author: COOKS, Judge.

text:
    A & B BOLT & SUPPLY, INC. v. David S. DAWES and Whitco Supply, L.L.C.
    Nos. 10-492, 09-1563.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 2010.

      Stephen A. Stefanski, Edwards, Stefan-ski & Zaunbrecher, Crowley, LA, for Defendant/Appellee, Whitco Supply, L.L.C.
    Gerald C. deLaunay, Perrin, Landry, deLaunay, Dartez & Ouellet, Lafayette, LA, for Defendant/Appellee, David S. Dawes.
    Alan K. Breaud, Timothy W. Basden, Lafayette, LA, for Plaintiff/Appellant, A & B Bolt & Supply, Inc.
    Court composed of SYLVIA R. COOKS, JAMES DAVID PAINTER, and DAVID E. CHATELAIN, Judges.

      . Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   COOKS, Judge.

| í FACTS AND PROCEDURAL HISTORY

David S. Dawes (Dawes) built a successful business known as A & B Bolt & Supply, Inc. (A & B). A <& B engages in the sale of products such as pipes, valves, fittings, and other supplies in the oil and gas fabrication industry. Eventually Dawes sold the business enterprise to Industrial Holdings, Inc. (Industrial) for approximately twenty-one million dollars. Industrial subsequently sold the business to T-3 Energy Services, Inc. (T-3 Energy) which presently owns the company. T-3 Energy offered Dawes and his brother employment packages to remain as officers and employees of A & B. Dawes signed an Employment Agreement dated May 7, 2001, which included a section entitled “Covenant Not To Compete.” He agreed to stay on as a Vice-President of A & B for a base salary of one hundred forty thousand dollars and other benefits including stock options and bonuses. The agreement had an initial term of two years with renewable one-year periods.

The non-compete provisions of the agreement were to be effective while Dawes remained employed with the new owner and for one year after his termination or resignation of employment. The agreement included a list of thirty-one named parishes in the state of Louisiana which comprised the Territory covered by the agreement. Under the express terms of the agreement, drafted by Industrial, Dawes agreed not to “work on the acquisition or development of any line of business, property or project in which the Employer is then involved or has worked with or evaluated in the last year.” Dawes also agreed not to:

[sjolicit or induce any person who is or was employed by the Employer at any time during such term or period (A) to interfere with the activities or Business of the Employer in the Territory or (B) to discontinue his or her employment with the Employer, or employ any such person in a business or enterprise which competes with the Business of the Employer in the Territory.

| ¡.Dawes further agreed that he would not:

[rjequest any present or future customer or supplier of the Employer to curtail or cancel its business with Employer in the Territory or (D) unless otherwise required by law, disclose to any person, firm or corporation any details of organization or business affairs of the Employer, any names of past or present customers of the Employer or any other non-public information concerning the Employer.

Dawes continued to work for A & B for a few months after his Employment Agreement (the agreement)expired on May 1, 2003 as an at-will employee. The owner of A & B informed Dawes it would be reducing his pay significantly and reassigning him to work with another of its companies. Dawes resigned his employment with A & B and along with several other former employees of A & B, including his wife, formed a new company known as Whitco Supply, L.L.C. (Whitco) on July 14, 2003. Dawes and Whitco admit Whitco directly engages in competition with A & B in the same oil-field-supply business in parishes comprising the territory described in the agreement and engages in business with customers of A & B. Dawes alleges he contacted an attorney before organizing Whitco who advised him that the non-compete agreement was not enforceable.

None of the other employees who formed Whitco as members with Dawes had any contract with A & B and were not in any manner restrained from working for A & B’s competitors. Several additional employees of A & B left the company en masse and went to work for Whitco. A & B demanded Whitco and Dawes cease all activity in violation of Dawes’ non-compete agreement until the end of the non-compete period. Whitco continued to operate in competition with A & B engaging in business with customers of A & B and other customers in the oil field industry.

A & B filed a petition against Dawes and Whitco in the Fifteenth Judicial District, Lafayette Parish, seeking a temporary restraining order (TRO) and preliminary and permanent injunctions as well as damages. The trial court issued the IrTRO, but after a hearing on the matter dissolved the TRO. A & B filed a writ application seeking review of that ruling with this court which was denied, as was an application for writ of review with the Louisiana Supreme Court. Dawes and Whitco then filed a motion for judgment on the pleadings seeking a dismissal of all claims against them. The trial court granted the motion and dismissed all claims against both parties. A & B appealed the decision to this court. We reversed the trial court and remanded the case for further proceedings. See A & B Bolt & Supply, Inc. v. Dawes, 04-699 (La.App. 3 Cir. 11/10/04), 888 So.2d 1023, writ denied, 05-265 (La.04/01/05), 897 So.2d 609. Dawes and Whitco filed a motion for rehearing which we denied. The Louisiana Supreme Court also denied writs in the matter at A & B Bolt & Supply, Inc. v. Dawes, 05-265 (La.04/01/05), 897 So.2d 609.

After the remand to the trial court, Dawes and Whitco filed a joint motion for summary judgment arguing the non-compete agreement was unenforceable. Whit-co also filed a motion for summary judgment asserting it was not a party to the non-compete agreement and therefore could not be restrained from competition with A & B. The trial court granted the motion for summary judgment dismissing the entire case finding the non-compete agreement was not enforceable against Dawes or Whitco. A & B appealed and we reversed the trial court’s dismissal of Dawes and Whitco, remanding the case for further proceedings. See A & B Bolt & Supply, Inc. v. Dawes, 06-1003 (La.App. 3 Cir. 2/28/07), 948 So.2d 1143, writ denied, 07-660 (La.05/11/07), 955 So.2d 1284. The Louisiana State Supreme Court denied Whitco’s application for writ of certiorari at A & B Bolt & Supply, Inc. v. Dawes, 07-660 (La.05/11/07), 955 So.2d 1284.

Upon remand, Whitco again filed a motion for summary judgment asserting the non-compete agreement cannot be enforced against it as it was not a party to the | agreement. Dawes filed a motion for partial summary judgment again alleging the non-compete agreement is not enforceable because it violated the law applicable at the time the agreement was entered into. Both Whitco and Dawes also filed an exception of res judicata alleging that the claims against them by A & B were resolved in the settlement of another suit filed on April 7, 2004, by A & B in Terre-bonne Parish, Louisiana. The suit in Ter-rebonne Parish, brought by A & B against Dawes, Whitco, Beau Guillory (Guillory), Paul Naquin, Jamie Lebouef, and Denise Theriot, alleged Dawes, Whitco, and the other named defendants, all former employees of A & B, engaged in a conspiracy to commit corporate espionage, restraint of trade, theft of corporate secrets and proprietary information, tortious interference with business, and breach of contract by defendant Guillory. The suit alleged that all of the defendants engaged in stealing corporate information of A & B, including customer lists and orders, and planned and executed a mass walkout of all employees at A & B’s Houma office. The suit further alleged “agents and/or employees of Whit-co” solicited employees of A & B to work for Whitco and specifically alleged Dawes solicited A & B’s employees and instructed them by telephone to stage a mass walkout and come to work for Whitco on or about March 26, 2004. A & B alleged that all of its employees in Houma left its employ and are working for Whitco. The suit did not contain any allegations concerning Dawes’ non-compete agreement. The parties in the Terrebonne Parish suit reached a settlement agreement dismissing the suit with prejudice. The compromise and settlement agreement included a waiver and release which reads as follows: (emphasis added)

By entering into this Agreement, the parties agree to forever and irrevocably waive and release one another from any and all claims, allegations, actions, and requests for relief, asserted or unassert-ed, arising from the facts, circumstances, and allegations giving ri$e to this litigation, including, but not limited to, all claims for damages, injunctive relief, attorney’s fees, costs, and all other legal and equitable | .¡relief, under applicable local, state of federal law, based on all claims and allegations of unfair trade practices, conspiracy and restraint of trade, conversion, intentional interference with business relations, defamation, breach of contract, and any other legal theory of relief, whether in contract, tort or otherwise.

The trial court denied Dawes’ motion for summary judgment, believing it was bound by our court’s decision that the non-compete agreement was enforceable. The trial court also denied Dawes’ exception of res judicata. The trial court granted Whitco’s motion for summary judgment and dismissed all claims against Whitco finding the employment contract containing the non-compete agreement did not apply to Whitco because it is a separate and distinct third party that did not exist at the time the employment agreement was signed. A & B appeal the judgment dismissing the claims against Whitco. Dawes filed an application for writ of review seeking review of the denial of his motion for partial summary judgment and the denial of his exception of res judicata. We granted the writ application for the purpose of consolidating the writ application with this appeal.

LEGAL ANALYSIS

Previous Rulings By This Court

In our first opinion in this case, A & B Bolt & Supply, Inc. v. Dawes, 888 So.2d at 1026, we held only that the judgment on the pleadings was improperly granted because, contrary to the trial court’s finding, the covenant not to compete was effective regardless of whether the agreement expired under its own terms or Dawes’ employment was terminated under the terms of the agreement. In the second opinion of this court, A & B Bolt & Supply, Inc. v. Dawes, 948 So.2d 1147, we held that the non-compete agreement was triggered by the expiration of the Agreement on May 7, 2003. We therefore reversed the trial court’s granting of Dawes and Whitco’s motion for summary judgment and remanded the case for further proceedings not inconsistent |fiwith our ruling. We have not previously had occasion to determine whether and to what extent the non-compete agreement comports with Louisiana law as it applied at the time the parties entered into the agreement, nor have we previously addressed the issue as to the extent of Dawes’ activities which are restrained by the non-compete agreement. Neither have we previously addressed the question of whether the non-compete agreement between Dawes and A & B has any application to Whitco Likewise, the issues presented in the exception of res judicata are newly raised.

Summary Judgment Dismissing Whitco

The trial court has again dismissed all claims against Whitco based on its finding that Whitco is a separate and distinct third party which did not exist at the time of the non-compete agreement between Dawes and A & B and therefore is not prohibited from competing with A & B nor from hiring its employees, including Dawes. As in all summary judgments we review the matter de novo.

The record discloses Whitco is an L.L.C., organized by Dawes comprised initially of four members including Dawes and his wife. Initially, three of the members had a twenty-four and one-half percent interest (24.5%) while Dawes held a twenty-five and one-half percent interest (25.5%). The evidence of record does not clearly set forth a full one hundred percent ownership of the L.L.C.; however, we can determine that Dawes and his wife together initially controlled at least 50% of Whit-co. A & B asserts that the question is not whether Whitco existed at the time of the signing of the non-compete agreement but whether Whitco is merely Dawes’ “alter ego” through which Dawes has engaged in activity that he is prohibited from doing by virtue of the non-compete agreement. Plaintiff fails to make any allegations in its petition and amendments thereto which articulate any basis of recovery against Whitco. Plaintiff makes the following allegations in its petition:

17DAWES is in breach of the Employment Agreement dated May 7, 2001, and, in particular, the Covenant Not to Compete contained therein. On July 1, 2008 DAWES organized your Defendant, WHITCO, as a limited liability company under the laws of the State of Louisiana. DAWES is listed as the Organizer, a Member of WHITCO and, additionally, as its Registered Agent for Service of Process in the records maintained by the Office of the Secretary of State for the State of Louisiana.
DAWES and WHITCO have contacted vendors of A & B to obtain identical products marketed and sold by A & B and have contacted A & B’s customer base soliciting the same products and services provided by A & B.
WHITCO was organized for the purpose of competing directly with A & B and is, in fact, engaged in direct competition with the business of A & B.
The foregoing acts complained of are detrimental to the business of A & B and are in direct violation of the subject Employment Agreement and Covenant Not To Compete.

Additionally, in the concluding paragraph of Plaintiffs petition, the Plaintiff recites:

As a result of the breach of the subject Employment Agreement by the Defendant, DAWES, A & B has and will suffer damages, all as will be more particularly proven at the trial of this matter.

Thus, while Plaintiffs petition recites facts which state its basis for alleging Dawes caused it damage by breach of his employment agreement, Plaintiff does not set forth any factual allegations which form a basis of liability for Whitco. Notably absent from Plaintiffs petition is any allegation that Whitco is merely Dawes’ instrument to carry out his allegedly prohibited acts, i.e., his “alter ego.” Plaintiff specifically states in its petition for damages that “as a result of the breach of the Employment Agreement by the Defendant, DAWES, A & B” has suffered damages.

"Whitco filed a motion for summary judgment arguing it should be dismissed from the case, with prejudice, because Plaintiffs petition fails to allege any facts which could establish liability on the part of Whitco. Whitco argues in support of its motion for summary judgment it was not a party to Dawes’ employment contract, |swas not in existence at the time the agreement was entered into between Dawes and A & B, and A & B’s petition does not allege that Whitco is the “alter ego” of Dawes organized for the purpose of circumventing his employment agreement.

Motions for summary judgment are provided for in La.Code Civ. P art. 966, which provides in pertinent part:

C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an' absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, is the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

As Whitco was not a party to the employment agreement between Dawes and A & B, and in fact, as the trial judge points out, did not even exist at the time of the agreement, the only legal basis for claiming any liability against Whitco is that it is merely the instrument through which Dawes engaged in his allegedly prohibited acts. A & B will bear the burden of proof at trial. Our de novo review of the record reveals the trial court properly granted Whitco’s motion for summary judgment as it is clear that A & B failed to allege any facts in its petition and failed to produce any facts which would enable it to meet its burden to prove that Whitco is merely the “alter ego” of Dawes used solely to circumvent his employment agreement with A & B. As the Louisiana Supreme Court stated in Glazer v. Comm’n On Ethics For Pub. Employees, 431 So.2d 752, 757 (La.1983):

It is not unusual for a court in this country to disregard the corporate entity, or in synonymous terms ‘pierce the corporate veil’, when Incorporate form has been used to ‘defeat public convenience, justify wrong, protect fraud, or defend crime.’

Nevertheless, Plaintiffs must state a factual basis in their petition upon which such a finding may be made and must put forth evidence at the hearing on the motion for summary judgment to survive dismissal. Plaintiffs fail to do either.

Exception of Res Judicata

The trial court properly denied the exception of res judicata.

The res judicata statute, La.R.S. 13:4231 provides:
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing as the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
Pursuant to this statute, then, a second action is precluded when all of the following criteria are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 02-1385, p. 8 (La.2/25/03), 843 So.2d 1049, 1053.

Wooley v. State Farm Fire and Cas. Ins. Co., 04-882, p. 35-36 (La.1/19/05), 893 So.2d 746, 770-771. (emphasis added)

ImOur comparison of the petitions filed in the two suits at issue reveals the parties are not the same and the causes of action do not wholly arise out of the same transaction or occurrence. The first suit filed, which is the suit before us, clearly deals with allegations that Dawes has breached a non-compete agreement and thereby damaged A & B. This includes allegations that he violated the non-compete agreement by getting numerous employees of A & B to work for Whitco. The second suit, filed in Terrebonne Parish, now dismissed with prejudice by virtue of a settlement agreement, was based upon allegations of corporate espionage, theft of proprietary information, tortious interference with contracts, breach of contract by a completely different party, i.e. Naquin, conspiracy to commit various acts of corporate espionage, disruption of business, and allegations that Dawes coaxed employees of A & B to work for Whitco. The second suit did not involve nor include allegations that Dawes breached a non-compete agreement or that Whitco is merely Dawes’ vehicle to conduct his alleged prohibited activities. The second suit included several defendants who are not parties in the first suit and included causes of action against these defendants unrelated to the causes of action alleged against Dawes and Whitco in the first suit. Plaintiffs counsel in the Terrebonne Parish suit could have expressly reserved Plaintiffs right to proceed in the first suit, but failure to do so does not subject Plaintiff to a claim of res judicata.

Denial of Dawes’ Motion for Partial Summary Judgment

The trial court did not err in denying Dawes’ motion for summary judgment which sought dismissal based on the assertion that the non-compete agreement is | n unenforceable as a matter of law and that there should at least be partial summary judgment on the basis of res judica-ta. As we discussed above, the exception of res judicata is not well founded. As to the assertion that the non-compete agreement is unenforceable as a matter of law, we note that, despite six years of litigation, no determination has been made as to the extent to which Dawes is precluded from competition with A & B under the non-compete agreement. There remain genuine issues of fact in dispute making summary judgment inappropriate.

For reasons as stated, we affirm the trial court’s granting of Whitco’s motion for summary judgment. We also affirm the judgments denying Dawes’ Motion For Partial Summary Judgment and denying Dawes’ exception of res judicata. The case is remanded for further proceedings. Costs of the appeal are assessed against A & B, and costs of the writ are assessed against Dawes.

AFFIRMED AND REMANDED.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Deanna GASPARD.
    No. 09-1516.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 2010.
    Rehearing Denied Dec. 15, 2010.

      Charles A. Riddle, III, District Attorney, Andrea D. Aymond, Assistant District Attorney, Marksville, LA, for Appellee, State of Louisiana.
    Angelo J. Piazza, III, Marksville, LA, for Defendant/Appellant, Deanna Gaspard.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   COOKS, Judge.

|, Defendant, Deanna Gaspard, was charged by bills of information with three counts of “Forgery,” five counts of “Identity Theft,” and three counts of “Theft Valued over $1,000.00.” Trial was continued on several occasions in an effort to allow Deanna Gaspard to make restitution in the amount of $75,000. Eventually, Defendant pled guilty to all charges. The plea was entered with the understanding that she would receive a probated sentence if she paid $75,000 prior to sentencing. On the date of the sentencing hearing, Defendant appeared having tendered no restitution whatsoever. The following colloquy occurred at the plea hearing:

Q. Now Ms. Gaspard, The State claims in the three different docket numbers that while employed by The Cutting Edge in the years 2005, 2006, and 2007 that you committed acts of Theft, they also contend that on March 18, 2006, September 5th, 2007, December 28th, 2007 you committed Forgery and that during the years 2005, 2006, 2007 you committed the offenses of Identity Theft. Have you read each and every charge in the Bills of Information that have been filed?
A. Yes, sir.
Q. And did you in fact commit the offenses as described in those Bills of Information?
A. Yes, sir.
A. Will you describe to me please, for my benefit, in the event that you do not come up with the [restitution] money and so I know, tell me what happened while you were employed with The, Cutting Edge causing you to commit these offenses and if you have any statement to make.
A. Kind of hard to say, I mean I worked for Ms. June for eight years. I loved my job, I loved working for her, she treated me like a second daughter and and I treated her like a second mama. And if I needed help, she would help me and sometimes I was just afraid to ask her. She would give me her credit card and I’d pay my house note, I just ... I don’t know what else to say, I know it was wrong and I apologize deeply for what I did to her. I know I hurt her.
|2Q. There’s an indication that you did more than just pay your house note. I mean because one of the ... on the theft the allegations of the three bills that you took in excess of those three alone of $33,000.00.
A. Like house note, I’d pay my utilities.
Q. You used your position working in Cutting Edge at times used the credit card to pay your personal expenses and also I think you signed the name, according to the bill, you signed the name of Danny Fadler to a legal document. Also Barron Kaylo?
A. Um hum.
Q. And also Barron Kaylo again on the forgeries, is that correct?
A. Yes.
Q. There’s one forgery alleging you signed Danny Fadler’s name to a credit card application with GE Consumer Finance.
A. I did sign that but he was sitting across the desk from me when we did the application.
Q. But you admit you signed it?
A. Yes I did sign it.
Q. And there’s an allegation that you signed the name of Barron Kaylo or Kayle it says at the Cottonport Bank?
A. Yes.
Q. And you did that on two occasions, September 5th, 2007, December 28th, 2007, is that right?
A. Yes. I did.
Q. And there’s also what we’ve talked about the identity theft where you used the cards of either the Cutting Edge or personal information belonging to June Fadler or Danny Fadler, is that correct?
A. Yes.
Q. And the amounts that are listed in all of these bills of information, Ms. Gaspard, you are not disputing those amounts, is that correct?
|SA. No, sir.

After the sentencing hearing, Defendant was sentenced to ten years on count one of “Identity Theft” and concurrent sentences on counts two through five. She likewise received a ten-year sentence on count one of the “Forgery” charges and concurrent ten-year sentences for counts two and three of the “Forgery” charges. She also was sentenced to ten years on count one of the “Theft” charges and concurrent sentences on counts two and three of the “Theft” charges. Thus, as a practical matter, Defendant was sentenced to thirty years of incarceration. It was agreed at the hearing that “at anytime during the period of incarceration if the $75,000 is paid Ms. Gaspard would be released from custody” and “placed on felony probation for a period of five years.”

Defendant has lodged this appeal contending her sentences are excessive.

ASSIGNMENT OF ERROR NO. 1:

In this assignment of error, Defendant claims the total of thirty years that she received is excessive. Defendant received ten years on count one of each crime, to run concurrently with the other charges. Ten years is the maximum term for “Forgery,” pursuant to La.R.S. 14:72(D), for “Identity Theft,” pursuant to La.R.S. 14:67.16(C), and for “Theft Valued over $1,000.00,” pursuant to La.R.S. 14:67(B)(1).

The crux of Defendant’s complaint appears to be that the combined sentences for all the charges (five counts of identity theft, three counts of forgery, and three 14counts of theft) amounted to thirty years at hard labor.

This court has previously addressed arguments regarding consecutive sentences in the context of excessive-sentence claims. See, e.g., State v. Wood, 08-1511 (La.App. 3 Cir. 6/3/09), 11 So.3d 701; State v. Hawkins, 06-1599 (La.App. 3 Cir. 5/2/07), 956 So.2d 146, writ denied, 07-1156 (La.12/7/07), 969 So.2d 627.

Whether sentences should be consecutive or concurrent is addressed by La.Code Crim.P. art. 883:

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.

This court has elaborated:

Defendant next contends that he should have received concurrent, rather than consecutive sentences because his convictions arose out of the same course of conduct. Pursuant to La.Code

Crim.P. art. 883, concurrent sentences are preferred when the offenses arise out of a common scheme or plan, particularly if the offender is a first-time offender. State v. Thibodeaux, 05-1187 (La.App. 3 Cir. 3/1/06), 924 So.2d 1205, writ denied, 06-700 (La.10/6/06), 938 So.2d 65. However, consecutive sentences are not prohibited; rather, the trial court must specifically justify its imposition of consecutive sentences.

In State v. Coleman, 32,906, p. 42 (La.App. 2 Cir. 4/5/00), 756 So.2d 1218, 1247-48, writ denied, 00-1572 (La.3/23/01), 787 So.2d 1010 (citations omitted), the court identified several factors a trial court should consider when imposing a consecutive sentence:

[T]he defendant’s criminal history; the gravity or dangerousness of the offense; the viciousness of the crimes; the harm done to the victims; whether the defendant constitutes an unusual risk of danger to the public; the defendant’s apparent disregard for the property of others; the potential for the defendant’s rehabilitation; and whether the defendant has received a benefit from a plea bargain.

State v. Massey, 08-839, pp. 5-6 (La.App. 3 Cir. 12/10/08), 999 So.2d 343, 348.

As for the issue of overall excessiveness, this court has explained the analysis as follows:

[Louisiana Constitution Article] I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question' is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (citations omitted)(second alteration in original). “[T]he trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1 [;] the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983).
In State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58, writ denied, 99-433 (La.6/25/99), 745 So.2d 1183, the fifth circuit held that a reviewing court should consider three factors in reviewing sentences imposed by the trial court: (1) “the nature of the crime,” (2) “the nature and background of the offender, and” (3) “the sentence imposed for similar crimes by the same court and other courts.”

State v. Chaisson, 09-119, pp. 25-26 (La.App. 3 Cir. 10/7/09), 20 So.3d 1166, 1182-83.

Also, Defendant in this case received maximum sentences. Regarding such sentences, this court in State v. Burnaman, 03-1647, p. 5 (La.App. 3 Cir. 5/12/04), 872 So.2d 637, 641, explained:

Maximum sentences are usually reserved for the most egregious and blameworthy of offenders. State v. LeBlanc, 578 So.2d 1036 (La.App. 3 Cir. 1991), writ denied, 620 So.2d 833 (La. 1993). In reviewing the | ^imposition of a maximum sentence, the First Circuit has held:
This Court has stated that maximum sentences permitted under statute may be imposed only for the most serious offenses and the worst offenders, State v. Easley, 432 So.2d 910, 914 (La.App. 1 Cir.1983), or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. See State v. Chaney, 537 So.2d 313, 318 (La.App. 1 Cir.1988), writ denied, 541 So.2d 870 (La.1989). A trial court’s reasons for imposing sentence, as required by La. Code Crim. P. art. 894.1, are an important aid to. this court when reviewing a sentence alleged to be excessive. State v. McKnight, 98-1790 at p. 25, 739 So.2d [343] at 359 [(La.App. 1 Cir.1999) ].

Whether Defendant was the worst type of offender for the offenses at issue is a question congruent with the first two factors in Lisotta and Chaisson, i.e., the nature of the offender and the offense. At the hearing below, the trial court observed:

BY THE COURT:
All right[,] this cause is before the Court for sentencing. The record reflects that on August 26, 2008, Deanna Gaspard entered a plea of not guilty to a charge of five counts of Identity Theft and also the Forgery and Theft and the matter was set for trial. The negotiations since that time had resulted in a plea agreement where Ms. Gaspard would receive a probated sentence if she were to pay the sum of $75,000.00. During the course of this proceeding, there were many occasions where this matter was postponed for one reason or another[,] mainly for Ms. Gaspard to attempt to get the necessary funds. On July 14, 2009, however, the plea agreement was confirmed and Ms. Gaspard withdrew her plea of not guilty and entered a plea of guilty, remanded for sentencing today. After the plea was entered and these comments Ms. Gaspard[,] I will tell you that are being made are in case this and the matter gets appealed. After the plea was entered, Deanna Gas-pard made an on the record apology to the victim, June Fadler and later the Court was informed that Ms. Fadler and Ms. Gaspard met in the hallway and hugged, cried and had a good meeting. This information however was proven to be or disputed by other members of [sic] individuals who were out in the hall. The information that has been supplied to the Court follows [sic] about Deanna Gaspard follows a very long pattern of deceit, deception and dishonesty!,] which according to information provided to this Court has been maintained for a period of several years.
In preparation for sentencing, the Court has reviewed the entire record of this proceeding, independent review of applicable law[,] and the Court has received multiple items of correspondence from multiple | .¡individuals concerning Deanna Gaspard and her life and Ms. Gaspard[,] for the first time in my twelve and a half years as judge each and every item of correspondence that I have received has included a description of one event or another wherein you have allegedly lied, cheated or stolen from the person issuing the correspondence. I have not received one item of correspondence asking for leniency, mercy or attributing to your good character or high moral fiber. These items of correspondence have been received from your family members, friends, alleged friends of yours, family and friends of the victim, Ms. Fadler and some non[] family members and they have been multiple in their receipt and have been somewhat of a shock in the number and the claims that have been made. These items of correspondence [sic] and I will tell you a few of the highlights and [s]ome of the comments made.
[“] Deanna Gaspard blatantly took advantage of June Fadler or shortly after Danny Fadler’s death Deanna was checking in on Ms. June daily. We were grateful for this until we learned that Deanna’s motive was not to was not to [sic] console Ms. June but was to intercept her mail so she could cover her tracks. Ms. June is a very generous person and has given Deanna money in the past to help her out.. Deanna accepted this gratitude by stealing.!”] Another comment.
[“] The financial impact that Deanna Gas-pard’s theft have [sic] had on the Cutting Edge, Community Mental Health Center has been serious. Business has suffered as a result of the damage to the reputation of the business.!”] Another comment. [“] That many Bills of Information filed by the Avoyelles Pariah District Attorney are correct insofar as the allegations and the dollar amount. However, they failed to show the total number of occurrences and the extreme length that Deanna Gaspard went to perpetrate her actions. [”] Next. [“] Deanna Gaspard used the credit card of the Cutting Edge and/or June and Danny Fadler more than one hundred thirty times in 2005. More than one hundred thirty times in 2006 and 2007 and used Danny Fadler’s credit cards more than one hundred sixty times. [”] Next. [“] The Cutting Edge and other corporations owned by the Fadlers, Rusty Gate and SK Transportation had to borrow money to continue operations due to the vast amounts of cash that was stolen by Deanna Gaspard.[”] Another comment. [“JDeanna Gaspard went to extreme lengths of deception to hide her thefts by forging other persons names making fake checks, scanning and changing bank statements. [”]
Although every item of correspondence outlines a specific situation wherein you allegedly committed crimes against the victims here and other crimes who wrote the letters [sic] it was simply amazing to me the tone of these letters and the information in the letters concerning other offenses that you may have committed in your life. That type of activity is similar to that [sic] to the type of activity which you are now being sentenced for. The information provided to the Court ^unqualifiedly shows that June and Danny Fadler treated you like a member of their family. They loaned you money. They gave you money and they gave you a good paying job. I further learned and was told by items of correspondence that after you lost your job because of being caught on these offenses that you took a job at a law firm in Alexandria where one of the step-children of June Fadler is employed. This occurring at a time where Ms. Fadler is involved in serious litigation with these step-children and against the step-children concerning certain property that was owned by she and Mr. Fadler. And that all raised highly auspicious motives as to why you would go work at this area at this law firm.
The evidence submitted to me Ms. Gaspard[,] and I don’t know you[,] but all of the evidence submitted to me from reading the D.A.’s file and reading these various items of correspondence simply indicate a life of deceit, deception and dishonesty. The deceit, deception and dishonesty was certainly confirmed by the multiple acts that were committed upon June Fadler, the Cutting Edge, Danny Fadler and their businesses.
In further preparation of these sentencing, I have reviewed the sentencing guidelines outlined in Article 894.1 of the Louisiana Code of Criminal Procedure and I find that there is definitely an undue risk that during any period of a suspended sentence or probation you would commit another crime. I am of the firm belief that you are in need of correctional treatment or a custodial environment that can be provided most effectively by your commitment to an institution. Any lesser sentence then [sic] the sentence that I issue herein would deprecate or reduce the seriousness of the multiple crimes that you have been that you have committed [sic]. In looking at the factors in Article 894.1, I considered the following aggravating factors. Number (1). Your contact constituted I mean your conduct[,] I’m sorry[,] constituted deliberate cruelty to June Fadler. You committed these crimes during times when you knew Ms. Fadler was battling cancer and thereafter at times she was dealing with the death of her husband. Thereafter, she was involved with litigation with your [sic] step-children and your actions suggest continued involvement. I consider these actions to constitute deliberate cruelty to June Fadler. Number (2). You knew that June Fadler was particularly vulnerable due to her ill health. Danny Fadler was also in ill health during a portion of the time wherein the crimes were committed. Number (3). The crimes that you committed and the items that you and what you received as a result were many items of value mainly money[,] or the use of money[,] to purchase your personal items during the commission of your offense. Number (4). You used your position and status with the Fadlers as a close friend and employee to facilitate and ease the commission of your crimes. Number (5). It is possible and I find probable that you committed some of your offenses in order to facilitate or conceal the commission of other offenses involving other individuals | ^although I cannot state this with certainty. Number (6). The offense resulted in a significant economic loss to the victims. Number (7). The offense involved multiple victims that being Danny Fadler, June Fadler, the Cutting Edge, Rusty Gate, SR Transportation and multiple incidents for which separate sentences have not totally been imposed. Number (8). You have apparently persistently been involved in similar type[s] of conduct[,] although through your multiple acts of deception you have not yet been prosecuted for same. Number (9). This is a major economic offense. Number (10). Considering mitigating circumstances for you I find none. I find nine specific aggravating circumstances that are set out in Article 894.1 and no mitigating circumstances. The only potential mitigating factor is your plan to make restitution to Ms. Fadler in the sum of $75,000.00. However!,] during this prolonged period of time[,] each and every promise today [sic] was meant [sic] with a request for more time including a request today.

Returning to the consecutive nature of some of the sentences, pursuant to Massey, the trial court’s detailed reasoning supports its ruling making one of the sentences for one count from each of the bills consecutive. Further, it appears the Defendant’s conduct did not constitute an ongoing scheme or transaction. Her own description of her actions, recited at the plea hearing, depicts a series of crimes of opportunity, rather than an ongoing plan. Thus, the trial court did not err by ordering some of the sentences to run consecutively.

Regarding the maximum terms Defendant received, we will examine each crime individually. We note there are few cases discussing maximum sentences for forgery. This court has explained:

The court sentenced Defendant to two years less than the maximum sentence for forgery. In State v. Gant, 29,169 (La.App. 2 Cir. 1/22/97); 687 So.2d 660, writ denied, 97-465 (La.6/30/97); 696 So.2d 1006, the court found that a maximum sentence of ten years was not an abuse of the trial court’s discretion, even though the young, pregnant defendant was technically a first offender. The defendant had similar offenses as a juvenile that indicated a propensity to violate the law. Also, she committed the crime while still on juvenile probation, and had reduced her exposure by plea-bargaining. Id. at 662-663. In State v. Pegues, 26-133 (La.App. 2 Cir. 8/17/94); 641 So.2d 1080, the court held that three consecutive six-year sentences for three counts of forgery were not excessive, given that the defendant was a fourth felony offender, and on probation when he committed the offenses. In State v. Davis, 571 So.2d 210 (La.App. 3 Cir.1990), this court held that an |ineight-year sentence for forgery was not excessive, as the defendant was a third felony offender.
In light of the jurisprudence, especially Davis, we conclude that the present Defendant’s sentence does not constitute an abuse of the trial court’s sentencing discretion. Therefore, this assignment lacks merit.

State v. Wilson, 01-625, pp. 18-19 (La.App. 3 Cir. 12/28/01), 806 So.2d 854, 867, writ denied, 02-323 (La.9/13/02), 827 So.2d 1121.

We note the record does not demonstrate that Defendant is a multiple felony offender, while the defendants discussed in Wilson were. However, Defendant entered guilty pleas to three counts in the present matter, and to eight counts under the companion bills. The sheer volume of illegal activity committed by Defendant against her victims was significant. Further, she took advantage of people who trusted her, harming individuals and a business through actions that caused approximately $154,000 in economic harm.

Defendant relies upon three theft cases in her attempt to demonstrate the maximum sentences for identity theft and theft valued over $1,000 are excessive. In State v. Delaneuville, 545 So.2d 659 (La.App. 5 Cir.), writ denied, 551 So.2d 1335 (La.1989), the appellate court found the defendant’s five-year sentence, with three years suspended and five years of active probation, was not excessive. She was a first offender; while working as a bookkeeper, she improperly took $110,000 from her employer and from some client accounts, over a four-year period. Although the present Defendant seems similarly situated to the defendant in Delaneuville, we note the judge in Delaneuville received letters of support on that defendant’s behalf. Id. at 661. As the judge in this case observed, the letters he received regarding Defendant were all negative. Also, in De-laneuville, the restitution was a condition of probation. In this case, Defendant was given the opportunity to avoid incarceration by making partial restitution; however, she failed to do so. Also, the defendant in LDelaneuville was convicted of a single count of theft, while Defendant pled to multiple counts and charges. Defendant also cites State v. Froiland, 05-138 (La.App. 5 Cir. 7/26/05), 910 So.2d 956, in which the defendant, an office manager, misappropriated more than $200,000. Citing Delaneuville, the appellate court held that the defendant’s six-and-a-half-year sentence, all but eighteen months suspended, with five years active probation, was not excessive. Id. at 966. The court ordered the defendant to pay restitution. Like in Delaneuville, but unlike in this case, the defendant in Froiland was convicted of a single count of theft. Also, restitution was part of the sentence, rather than a means of avoiding incarceration altogether.

In the final case cited by Defendant, State v. Lintzen, 541 So.2d 197 (La.App. 3 Cir.1988), this court held that defendant’s thirty-two-year sentence, composed of four consecutive eight-year terms, was excessive. The defendant approached four separate victims and convinced each to invest in gold coins which apparently did not exist. His total take from the scheme was more than $120,000. This court stated:

In imposing sentence in this case, the trial judge meticulously complied with the sentencing guidelines of La.C.Cr.P. art. 894.1. Albeit, we conclude that, although the sentences imposed fall within the statutory limits, the penalties imposed and made to run consecutively (32 years) are grossly disproportionate to the severity of defendant’s crimes, shock our sense of justice and constitute a manifest abuse of discretion. Article 1, Sec. 20 of the Louisiana Constitution of 1974 prohibits cruel, excessive or unusual punishment. Although within statutory limits, a sentence may nonetheless be excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Naquin, 527 So.2d 601 (La.App. 3rd Cir.1988). Although a trial judge is allowed wide discretion in imposing sentence, such discretion is not unbridled. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Beavers, 382 So.2d 943 (La.1980).
The crimes committed by defendant were nonviolent and posed no threat or danger to public safety. Although defendant had two prior felony convictions for issuing worthless checks, such offenses occurred more than twelve years prior to these convictions. Although we have compassion for the victims who suffered financial harm as a result of defendant’s crimes, we do not consider that the harm suffered by them is unlike that suffered by the victims in State v. Langford, 467 So.2d 41 (La.App. 4th Cir.1985), writ denied, 483 So.2d 979 (La.1986) [eight years for a single count of theft: the defendant intentionally overdrew his bank account by more that $848,000]; State v. Calamia, 490 So.2d 428 (La.App. 5th Cir.1986)[seven years for one count of theft: office manager improperly took more than $400,000, and facilitated the taking of another $600,000 by other individuals]; or State v. Chapman, 490 So.2d 697 (La.App. 2d Cir.1986) [three years at hard labor for one count of theft not excessive: bookkeeper took approximately $175,000 from business], where considerably lesser penalties were imposed.

Id. at 198.

We note that Lintzen pre-dated State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996), wherein the Louisiana Supreme Court reversed this court’s holding that a sentence was excessive, and emphasized that the only pertinent question on review is “whether the trial court abused its broad sentencing discretion, and not whether another sentence might be more appropriate.” Id. at 959, citing State v. Humphrey, 445 So.2d 1155, 1165 (La.1984), and State v. Williams, 412 So.2d 1327 (La.1982).

This court in State v. Fontenot, 01-540, pp. 3-8 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255, 1257-60, thoroughly examined the jurisprudence regarding maximum ten-year sentences for types of theft under La.R.S. 14:67:

At the sentencing hearing in the case at hand, the trial court stated:
I’ve looked at this case from, from both sides. She’s a young woman, I understand the family. I also understand what the victims have gone through over here. It’s hard for this Court to make a decision, it really is, but yet I am going to do it. I’m going to take the bull by the horns this morning and I’m going to impose a sentence that I think is fair and equitable under the circumstances, she’s not going to like it. I don’t know if the victims are gonna like it neither but this is what I’m going to do. I’ve considered everything and this is my sentence. Ten years at hard labor, I suspend three of the years. Upon her release from prison or making parole, I place her on active supervised probation for a period of five years....
Lain State v. LeBlanc, 578 So.2d 1036 (La.App. 3 Cir.1991), the defendant, who was convicted of one count of felony theft in excess of $500, was sentenced to the maximum term of ten years at hard labor. The defendant alleged his sentence was unduly harsh under the circumstances of the case. A review of the record showed that the defendant had stolen by means of fraud an amount in excess of $500,000 over a three-year period. The record further established that defendant had been convicted several times of felony theft and had been placed on probation, but continued his fraudulent activity even after he was convicted on the instant offense and was awaiting sentencing. In affirming the sentence, the court found the sentencing court was justified in imposing the maximum sentence upon the defendant noting that while the defendant was only twenty-nine years old, he had committed a series of felony thefts, forgeries, and issuing worthless checks. In our case, Defendant had no criminal history and the amount taken was about one tenth the amount taken in LeBlanc.
The defendant in State v. McKinnie, 33,175 (La.App. 2 Cir. 3/1/00); 755 So.2d 367, argued that her maximum sentence of ten years on a conviction of felony theft was excessive because none of her past offenses were crimes of violence. She further argued that she was high on crack cocaine at the time of the offense. The court held that defendant’s sentence was not excessive[,] noting that she had been arrested seventeen times in eighteen years and had been convicted in ten theft-related cases. Likewise, in State v. Daigle, 96-782 (La.App. 5 Cir. 1/28/97); 688 So.2d 158, writ denied, 97-597 (La.9/5/97); 700 So.2d 506, the defendant claimed that his sentence of ten years at hard labor for a conviction on one count of felony theft was excessive. The defendant was an accountant, who was employed as a comptroller for a large corporation. Over a ten-year period, he embezzled an estimated $600,000 from the corporation. He had no prior criminal activity and made partial restitution to the victim. He asserted that he was not a “most egregious” offender, deserving of the maximum sentence. Our colleagues on the fifth circuit wrote:
In imposing sentence, the trial judge noted the great economic loss suffered by the victim company and stated that a lesser sentence would deprecate the seriousness of the offense ... The trial judge also noted that prior to his trial on the instant offense, defendant jumped bond and fled to Nevada.
The court noted defendant’s criminal record (a 1969 misdemeanor conviction for obscenity and a 1982 misdemeanor conviction for criminal mischief, reduced from a charge of crime against nature) and indicated the decision was also influenced by the fact that the instant offense was actually an ongoing series of criminal acts for which the state could have brought several individual charges.
Id. at 159-160. The court found that the imposition of defendant’s maximum sentence was supported by the record and that the sentence was not excessive in light of the facts of the case. Again, both of these cases are easily distinguishable from the case at hand.
Finally, we think it is appropriate to mention the case of State v. Roberts, 427 So.2d 1300 (La.App. 2 Cir.1983), where the appellate court found two concurrent maximum sentences of ten years for two convictions of felony theft of more than $500 to not be excessive. In that case, the defendant was also convicted of one count of theft of more than $100, for which she received a sentence of two years at hard labor. The defendant had engaged in a series of thefts wherein she stole more than $8,500 from her employer. While the facts of that case are similar to the facts of the case at hand, it is also readily distinguishable. For example, in that case, the trial court made a finding that the defendant was an inappropriate candidate for probation and that any sentence less than the one imposed would deprecate the seriousness of the crimes. Accordingly, we shall not rely on it for guidance in this case.
Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime. “A sentence is considered grossly disproportion [sic] if, when the crime and punishment are considered in light of the harm done to society, it is so disproportionate as to shock our sense of justice.” State v. LeBlanc, 578 So.2d 1036, 1038-1039. The factors supporting the sentences in the above cited cases were, with the exception of Roberts, much more egregious than were the factors in the instant case. In this case, the trial court referred to the pre-sentence report and stated: “[T]he pre-sentence is certainly unfavorable towards [Defendant].” We disagree. The pre-sentence report revealed that Defendant was thirty-four years old, a single mother of two young children, a high school graduate, with a continuous employment history, and had no prior criminal history. The report did not recommend prison time; rather, it indicated that she would respond in a positive manner to probation supervision. She has attempted to pay a part of the restitution ($2,000.00), albeit on the date of sentencing. The amount of the theft involved, while quite substantial, was significantly less than the amounts involved in Jones, Daigle and LeBlanc. Further, this was not a crime of violence, and Defendant claims that she would be able to pay a substantial part of the restitution (possibly $20,000 to $30,000) in a short period of time.
We also note that the presentence investigation report shows that Dr. Sylvester and his wife were of the opinion that Defendant needed some type of mental help, but that she needed some jail time even if she pays restitution. While the State argues that this theft was not a one time occurrence, but a well planned, premeditated, and continuous event, the trial court did not take any note of this in its sentencing of Defendant. Rather, the trial court seemed to rely on the presentence investigation report in making its decision, and it made no comments regarding Article 894.1 considerations and the factual basis it took into account in | ^individualizing Defendant’s sentence.
We find that the presentence investigation report does not support a maximum sentence in this instance. We agree with Dr. Sylvester that Defendant should be required to serve a jail term even if she makes restitution. We also agree with the state that this crime was a well planned, premeditated, and continuous event that warrants a substantial sentence, but that it does not involve the most serious violation of the offense nor is Defendant the worst type of offender. As such, the maximum sentence is so disproportionate to the crime and punishment as to shock our sense of justice, and it inflicts nothing more than needless pain and suffering.
Therefore, we find, that in light of the presentence investigation report and the lack of findings by the trial court that Defendant was an egregious offender or that the crime was the most serious of its kind, the sentence was excessive. As such, we reverse the ten year maximum sentence and remand to the trial court for resentencing noting that a substantial sentence should include both a prison term and probation in which restitution be made a condition shall be appropriate.

We find the Defendant in the present case is analogous to those cases in which maximum sentences were affirmed. She took advantage of people who trusted her, harming individuals and a business through actions that caused approximately $154,000 in economic harm.

The trial judge in this case carefully enumerated the factors he considered in rendering sentence. He noted the Defendant led a life of “deceit, deception, and dishonesty.” The trial judge believed any lesser sentence would deprecate the severity of Defendant’s actions. He set forth nine aggravating factors that led to his decision to impose the maximum sentence, and emphasized he saw no mitigating factors whatsoever.

Although Defendant lacks any prior convictions seen in many of the cases where a maximum sentence was imposed, the trial court emphasized the sheer volume of offenses committed and the severe impact they had on the victims. Defendant committed multiple offenses that not only resulted in severe economic hardship, but were deliberately cruel to the victims. June Fadler was grieving the loss of her spouse |1fiand suffering from a potentially fatal disease, and Defendant feigned concern and stole repeatedly from Mrs. Fa-dler and then committed additional crimes over the ensuing months to cover up her actions. Thus, considering the vast discretion vested in the trial court, we are unable to say the sentences imposed in the present case represent an abuse of that discretion or that the sentences are constitutionally excessive.

DECREE

For the foregoing reasons, Defendant’s sentences are affirmed.

AFFIRMED.

      . Although the matters were not formally consolidated, Defendant entered guilty pleas to all the charges under the three bills at the plea hearing. Further, the sentences were all pronounced at the same sentencing hearing, and were inter-dependent. Defendant’s motion for appeal also included all three trial docket numbers.
      The trial court clerk's office prepared three records, each corresponding to one of the trial court docket numbers. Each of the records was filed with a separate appellate docket number. The three appeals will be handled together, as they are factually and procedurally related. All three appellant briefs are identical to one another, and each attack the ”[e]xcessiveness of a thirty-(30) year sentence for a[sic] theft charges,” even though only one of the docket numbers encompasses general theft charges. The motion for appeal is similarly worded.

      . The litigation involved Ms. Fadler's stepchildren.


text:
    STATE of Louisiana v. Deanna GASPARD.
    No. 09-1517.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 2010.
    Rehearing Denied Dec. 15, 2010.
    Charles A. Riddle, III, District Attorney, Andrea D. Aymond, Assistant District Attorney, Marksville, LA, for Appellee, State of Louisiana.
    Angelo J. Piazza, III, Marksville, LA, for Defendant/Appellant, Deanna Gaspard.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   COOKS, Judge.

For the reasons assigned in the companion case of State of Louisiana v. Deanna Gaspard, 09-1516 (La.App. 3 Cir. 10/13/10), 49 So.3d 971, Defendant’s sentences are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Deanna GASPARD.
    No. 09-1518.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 2010.
    Rehearing Denied Dec. 15, 2010.
    Charles A. Riddle, III, District Attorney, Andrea D. Aymond, Assistant District Attorney, Marksville, LA, for Appellee, State of Louisiana.
    Angelo J. Piazza, III, Marksville, LA, for Defendant/Appellant, Deanna Gaspard.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   COOKS, Judge.

For the reasons assigned in the companion case of State of Louisiana v. Deanna Gaspard, 09-1516 (La.App. 3 Cir. 10/13/10), 49 So.3d 971, Defendant’s sentences are affirmed.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    Craig Steven ARABIE, et al. v. CITGO PETROLEUM CORPORATION, et al.
    No. 10-334.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 27, 2010.
    See also, 49 So.3d 529, 2010 WL 4226012.

      William B. Baggett, Wells Talbot Watson, Baggett, McCall, Burgess, Watson & Gaughan, Peter J. Butler, Gretna, LA, Richard Elliott Wilson, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Plaintiffs/Appellants-Jason Doucet,
    Charles Hardy, Bennett Talbot, Craig Steven Arabie, Scott Levy, Dennie Bankston, Larry Thomas, John Giovanni, Glen Miller, Dexter Breaux, Jimmy Buckelew, Randall Fontenot, Jerry Richard, Jr., and Joseph Burnett.
    Robert E. Landry, Scofield, Gerard, Sin-gletary & Pohorelsky, L.L.C., Yul Dubart Lorio, Doucet, Lorio & Moreno, Marshall Joseph Simien, Jr., Simien Law Firm, Lake Charles, LA, Richard Edward Sar-ver, Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C., News Orleans, LA, for Defendant/Appellee-Citgo Petroleum Corporation.
    Kirk Albert Patrick, III, Law Offices of Donohue Patrick, Baton Rouge, LA, for Defendant/Appellee-R & R Construction, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

11 Fourteen plaintiffs, who were exposed to Citgo Petroleum Corporation’s slop oil and waste water release, assert that the trial court erred in its assessment of damages. We find — because a defendant is liable for all the costs associated with a plaintiff’s surgery if the defendant’s actions accelerated the need for that surgery-that the trial court misapplied the law by awarding only a portion of damages incurred by one of the plaintiffs who has undergone a surgery as a result of his exposure. We also find that the trial court abused its discretion by awarding all of the plaintiffs, except three, the same amount in pain and suffering damages associated with the exposure even though the plaintiffs’ symptoms varied significantly in duration and intensity. Finally, we increase to the lowest point within the trial court’s discretion, the pain and suffering award to five of the plaintiffs whose exposure-related symptoms lasted one year or longer.

I.

ISSUES

In this toxic release case, we shall consider:

(1) whether the trial court erred by awarding three of the plaintiffs, Dennis Bankston, Larry Thomas, and Charles Hardy, only a portion of their damages where the plaintiffs had various pre-existing conditions;
(2) whether the trial court abused its discretion by awarding the same quantum of pain and suffering damages to all of the plaintiffs, except three, where the duration and intensity of the plaintiffs’ symptoms varied significantly; and,
(3) having found an abuse of discretion as to some of the plaintiffs, what was the lowest award within the trial court’s discretion where the plaintiffs’ symptoms included nausea, stomach pain, diarrhea, dizziness, respiratory and sinus problems, sore throat, rash, acne, headaches, eye irritation, sleeping 12difficulties, fatigue, cough, and skin peeling and where these symptoms lasted anywhere from one to twelve months and some were ongoing at the time of the trial.

II.

FACTS

This case arises out of the 2006 oil spill and air release at Citgo’s refinery in Lake Charles. After a trial, the court concluded that the plaintiffs were entitled to various damage awards whose amounts are subjects of this appeal.

The trial court awarded each of the plaintiffs $30,000.00 in punitive damages and $2,500.00 for fear of developing a disease. Three of the plaintiffs — Dennis Bankston, Charles Hardy, and Larry Thomas — received damages associated with the aggravation of their pre-existing conditions in addition to the damages associated with the exposure. The rest of the plaintiffs, except the two who received $4,500.00, received $5,000.00 in pain and suffering damages associated with their exposure. Other damage awards, such as medical expenses and lost wages, varied from plaintiff to plaintiff.

The trial court found that the plaintiffs suffered the following injuries as a result of Citgo’s fault in causing the spill:

(1) Craig Arabie experienced nausea, burning eyes, and dizziness for about two months; he generally felt ill for six months and suffered from diarrhea for one year. He received $5,000.00 for his pain and suffering.

(2) Dennis Bankston experienced nausea for about a month. He also suffered from headaches, sinus problems, and had difficulty breathing while near the | ¡¡spill. The trial court found that Bankston had a pre-existing sinus problem that was aggravated by the exposure which “accelerated the need for what would have been a necessary surgery.” Thus, the trial court divided Bankston’s damages into the ones associated with the exposure and the ones associated with the surgery. The trial court found that Bankston’s damages associated with the surgery were: (a) $17,631.80 in medical expenses; (b) $2,500.00 in lost wages; and, (c) $30,000.00 in general damages. Yet, the trial court awarded only ten percent of these damages, i.e., $5,012.00. In addition, Bankston received $5,000.00 for his pain and suffering associated with the exposure.

(3) Dexter Breaux suffered from shortness of breath and nausea for three to four weeks, headaches for six months, sinus irritation for ten months, and fatigue. He received $5,000.00 for his pain and suffering.

(4) Jimmy Buckelew suffered from a sore throat, headache, and weakness for ten to eleven months. He had nausea and stomach pain until the materials were removed. In its written reasons for judgment, the trial court also stated that “[h]is pre-existing high blood pressure and diabetes were aggravated.” Yet, two sentences later, the trial court wrote: “[t]he court was not satisfied that an aggravation of Mr. Buckelew’s pre-existing conditions occurred.” Buckelew was awarded $5,000.00 in pain and suffering. None of his awards was reduced by a percentage because of the pre-existing conditions.

(5) Joseph Burnett experienced eye irritation, respiratory and sinus problems for four to five months, as well as stomach cramps and nausea for three to four months. The trial court found that he experienced less exposure than his coworkers and awarded him $4,500.00 for his pain and suffering.

14(6) Jason Doucet experienced nausea, diarrhea, sore throat, sinus inflammation, cough, and a rash from his ankle to his knee. Finding that all of his symptoms were resolved after five or six months, the trial court awarded Doucet $5,000.00 for the pain and suffering.

(7) Randall Fontenot experienced a rash, headaches, sleeping difficulties, and problems eating at work for three months. He was awarded $5,000.00 for his pain and suffering.

(8) John Giovanni experienced diarrhea and burning eyes for two to three weeks and sinus problems and headaches for a year. The trial court found that he had a continuing problem with his sense of smell. The court awarded Giovanni $5,000.00 for the pain and suffering.

(9) Charles Hardy experienced headaches, blurred vision, depression, cough, fatigue, and sleeplessness. Some of these symptoms, as well as a rash and a sore throat, have reoccurred and were ongoing at the time of the trial. Hardy was out of work for four to five months because of his depression and eye problems. Because of Hardy’s pre-existing conditions, the trial court reduced his damages associated with the exposure and the aggravation of his pre-existing conditions by seventy-five percent. Even with the reduction, Hardy’s damages exceeded $50,000.00. Plaintiffs designated their causes of action as “non-jury” under La.Code Civ.P. art. 1732, thereby limiting their claims for damages to $50,000.00 per plaintiff. Thus, the trial court reduced Hardy’s damages to $50,000.00.

(10) Scott Levy experienced a rash on his chest and head, nausea, and respiratory problems for one to two months. He had elevated liver enzymes for six months. The trial court found that Levy had less exposure than other plaintiffs | Rbecause of his work schedule and, therefore, awarded him $4,500.00 for the pain and suffering.

(11) Glen Miller suffered from headaches, diarrhea, dizziness, when near the spill, for two to four months. He also experienced blistering and peeling on the hand that came into contact with the slop oil. Miller’s sinus problems and peeling of the hand were ongoing at the time of the trial. The trial court awarded Miller $5,000.00 for the pain and suffering.

(12) Jerry Richard, Jr. suffered from a rash and acne for two to three months. He experienced diarrhea, a sore throat, and nausea for one month. Richard had sleep difficulties and fatigue for four months, as well as sinus problems and cough for six months. Richard experienced severe headaches for seven months and shortness of breath for one year. The trial court awarded Richard $5,000.00 for the pain and suffering associated with the exposure.

(13) Bennett Talbot suffered from nausea and burning eyes for about two weeks. He experienced headaches and sore throat for about two months, and diarrhea and constipation for a few months. Talbot had sinus problems at the time of the trial. The trial court awarded Talbot $5,000.00 for the pain and suffering.

(14) Larry Thomas experienced problems swallowing, suffered from a sore throat, a rash, and sleeplessness for four to five months. He had headaches and eye irritation for six months. The trial court found that he had ongoing sinus problems and that it took about six months after the clean up for Thomas’s diabetes to become properly regulated again. The trial court concluded that some long-term sleep and rash issues were the only symptoms that were aggravated by Citgo’s delictual conduct. Accordingly, the trial court awarded twenty percent of the $2,172.00 in medical expenses and of the $8,000.00 in pain and suffering damages [ fithat the trial court associated with the aggravation of Thomas’s pre-existing conditions. In addition, the trial court awarded Thomas $5,000.00 for the pain and suffering associated with the exposure.

In its written reasons for judgment, the trial court stated:

[t]here is significant disagreement as to causation among the various experts in this matter. However, taking the evidence as a whole, the plaintiffs have established that more probably than not, the admitted negligence of the spill was a eause-in-fact (albeit to different degrees) of their various injuries. It was also established that the effects were short term, approximately one to three months, and no long term or permanent injuries were suffered.

The plaintiffs appealed, arguing that the trial court misapplied the law related to the aggravation of the pre-existing conditions by awarding Bankston, Hardy, and Thomas only a percentage of their damages. The plaintiffs further assert that the trial court erred by finding that the effects of the spill were short-term, approximately one to three months in duration, and, at the same time, finding that several of the plaintiffs had ongoing symptoms at the time of the trial. Finally, the plaintiffs assert that the trial court abused its discretion by awarding essentially the same amount for the pain and suffering to all of the plaintiffs.

On the other hand, arguing that plaintiffs Bankston, Hardy, and Thomas should receive damages only for the aggravation of their pre-existing conditions, Cit-go maintains that the trial court did not err by awarding only a percentage of damages to these plaintiffs. Furthermore, Citgo submits that the trial court was not inconsistent in its written reasons for judgment because the trial court recited the ^symptoms each plaintiff alleged to have suffered. Thus, Citgo argues, the trial court found that plaintiffs proved only one to three months suffering from the symptoms. Finally, because the trial court found that the plaintiffs’ symptoms were transient in nature, Citgo maintains that the trial court did not award an abusively low amount in damages.

III.

STANDARD OF REVIEW

Appellate courts review the trial court’s award of damages for abuse of discretion. Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70. The trial court’s assessment of the appropriate amount of damages is a finding of fact to which appellate courts give great deference on review. Id. Thus,

[b]efore a Court of Appeal can disturb an award made by a [factfinder,] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.

Guillory v. Lee, 09-75, p. 15 (La.6/26/09), 16 So.3d 1104, 1117 (citations omitted).

Nevertheless, “ [although appellate courts must accord great weight to the factual findings of the trial judge, these same courts have a duty to determine if the fact finder was justified in his conclusions.” Mart v. Hill, 505 So.2d 1120, 1127 (La.1987) (citation omitted). Thus, the ap pellate courts are not required to affirm a factual finding “reached by overlooking applicable legal principles” simply because of the standard of review. Id. If the trial court erroneously applied the law which interdicted the fact-finding process, “the appellate court is to review the evidence de novo and apply the correct legal principles.” Hebert v. Southwest La. Elec. Membership Corp., 95-405, p. 10 (La.App. 3 Cir. 12/27/95), 667 So.2d 1148, 1156, writs denied, McSpadden v. Southwest La. Elec. Membership Corp., 96-277, 96-798 (La.5/17/96), 673 So.2d 607, 608 (citing Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742).

IV.

LAW AND DISCUSSION

This case involves two sets of plaintiffs. For the first set of plaintiffs, which includes Bankston, Hardy, and Thomas, the trial court determined a quantum of damages associated with the aggravation of their pre-existing conditions in addition to the damages associated exclusively with the exposure. The trial court then reduced the damage awards for the aggravation by a percentage that the trial court determined to be due to the pre-existing conditions.

The second set of plaintiffs, which includes all other plaintiffs, received either $4,500.00 or $5,000.00 for the pain and suffering associated with the exposurfe. In addition, each plaintiff in both sets received $2,500.00 for fear of developing a disease and $30,000.00 in punitive damages, as well as medical expenses and lost wages.

First, we consider whether the trial court misapplied the law by reducing the damage awards associated with the aggravation of the pre-existing conditions of the first set of plaintiffs. Here, we do not review the quantum of damages per se. Rather, we review whether the trial court misapplied the .law and, thereby, erred by reducing the quantum of damages the trial court determined to be due to these plaintiffs. Here, we apply a de novo standard of review.

InNext, applying an abuse-of-discretion standard of review, this court examines whether the trial court’s assessment of the plaintiffs’ damages for the pain and suffering was abusively low.

A) The Trial Court’s Percentage of the Damages Award to Three of the Plaintiffs

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” La. Civ.Code art. 2315. “[A] defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct.” Am. Motorist Ins. Co. v. Am. Rent-All, Inc., 579 So.2d 429, 433 (La.1991). “[Wjhen the defendant’s tortious conduct aggravates a pre-existing ipjury or condition, he must compensate the victim for the full extent of this aggravation.” Lasha v. Olin Corp., 625 So.2d 1002, 1003 (La.1993).

When it comes to damages, in some cases a tension may arise between the principle of defendant’s liability only for the aggravation of the plaintiffs pre-exist-ing conditions and the principle of the defendant’s taking his victim as he finds him. A thorough review of our jurisprudence and the synthesis of these two principles reveal that when a plaintiffs preexisting condition is aggravated, the plaintiff is entitled to damages attributable to the aggravation. On the other hand, when the plaintiffs pre-existing condition makes that plaintiff vulnerable to a new condition, from which the plaintiff did not suffer before the injury, the defendant is liable for all the damages associated with this new injury even though the plaintiff would not have had the new injury had the plaintiff not suffered from the pre-existing condition.

The following illustration may be helpful. If a plaintiff suffered from migraine headaches before the injury, but those headaches intensified or increased in | mfrequency after the injury, the plaintiff is entitled to damages attributable only to the aggravation of the pre-existing headache. On the other hand, if a plaintiff suffered from osteoporosis and the defendant’s negligence caused the plaintiff to break her limb, then the plaintiff is entitled to the entirety of the damages associated with the broken limb even though the plaintiff would not have broken her limb had she not suffered from osteoporosis.

Thus, where a heavy smoker had experienced ordinary upper respiratory problems, such as bronchitis and sinusitis, prior to his exposure to chlorine gas but was diagnosed with chronic bronchitis, clinical asthma, and depression after the exposure, the supreme court held the defendant liable for all of the damages the plaintiff experienced “even though under the same circumstances a normal person would not have suffered that illness or injury.” Lasha, 625 So.2d at 1006. The supreme court reasoned that

[t]he defendant’s liability for damages is not mitigated by the fact that the plaintiffs pre-existing physical infirmity was responsible in part for the consequences of the plaintiffs injury by the defendant. It is clear that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct.

Id. at 1005 (citations omitted).

Similarly, this court held the defendant liable for all of the plaintiffs medical expenses, lost wages, and general damages associated with a back surgery even though the plaintiff would eventually have undergone the surgery because he had congenital problems with his spine that were aggravated by chronic inflammatory problems. Abshire v. Wilkenson, 01-75 (La.App. 3 Cir. 5/30/01), 787 So.2d 1158. This court reasoned that “although he may have required surgery at some point in the | ^future,” because the defendant takes the victim as he finds him, the plaintiff was entitled to all of the damages. Id. at 1168.

On the other hand, the supreme court has placed its imprimatur upon an award of a fraction of plaintiffs medical expenses where the plaintiff, prior to the car accident at issue in the case, had a history of chronic pain and numbness in his neck, lower back, legs, and arms, had undergone a back and a' carpal tunnel release surgeries, experienced depression, bruxism, and other various problems and pains. The supreme court reasoned that “the jury could have reasonably concluded plaintiff was a chronic pain patient, and underwent a previous surgery as a result of neck pain ... which did not fully resolve his painful condition.” Guillory, 16 So.3d at 1124. The supreme court also concluded that, given the plaintiffs pre-existing conditions, $10,000.00 for the pain and suffering was not abusively low in this case even though the plaintiff underwent a discography with cervical discectomy subsequent to the accident at issue. Id.

Here, the trial court found that Citgo’s conduct “accelerated the need for what would have been a necessary surgery” for Dennis Bankston. The court then reduced Bankston’s damages associated with the surgery by ninety percent. This court concludes that the trial court has misapplied the law with respect to this plaintiff. Like the plaintiff in Abshire, Bankston had a congenital problem and some sinus problems prior to the exposure. Both here and in Abshire, plaintiffs would eventually have undergone surgery. Nevertheless, because Citgo’s negligent conduct exacerbated Bankston’s symptoms and triggered the need for the surgery, it is liable, like the defendant in Abshire, for all of the damages associated with the surgery, not just a portion thereof.

| iaThe trial court found that medical expenses, lost wages, and general damages associated with the surgery amounted to over $50,000.00. Because $50,000.00 is the maximum amount of damages this court can award to this plaintiff, we increase the trial court’s award to Bankston by $6,708.00.

The case of Larry Thomas is a little different. The trial court found that Thomas had difficulties controlling his diabetes after the exposure and that “some long term sleep and rash issues were all that were aggravated by this spill.” Thus, the trial court divided Thomas’s damages into those associated with the exposure and those associated with his pre-exist-ing/co-occurring conditions, awarding the entirety of damages associated with the exposure and twenty percent of damages associated with the aggravation of the preexisting conditions.

Thomas testified that he did not have any pre-existing sleep and rash issues. Dr. Barry Levy, the plaintiffs’ expert, testified that the exposure to the slop oil caused Thomas’ sleep and rash problems. Thus, this court presumes that the aggravation damages the trial court awarded were for the aggravation of Thomas’s diabetes. Thomas testified that he had his diabetes under control before the exposure. After the exposure, Thomas testified he had difficulties controlling his diabetes and had to change his medicine accordingly. After six months, Thomas went back to the medication he used before the exposure. The trial court also had Dr. Brian Barrilleaux’s general statement that an exposure to noxious fumes can influence diabetes control. Nevertheless, Dr. Levy, the plaintiffs’ expert, testified that he could not make a determination as to whether Thomas’ increased difficulty in controlling his diabetes after the exposure was related to the exposure.

Thus, the record evinces some causation issues. The trial court appears to have resolved those in favor of Thomas. Plausibly, based on Dr. Levy’s testimony, | isthat decision was manifestly erroneous. Yet, Citgo chose not to answer this appeal and, instead, asked this court to affirm the trial court’s judgment on the quantum of damages, maintaining that the award was within the trial court’s discretion.

Based on these considerations, while this court does not increase Thomas’s damages associated with the aggravation of his preexisting condition because of serious causation issues, we do not reduce that award either because of Citgo’s failure to answer this appeal.

The trial court awarded Charles Hardy over $50,000.00 in damages. The trial court then reduced the award to $50,000.00, the maximum allowed in this case. Because this court cannot increase Hardy’s award and because Citgo did not answer the plaintiffs appeal requesting a reduction in damages, we do not consider whether the trial court erred with respect to this plaintiff.

B) The Trial Court’s Award of the Pain and Suffering Damages

“In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” La.Civ.Code art. 2324.1. The trial courts’ discretion in assessment of damages is substantial and is entitled to great deference on review. Guillory, 16 So.3d 1104.

When an appellate court reviews damage awards, its role is not to decide what is an appropriate award, but rather to review the trial court’s exercise of its discretion. Id. During this review, an appellate court must not re-weigh evidence or 114substitute its own factual findings. Id. Thus, it is only when the award is past that which a reasonable trier of fact could award “for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Id. at 1117 (quoting Youn v. Mar. Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994)).

The trial court’s assessment of the damages may be disturbed only after an appellate court determines that the record clearly reveals the trial court abused its discretion. Id. Once this court finds an abuse of discretion, it may lower or raise the award “to the highest (or lowest) point which is reasonably within the discretion.” Guillory, 16 So.3d at 1117 (citations omitted).

1) Whether the Trial Court Abused its Discretion

This court finds that the trial court abused its discretion with respect to the following plaintiffs: Arabie, Buckelew, Giovanni, Miller, and Richard. The trial court found that the exposure-caused symptoms of these plaintiffs lasted one year or longer. Yet, the trial court awarded these plaintiffs essentially the same amount in pain and suffering damages as it did to the other plaintiffs whose symptoms were significantly shorter in duration.

In addition to the symptoms experienced by other plaintiffs such as burning eyes, dizziness, and nausea, the trial court found that Arabie suffered from |,-.diarrhea for one year and generally felt ill for six months. Arabie received only $5,000.00 for his pain and suffering. We conclude that this award was abusively low.

The trial court found that Buckelew, in addition to other symptoms, experienced a sore throat, headache, and weakness for ten to eleven months. The trial court also concluded that Buckelew’s “pre-existing high blood pressure and diabetes were aggravated” and that he “returned to his baseline state of health as of May 2007,” i.e., almost a year after the spill. Nevertheless, in the very next sentence the trial court wrote “[t]he Court was not satisfied that an aggravation of Mr. Buckelew’s preexisting conditions occurred.” We are befuddled by these conflicting assertions. Nevertheless, irrespective of whether Buckelew’s diabetes and high blood pressure were aggravated, this court finds that $5,000.00 for the pain and suffering associated with eleven months of sore throat, headache, and weakness is abusively low.

The trial court found that Giovanni, in addition to the other symptoms, experienced headaches and sinus problems for a year. The court also found that he had difficulties with his sense of smell at the time of the trial. This court finds abusively low the award of $5,000.00.for the pain and suffering associated with the inability to smell for over two years and headaches and sinus problems for one year.

In addition to the other, more transitory symptoms, Miller, at the time of the trial, continued to suffer from sinus problems and blistering and peeling of the hand that came into contact with the slop oil. This court finds the award of $5,000.00 for the pain and suffering associated with these injuries abusively low.

The trial court found that Richard, in addition to a rash, diarrhea, sore throat, nausea, fatigue, acne, sinus problems, and a cough that lasted anywhere from two to six months, experienced severe headaches for seven months and shortness of hfibreath for one year. We find that the award of $5,000.00 for these long-lasting symptoms was abusively low.

We find the awards to the rest of the plaintiffs to be somewhat low. Nevertheless, given the trial court’s vast discretion, they are not abusively so. This is because other plaintiffs’ symptoms, unlike the symptoms of Arabie, Buckelew, Giovanni, Miller, and Richard that lasted close to a year or longer, were significantly shorter in duration and milder in intensity.

2) The Lowest Point of Award Which Was Reasonably Within the Trial CouH’s Discretion

While commenting that the award of general damages was “at the low end of the spectrum,” an appellate court affirmed a jury award of $100.00 to $3,000.00 to five bellwether plaintiffs exposed to natural gas, who “were only inconvenienced for a very short period of time,” and who suffered minimal physical and mental injury such as nausea and headaches. Rivera v. United Gas Pipeline Co., 96-502, 96-503, 97-161, p. 13 (La.App. 5 Cir. 6/30/97), 697 So.2d 327, 337, writs denied, 97-2030, 97-2031, 97-2032, 97-2034 (La.12/12/97), 704 So.2d 1196, 1197.

Similarly, an appellate court affirmed the trial court’s award of $500.00 to $2,000.00 to the plaintiffs who “suffered some level of inconvenience,” but who did not suffer “any serious injury” because of their exposure to water contaminated by oil, grease, and other contaminants. Doerr v. Mobil Oil Corp., 04-1789, p. 9 (La.App. 4 Cir. 6/14/06), 935 So.2d 231, 237, writ denied, 06-1760 (La.11/3/06), 940 So.2d 664.

On the other hand, an appellate court affirmed an award of $20,000.00 for pain and suffering where the plaintiff suffered nausea, eye and throat irritation for three days but, at the time of the trial, continued to experience dizziness as a result 117of his exposure to the burning railroad tank car with a leaking butadiene tank. In re New Orleans Train Car Leakage Fire Litig., 00-1919 (La.App. 4 Cir. 4/20/05), 903 So.2d 9, writ denied, 05-1297 (La.2/3/06), 922 So.2d 1171. In the same case, the court affirmed an award of $15,000.00 for the pain and suffering to the plaintiff who suffered eye irritation, choking, and nausea for some days, but continued to suffer from skin irritation at the time of the trial. Id.

Relying on the above jurisprudence, this court finds that the lowest award which was reasonably within the trial court’s discretion for Arabie’s injuries, given his experience of diarrhea for one year and general feeling of being ill for six months, is $12,500.00. Thus, we increase Arabie’s total award to $45,912.00.

The lowest award which was reasonably within the trial court’s discretion for Buckelew’s injuries, given his suffering from sore throat, headache, and weakness for ten to eleven months, and a possible aggravation of his diabetes, is $10,000.00. Thus, we increase Buckelew’s total award to $45,350.00.

The lowest award which was reasonably within the trial court’s discretion for Giovanni’s injuries, given his ongoing inability to smell and one year of headaches and sinus problems, is $10,000.00. Thus, we increase Giovanni’s total award to $43,310.65.

The lowest award which was reasonably within the trial court’s discretion for Miller’s injuries, given his ongoing sinus problems and blistering and peeling of his hand, is $10,000.00. Thus, we increase Miller’s total award to $43,030.00.

The lowest award which was reasonably within the trial court’s discretion for Richard’s injuries, given his severe headaches for seven months and 11Rshortness of breath for one year, is $7,500.00. Thus, we increase Richard’s total award to $40,370.00.

V.

CONCLUSION

The plaintiffs’ damage awards are amended and, as amended, affirmed. Costs of this appeal are assessed to Citgo.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Both Bankston and Thomas received $5,000.00 in pain and suffering damages associated with the exposure in addition to the pain and suffering damages awarded for the aggravation of their pre-existing conditions. The trial court did not separate Hardy’s pain and suffering damages into those associated with the exposure and those associated with the aggravation of his pre-existing conditions.

      . This court notes the typographical error in Citgo’s brief to this court where it claimed that the three plaintiffs who were awarded percentages of their damages were Bankston, Hardy, and Doucet. We presume that Citgo meant to name Thomas instead of Doucet because Thomas is the only plaintiff, other than Bankston and Hardy, who was awarded a percentage of his damages.

      . In its brief, Citgo argues that the trial court erred by concluding that the plaintiffs proved the causation element of their claims. Because Citgo did not answer this appeal, we do not consider the question of causation pursuant to La.Code Civ.P. art. 2133.

      . This case also was complicated by a minor car accident subsequent to the accident at issue.

      . Citgo maintains a separate appeal in which it asserts that the trial court erred by finding that plaintiffs sustained their burden of proving causation. Nevertheless, that appeal deals with causation issues as to all of the plaintiffs. In other words, Citgo argues that none of the symptoms experienced by the plaintiffs was due to its negligence, not that Citgo’s negligence did not cause a particular symptom of a particular plaintiff.
      The issue in this case is whether this court should increase the quantum of damages the trial court awarded. If Citgo wanted to have the judgment of the trial court "modified, revised, or reversed in part,” it should have filed an answer to this appeal. La.Code Civ.P. art. 2133.

      . In their brief, the plaintiffs argue that the trial court was inconsistent in its findings of fact by stating that the "effects were short term, approximately one to three months,” and, at the same time, finding that several of the plaintiffs suffered from the effects of the spill for much longer periods and awarding medical expense damages accordingly. We do not find this inconsistent because when the trial court refers to the effects which were "short term, approximately one to three months,” it most likely refers to the effects of the spill, the noisome odor, for example, and not to the plaintiffs’ injuries. Thus, we need not address the plaintiffs' assertions that the trial court awarded special damages without awarding the corresponding general damages.