author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Christopher JOHNSON.
    No. 10-KA-611.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 25, 2011.
    Paul D. Connick, District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, MARC E. JOHNSON, and ROBERT L. LOBRANO, Pro Tempore.
   MARC E. JOHNSON, Judge.

| pPefendant, Christopher Johnson, appeals his conviction and sentence for simple robbery alleging there was insufficient evidence to support his conviction. For the reasons that follow, we affirm.

Defendant was charged in a bill of information with simple robbery. He pled not guilty and filed several pretrial motions, including motions to suppress identification and statements, which were denied after a hearing. He proceeded to trial on November 5, 2009. After a two-day trial, a six-person jury found him guilty as charged. Defendant was sentenced to five years at hard labor.

The State filed a multiple offender bill of information alleging defendant to be a second felony offender based on a prior conviction for unauthorized entry of a place of business. Defendant stipulated to being a second felony offender. The trial court vacated his original sentence and imposed an enhanced sentence of ten years at hard labor without the benefit of probation or suspension of sentence.

| ¡¡FACTS

At approximately noon on June 29, 2007, Loretta Zada went to the Capital One Bank located on Airline Highway to withdraw money she needed to bankroll a sale at her baby clothing business. She initially withdrew money from the drive-through ATM, and then went inside the bank to obtain smaller denominations. She gave the teller between $250 and $800 in twenty dollar bills and asked the teller to change the twenty dollar bills into ten, five, and one dollar bills.

Ms. Zada explained that the teller counted out the smaller denominations and placed them on a high counter in front of her. She then moved the smaller bills to a lower counter that was not accessible to or visible by the teller and began counting the money herself. While she was counting the money, Ms. Zada noticed a man on her right side, who she assumed to be waiting in line for the teller. She then saw a hand come from her right side and grab the money. Ms. Zada stated the man took the money out of her hand and ran out the door. After the man took her money, Ms. Zada screamed.

The bank teller, Samantha Velasquez, testified that Ms. Zada was a regular customer. She stated that Ms. Zada came into the bank and asked for change for $300 in ten, five, and one dollar bills. Ms. Velasquez counted out the change to Ms. Zada. During this time, Ms. Velasquez observed a man come through the teller line walking slowly and looking around. He came behind Ms. Zada and then moved closer to her. Ms. Velasquez stated the man grabbed Ms. Zada’s money and ran out of the door.

Norman Miller, the assistant branch manager who was present in the bank, heard someone yell. When he looked, he saw someone running for the door. Mr. Miller ran into his office, called 9-1-1, and gave a description of the perpetrator to |4the 9-1-1 operator. He described the perpetrator as a slim white male, between five foot nine and five foot ten, with short brownish hair.

When the police arrived at the scene, they interviewed the victim and other witnesses. According to Deputy Edward Du-cos with the Jefferson Parish Sheriffs Office (JPSO), the victim was emotionally shaken up and was crying. The victim described the person who robbed her as a white male with a tattoo on his neck. Ms. Velasquez also gave a description of the perpetrator to the police. She described the individual as a white male, about five foot seven, in his early twenties, wearing glasses and a goatee, with a tattoo on his neck. The police canvassed the neighborhood, but were unable to locate anyone matching the suspect’s description.

A few days later, the officers investigating the incident subsequently learned from the St. Charles Parish Sheriffs Office that it had an individual in custody who advised he had committed a purse snatching at a bank and who matched the description of the suspect involved in the Capital One bank incident. The suspect, later identified as defendant, gave a statement to the St. Charles Parish Sheriffs Office in which he admitted that he had entered the Capital One bank on Airline Highway, that he saw a lady counting her money, and that he grabbed the money and ran out of the bank. Defendant indicated the money he grabbed was in various denominations and amounted to approximately $400.00.

Based on this information, a detective with the JPSO prepared a photographic lineup with defendant’s photograph and presented it to the victim and the bank teller. Both the victim and the bank teller positively identified defendant as the person who took the victim’s money. After the positive identifications, the detective obtained an arrest warrant and defendant was arrested.

| ^Defendant subsequently gave a second statement to Detective Darren Monie, with the JPSO, in which he again admitted taking money from a lady at the Capital One bank on Airline Highway. He stated he saw a lady withdrawing money, he ran up, grabbed the money, and ran out of the bank. He explained he then walked to St. Rose via railroad tracks.

LAW AND ANALYSIS

Defendant argues the evidence is insufficient to support his simple robbery conviction because there was no evidence of force or intimidation, an essential element of simple robbery.

The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).

Simple robbery is defined as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.” La. R.S. 14:65. The elements necessary to sustain a conviction of simple robbery are: 1) the taking of anything of value; 2) belonging to another; 3) from the person of another; 4) by use of force or intimidation. State v. Robinson, 97-269, p. 5 (La.App. 5 Cir. 5/27/98), 713 So.2d 828, 830, writ denied, 98-1770, (La.l1/6/98), 727 So.2d 444. The property taken in a robbery must be sufficiently under the victim’s control that, absent violence or intimidation, the victim could have prevented the taking. State v. Thomas, 447 So.2d 1053, 1055 (La.1984).

Defendant only challenges the sufficiency of the evidence as it pertains to the element of force or intimidation. He contends his actions of snatching the |fimoney from the bank counter before the victim could react did not satisfy the required element of using force or intimidation in taking the money. Defendant asserts the victim was not subject to violence or intimidation. He claims he made no gestures towards or physical contact with the victim and said nothing or did anything to intimidate the victim.

In State v. Robinson, 97-269, p. 5 (La.App. 5 Cir. 5/27/98), 713 So.2d 828, writ denied, 98-1770 (La.11/6/98), 727 So.2d 444, this Court upheld the defendant’s simple robbery conviction even though the defendant did not use threatening words, gestures, or physical force against the victim. In Robinson, the defendant took money from a cashier at the drive-up window of a fast food restaurant. The defendant ordered French fries over a remote speaker and then drove up to the window. He paid the victim with a fifty dollar bill, but insisted he had paid with a one hundred dollar bill. The defendant demanded the victim give him five twenty dollar bills. The victim held up the fifty dollar bill the defendant paid with and also had in his hand the forty-nine dollars he had attempted to give as change. The defendant snatched all the money from the victim’s hand and drove away.

On appeal, the defendant complained about the sufficiency of the evidence and argued the State failed to show he used force or intimidation in taking money from the victim. This Court determined that although the defendant did not use any threatening words or gestures, the victim was, by his own account, intimidated by the defendant.

The Oxford Dictionary defines force as “achieve or bring about (something) by coercion or effort” or “make (someone) do something against their will.” The dictionary further defines intimidate as to “frighten or overawe (someone), especially in order to make them do what one wants.”

[7The victim in this case did not give up the money of her own will, nor was the money taken secretly. Instead, the victim was openly and quickly approached by a man who grabbed money from her. The victim screamed at the time of the incident and was crying and emotionally upset immediately after the incident. We find the jury was reasonable in finding that such a situation was, at the very least, intimidating. Thus, viewing the evidence in the light most favorable to the prosecution, we find the evidence sufficient to satisfy the requisite elements of simple robbery.

ERRORS PATENT

We have reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Hicks, 08-402, p. 13 (La.App. 5 Cir. 12/16/08), 3 So.3d 539, 547, and find no errors that require remedial action.

For the reasons stated above, defendant’s conviction and sentence for simple robbery are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . At times in his brief, defendant suggests that he did not take money out of the victim's hands but rather took it from the bank counter. The victim testified she was counting the money handed to her by the bank teller when the defendant grabbed the money directly out of her hands. The question of the credibility of the witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. The credibility of the witnesses will not be re-weighed on appeal. State v. Johnson, 00-1552, p. 9 (La.App. 5 Cir. 3/28/01), 783 So.2d 520, 527, writ denied, 01-1190 (La.3/22/02), 811 So.2d 921.


source: Caselaw Access Project

author: CHARLES R. JONES, Judge. BONIN, J.,

license: Public Domain

text:
    STATE of Louisiana In the Interest of C.J.
    No. 2010-CA-1350.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 2011.

      Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant, C.J.

      Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, and Judge PAUL A. BONIN).
   CHARLES R. JONES, Judge.

| ¡The Appellant, C.J., appeals his adjudication as a delinquent for the offense of armed robbery, and his commitment to the Department of Public Safety and Corrections until his 21st birthday. Finding no error on the part of the juvenile court with regard to the adjudication of C.J. as a delinquent, we affirm his adjudication. However, having found inconsistencies in the record, we vacate the commitment of C.J. to the Department of Public Safety and Corrections until his 21st birthday, and remand this matter to the juvenile court to clarify its ruling, or conduct a new disposition hearing and resentence C.J., pursuant to La. Ch. C. Art. 897.1 B.

In October 2007, C.J. was charged by delinquency petition with violating one count of La. R.S. 14:64, relative to armed robbery, to which he entered a denial. Later, in October 2007, C.J. filed a motion to suppress identification. In November 2007, on the date of the adjudication hearing, the juvenile court denied the motion to suppress and adjudicated C.J. a delinquent for the offense of armed robbery. A predisposition investigation was ordered by the court and a disposition hearing was scheduled. The juvenile court committed C.J. to the |2Pepartment of Public Safety and Corrections until his twenty-first birthday at the disposition hearing. C.J. filed a motion to reconsider sentence, which was denied. C.J. timely sought an appeal.

In September of 2007, a young man on a bicycle approached the victim, Nicole Tim-mons, as she walked to her parked car holding her three-month-old baby, on Cambronne St. in Orleans Parish. The young man demanded her purse at gunpoint. After approximately a five minute conversation with the robber, Ms. Tim-mons complied and gave her money to the robber, who agreed to let her keep her identification. The robber rode away after taking Ms. Timmons’ money. Thereafter, Ms. Timmons called the police to report the incident.

Detective Jerry Baldwin of the Second District of the New Orleans Police Department was the senior investigator of the subject armed robbery. Det. Baldwin testified that he learned from Ms. Timmons that the robber was a six foot tall black male between the ages of fourteen to seventeen year old, who wore an orange striped Polo shirt with a large orange “polo man” on the shirt, and dark jeans. Det. Baldwin testified that he also learned from Ms. Timmons that her assailant had a Mohawk haircut.

|sDet. Baldwin took the description given by Ms. Timmons and subsequently canvassed the area, looking for the distinctive shirt which Ms. Timmons had described her assailant as wearing. During the canvass, Det. Baldwin was advised by other juveniles that C.J. had such a shirt, and Det. Baldwin eventually located C.J. at the home of his mother. When Det. Baldwin initially saw C.J., C.J. was wearing a striped Polo shirt with dark jeans, and had a Mohawk haircut.

Det. Baldwin testified that he brought C.J. to the restaurant where Ms. Timmons was waiting. According to his testimony, Det. Baldwin presented C.J. to Ms. Tim-mons for identification approximately forty-five minutes after the robbery. The police told Ms. Timmons that they had a possible suspect in custody and displayed C.J. — -who was still wearing the orange sweatshirt — to Ms. Timmons, who identified C.J. as her assailant. Det. Baldwin further testified that Ms. Timmons was not forced to identify C.J., who was standing alone and unhandcuffed when he was identified.

Det. Baldwin testified that C.J. was standing on a well-lit corner when Ms. Timmons identified C.J. as her assailant. Ms. Timmons was approximately ten yards away from C.J. when she identified him. The time of her identification occurred about 90 minutes after she was robbed. Neither the gun used nor the money stolen was recovered from C.J. The bicycle used in the commission of the robbery was also not found.

C.J. raises three issues on appeal:

1. The juvenile court erred in failing to grant the motion to suppress the identification made by the victim of the armed robbery from a distance of thirty feet away. The identification procedure was suggestive and an analysis of the Manson v. Brathwaite, 482 U.S. 98, 97 S.Ct. 2248, 53 L.Ed.2d 140 (1977) factors makes the likelihood of misidentification great.
2. The evidence adduced against C.J. was insufficient to sustain a delinquency adjudication. The juvenile court was “clearly wrong” in finding sufficient evidence to sustain a finding that C.J. committed the armed robbery of Ms. Tim-mons.
3. The juvenile court based the disposition on a misconception as to mandated sentencing conditions. Considering the court’s apparent misapprehension as to the penalty, the disposition should be set aside and the case remanded for resen-tencing.

|40n appeal, review in juvenile delinquency proceedings extends to both the law and the facts. State in Interest of Batiste, 367 So.2d 784, 788 (La.1979). We grant great deference to the factual findings, credibility determinations and assessment of witness testimony of the juvenile court. State ex rel W.B., 08-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61, writ denied, 09-1129 (La.1/22/10), 25 So.3d 139, (citing State ex rel J.N., 07-1229, p. 8 (La.App. 4 Cir. 5/7/08), 984 So.2d 910, 915).

The first issue raised by C.J. is that the juvenile court erred in failing to grant his motion to suppress the identification made by the victim of the armed robbery from a distance of thirty feet away. He argues that under the analysis of the holding of the U.S. Supreme Court in Manson, the identification procedure was suggestive and an analysis of the factors makes the likelihood of misidentification great.

To prevail on a motion to suppress challenging an out-of-court identification, a defendant has to establish that the identification procedure was suggestive and that there was a substantial likelihood of misidentification. State v. Broadway, 96-2659, p. 13 (La.10/19/99), 753 So.2d 801, 812, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000). An identification procedure is suggestive if the witness’ attention is unduly focused on the defendant during the procedure. Id. at p. 14, 753 So.2d at 812. In order to be suppressed, the identification must have indicia of unreliability. Nevertheless, “[e]ven if the identification procedure is found to be suggestive, this alone does not violate due process. Rather, it is the likelihood of misidentification that violates due process, not the mere existence of suggestiveness.” State v. Raines, 500 — 1941, p. 4 (La.App. 5 Cir. 5/30/01), 788 So.2d 635, 639, writ denied, 01-1906 (La.5/10/02), 815 So.2d 833.

The factors set forth in Manson are used to determine whether the suggestiveness of the procedure presents a substantial likelihood of misidentification under a totality of the circumstances. Broadway, 96-2659, p. 14, 753 So.2d at 812 The Manson factors are: the witness’ opportunity to view the criminal at the time of the crime; the witness’ degree of attention; the accuracy of the prior description of the criminal; the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Manson, 432 U.S. at 114, 97 S.Ct. at 2253.

Ms. Timmons testified that she was robbed across the street from a street light that shined down upon her assailant. She was not accosted in darkness. Furthermore, she testified that she spoke to the robber face-to-face for about five minutes to convince him to only take her money and not steal her identification. Additionally, forty-five minutes later, when C.J. was presented to her, he stood on a well-lit corner for identification. Ms. Tim-mons further testified that she did not feel forced or pressured to identify C.J. as the robber. She testified that she was upset about being robbed, but she retained her composure. She further testified that she saw the incident as unfortunate, but was no longer upset. Lastly, she testified that C.J. did not appear to be handcuffed when Det. Baldwin presented C.J. to her.

The defense maintains that the identification of C.J. was particularly suggestive considering that the police found another young man wearing a similar orange striped Polo shirt when Det. Baldwin initially went canvassing. | fiDet. Baldwin testified that when he initially began canvassing he located a young man wearing the shirt Ms. Timmons described. However, because Det. Baldwin believed the young man did not fit the description given by Ms. Timmons, the suspect was released and was not shown to Ms. Timmons. Det. Baldwin, testified that he decided not to present said suspect to Ms. Timmons because the suspect was out of the age range Ms. Timmons described, and the suspect did not have a Mohawk hairstyle. •

In consideration of the facts of the case sub judice under the Manson factors, there was little likelihood that — even if the identification of C.J. was suggestive — the identification procedure presented a substantial likelihood of misidentification. Ms. Timmons had a five minute face-to-face conversation with the robber wherein she negotiated with him- to keep her wallet. Her encounter occurred under the beam of a streetlight. Thus, she had a clear opportunity to view her assailant and her attention was focused under the circumstances. Furthermore, her description of the robber was accurate in that the appearance of C.J. when he was apprehended matched the description provided to Det. Baldwin, as C.J. wore the same clothes Ms. Timmons described, and had the same haircut described to Det. Baldwin. Lastly, less than two hours passed between the time that Ms. Timmons was robbed to the time that she identified C.J. as her assailant, and in her identification of C.J., she was certain. The identification procedure employed does not appear to be unduly suggestive where C.J. was presented unhandcuffed .and standing alone for identification. Additionally, the application of the Manson factors evidences 17that there was a slim chance of misidentification in this matter. This assignment of error does not have merit.

The second issue raised by C.J. is that the evidence adduced against him was insufficient to sustain a delinquency adjudication. C.J. argues that the juvenile court was “clearly wrong” in finding sufficient evidence to sustain a finding that C.J. committed the armed robbery of Ms. Tim-mons. When reviewing the sufficiency of evidence to support a conviction, an appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. See State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)). “The elements of armed robbery are: (1) the taking, (2) of anything of value, (3) from a person or in the immediate control of another, (4) by the use of force or intimidation, (5) while armed with a dangerous weapon.” State v. Carter, 99-2234, p. 31 (La.App. 4 Cir. 1/24/01), 779 So.2d 125, 144, unit denied, 01-0903 (La.2/1/02), 808 So.2d 333 (citing State v. Banks, 96-652, 96-653, p. 12 (La.App. 4 Cir. 1/15/97), 694 So.2d 401, 410). “The testimony of an eyewitness that she observed all the elements of the offense, coupled with an identification of the defendant as the perpetrator, ordinarily is sufficient to support a conviction.” Id. Thus, considering the testimony of Ms. Timmons and her identification of C.J., we find that the evidence — viewed in the light more favorable to the prosecution — was sufficient to convince the juvenile court that all elements of the crime were proven beyond a reasonable doubt. This assignment of error is without merit.

| ¡¿Lastly, the third issue raised by C.J. is whether the juvenile court based its sentence on a misconception as to mandated sentencing conditions. C.J. argues that considering the apparent misapprehension of the juvenile court as to the penalty, the disposition should be set aside and the case remanded for resentencing.

The signed judgment of the juvenile court states:

The Court further finds that the juvenile is a proper person for commitment to the Department of Public Safety and Corrections. The juvenile is hereby committed to the Department of Public Safety and Corrections until his 21st birthday.

However, during the disposition hearing, when defense counsel urged the juvenile court to reconsider its sentence, the court explained that it could not change its disposition, and mentioned that another juvenile court judge could change the disposition. C.J. argues that he should be resentenced because the juvenile court judge was not aware that by sentencing C.J. to juvenile life that the sentence could not be modified. C.J. cites excerpts from the trial transcript as proof of the confusion of the juvenile court.

We recognize that the sentence of juvenile life imposed by the juvenile court is in compliance with La. Ch. C. Art. 897.1 B, which states that juveniles adjudicated as delinquents for the offense of armed robbery are to be confined in secure placement for the length of the term imposed by the court at the disposition hearing without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence. However, the | (justification for imposing the sentence given by the juvenile court at the disposition hearing is confusing because the juvenile court alludes to the possibility of the sentence of C.J. being modified. Therefore, to assure that the juvenile court correctly understands the restrictions placed upon a sentence of juvenile life, we vacate the commitment of C.J. to the Department of Public Safety and Corrections until his 21st birthday, and remand this matter to the juvenile court to clarify its ruling, or conduct a new disposition hearing and resentence of C.J., pursuant to La. Ch. C. Art. 897.1 B.

Lastly, pursuant to our review of the record, we find no errors patent.

DECREE

For the foregoing reasons, the judgment of the juvenile court adjudicating C.J. to be a delinquent for the offense of armed robbery is affirmed. However, we vacate his commitment to the Department of Public Safety and Corrections until his 21st birthday, and remand to the juvenile court for a new disposition consistent with this opinion.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

BONIN, J., concurs with reasons.

BONIN, J.,

concurs with reasons.

hi respectfully concur in the results.

I join the majority opinion unqualifiedly in its reasoning that the proper standard of review of an adjudication in a delinquency proceeding is, as provided by Louisiana Const. art. V, § 10(B), civil, not criminal. See State in the Interest of Batiste, 367 So.2d 784, 788 (La.1979). The civil standard of review in Louisiana is manifestly erroneous or clearly wrong, and the Batiste court applied that standard. Batiste, 367 So.2d at 788 (emphasis supplied).

I write separately, however, to emphasize that a juvenile in Louisiana is entitled to a broader review for insufficiency of evidence than that provided by the Jackson v. Virginia test. See State in the Interest of D.R., 10-0405, pp. 3-5 (La.App. 4 Cir. 10/13/10), 50 So.3d 927. Thus, an appellate court in delinquency proceedings reviews both law and facts in properly evaluating the sufficiency of the evidence for an adjudication of a child as a delinquent.

Because I find that the juvenile judge was not clearly wrong and was reasonable in finding beyond a reasonable doubt that C.J. committed the armed robbery, I concur in the results.

      . Defense counsel represented to the juvenile court that C.J. was facing two four-year sentences, and an additional two-year sentence in Section F of juvenile court. Defense counsel further represented that "Section 'F' will continue to review whatever sentence” C.J. received in this matter.


author: SUSAN M. CHEHARDY, Judge. GRAVOIS, J.,

text:
    COFFMAN HOMES, L.L.C. v. Robert SUTHERLAND and Jeanne Sutherland.
    No. 10-CA-178.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 15, 2011.
    Rehearing Denied April 14, 2011.

      Michelle M. Davis, Mark G. Duncan, Attorneys at Law, Mandeville, LA, for Plaintiff/Appellee, Coffman Homes, L.L.C.
    Marc L. Frischhertz, Lloyd N. Frisch-hertz, Jr., Attorneys at Law, New Orleans, LA, for Defendants/Appellants, Robert Sutherland and Jeanne Sutherland.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Judge.

| sjThis suit arises from a contract involving construction of a home. The defendants, Robert Sutherland and Jeanne Sutherland, appeal the trial court’s judgment against them that awarded damages to the contractor. We affirm.

FACTS

On November 18, 2004, the Sutherlands signed a document titled “Coffman Homes, LLC Builder’s Contract,” which provided that Coffman Homes, LLC (“Coffman”) would construct a house for the Suther-lands on Square B, Lot 51A in Southlake Village Subdivision in Kenner. The agreement designated the Sutherlands as Owner and Coffman as Contractor and states as follows, in pertinent part:

Contractor and Owner, for the consideration hereinafter named, agree and bind and obligate themselves as follows:
(Project to start in 30-90 days)
Contractor’s Obligations:
The Contractor agrees to, obtain all subcontractors, to do and perform or have performed all the work, and to erect, build finish and deliver in a workmanlike manner a single or two story, single family residence, with one year warranty as shown on the drawings and described in the specifications prepared or to be prepared by Owner’s architect, _and to be dated and signed by the parties hereto on the date of submission to the Contractor, which said drawings and specifications are |3by reference made a part thereof, and, together with this agreement, form the contract.
* * *
The said building to be erected on the following described property, which either currently belongs to the Owner, or shall be obtained by Owner, viz:
Southlake Village Subdivision Kenner, LA
Square B Lot 51A 81.25/75x9543/120

The contract also contained the following cancellation clause:

Should the Owner cancel this contract, at any time and for any reason, Owner hereby agrees and stipulates that liquidated damages to the Contractor in the amount of $20,000.00 shall be paid directly to the Contractor as damages for cancellation of this Contract.... Should Contractor be required to enforce the terms of this contract through the institution of legal proceedings, Owner hereby agrees to pay all of Contractor’s legal costs and attorney’s fees in the amount of 25% of the total amount due under the Contract.

After they signed the agreement with Coffman, the Sutherlands purchased the designated lot. Thereafter they met with an architect on several occasions in an attempt to have plans drafted for construction of the house. The Sutherlands were not satisfied with any of the proposed house plans, because those that had all the features they desired would not fit on their lot due to the lot’s odd shape. Eventually the Sutherlands informed Coffman they were not going to build a house on the lot.

Coffman filed suit against the Suther-lands on June 1, 2006, alleging the Suther-lands had breached the contract to build the house. Coffman sought the contractual stipulated damages of $20,000 plus attorney’s fees.

The Sutherlands answered the petition with a general denial. The matter proceeded to trial, and the trial court rendered judgment in favor of Coffman in the amount of $20,000 plus costs and attorney’s fees.

l4In reasons for judgment incorporated into the judgment, the trial court held as follows:

This is a suit for liquidated damages for the non-performance of a conditional contract, containing suspensive conditions .... The primary issue ... is whether the Sutherlands breached the contract by refusing to commence construction on the subject lot or whether the suspensive conditions contained within the contract rendered the contract null and void.
It is uncontested that there existed a condition in the contract which required “drawings and specifications” be prepared or procured by the “owners” and then submitted to the contractor. It is this suspensive condition which the Court addresses and upon which the issues before this Court depend. Although other conditions exist within the contract, the fulfillment or non-fulfillment of the owners[’] obligation to submit plans supercedes all other conditions which are not before this Court this date and are inconsequential at this point in time.
Defendants entered into the subject contract with Coffmann [sic] apparently as [a] purchase requirement and/or a condition of the Subdivision within which the lot was located.
Testimony of defendants revealed that plans were drawn and reviewed with Coffman and it was then they first interjected a desire to place a pool in the yard. The pool was not contemplated initially nor was it made a condition of the contract subsequently. The plans were never signed and dated. The contract could not be fulfilled and failed.
Defendants also argue that there was no meeting of the minds nor price certain negotiated between the parties. The Court disagrees. It is clear that the intention of both parties was that Coffman was to build defendants’ house on the designated lot and that a “cost-plus” price was the agreed price certain.
While La. Civ.Code Article 1770 states that an obligation is null and void when dependent upon the will of the obligor, as argued by the Sutherlands, the obligations in the contract at hand are not based solely on whim but are clearly conditions that defendants were in control of bringing about or not. Accordingly, La. Civ.Code Art. 1772 must be considered:
|r/4 condition is regarded as fulfilled when it is not fulfilled because of the fault of a party with an interest contrary to fulfillment.
Testimony and evidence revealed that defendants clearly had interests contrary to fulfillment of the contract. Defendants wanted a pool[,] which they testified would not fit to their satisfaction on the lot; and, consequently, they wanted to sell the lot, and have done so.

Finally, the court found no merit to the defendants’ argument that the contract’s $20,000 in liquidated damages was excessive and against public policy. The court noted there was no testimony of discussion or objection to the stated damages prior to the institution of this suit. The court found that the stipulated amount “conservatively approximates lost profit of Coff-man” due to the failure of the contract and that the amount is reasonable.

The Sutherlands filed a motion for new trial, which was denied, and now they appeal.

LAW AND ANALYSIS

We address the assignments of error in the order in which they are raised in the Sutherlands’ brief.

I. Validity and Enforceability of Contract

In their first assignment, the Suth-erlands argue the trial court erred in concluding there was a valid, completed, and enforceable contract between the parties, because there was no meeting of the minds as to the object of the contract and no agreement as to the price. They assert the document expressly contemplates future agreements being entered into between the parties prior to an enforceable contract coming into existence.

There are four elements necessary for a valid contract: capacity, consent, object, and lawful cause. Color Stone Intern., Inc. v. Last Chance CDP, LLC, 08-35,6 p. 8 (La.App. 5 Cir. 5/27/08), 986 So.2d 707, 713. “In other words, the parties must have the capacity to contract and give their consent freely for a certain object, and the contract must have a lawful purpose. Both parties must be bound in order for there to be a contract.” J. Caldarera & Company, Inc. v. Louisiana Stadium & Exposition District, 99-787, p. 6 (La.App. 5 Cir. 12/15/99), 750 So.2d 284, 288.

The determination of the existence of a contract is a finding of fact, not to be disturbed unless clearly wrong. Color Stone Intern., Inc., 08-35 at p. 5, 986 So.2d at 712. An appeals court may not set aside a trial court’s ruling as to the existence or non-existence of a contract in the absence of manifest error. Id.

The Sutherlands contend the contract was to consist of the agreement at issue together with the drawings and specifications of the architect, which were to be signed and dated by the parties. They assert, “According to the plain language of the contract, it was not until both the agreement and the drawings and specifications were signed by the parties that the contract to build was to be formed.”

Further, the Sutherlands cite the contract’s express language that the drawings and specifications “prepared or to be prepared by owner’s architect ... and to be dated and signed by the parties hereto on the date of submission to the Contractor ... by reference made a part thereof, and, together with this agreement, form the contract.” The Sutherlands argue that any ambiguity should be construed against Coffman, since Coffman drafted the contract.

They assert the contract did not have a certain object, because before any construction could commence, architectural plans and drawings had to be submitted, as well as approved and signed by the parties. Further, the itemized cost of construction was to be calculated by Coffman after receipt of the plans, and agreed to and signed off on by the parties. The Sutherlands contend that in order 17for the contract to have a certain object, the plans and specifications had to become part of the contract through being approved and signed by the parties.

In opposition, Coffman argues that taken to its logical conclusion, the Suther-lands’ argument would nullify any contract between a contractor and an owner if at any time during the building, the plans were ever modified, adjusted or changed by the owner, as often occurs during construction of a building.

We agree with Coffman. The contract clearly sets forth the object of the contract: Coffman was to build a single-family residence with a one-year warranty, as shown on plans to be obtained. Under the contract, the exact specifications for that residence were to be determined by drawings prepared by the owner’s architect. The fact that there were no drawings or specifications submitted at the time the agreement was confected is specifically contemplated in the agreement: “specifications prepared or to be prepared by Owner’s Architect.” That provision does not make the object of the contract uncertain. The object of the contract was determinable and susceptible of being made definite by timely action, so there is no ground to declare the agreement a nullity.

Accordingly, the trial court did not err in finding that “the intention of both parties was that Coffman was to build defendants’ house on the designated lot and that a ‘cost-plus’ price was the agreed price certain.”

II. Fulfillment of Suspensive Condition

Alternatively, if the contract is found to be valid, the Sutherlands argue the trial court erred in failing to conclude that the contract contained a suspensive condition that was not fulfilled through no fault of the Sutherlands, so that the contract is unenforceable based on the failure of the condition.

“A conditional obligation is one dependent on an uncertain event. If the obligation may not be enforced until the uncertain event occurs, the condition is 18suspensive. If the obligation may be immediately enforced but will come to an end when the uncertain event occurs, the condition is resolutory.” La. C.C. art. 1767. “A suspensive condition that depends solely on the whim of the obligor makes the obligation null. A resolutory condition that depends solely on the will of the obli-gor must be fulfilled in good faith.” La. C.C. art. 1770. “A condition is regarded as fulfilled when it is not fulfilled because of the fault of a party with an interest contrary to the fulfillment.” La. C.C. art. 1772.

“When the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose.” La. C.C. art. 2054.

The Sutherlands contend they acted in good faith by choosing the lot they purchased and hiring an architect to draw plans. They assert that their right to choose the specifications of the home to be built is implicit in the contract. They argue the trial court’s judgment presupposes that just because the suspensive condition was within the Sutherlands’ control, it was not fulfilled because of their fault.

The Sutherlands state the trial court’s ruling would require them to choose unacceptable house plans. They point out the record shows they made repeated attempts to obtain architectural plans to suit them. They contend that without an allegation of bad faith or facts to support such a finding, their failure to find acceptable architectural plans cannot result in liability under La. C.C. art. 1772.

In opposition, Coffman argues the Suth-erlands distort the issue by casting their obligation to deliver the plans as a suspen-sive condition to the contract itself. Instead, Coffman asserts, Coffman’s performance under the contract was ^conditioned on the Sutherlands’ production of the plans, because Coffman could not perform its obligation to build the Sutherlands’ home without them.

We agree with Coffman. To hold otherwise would enable any property owner to cancel any construction contract that obligates the owner to provide plans by simply refusing to provide them, or to provide non-conforming plans, leaving the contractor with a writing signed by both parties that is legally meaningless. The Suther-lands cannot, by their own actions, transform their own obligation into a condition that cancels the obligation itself. Their obligation to provide the plans to Coffman is not a condition to the Sutherlands’ own performance, but rather to Coffman’s performance.

The fact that the Sutherlands wanted a “dream home” with features that could not fit on the lot they had purchased does not invalidate the contract. There was no provision in the contract that the plans and specifications had to fit the Sutherlands’ idea of a “dream home” before the contract would be effective. As the trial court pointed out, the Sutherlands “clearly had interests contrary to fulfillment of the contract,” because they wanted a pool that would not fit to their satisfaction on the lot they had chosen. Hence, the Sutherlands wanted to sell the lot rather than build on it.

Accordingly, we find no merit to this assignment.

III. Error as Vice of Consent

Alternatively, if a valid, completed, and enforceable contract is found to exist between the parties, the Sutherlands contend the trial court erred in failing to rescind the contract based on a vice of consent, error.

“Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party.” La. C.C. art. 1949. “A party who obtains | ^rescission on grounds of his own error is liable for the loss thereby sustained by the other party unless the latter knew or should have known of the error.” La. C.C. art. 1952.

The Sutherlands contend the principal cause of their entering into the agreement with Coffman was “for the construction of a personal residence according to their specifications.” They argue, “This cause was known to [Coffman] by virtue of the nature of the agreement and its terms.”

As the trial court pointed out, the pool the Sutherlands wanted “was not contemplated initially nor was it made a condition of the contract subsequently.”

The Sutherlands assert the law does not require the level of specificity required by the trial court: “It is sufficient that Appel-lee knew that the ‘agreement’ was entered into with the understanding that Appellants would have the right to choose the specifications of the house to be built.” The Sutherlands contend the agreement gives them the right to build the house they wanted, which was not possible on the lot they purchased. Hence, they argue, their consent was vitiated.

In opposition, Coffman states there is no error in the contract itself, nor in the parties’ understanding of their intentions: “It was understood by all that a single-family residence would be constructed on the lot chosen and designated in the contract by the Sutherlands.” Hence, there was no error that would make the contract null.

We agree. To take the Sutherlands’ argument to its logical extreme would mean that if they had wanted to reproduce the Sistine Chapel on their lot, the impossibility of fitting such a building on the Sutherlands’ lot would allow the Suther-lands to nullify the contract. Any “defect” present here was created entirely by the Sutherlands and was entirely within their control to cure. There is no merit to this assignment of error.

\UIV. Stipulated Damages

The appellants argue that even if there was a valid, enforceable contract between the parties, the trial court erred in failing to find the stipulated damages clause in the contract was unconscionable and therefore unenforceable.

“Stipulated damages may not be modified by the court unless they are so manifestly unreasonable as to be contrary to public policy.” La. C.C. art. 2012.

The Sutherlands rely on La. C.C. art. 2008, which states, “An obligor whose failure to perform the principal obligation is justified by a valid excuse is also relieved of liability for stipulated damages.” The Sutherlands point out that Coffman incurred no actual damages, but rather the amount stipulated in the contract is an arbitrary number that Coffman places in all its contracts. They argue that if the agreement is enforceable, then the stipulated damages should be reduced to a nominal amount because Coffman incurred no actual damages.

In opposition, Coffman cites La. C.C. art. 1986, which provides, “Upon an obli-gor’s failure to perform an obligation to deliver a thing, or not to do an act, or to execute an instrument, the court shall grant specific performance plus damages for delay if the obligee so demands. If specific performance is impracticable, the court may allow damages to the obligee.”

We note, as did the trial court, that there was no testimony, discussion, or objection to the stated damages prior to the institution of the lawsuit. Further, the Sutherlands agreed to the stipulated contractual damages, but disagreed as to when that damage clause would take effect.

“Damages are measured by the loss sustained by the obligee and the profit of which he has been deprived.” La. C.C. art. 1995.

The contract clearly states that Coff-man’s profit would be 15% of the total labor and costs to build. Coffman testified that homes in the subdivision were 112valued from $400,000 to $650,000. The Sutherlands provided no countervailing evidence to that testimony. A 15% profit on $400,000 would yield Coffman three times the stipulated amount of $20,000. Accordingly, the trial court did not err in finding that the amount of the stipulated damages “conservatively approximates” Coffman’s lost profit. We find no merit to this assignment of error.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellants.

AFFIRMED.

GRAVOIS, J.,

dissents with reasons.

|TFor the following reasons, I respectfully dissent from the majority’s holding herein that a valid contract existed between the parties.

The language of the document, drafted by Coffman and signed by the parties, specifically states that the house will be built “as shown on the drawings and described in the specifications prepared or to be prepared by the Owner’s architect, _ and to be dated and signed by the parties hereto on the date of submission to the Contractor, which said drawings and specifications are by reference made a part thereof, and, together with this agreement, form the contract.” There is no dispute that the Sutherlands met with an architect on several occasions in an attempt to have plans drafted for construction of the house. The Sutherlands were not able to have completed plans drafted for a house that contained the features they desired and that would fit on the odd-shaped lot where the house was to be built.

The jurisprudence has long recognized that where the language of a contract is clear and unambiguous, it must be interpreted solely by reference to the four corners of that document. Tammariello Properties, Inc. v. Medical Realty Company, Inc., 549 So.2d 1259 (La.App. 3 Cir.1989). When a contract is subject to interpretation from the four corners of the document, without the necessity of extrinsic evidence, that interpretation is a matter of law. NAB Natural Resources, L.L.C. v. Willamette Industries, 2Inc., 28,555 (La.App. 2 Cir. 8/21/96), 679 So.2d 477. When appellate review is not based upon any factual findings made by the trial court but rather, is based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. ScenicLand Const. Co., LLC v. St. Francis Medical Center, Inc., 41,147 (La.App. 2 Cir. 7/26/06), 936 So.2d 247, 251. In this instance, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect. Id. Accordingly, in my view, this matter requires a de novo review.

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046.

The language in the document forming the basis of this appeal clearly states that the drawings and specifications together with the document signed by the parties form the contract. Thus, based on the clear reading of the words of the document, no contract was formed because no drawings and specifications were ever submitted to the Contractor and dated and signed by the parties as provided for in the document.

Furthermore, I find Coffman’s argument that the Sutherlands breached the contract by failing to submit the drawings and specifications to be without merit. The document signed by the parties is vague in several areas. First, the document contains no provision as to what would result if the Sutherlands were unable to obtain financing to purchase the lot or to build the house. Under the interpretation urged by Coffman, i.e., that the Sutherlands are liable for the stipulated damages and attorney’s fees if they cancel the contract at any time and for any reason, the Sutherlands would be liable for the alleged stipulated damages and attor-nejfs fees even in the event that they were unable to obtain financing. Second, while the cost of |sthe house is stated to be the cost of permits, inspections, materials and labor, plus a 15% contractor’s fee, the document states that the owner is responsible for any increases in price in materials or labor after the original estimate is given. Third, there is no reference as to the specifications of the house to be built. As such, I find that the price of construction of the house is indeterminate.

The four elements of a valid contract are: (1) the parties must possess the capacity to contract; (2) the parties’ mutual consent must be freely given; (3) there must be a certain object for the contract; and (4) the contract must have a lawful purpose. Provenza v. Central & Southwest Services, Inc., 34,162 (La.App. 2 Cir. 12/15/00), 775 So.2d 84. In my view, given the vague language with regard to the description of the house to be built and the indeterminate price, even ignoring the language of the document that requires the drawings and specifications be submitted to the Contractor to form the contract, a valid contract did not exist because the alleged contract lacked a certain object. See, White Properties Inc. v. LoCoco, 377 So.2d 474 (La.App. 4 Cir.1980), writ denied, 380 So.2d 99 (La.1980).

For these reasons, I would reverse the judgment of the trial court and render judgment in favor of the defendants, thereby dismissing plaintiffs suit.

      . After the suit was filed, but before it went to trial, the Sutherlands sold the lot to a third party.

      . In their answer the Sutherlands also made exceptions of prematurity and no cause of action. The record does not indicate any rulings on the exceptions, but no issues concerning the exceptions are raised on appeal.


author: DENNIS R. BAGNERIS, SR., Judge. LOVE, J.,

text:
    Catherine HALL v. Ralph NIX.
    No. 2010-CA-1146.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 23, 2011.

      Thomas B. Calvert, Thomas B. Calvert, APLC, Metairie, LA, for Plaintiff/Appel-lee, Catherine Hall.
    Hector R. Lopez, H.R. Lopez APLC, Covington, LA, for Defendant/Appellant, Ralph Nix.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
   DENNIS R. BAGNERIS, SR., Judge.

| , Dr. Ralph Nix appeals the trial court’s ruling that he breached the applicable standard of care in his treatment of plaintiff, Catherine Hall, and that the breach was a cause-in-fact of Ms. Hall’s damages. For the following reasons, we hereby affirm.

FACTS

In September 1999, Dr. Nix performed an eye exam on Ms. Hall whereby he noted that Ms. Hall had a small macular hole in her right eye and a larger macular hole in her left eye. After advising Ms. Hall to repair the reopened macular hole in the right eye, Dr. Nix performed a pars plana vitrectomy on September 17, 1999 at Memorial Medical Center. In performing the surgery, Dr. Nix testified that although there is a 20% concentration of SF6 gas, he chose a 30% concentration of SF6 as the vitreous substitute for this surgery. The medical records from Memorial Medical Center indicate Ms. Hall was administered Demerol on seven occasions within 24 hours of surgery. Dr. Nix contends a dose of Demerol is 50 milligrams |2and Ms. Hall received only four doses because the amounts were titrated to determine how much was necessary to alleviate Ms. Hall’s pain.

At trial, Ms. Hall testified that Dr. Nix neither saw her in the hospital following the surgery nor came to her room to measure her intraocular pressure. Ms. Hall testified that although she was in pain, she was discharged from the hospital on September 18, 1999. Ms. Hall testified that her daughter attempted to contact Dr. Nix on September 18th because of the pain in her right eye, but that Dr. Nix did not see her until Sunday evening on September 19, 1999. Ms. Hall testified that this was the first time Dr. Nix measured the intraocu-lar pressure in her right eye by using a Schiotz tonometer, an instrument plaintiff agues underestimates intraocular pressure. After performing an eye examination, Dr. Nix concluded that the exam was normal and that her intraocular pressure was 22 mmhg. According to Jennifer Chopin, Ms. Hall’s daughter who accompanied her to Dr. Nix’s office on the evening of September 19, 1999, Dr. Nix found no reason for her mother’s pain because her pressure was low.

On September 20, 1999, during Ms. Hall’s follow-up visit, Dr. Nix noted the presence of an intraocular pressure of 35 mmhg by using the Schiotz tonometer. Dr. Nix testified he gave Ms. Hall a topical eye drop, Diamox, to reduce eye pressure; however, Ms. Hall disputes this. The record indicates that Dr. Nix referred Ms. Hall to Dr. Gholam Peyman at LSU Eye Center for an evaluation and recommendation regarding a potential eye infection.

| a Ms. Hall was seen at LSU Eye Center on the afternoon of September 20, 1999, and had a right eye pressure of 54 mmhg. A procedure was performed at that time to reduce the eye pressure and Ms. Hall was required to have cataract surgery and anterior chamber reconstruction on September 22 and 23, 1999. Thereafter, Ms. Hall was referred to Dr. Claude F. Burgoyne, a glaucoma specialist, who performed a laser periphery iridectomy and a trabeculectomy in her right eye in October 1999. Ms. Hall contends that Dr. Nix committed malpractice by allowing the intraocular pressure to become too high from September 17 through September 20, 1999, which allegedly caused injury to her optic nerve and resulted in glaucoma and vision loss.

A medical review panel concluded that Dr. Nix “failed to comply with the appropriate standard of care as charged in the complaint. Specifically, the panel finds that the patient should have been evaluated by the end of the first post-operative day.” After a four-day bench trial, the trial court rendered judgment in favor of Ms. Hall and against Dr. Nix for medical malpractice arising from his treatment from September 17, 1999 through September 20, 1999. The trial court awarded three hundred fifty thousand dollars ($350,000.00) in general damages, fifty thousand dollars ($50,000.00) for loss of enjoyment of life, and two hundred twenty-two thousand seven hundred seventeen dollars ($222,717.00) as special damages, with the amount subject to the limitation of recovery as provided for in La. R.S. 40:1299.42. Thereafter, the trial court granted Ms. Hall’s motion to tax costs and awarded twelve thousand two hundred ten dollars and four cents ($12,210.04) in court costs. The trial court found that Ms. Hall carried her burden of proof by a preponderance of the evidence establishing the standard of care, | ¿defendant’s negligence, and that Dr. Nix’s negligence caused permanent damage to Ms. Hall.

On appeal, Dr. Nix assigns the following assignments of error: (1) the trial court erred in finding Dr. Nix’s breach of the standard of care was the sole proximate cause of Ms. Hall’s injuries as nearly four years post surgery her vision was 20/40 and she was negative for glaucoma; (2) the trial court committed legal error in denying Dr. Nix’s motion to submit medical testimony and evidence on the effect of a hit to her head and eye injury in automobile accident; (3) the trial court committed legal error in failing to apportion fault to non-party automobile driver and LSU resident tortfeasors and finding Dr. Nix solidarity liable; (4) the trial court erred in failing to abate damages as Ms. Hall failed to mitigate by seeking employment during the period of her improved vision; (5) the trial court erred in failing to consider high intraocular pressure which is a known complication of vitrectomy; (6) the trial court erred in failing to assign Ms. Hall comparative fault in failing to timely present to LSU after diagnosis of high pressure and possible infection; (7) the trial court’s awards of damages in all categories were abusively excessive; (8) the trial court committed legal error in denying the motion for direct verdict and involuntary dismissal after learning Ms. Hall concealed facts relating to the head blow and cause of her blurry 20/200 vision; and (9) the trial court committed legal error in taxing Dr. Nix with costs.

APPLICABLE LAW

In a medical malpractice action, the plaintiff must prove three elements: (1) the degree of knowledge or skill required by doctors in the same field in a similar locale; (2) that the defendant physician lacked or failed to utilize that standard of care; and (3) that the defendant’s conduct was the proximate cause of the 5plaintiff’s injury. See La. R.S. 9:2794; Serigne v. Ivker, 00-0758, 0759, pp. 4-5 (La.App. 4 Cir. 1/23/02), 808 So.2d 783, 787. Determinations of the requisite level of skill required, whether the standard of care has been breached and whether causation exists are findings of fact, which can be reversed only upon a finding of manifest error. Id. (citing Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1276 (La.1991)). Therefore, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel its own evaluations and inferences are as reasonable. Arceneaux v.Domingue, 365 So.2d 1330, 1333 (La.1978).

When the trial court’s findings are based upon the credibility of witnesses, the manifest error standard requires that the appellate court give great deference to the trial court because only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily upon the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Nevertheless, the reviewing court may find manifest error in a credibility determination if the witness’s testimony is so internally inconsistent or implausible on its face, or is so contradicted by documents or other objective evidence, that a reasonable fact finder would not credit it. However, where such factors are absent, and the trial court’s finding is based upon a decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 844-45 (citations omitted).

Louisiana jurisprudence has held that expert witnesses who are members of the medical profession are necessary sources of proof in medical malpractice actions. Martin v. East Jefferson General Hospital, supra, at 1277. ^Determinations of the credibility of expert witnesses are subject to the same manifestly erroneous/clearly wrong standard of review as are credibility determinations concerning fact witnesses. Id.

DISCUSSION

The first issue to address is whether the trial court erred in finding Dr. Nix’s breach of the standard of care was the sole proximate cause of Ms. Hall’s injuries. Dr. Nix argues that there were several causes as to why Ms. Hall suffered damages to her optic nerve and trabecular meshwork, specifically: (1) a previous surgery in 1998 to repair a macular hole; (2) Ms. Hall’s accident in August of 1999 whereby she hit her head on the dashboard; and (3) Ms. Hall’s delay in being treated at LSU on September 20, 1999.

At trial, Dr. Roberto Diaz-Rohena, Ms. Hall’s expert who is a board-certified ophthalmologist with special training in vi-treoretinal disease and surgery, testified as to the applicable breaches of the standard of care. Dr. Diaz-Rohena concluded the following breaches of the applicable standard of care in Dr. Nix’s treatment of Ms. Hall were: (1) failing to monitor the intraocular pressure following the pars plana vitrectomy using 30% SF6 expansive gas on September 17, 1999; (2) failing to monitor the eye pressure and visit Ms. Hall in the hospital, especially in light of Ms. Hall’s complaints of pain; (3) failing to conduct an appropriate eye examination on the evening of September 19, 1999; (4) using a Sehiotz tonometer to derive intrao-cular pressure readings on the surgical eye despite the manufacturer of the SF6 gas’s warning that the Sehiotz tonometer would underestimate the intraocular pressure in the presence of SF6 30% gas; (5) failing to provide the patient with in-office samples of intraocular pressure lowering medications on the evening of September 19, 1999; (6) failing to refer the |7patient immediately to LSU as an emergency on the evening of September 19, 1999, if Dr. Nix truly suspected an infection; (7) failing to conduct an appropriate eye examination on September 20, 1999; and (8) failing to perform intraocular pressure readings pri- or to embarking on the surgery of September 17, 1999.

At trial, the medical records reveal that Ms. Hall’s family had no medical history or diagnosis of glaucoma. Dr. Nix testified that he evaluated the optic nerve in Ms. Hall’s surgical eye prior to his surgery, and there was no evidence of any damage to the optic nerve. Dr. Diaz-Rohena testified at trial as to what happens to a patient when an expansive gas creates an increase in intraocular pressure:

As this bubble is expanding inside the eye, different things [sic]. I’m going to start from the back and come forward. One of the main concerns is that the pressure can push on the optic nerve, and it can do two things there. It can reduce the blood flow which can lead to a vein or arterial occlusion and cause a stroke in the eye.
It can also, just because it’s pushing on the optic nerve, it can start you on the path of glaucoma. When we look at the front of the eye, especially if the patient is phakic, which that means that they have their natural lens in place. That gas bubble can push the lens forward and close the angle, and you can get what’s called an angle closure glaucoma.

Dr. Diaz-Rohena also testified as to how an increased intraocular pressure can impact a patient’s trabecular meshwork:

A. So, one of the important things is when you have this pressure building up and again it pushes the iris forward, there is no movement of aqueous or fluid in the eye towards the drainage system. That’s what the trabecular meshwork is. You start getting adhesions because there is no flow. There should be liquid.
Q. Adhesions is scar tissue, correct?
IsA. Scar tissue will start to form. You think this is — a trabecular mesh-work is 360 degrees. You think of a canal which fluid is going through. So, if I block it everywhere, there is nothing going through. I get scar tissue. The trabecular meshwork has now been damaged.
Aside from that, the lens — the natural lens — being pushed forward by that gas causes a gas-induced cataract which will make the lens even expand more and even push forward even more.

The medical records from LSU reference Ms. Hall as being diagnosed with glaucoma, a disease which Dr. Diaz-Rehe-na related to Dr. Nix’s breach in the standard of care following the surgery on September 17. Further, Dr. Diaz-Rohena testified that the following damages relate on a more-probable-than-not basis to Dr. Nix’s breach of standard of care: (1) Ms. Hall’s cataract, which required cataract surgery; (2) Ms. Hall’s loss of her anterior chamber, which required an anterior chamber reconstruction; (3) Ms. Hall’s pressure problems, which required a peripheral iridectomy

Although Dr. Soffy Botero, defendant’s expert ophthalmologist, testified by deposition that the damage to Ms. Hall’s eye may have been caused by Ms. Hall hitting her head coupled with the surgery performed by Dr. Nix, the trial court, in viewing all of the evidence, concluded that it was more probable than not that Ms. Hall’s injuries were caused by the substandard conduct of Dr. Nix. After reviewing the record, we find no manifest error in this finding.

The second issue is whether the trial court committed legal error in denying Dr. Nix’s motion to submit medical testimony and evidence on effect of a hit to her head and eye injury in an automobile accident. We find no merit in this assignment of error as the trial court signed an order on March 15, 2010, allowing Dr. Nix until April 1, 2010, to provide additional evidence regarding Ms. Hall’s ^testimony in which she stated she may have hit her head in an automobile accident prior to the surgery in August 1999. In fact, Dr. Soffy Botero’s deposition was filed into the record on April 15, 2010.

The third issue is whether the trial court erred in failing to apportion fault to non-party automobile driver and LSU resident tortfeasors. Dr. Nix argues that the trial court was legally bound to apportion fault amongst joint tortfeasors regardless of their presence at trial. However, as Ms. Hall correctly points out, Dr. Nix failed to present any evidence to support the affirmative defense of third party fault. As such, we find no error in the trial court’s judgment, which found Dr. Nix solidarity liable.

The fourth issue is whether Ms. Hall failed to mitigate the damages by failing to seek employment during the period of her improved vision. Specifically, Dr. Nix argues that the medical testimony revealed that Ms. Hall’s vision could have been corrected and that she was capable of employment with specialized equipment. While it is true that a tort victim has an affirmative duty to make every reasonable effort to mitigate her damages, this duty only requires that the injured party take reasonable steps to minimize the consequences of the injury. See Campbell v. Robinson, 08-1429, p. 5 (La.App. 4 Cir. 4/8/09), 10 So.3d 346, 349; Dixie Services, L.L.C. v. R & B Falcon Drilling USA, Inc., 05-1212, 06-1209, p. 6 (La.App. 4 Cir. 3/21/07), 955 So.2d 214, 219. Further, an injury victim does not fail to mitigate her damages when she refuses to undergo treatment which would not significantly alleviate her disability, carries risks of failure, when the treatment is painful, or when she is unable to pay for the treatment. Flemings v. State, 07-1290, p. 17 (La.App. 4 Cir. 8/26/09), 19 So.3d 1220, 1231.

| inMs. Hall testified that although her eyes did improve after LSU performed several surgeries on her right eye following Dr. Nix’s treatment, she noted that the doctors declared her legally blind and would not approve her to return to work. Also worth noting is a letter, written on October 21, 1999, whereby Dr. Burgoyne indicates to Ms. Hall that “it is most likely that you have suffered a profound long-lasting loss of vision in your right eye.” After reviewing the record, we fail to find evidence indicating that Ms. Hall’s conduct after Dr. Nix’s treatment was unreasonable or that she refused specialized training. As such, _we find no merit in this assignment of error.

The fifth issue to address is whether the trial erred in failing to consider that high intraocular pressure is a known complication of vitrectomy. Dr. Nix argues that because high pressure is a known risk and because Ms. Hall was referred immediately upon indication of same, then he did not fail to diagnose or contribute to the complications resulting therefrom.

From reviewing the record, it is undisputed that high intraocular pressure is a known complication of vitrectomy. However, the trial court’s judgment found in favor of Ms. Hall and against Dr. Nix “for medical malpractice arising from his treatment rendered to plaintiff from September 17, 1999 through September 20, 1999.” As the judge stated in her reasons for judgment:

It is Dr. Diaz-Rohena’s expert opinion that defendant, or Ralph Nix, M.D. breached the standard of care applicable to vitral retina surgeons by (1) failing to properly monitor plaintiff, Catherine Hall from September 17, 1999 through September 20, 1999 post-operatively after administering SF6 30% gas, and (2) failing to diagnose intraocular pressure on September 20,1999.
The Court finds plaintiff has carried her burden of proof by a preponderance of the evidence, the prevailing | ^standard of care, defendant’s negligence, and that Dr. Nix’s negligence caused permanent damage to Plaintiff.

Accordingly, we find no merit in this assignment of error.

The sixth issue to address is whether the trial court erred in failing to assign Ms. Hall comparative fault in failing to timely present to LSU Eye Center on the afternoon of September 20, 1999. We find no merit in this assignment of error as there is no medical evidence in the record to support this argument.

The seventh issue to address is whether the trial court’s awards of damages were abusively high. Dr. Nix argues that the trial court’s award was abusively high and failed to take into consideration joint liability, comparative fault, and mitigation of damages. Further, Dr. Nix argues the trial court’s reliance on Dr. Rice’s calculation of past, present, and future lost wages was not supported by the tax returns introduced.

The well-settled standard of review for general damages is whether the trial court abused its discretion. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). The trial court’s discretion “is ‘great’ and even vast, so that an appellate court should rarely disturb an award of general damages.” Id. Although reasonable persons may disagree regarding an award of general damages in a particular case, “[i]t is only when an award is, in either direction, beyond that which a reasonable trier of fact could assess 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. Only if an abuse of discretion is found will the reviewing court refer to prior awards, and then only for the purpose of determining the highest or lowest point within the court’s discretion. Logan v. 12Brink’s, Inc., 2009-0001, p. 13 (La.App. 4 Cir. 7/1/09), 16 So.3d 530, 540 (citing Riley v. Maison Orleans II, Inc., 2001-0498, p. 11 (La.App. 4 Cir. 9/25/02), 829 So.2d 479, 487). For a trial court to have abused its vast discretion, the award “must be so high or so low in proportion to the injury or fault that it ‘shocks the conscience.’ ” Id.

After reviewing the record, we do not find that the trial court abused its vast discretion with respect to the general damage award of $400,000.00, nor do we find that the award shocks the conscience. Further, we find no countervailing evidence to dispute Ms. Hall’s loss of earnings and medical expenses. As such, we find no error in the trial court’s award of damages.

Dr. Nix’s eighth assignment of error alleges that the trial court committed legal error in denying the motion for directed verdict and involuntarily dismissal after learning Ms. Hall concealed facts relating to the head blow and cause of her blurry 20/200 vision. Dr. Nix did not brief his eighth assignment of error. Uniform Rules-Courts of Appeal Rule 2-12.4 provides that assignments of error not briefed may be considered abandoned. Accordingly, we consider Dr. Nix’s eighth assignment of error abandoned.

In Dr. Nix’s ninth assignment of error, he argues that the trial court committed legal error in taxing him with costs. Specifically, Dr. Nix argues that because the Patient’s Compensation Fund (“PCF”) intervened, he is precluded from paying costs. However, we find no error in the trial court’s finding that a voluntary dismissal on behalf of the PCF has the same effect as if a suit had never been instituted; thus, the limitation of La. R.S. 40:1299.42(B)(2) is in applicable in this matter.

| ^Accordingly, we find no error in the trial court judgment, which found in favor of Ms. Hall and against Dr. Nix for the treatment rendered to her from September 17, 1999 through September 20, 1999.

AFFIRMED.

LOVE, J.,

Concurs.

Li respectfully concur in the result.

      . According to Wikipedia, a pars plana vitrec-tomy is a general term for a group of operations accomplished in the deeper part of the eye, all of which involve removing some or all of the vitreous — the eye’s clear internal jelly. (Wikipedia, The Free Encyclopedia, [as of February 8, 2011].)

      . According to Wikipedia, intraocular pressure (IOP) is the fluid pressure of the aqueous humor inside the eye. In ophthalmology, to-nometry is the measurement eye care professionals use to determine the fluid pressure inside the eye. Current consensus among optometrists and ophthalmologists define normal intraocular pressure as that between 10 mmHg and 20 mmHg. (Wikipedia, The Free Encyclopedia, [as of February 8, 2011].)