insufficient to repair the Property because the scope of the damage would have increased. However, at the time of the estimate he believed that $31,858 was adequate. Mr. Allain also agreed that “there’s probably some additional damage today above the $81,000,” that the estimate for the study should have included plaster, and that he could not speculate on further damage in the remainder of the Property because he never returned for another inspection and mold would become a concern. Overall, Mr. Allain testified that “[i]t certainly | i2would have gotten worse than when I looked at it.” In Mr. Allain’s letter to Audubon’s Loss Committee regarding the Property he wrote that the rest of the Property sustained very heavy smoke and water damage even though his estimate did not reflect that statement. Mr. Allain stated that his software was up-to-date as far as he knew.

Mr. Barberio, Audubon’s expert in general contracting, was asked to perform a loss estimate on the Property by Audubon after Ms. Reilly expressed her disagreement with Mr. Allain’s estimate. The software he utilized to formulate the estimate was on a computer he purchased in 1996 and the software was already on the computer at the time of his purchase. His usage of the software was not licensed and admitted that the last update on the unit costs was in 1996. However, unit costs could be manually changed. While he used 1996 unit costs, Mr. Barberio testified that he “went back and changed some of them,” but he could not remember how many he changed. Mr. Barberio testified that he inspected the Property for one to two hours, but that he never inspected the roof or the HVAC system/vents. Mr. Bar-berio would defer to a structural engineer’s report regarding roof damage. When Mr. Barberio discovered the plaster behind the sheetrock walls, Mr. Allain told him just to include the cost of sheetrock in the estimate.

Mr. Barberio’s estimate included gutting the study and living/dining room. However, Mr. Barberio concluded that the walls in all of the rooms except for the study and the living/dining room could be cleaned and painted. He did not think that the bathroom plastics, sinks, or toilets were damaged or needed replacing. Mr. Bar-berio’s estimate did include cleaning a portion of the exterior stucco. Like, Mr. Carr, he suggested replacing the acoustic ceiling and flooring in the den, replacing | isthe carpet in the two bedrooms, and replacing the vinyl flooring in the kitchen. However, he did not see a cedar closet. On cross examination, Mr. Barberio did admit that the damage to the walls could have changed while the Property was sitting closed up and that the condition of the Property was not going to improve after his inspection.

Ashton Avegno, Audubon’s expert in civil and structural engineering who was retained on August 28, 2008, visited the Property in late August or September 2008. Mr. Avegno testified that even after Hurricane Katrina he could still tell which roof structures were damaged by fire. He did not see any evidence of fire damage to the roof or ceiling structure. Mr. Avegno calculated that the roof had a total load capacity of roughly 39,000 pounds and stated that firefighters with hoses would not damage the roof. However, his calculations were not based on the assumption that the roof timbers were cracked such that it would impair the roofs structural integrity. Further, he testified that it was “very unlikely” that the splits in Mr. Anderson’s photographs were caused by firefighters. He did not know if the roof was safe to walk on. Overall, Mr. Avegno testified that roofing activities and rainstorms were more likely to damage the roof than firefighters. As to the floors, Mr. Avegno found the subfloors to be structurally sound except for some areas that were rotten or physically damaged. Mr. Avegno also opined that the moisture damage occurred over a long period of time before the fire.

Audubon asserts that Ms. Reilly did not prove her entitlement to her dwelling policy limits. The two estimates provided by Audubon were written within two and a half months after the fire. However, given the disparity between the amount of those estimates and Ms. Reilly’s beliefs, Ms. Reilly had to retain Carr & Associates to prepare an estimate months after the fire, which meant the | [Property had deteriorated since the first estimates. Also, Audubon’s structural engineer did not inspect the Property until six years later and after Hurricane Katrina.

The trial judge, as the trier of fact, heard the testimony of the experts and determined their credibility. As such, their testimony was weighed accordingly and the trial judge formulated a reasonable conclusion. The trial judge heard the juxtaposed expert testimony of the structural engineers’ opinions on alleged roof damage and the estimators’ opinions regarding the amount of dwelling damages, which included the testimony of increasing damage due to the passage of time as the cause of some of the disparity of the estimates. Additionally, Mr. Allain agreed that the Property’s condition would only worsen while sitting vacant and boarded up, which would require increased repairs and money than Mr. Allain’s or Mr. Bar-berio’s estimates documented. Therefore, we do not find that the trial court committed manifest error in awarding Ms. Reilly the remainder of her dwelling policy limits, which was $48,141.94.

SECURITY DEPOSIT

Audubon alleges that the trial court erred by ordering it to pay Ms. Reilly $1,300 for a security deposit paid to CRS.

Ms. Reilly did not recall receiving a $1,300 refund from Audubon or CRS. The record lacks evidence that Audubon received a $1,300 refund from CRS. As Mr. Allain testified, it is undisputed that Ms. Reilly had $16,000 ALE coverage. Audubon made three payments for ALE, which totaled $16,000 and exhausted her ALE policy limits. The record is devoid of evidence establishing Ms. Reilly’s entitlement to the $1,300 since nothing reflects Audubon’s receipt, which would result in an award of additional ALE coverage from Audubon. An additional 11S$1,300 would exceed Ms. Reilly’s coverage if CRS did not refund the deposit to Audubon. Therefore, we find the trial court erred by awarding Ms. Reilly $1,300 and reverse.

BAD FAITH

Audubon contends that the trial court erred in awarding Ms. Reilly $25,000 in bad faith penalties pursuant to either La. R.S. 22:658(B)(1) or La. R.S. 22:1220(B)(5). “The prohibited conduct under these two statutes is virtually identical: ‘the failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause.’ ” Boudreaux v. State Farm Mut. Auto. Ins. Co., 04-1339, p. 3 (La. App. 4 Cir. 2/2/05), 896 So.2d 230, 233, quoting Reed v. State Farm Mut. Auto. Ins. Co., 03-0107, p. 12 (La.10/21/03), 857 So.2d 1012, 1020. The difference between the statutes is the time period permitted for payment. La. R.S. 22:658 requires payment within thirty days of receiving satisfactory proof of loss and La. R.S. 22:1220 requires payment within sixty days. Both statutes impose a penalty when the failure to pay is “arbitrary, capricious or without probable cause.” See La. R.S. 22:658 and La. R.S. 22:1220.

“To initiate loss adjustment requires that ‘the insurer take some substantive and affirmative step to accumulate the facts that are necessary to evaluate the claim.’ ” Talton v. USAA Cas. Ins. Co., 06-1513, pp. 13-14 (La.App. 4 Cir. 3/19/08), 981 So.2d 696, 706, quoting Hollier v. State Fam Mut. Auto. Ins. Co., 01-0592, p. 4 (La.App. 4 Cir. 10/31/01), 799 So.2d 793, 797, quoting McClendon v. Econ. Fire & Cas. Ins. Co., 98-1537, p. 7 (La.App. 3 Cir. 4/7/99), 732 So.2d 727, 731. The statutes are strictly construed because they are penal in nature. Maurice v. Prudential Ins. Co., 02-0993, p. 9 (La.App.10/23/02), 831 So.2d 381, 388. Ms. Reilly was required to prove: (i) that the insurer received a satisfactory proof of loss, (ii) that the insurer failed to pay the claim within the applicable statutory period, and (iii) that the insurer’s failure to pay was arbitrary and capricious. Boudreaux, 04-1339, p. 4, 896 So.2d at 233.

“Satisfactory proof of loss ... is that which is sufficient to fully apprise the insurer of the insured’s claim.” Maurice, 02-0993, p. 10, 831 So.2d at 388. “[Statutory penalties are inappropriate when the insurer has a reasonable basis to defend the claim and was acting in good-faith reliance on that defense.” Id. When reasonable questions exist as to the extent of the claim, bad faith should not be inferred. Id. Additionally, penalties should not be assessed unless the record is clear “that the insurer was in fact arbitrary, capricious, and without probable cause in refusing to pay.” Maurice, 02-0993, p. 9, 831 So.2d at 388.

Ms. Reilly testified that Mr. Allain told her that she would be back in her home within three months after inspecting the Property. Mr. Allain’s estimate was completed on May 20, 2002. .Mr. Barberio’s estimate was completed on June 5, 2002. Audubon did not issue a check based upon Mr. Barberio’s dwelling estimate until July 18, 2002. In late June or early July 2002, Ms. Reilly hired Carr & Associates due to the dispute regarding the estimates. On August 15, 2002, DM gave Audubon a $29,795.22 invoice regarding Ms. Reilly’s contents. Ms. Reilly did not return the inventory/contents lists provided to her by Mr. Allain, but Carr & Associates sent Ms. Reilly’s $196,229.14 contents estimate on September 28, 2002. However, Ms. Reilly did not receive any payment for her contents claim until October 28, 2002, when she received her contents policy limits in full. Mr. Allain alleges that Audubon was unaware of the amount of contents Ms. Reilly |17was claiming until he received Carr & Associates $196,000 contents estimate. However, Audubon possessed a satisfactory proof of loss of at least part of Ms. Reilly’s contents by the May 20, 2002 estimate completion date and by the DM invoice in August, which followed his inspection of the Property. Carr & Associates also sent Ms. Reilly’s dwelling estimate to Audubon on September 28, 2002. However, Ms. Reilly testified that no attempts were made to mediate or resolve her claim after Audubon tendered the initial dwelling check and Audubon never returned to the Property to investigate the additional dwelling claims even though Mr. Allain testified that the Property’s condition would worsen, which would thereby increase the damages.

When asked, Mr. Allain opined that if Ms. Reilly requested an advance, he probably could have received permission to advance around $2,500 on the contents policy, but he followed standard operational procedures. He then testified that the only way to pay a partial contents claim was if you had an inventory list. Mr. Allain claims that the contents limits were paid after Audubon received Carr & Associates estimate and DM’s bill, but Audubon received DM’s bill in August, as stated above. Mr. Allain thought the estimate from Carr & Associates was “just ... unbelievable because it was practically rebuilding the whole house.” His notes reflect that he saw no point in meeting with Mr. Carr unless Ms. Reilly was willing to settle for $1,000 or $2,000 more. As to meeting with Mr. Carr, Mr. Allain stated that he never refused to meet with Mr. Carr, but he doubted that any negotiation would occur. Mr. Main’s testimony also reflects that he was aware that the Property’s damage would increase the longer it remained boarded up, yet he never inspected the Property a second time after receiving the estimate from Carr & | ^Associates.

Given the testimony provided in the record, Audubon was, at the very least, aware that Ms. Reilly was owed some money on her contents policy on May 20, 2002. Audubon did not tender any money to Ms. Reilly regarding her contents claim until October 28, 2002, well over the thirty and sixty day time periods, and more than sixty days after receipt of DM’s invoice related to contents. Additionally, Audubon never attempted to reinspect the Property after receipt of Carr & Associates’ estimate. Accordingly, we find that the trial court’s judgment was based on reasonable factual conclusions. Therefore, the trial court was not manifestly erroneous in awarding $25,000 in bad faith penalties.

MENTAL ANGUISH

Audubon avers that the trial court erred in awarding Ms. Reilly $25,000 for mental anguish. The trial court judge did not indicate her reasons for awarding mental anguish damages.

This Court held that damages may be recovered for mental anguish if an insurer breaches its duty of good faith. Orellana v. Louisiana Citizens Prop. Ins. Corp., 07-1095, pp. 5-6 (La.App. 4 Cir. 12/5/07), 972 So.2d 1252, 1256. “However, La. C.C. art. 1998 provides that if the contract breached is not ‘intended to gratify a nonpencuniary interest,’ damages for non-pecuniary losses ‘may be recovered ... when the obligor intended, through his failure, to aggrieve the feelings of the obli-gee.’ ” Veade v. Louisiana Citizens Prop. Corp., 08-0251, p. 7 (La.App. 4 Cir. 6/4/08), 985 So.2d 1275, 1280; quoting La. C.C. art. 1998. The object of an insurance contract is the payment of money. Id. The Louisiana Supreme Court pronounced that evidence should demonstrate that the insurer knew or should have known that his failure to perform would cause mental anguish damages. Sher v. Lafayette Ins. Co., 07-2441, p. 20 (La.4/8/08), 988 So.2d 186, 202. The plaintiff must also prove that the insurer “intended, through his failure, to aggrieve the feelings of the obligee,” pursuant to La. C.C. art. 1998. Sher, 07-2441, pp. 19-20, 988 So.2d at 202.

Ms. Reilly testified that everything after the fire was overwhelming and devastating. She stated that Mr. Main’s alleged remark regarding the terrorist attacks of September 11, 2001, were troubling. She also received letters from Audubon stating that she was no longer insured because of the “total loss” of her home. This caused her to purchase additional insurance even though Audubon reinstated her insurance policy in January 2003, with no lapse in coverage. Audubon informed her that the cancellation letters were a mistake. Further, Ms. Reilly testified that she had to withdraw money from her IRA, incurring penalties, in order to begin repairing her home. She estimated spending $100,000 renovating the Property after the fire.

Mr. Main did not know why Ms. Reilly received a cancellation letter because he never advised anyone that the Property was a total loss.

While Ms. Reilly was reasonably upset by the lack of alacrity in the disputed adjustment process, given the record before us, we find that Ms. Reilly failed to prove that Audubon intended to aggrieve her feelings. Accordingly, we find that the trial court erred in awarding mental anguish damages and reverse.

DECREE

For the above mentioned reasons, we find that the trial court did not err by qualifying Mr. Carr as an expert witness, in awarding dwelling policy limits, or in awarding bad faith penalties. However, we find that the trial court erred in awarding $1,300 for the CRS security deposit and awarding $25,000 for mental | gpanguish damages and reverse.

AFFIRMED IN PART; REVERSED IN PART.

      . Mr. Barberio inspected the Property while it was under repair for an eight inch differential settlement.

      . Ms. Reilly’s agreement with Carr & Associates states that it receives fifteen percent of monies recovered.

      . Ms. Reilly's insurance policy was later reinstated, as the cancellation was an error.

      . See Louisiana State Bar Ass’n. v. Carr and Associates, Inc., 08-2114 (La.App. 1 Cir. 5/8/09), 15 So.3d 158, writ denied, 09-1627 (La.10/30/09), 21 So.3d 292.

      . Mr. Carr admitted that he mistakenly overestimated the value of the kitchen cabinets. However, he further stated that any overage mistakes were subsumed by underestimation mistakes contained in the estimate.

      . The trial court judge stated that the information regarding Mr. Barberio’s software would change the weight given to his testimony-

      . The statutes are now numbered La. R.S. 22:1892 and La. R.S. 22:1973, respectively. The trial court judge did not indicate the statute she was using to assess penalties.

      . Audubon attempts to attack Ms. Reilly’s credibility and contents claim based upon a previous bankruptcy filing wherein contents are valued differently than for insurance purposes. However, the issue of contents coverage is not an issue in the present case.