author: EZELL, JUDGE.

text:
    Donald Joe MAXWELL v. Daniel (“Danny”) CAYSE.
    No. CA 10-680.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      David Payne Spence, Alexandria, LA, for Defendant/Appellant, Daniel (“Danny”) Cayse.

      James Francis Slaughter, Colfax, LA, for Plaintiff/Appellee, Donald Joe Maxwell.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   EZELL, JUDGE.

| Daniel Cayse appeals a judgment of the trial court ruling that Donald Maxwell was not liable for the costs of removing and replacing cabinets Mr. Maxwell partially installed in Mr. Cayse’s home. For the following reasons, we hereby affirm the decision of the trial court.

Mr. Cayse and his longtime girlfriend, Tina Foster, began construction of a home in early 2008. Mr. Maxwell was hired to construct cabinets for the home. A price of $8,800 was agreed upon, with $4,400 advanced at the time of the agreement. As the fabrication of the cabinets progressed, an additional $2,000 was forwarded for door fronts that needed to be fabricated outside of Mr. Maxwell’s shop. Mr. Maxwell’s crew installed all the bathroom vanities and all kitchen cabinets but one, when they were forced to postpone installation due to an alleged change in size of a hood vent. Mr. Maxwell also built, but did not fully install, a kitchen island. Mr. Cayse became frustrated that the cabinets were not completely built to specifications or installed quickly enough and confronted Mr. Maxwell. After Mr. Maxwell did not respond, in what Mr. Cayse felt was a timely manner, he terminated Mr. Maxwell. Mr. Cayse hired other workers to install the remaining cabinet, island, and to hang the doors and drawer fronts. Despite his concerns about the cabinets specs, Mr. Cayse proceeded to have the countertops installed on the cabinets, painted them, and began to use them.

Mr. Maxwell filed the current suit, seeking payment for the entire contract. Mr. Cayse reconvened, seeking damages for the allegedly defective work and for the removal and replacement of the cabinets. After trial on the matter, the trial court |2found that there were defects in the workmanship performed by Mr. Maxwell, notably a lack of symmetry, inferior materials, and improper installation. However, the trial court found that Mr. Cayse had accepted the work, failed to mitigate any damages by proceeding with the counter-top installation, and did not allow Mr. Maxwell a reasonable time to repair the noted defects. The trial court ruled that the cabinets did not require demolition, noting that the cabinets were presently being used by Mr. Cayse. Ultimately, the trial court dismissed Mr. Maxwell’s claims against Mr. Cayse and rendered judgment in favor of Mr. Cayse in the amount of $1,956 for the removal and replacement of the irreparable bathroom vanities which were built too short to be usable. From that decision, Mr. Cayse appeals.

On appeal, Mr. Cayse asserts five assignments of error. He claims that the trial court erred in failing to award him sums paid for defective work; in failing to award him sums to complete the work left unfinished when he fired Mr. Maxwell; in failing to award him the cost of removing and replacing the cabinets; in failing to award him general damages; and in failing to award him attorney fees.

On review, an appellate court may not set aside the findings of fact by the trial court unless those findings are clearly wrong or manifestly erroneous. Stobart v. State through Dep’t. of Transp. & Dev., 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). An appellate court must not base its determination on whether it considers the trier of fact’s conclusion to be right or wrong, but on whether the fact finder’s conclusion was reasonable. Stobart, 617 So.2d 880.

Louisiana Civil Code Article 2769 governs a contractor’s liability for non-compliance with a contract and states:

If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.

| .^According to La.Civ.Code art. 2769 and eases interpreting it, the proper measure of damages caused by a breach of a contract to build is what it will take to place the entity who contracted for the work in the position it deserved to be in when the project was completed. Austin Homes, Inc. v. Thibodeaux, 01-1282, 01-1283 (La.App. 3 Cir. 5/8/02), 821 So.2d 10, unit denied, 02-2324 (La.11/15/02), 829 So.2d 436. To establish a contractor’s liability for damages due to defective workmanship, the owner must prove: (1) the existence and nature of the defects; (2) that the defects are due to faulty materials or workmanship; and (3) the cost of repairing the defects. Regions Bank v. Ark-Lar-Tex Water Gardens, L.L.C., 43,604 (La.App. 2 Cir. 11/5/08), 997 So.2d 734, writ denied, 09-16 (La.3/13/09), 5 So.3d 119.

The owner has the burden of proving each element of his claim by a preponderance of the evidence. Id. If the owner meets the burden of proof, the owner is entitled to the cost of repairs necessary to convert an unsound structure to a sound one, or the amount paid to remedy any defect. Nicholson & Loup, Inc. v. Carl E. Woodward, Inc., 596 So.2d 374 (La.App. 4 Cir.), writs denied, 605 So.2d 1098 (La.1992) (citing Manzanares v. Am. Int’l Forest Prods., Inc., 389 So.2d 1142 (La.App. 3 Cir.), writ denied, 395 So.2d 811 (La.1980)). The remedy is to reduce the contract price in an amount necessary to complete the work or to correct the defective work according to the terms of the contract. Lewis v. La Adrienne, Inc., 44,602 (La.App. 2 Cir. 8/19/09), 17 So.3d 1007.

Mr. Cayse first claims that he should be able to recover amounts paid to Mr. Maxwell for allegedly defective work. Louisiana Civil Code Article 2765 provides: “The proprietor has a right to cancel at pleasure the bargain he has made, even in case the work has already been commenced, by paying the undertaker for the expense and |4labor already incurred, and such damages as the nature of the case may require.” It is clear that under this article, Mr. Cayse was well within his rights to terminate Mr. Maxwell and that he would still owe him for the work performed. Moreover, “[u]nder Louisiana law, a building contractor is entitled to recover the contract price even though defects and omissions are present when he has substantially performed the building contract.” Mount Mariah Baptist Church, Inc. v. Pannell’s Associated Elec., Inc., 36,361, p. 12 (La.App. 2 Cir. 12/20/02), 835 So.2d 880, 888, writ denied, 03-555 (La.5/2/03), 842 So.2d 1101. “ ‘Substantial performance’ means that the construction is fit for the purposes intended despite the deficiencies; this is a question of fact for the trial judge.” Id. (citing Mayeaux v. McInnis, 00-1540 (La.App. 1 Cir. 9/28/01), 809 So.2d 310, writ denied, 01-3286 (La.3/8/02), 810 So.2d 1164).

Mr. Maxwell had completed most of the work building and installing the cabinets when he was fired by Mr. Cayse, even if obvious cosmetic defects were present in the work done. Moreover, Mr. Maxwell testified that there are usually “punch list” items to be fixed on a job, and that if he had been given the opportunity to correct the flaws in his work, he would have. However, he was not allowed this opportunity by Mr. Cayse. The trial court found that the cabinets were fit for their intended use, despite their defects, based on the fact that Mr. Cayse is currently using them, the extent to which was documented by his own photographs. Accordingly, despite the faults in the cabinets, there is no justification for giving Mr. Cayse his cabinets for free. See Rice v. Mesa Gen. Contractor L.L.C., 08-115 (La.App. 5 Cir. 5/27/08), 986 So.2d 122. We can find no manifest error in the trial court’s finding that Mr. Maxwell is not required to return amounts he received for the work performed before his firing by Mr. Cayse.

|BMr. Cayse next argues that the trial court erred in failing to award him the costs to complete the work left unfinished by Mr. Maxwell. “Where the owner presents evidence of the cost of completion of the work or correction of the defective work, the contract price may be reduced by that amount.” Mount Mariah, 835 So.2d at 888. Mr. Cayse and Mr. Maxwell agreed upon a total price of $8,800 for the building and installation of the bathroom and kitchen cabinets. Mr. Maxwell was paid $4,400 up front and advanced $2,000 at a later time for a total of $6,400. After firing Mr. Maxwell, Mr. Cayse incurred costs of $900 to finish the kitchen cabinets. Reducing the contract price by the $900 paid to complete the work would place Mr. Cayse paying $7,300 for the building and installation of the cabinets, which is less than the agreed-upon price. We can find no error in the trial court preventing Mr. Cayse from reaping a windfall from his termination of Mr. Maxwell.

Mr. Cayse next claims that the trial court erred in failing to award him the cost of removing and replacing the cabinets. We disagree. Of all Mr. Cayse’s experts to testify, Jason Belgard was the closest to actually saying the cabinets could not be saved. He stated that a simple box of plates would pull the cabinets from the wall. However, Mr. Cayse’s own photographs show the cabinets loaded with dishes and serving ware, fully in-tact on the wall. When asked if the cabinets could be salvaged, Mr. Belgard’s response was simply, “I doubt it.” He then went on to name ways in which the cabinets could possibly be repaired. The remainder of Mr. Cayse’s witnesses and experts testified only that the work Mr. Maxwell performed was not to his usual degree of quality, or that the work was not up to their own high standards. Ultimately, the trial court determined that Mr. Cayse did not prove that the cabinets were so defective that they should be demolished. We can find no manifest error in this ruling.

| fiMr. Cayse asserts as his fourth assignment of error that the trial court erred in failing to award general damages. However, because Mr. Cayse failed to address this assignment of error in brief, we considered it abandoned. Uniform Rules-Courts of Appeal, Rule 2-12.4.

In his final assignment of error, Mr. Cayse claims that he is due attorney fees under La.Civ.Code art. 2520, et seq. While the cursory, blanket assertion set forth by Mr. Cayse in brief, unsupported by any legal argument, falls incredibly close to abandoning this assignment of error as well, it is asserted in brief, however fleetingly. Accordingly, we will address it out of an abundance of caution. Even assuming, for the sake of argument, that Mr. Maxwell was a manufacturer and could be liable under redhibition, the cabinets were not useless, as Mr. Cayse was using them as intended at the time of trial. Mr. Maxwell would owe no warranty for defects that were either known to the buyer at the time of the sale, or discoverable by a reasonably prudent buyer. La. Civ. Code art. 2521. The flaws Mr. Cayse complains of are obvious and should and could have been noted almost immediately. Moreover, under La.Civ.Code art. 2522, the buyer must give the seller notice of the existence of a redhibitory defect in the thing sold. That notice must be sufficiently timely as to allow the seller the opportunity to make the required repairs. Id. As noted above, Mr. Cayse gave Mr. Maxwell no opportunity whatsoever to repair the defects in the cabinets. The trial court committed no error in failing to award Mr. Cayse attorney fees in this case. This assignment of error is devoid of merit.

For the above reasons, the decision of the trial court is hereby affirmed. Costs of this appeal are hereby assessed against Mr. Cayse.

AFFIRMED.

      . Throughout the record and briefs, various amounts are listed as the final price, varying from $8,400 to $8,600, to the above $8,800. However, as all parties stated that half the total cost was paid up front and a check for $4,400 was shown in the record, we will use the highest number throughout our opinion.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Juanita QUINN v. VIDALIA APPAREL.
    No. WCA 10-712.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Paul Howard Benoist, Benoist Law Offices, Natchez, MS, for Plaintiff/Appellee, Juanita Quinn.
    Brad O. Price, Baton Rouge, LA, for Defendant/Appellant, Vidalia Apparel.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

| Several issues are raised in this appeal of a workers’ compensation case. Vidalia Apparel filed this appeal claiming that the workers’ compensation judge (WCJ) erred in finding that Juanita Quinn suffered a work-related accident and is now temporarily totally disabled. It also complains about the award of penalties and attorney fees and that the WCJ erred in her determination of the compensation rate. Ms. Quinn answered the appeal. Ms. Quinn argues that the WCJ should have determined that employer fraud was present pursuant to La.R.S. 23:1208. She also complains about the amount awarded for attorney fees at the trial level and asks for additional fees for work performed at the appellate level.

FACTS

Ms. Quinn began working for Vidalia Apparel in 1999. Vidalia Apparel distributes Fruit of the Loom clothing. She was employed as picker whose job is to get the boxes needed to fill orders as they come in to the warehouse. On November 16, 2006, Ms. Quinn filed a disputed claim for compensation alleging that she had injured her back while working for Vidalia Apparel in February 2006. Ms. Quinn could not remember the exact date. She testified that the accident occurred around 1:30 to 2:00 p.m. Ms. Quinn stated that she injured her back while picking up a “4x” box weighing fifty to seventy pounds. She felt something pop and dropped the box. Ms. Quinn testified that she reported the incident to her immediate supervisor, Bobby Whitley. Mr. Whitley told her to go see the nurse, Rhonda Hunt. Ms. Quinn stated that Ms. Hunt told her it was a muscle spasm. Ms. Hunt gave Ms. Quinn an ice pack. Ms. Quinn sat in the nurse’s office for about twenty minutes. She was then told to go wait in the break room until her shift ended. Ms. Quinn returned to work the next day.

12Pr. Ibrahim Seki, Ms. Quinn’s treating physician for high blood pressure since November 2005, initially saw Ms. Quinn on March 22, 2006, following her accident. It appears that this is the first visit that Ms. Quinn reported leg and back pain, as it was circled in Dr. Seki’s notes. Dr. Seki ordered an MRI of the lumbar spine which was performed on March 28, 2006. Mild disk desiccation was noted at L2-3. Broad-based disk bulging was observed at L5-S1 with bilateral foraminal encroachment.

On April 6, 2006, Ms. Quinn went to Passman-Haimson Orthopedic, Sports, and Rehab in Natchez, Mississippi, for treatment of her back problems. She had seen Dr. J.C. Passman at this facility in March 2005 for swelling in her left ankle. At the April 2006 visit she complained of low back pain that she had for months that radiated down her left leg to the ankle. She also complained that her back was giving her problems at work. Dr. Robert Haimson took her off work and continued her on an outpatient physical therapy program. He also prescribed a lumbar corset.

In May 2006, Dr. Haimson noted that Ms. Quinn had not had significant relief with her physical therapy nor the lumbar corset. He wanted to refer her to a spine surgeon with the approval of the workers’ compensation insurer. Dr. Haimson continued Ms. Quinn on a no-work status. Dr. Haimson also ordered Ms. Quinn to proceed with her physical therapy.

Ms. Quinn saw Dr. Bruce Senter at the Mississippi Spine Clinic on June 30, 2006. Ms. Quinn’s history indicated that she had low back pain for years but that it had increased over the left leg for the last six months. Dr. Senter agreed that Ms. Quinn had a Grade 1 L5-S1 spondylitic spondylolisthesis with left L5 radiculopa-thy, secondary to some significant forami-nal stenosis. At that time, Dr. Senter recommended a lumbar epidural but suggested she would need a fusion and decompression if the epidural did not work.

|aMs. Quinn was anxious about surgery so she went to see Dr. Arnold Feldman at the Pain Treatment Center in Baton Rouge to inquire about the new laser surgery he was performing. Dr. Feldman evaluated Ms. Quinn on August 10, 2006. She related to him that she had lower back pain for about six months. Dr. Feldman also recommended an epidural steroid injection before proceeding with any surgery. Ms. Quinn told Dr. Feldman she just wanted to be “fixed.”

On August 23, 2006, Dr. Feldman performed an endoscopic discectomy. Ms. Quinn initially progressed. However, she started having extreme pain in her left ankle, and her back eventually began hurting again. In October 2006, an MRI was performed. It indicated a large left lateral disc herniation at L5-S1.

On December 4, 2006, Ms. Quinn received a lumbar epidural block. Ms. Quinn indicated that this helped her leg pain but that she still had back pain. On January 8, 2007, Ms. Quinn had a second epidural block. She improved initially, but the improvement did not last. On February 5, 2007, Ms. Quinn had an additional epidural block. She only received one week of relief.

An MRI on March 13, 2007, indicated Grade I anterior spondylolisthesis at L5-Sl. A posterior disc protrusion was also observed on the left with left lateral disc herniation with significant bilateral neural foraminal stenosis, the left greater than the right. The records indicate that Dr. Feldman last saw Ms. Quinn on June 30, 2007. Her pain was severe. At that time, the plan was to schedule another epidural block. The possibility was also discussed that she may need another endoscopic procedure. Ms. Quinn filed her disputed claim for compensation in November 2006 seeking wage benefits and medical treatment. In response, Vidalia Apparel alleged that no specific and identifiable accident had occurred. Trial on this matter was held on October 23 and November 13, 2009.

|/The WCJ found that Ms. Quinn was very credible and that her testimony concerning the occurrence of an accident was very persuasive. The WCJ found that Ms. Quinn was disabled from the date of the work accident, which she found to be February 1, 2006, until her release to return to work or her medical condition changes. Vidalia Apparel was ordered to pay weekly indemnity benefits in the amount of $454.00 a week in addition to all reasonable and necessary medical treatment. Finding that Vidalia Apparel did not reasonably controvert Ms. Quinn’s claims and was arbitrary and capricious in its failure to pay her benefits and provide medical treatment, Ms. Quinn was awarded a $2,000.00 penalty for Vidalia Apparel’s failure to pay indemnity benefits and an additional $2,000.00 penalty for Vidalia Apparel’s failure to pay her medical expenses. Attorney fees in the amount of $10,000.00 were also awarded.

Vidalia Apparel appealed the judgment asserting several assignments of error. Ms. Quinn answered the appeal asking for additional attorney fees and alleging employer fraud.

WORK ACCIDENT

Vidalia Apparel argues that the WCJ erred in finding the occurrence of a work-related accident on February 1, 2006. Vidalia Apparel claims that the trial court ignored the evidence in this case and rested its opinion solely on the testimony of Ms. Quinn. Vidalia Apparel argues that Ms. Quinn’s testimony and the testimony of fellow workers, in addition to her requests for leave and her medical records, indicate that Ms. Quinn was not credible as found by the WCJ.

In discussing an employee’s burden in establishing a work-related accident, this court noted the applicable law as follows:

IsA worker bringing a compensation action against her employer bears the burden of proving, as a threshold requirement, that she suffered “personal injury by accident arising out of and in the course of employment.” La.R.S. 23:1031; Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). The word “accident” as used in La.R.S. 23:1031 is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1). Jurisprudence has held that an accident may include a routine movement or task that the employee regularly performs, provided that the claimant is able to identify, with some particularity, the time, place, and manner in which the accidental injury objectively manifested itself. McCall v. Wal-Mart Stores, Inc., 02-1343 (LaApp. 3 Cir. 3/5/03), 846 So.2d 832, writs denied, 03-1329, 03-1343 (La.9/19/03), 853 So.2d 639, 641.
The plaintiff bears the burden of establishing that a work-related accident occurred by a preponderance of the evidence. Bruno, 593 So.2d 357. This burden of proof is applicable even when the worker is the sole witness of the accident. Id.
A worker’s testimony alone may be sufficient to discharge her burden of establishing a work-related accident provided that no evidence discredits or casts serious doubt upon her version of the incident and the worker’s testimony is corroborated by the circumstances following the alleged incident, including medical evidence or the testimony of coworkers, friends, or the worker’s spouse. Id.
The trial court’s determinations as to whether a plaintiff in a workers’ compensation case is credible and whether she has discharged her burden of proof are factual determinations that should not be disturbed upon appellate review unless clearly wrong or manifestly erroneous. Id.
This court has noted, in the context of a workers’ compensation suit, the well-accepted principle that credibility calls are the function of the trial court. McCall, 846 So.2d 832.

Dantley v. Lake Charles Mem’l Hosp., 07-1227, pp. 2-3 (La.App. 3 Cir. 3/5/08), 978 So.2d 1117, 1119-20.

The determination of an actual date of an employee’s work-related accident is not necessary when there is other evidence that corroborates a finding of a work-related accident by a preponderance of the evidence and pertinent dates for determining whether the employee’s claim for benefits had prescribed are | fideterminable. White v. Phoenix Pharmacy, 03-1624 (La.App. 3 Cir. 4/7/04), 870 So.2d 592, writ denied, 04-1150 (La.7/2/04), 877 So.2d 147.

At trial, Mr. Whitley testified that he did not remember Ms. Quinn reporting an accident to him. He stated that if an accident had been reported, an accident form would have been filled out and there would have been an investigation.

Ms. Hunt also testified that Ms. Quinn did not come see her. There was no record of Ms. Quinn visiting Ms. Hunt around February or March 2006 in the first aid log.

Kathy Wall, safety supervisor in 2006, also had no knowledge of Ms. Quinn’s accident. She testified that she would perform an investigation if an employee reports an accident.

Alma Fletcher, the human resources manager at Vidalia Apparel, testified that Ms. Quinn never mentioned she hurt her back. Ms. Fletcher testified that she did not question Ms. Quinn’s request for leave due to “moderate to severe low back pain” because of HIPPA regulations. Her first notice that Ms. Quinn was hurt at work was when the disputed claim form was filed.

Ms. Quinn was terminated from her job on April 25, 2006, after she was on leave for about a year. The reason given in her personnel file was “Expiration of leave of Absence according to Company Policy.” Ms. Fletcher verified that it is company policy that an employee is terminated if he or she does not come back to work after a year.

Ms. Quinn introduced the testimony of Juanita Reed who was working at Vidalia Apparel at the time. Ms. Reed testified that sometime in February or March 2006 she went to the cubicle to order her boxes when she saw Ms. Quinn in Mr. Whitley’s cubicle. Ms. Quinn was crying and stated, ‘ “Bobby, I can’t go back out. |7I’m hurting.’” Later, Ms. Reed saw Ms. Quinn sitting in the break room with an ice pack. When Ms. Reed asked her what was wrong, Ms. Quinn stated that she was hurting.

Ava Wright, another former worker at Vidalia Apparel, also passed the break room and saw Ms. Quinn with an ice pack. Ms. Quinn told her a few days later that she had hurt her back.

Ms. Quinn agreed that she could not remember the exact date of her accident. She also returned to work the day after the accident. Ms. Quinn initially saw Dr. Seki for ankle and leg pain in February 2006. However, she did make an initial report of leg and back pain on March 22, 2006.

While there is no documentation pinpointing an exact date of the accident, we cannot say the WCJ committed manifest error in finding a work-related accident occurred. Ms. Quinn agrees that she could not remember the exact date of the accident. She went to see Dr. Seki about her back injury in March, which is when he ordered the MRI which showed a herniated disk. When questioned why none of the doctors’ records indicate that she hurt her back at work, she explained that the doctors told her that her private insurance would not pay if it thought it was a work-related claim. She was on leave from work under the Family Medical Leave Act. She was not getting paid and not receiving benefits.

While we agree that February 1, 2006, may not be the exact date of Ms. Quinn’s accident, both she and two witnesses corroborated that she suffered an accident sometime in February or March 2006. Ms. Quinn related the details of a specific incident of lifting a box, hearing a pop in her back, and experiencing pain. Two witnesses confirmed that they saw Ms. Quinn crying and in pain during this time period. Ms. Quinn admitted that she initially returned to work following her accident. |8Ms. Quinn did not report any back problems to her treating physician until she saw Dr. Seki on March 22, 2006. An MRI ordered at that time revealed a herniated disk.

We find no manifest error in the WCJ’s finding that Ms. Quinn was a credible witness and that she established by a preponderance of the evidence that she suffered a work-related accident.

PENALTIES AND ATTORNEY FEES

Vidalia Apparel also claims that the WCJ erred in awarding penalties and attorney fees based on an arbitrary and capricious standard when no benefits were ever paid. Vidalia Apparel argues the WCJ utilized La.R.S. 23:1201(1) which provides for penalties and attorney fees for failure to handle the payment of compensation or medical benefits properly. Instead, it argues it should have been subjected to a reasonably controverted standard as set forth in La.R.S. 23:1201(F)(2) because it completely denied the claim.

In written reasons for judgment, the WCJ found that Vidalia Apparel was arbitrary and capricious in its denial of Ms. Quinn’s claim. Also, the judgment itself stated that Vidalia Apparel did not produce sufficient evidence to reasonably controvert the claim and was arbitrary and capricious in its refusal to pay wage and medical benefits.

The supreme court discussed the difference between an arbitrary and capricious standard and a reasonably controverted standard in Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885. The court explained that unreasonably controverting a claim requires action that is of a less egregious nature than that required for arbitrary and capricious behavior. “Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation.” Id. at 890 (citing Black’s Law Dictionary 104, 211 (6th ed.1990)). The reasonably controverted standard requires the employer have some valid reason or evidence upon which to base its denial of benefits.

Obviously, the WCJ applied a stricter standard in determining that Vidalia Apparel owed penalties and attorney fees. Vidalia Apparel now seeks a de novo review under a more relaxed standard to determine whether -Ms. Quinn was entitled to penalties and attorney fees.

In Thomason v. Wal-Mart Stores, Inc., 37,520 (La.App. 2 Cir. 9/4/03), 852 So.2d 1283, writ denied, 03-2774 (La.12/19/03), 861 So.2d 573, the WCJ also applied the heavier arbitrary and capricious standard when she should have applied the reasonably controverted standard. The court recognized that the WCJ had actually used a standard more forgiving to the employer.

We find that a de novo review of the assessment of penalties and attorney fees is not required under the circumstances of this case. Instead, we will review the evidence and testimony to determine whether the WCJ’s decision to award penalties and attorney fees was clearly wrong. Romero v. Garan’s, Inc., 05-1297 (La.App. 3 Cir. 4/19/06), 929 So.2d 258.

In awarding penalties and attorney fees the WCJ stated:

This court is persuaded that claimant sought medical assistance from the company nurse, Rhonda Hunt, following the accident. Rhonda Hunt unilaterally decided claimant’s claims were not “legitimate.” Therefore, no report of injury was completed immediately following the injury.
Claimant was forced to take Family Medical Leave and to use her personal insurance to cover the medical expenses incurred for her back injuries. Defendant cannot be allowed to reject her desire to report a workers’ compensation injury and then decide to shield themselves from liability through that rejection.
A simple investigation of claimant’s contentions would have yielded the statements of Juanita Reed and Ava Wright — two witnesses that supported claimant’s contentions. An investigation of claimant’s | inmedical treatment, when compared to her pre-injury work performance, would have yielded findings of an employee, able to perform her job duties, until the occurrence of the accident in question.

As previously discussed, there is sufficient evidence in the record to support Ms. Quinn’s claim that she had an accident which she reported to both her supervisor and the company nurse. Later, when she filed a request for leave due to back problems, the human resources manager did not bother inquiring if this was a work-related issue even though she knew that Ms. Quinn’s job required her to constantly lift boxes, some weighing fifty to seventy pounds. Even after Ms. Quinn filed her claim for benefits in November 2006, there was no evidence that Vidalia Apparel investigated the accident at that point. We find that Vidalia Apparel did not reasonably controvert Ms. Quinn’s claim, so the WCJ appropriately awarded penalties and attorney fees.

TEMPORARY TOTAL DISABILITY

Vidalia Apparel assigns as error the WCJ’s finding that Ms. Quinn was temporarily and totally disabled. In brief to this court, Ms. Quinn acknowledges that she is not entitled to temporary total disability (TTD) benefits for the days or weeks she worked in February, March, and April 2006 as set forth by Vidalia Apparel in its brief. According to Vidalia Apparel’s brief, Ms. Quinn worked from February 1, 2006 to February 11, 2006; February 19, 2006 to April 1, 2006; April 9, 2006; and April 16, 2006 to April 23, 2006, her last day of work. Ms. Quinn is not entitled to TTD benefits during these time periods, so the judgment will be amended accordingly.

A WCJ’s finding regarding a claimant’s disability is a factual finding that is entitled to great weight and should not be overturned absent manifest error. Winford v. Conerly Corp., 04-1278 (La.3/11/05), 897 So.2d 560; Burns v. Interstate Brands Corp., 09-705 (La.App. 3 Cir. 2/3/10), 30 So.3d 271. An employee who is not employed is entitled to TTD benefits if the employee proves by clear and convincing evidence that she is unable to engage in any employment or self-employment. La. R.S. 23:1221(1)(c).

Vidalia Apparel argues that Ms. Quinn offered no testimony as to her pain, physical capabilities, or abilities to work. It also argues that there is no medical evidence concerning her work restrictions after she left Dr. Haimson’s care on June 15, 2006.

In July 2006, Dr. Haimson transferred the medical care of Ms. Quinn to Dr. Feld-man. At Ms. Quinn’s visit with Dr. Feld-man on August 10, 2006, she complained of pain in her lower back for six months. She related that she had been unable to work for three months, so at the time of her initial visit, she was not working. Dr. Feldman observed the disc herniation at L5-S1 on the March 2006 MRI. Ms. Quinn complained that all physical activities aggravated her pain. Dr. Feldman did not indicate that Ms. Quinn was able to work at this visit and noted that her inability to work was causing some depression. After her surgery on August 23, 2006, Ms. Quinn was restricted from heavy lifting, bending, or stooping. On September 5, 2006, Ms. Quinn reported that her pain was moderate to severe and interferes with most daily activities. On October 23, 2006, Ms. Quinn advised that her functional impairment was severe and continued to interfere with most of her daily activities. An MRI revealed that she had a large, left lateral disc herniation at L5-S1 where her surgery was previously performed. As previously recited in the factual section of this case, Ms. Quinn continued to receive epidural blocks after her surgery as she continued to suffer with pain. When Dr. Feldman last saw Ms. Quinn on June 30, 2007, her pain was severe. The plan at that time was to schedule another | ^epidural block, and the possibility of another surgical procedure was discussed.

At the time of trial, Ms. Quinn testified that she had been on social security disability for close to two years. There is no doubt that, at the time of trial, Ms. Quinn continued to suffer pain which clearly affected her ability to work. When she first started seeing Dr. Feldman, she was not working, so there was no need for Dr. Feldman to restrict her work duties. He continued to state in his office notes that she was to continue on the current plan. We find no manifest error in the WCJ’s determination that Ms. Quinn is temporarily totally disabled.

COMPENSATION RATE

Vidalia Apparel argues that the WCJ committed error when she found that the Ms. Quinn had a compensation rate of $454.00 per week. It claims that the proper rate should have been $385.37.

In her brief to this court, Ms. Quinn agrees that the proper compensation rate should be $385.37 per week. Therefore, we will amend the judgment accordingly.

EMPLOYER FRAUD

In her answer to the appeal, Ms. Quinn has alleged that the WCJ erred in failing to find employer fraud under La. R.S. 23:1208. Louisiana Revised Statutes 23:1208(A) and (B) provide:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
B. It shall be unlawful for any person, whether present or absent, directly or indirectly, to aid and abet an employer or claimant, or directly or indirectly, counsel an employer or claimant to willfully make a false statement or representation.

Ms. Quinn alleges that Vidalia Apparel, through its agents, intentionally failed to record the injury reported by Ms. Quinn in order to defeat her workers’ | [¡¡compensation claim.

A WCJ’s finding as to whether a violation of La.R.S. 23:1208 occurred is a finding of fact subject to the manifest error standard of review. Chesne v. Elevated Tank Applicators, Inc., 04-46 (La.App. 3 Cir. 5/12/04), 874 So.2d 333, writ denied, 04-1439 (La.9/24/04), 882 So.2d 1141.

All personnel responsible for recording and investigating a workplace accident denied, or could not remember, that Ms. Quinn ever reported an accident to them. While Ms. Quinn alleges that there is a working scheme at Vidalia Apparel to deny a workplace injury whenever possible, there is no evidence in the record supporting this allegation. Ms. Quinn’s attorney argued that there other employees to back up this allegation, but no testimony or evidence was offered in support.

We find the WCJ did not err in failing to find that Vidalia Apparel violated La.R.S. 23:1208 as there was not sufficient evidence or testimony to support a violation.

ATTORNEY FEES

Ms. Quinn was awarded $10,000.00 for the work performed by her counsel at the trial level. In her answer, Ms. Quinn asks that the attorney fees be modified to a reasonable award based on time and efforts at trial. She also asks for an additional award of attorney fees for work performed in handling this appeal.

There are several factors to be considered when determining the amount of attorney fees to be awarded in a workers’ compensation case which include “the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the claimant, and the amount of time the attorney devoted to the case.” Langley v. Petro Star Corp. of La., 01-198, p. 11 (La.6/29/01), 792 So.2d 721, 727 (citing McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694).

Counsel for Ms. Quinn submitted detailed time records to the court which indicated that he had ninety-seven hours of work in this case. Considering the above factors, we find that the attorney fee award of $10,000.00 is not so abusively low as to be manifestly erroneous.

We further find that an award of $3,500.00 is appropriate for the work done on this appeal.

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is amended to provide that Ms. Quinn is not entitled to workers’ compensation benefits during the following periods when she worked: February 1, 2006 to February 11, 2006; February 19, 2006 to April 1, 2006; April 9, 2006; and April 16, 2006 to April 23, 2006. The judgment is further amended to provide that Ms. Quinn’s proper compensation rate should be $385.37 per week. We also grant an additional $3,500.00 in attorney fees for work provided for this appeal. Costs of this appeal are assessed to Vidalia Apparel.

AFFIRMED AS AMENDED.


text:
    Jason LESTAGE v. NABORS DRILLING COMPANY.
    No. WCA 10-728.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      George Arthur Flournoy, Flournoy, Doggett (APLC), Alexandria, LA, for Plaintiff Appellant, Jason Lestage.
    Kevin Andrew Marks, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendani/Appellee, Nabors Drilling Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

| Mason Lestage appeals a judgment of the workers’ compensation judge below dismissing his claim against Nabors Drilling Company. For the following reasons, we affirm the decision of the workers’ compensation judge.

Mr. Lestage was working on a Nabors rig in West Helena, Arkansas when he alleges drill pipe elevators pinned his knee against a chain guard. Mr. Lestage claims that when he tried to push the elevators off his knee, he injured his back. After filing a disputed claim for benefits and a trial on the matter, the workers’ compensation judge ruled that Mr. Lestage did not meet his burden of proving an accident. Notably, the workers’ compensation judge found Mr. Lestage’s testimony to be “too inconsistent to be believed.” From that decision, Mr. Lestage appeals.

Mr. Lestage asserts four assignments of error on appeal. He claims that the workers’ compensation judge erred in not accepting his testimony as valid; in failing to address fraud allegations in its written reasons; in failing to admit untimely produced phone records; and in admitting a letter from one of Nabors’ physicians.

Mr. Lestage first claims that the workers’ compensation judge erred in disregarding his version of the accident due to “prior inconsequential or inaccurate statements about the incident,” thereby violating “jurisprudential precepts applicable in unwitnessed accidental injury cases.” In discussing an employee’s burden in establishing a work-related accident, this court discussed the applicable law as follows:

A worker bringing a compensation action against her employer bears the burden of proving, as a threshold requirement, that she suffered “personal injury by accident arising out of and in the course of employment.” La.R.S. 23:1031; Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). The word “accident” as used in La.R.S. 23:1031 is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is 12more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1). Jurisprudence has held that an accident may include a routine movement or task that the employee regularly performs, provided that the claimant is able to identify, with some particularity, the time, place, and manner in which the accidental injury objectively manifested itself. McCall v. Wal-Mart Stores, Inc., 02-1343 (La.App. 3 Cir. 3/5/03), 846 So.2d 832, writs denied, 03-1329, 03-1343 (La.9/19/03), 853 So.2d 639, 641.
The plaintiff bears the burden of establishing that a work-related accident occurred by a preponderance of the evidence. Bruno, 593 So.2d 357. This burden of proof is applicable even when the worker is the sole witness of the accident. Id.
A worker’s testimony alone may be sufficient to discharge her burden of establishing a work-related accident provided that no evidence discredits or casts serious doubt upon her version of the incident and the worker’s testimony is corroborated by the circumstances following the alleged incident, including medical evidence or the testimony of coworkers, friends, or the worker’s spouse. Id.
The trial court’s determinations as to whether a plaintiff in a workers’ compensation case is credible and whether she has discharged her burden of proof are factual determinations that should not be disturbed upon appellate review unless clearly wrong or manifestly erroneous. Id.
This court has noted, in the context of a workers’ compensation suit, the well-accepted principle that credibility calls are the function of the trial court. McCall, 846 So.2d 832.

Dantley v. Lake Charles Mem’l Hosp., 07-1227, pp. 2-3 (La.App. 3 Cir. 3/5/08), 978 So.2d 1117, 1119-20.

Mr. Lestage’s version of the accident varied several times. He has claimed that he was pinned for a few seconds or as long as three minutes. He said in his recorded statement to Nabors’ claims adjuster that he felt burning in one leg from hip to toe. He later claimed that he immediately went numb bilaterally from the waist down for up to fifteen minutes, yet he continued to work without stopping. Moreover, Mr. Lestage then denied any radiation of his back pain at his initial hospital visit and his chief complaint was pain and bruising on his tailbone. X-rays and an MRI performed on him after the alleged accident showed no signs of | ^abnormality.

Moreover, the inconsistencies in Mr. Lestage’s statements are not the only or most damning evidence against his claim. The record contains the statements of three men who worked on the relatively small rig floor with Mr. Lestage: James Baines Jose Martinez, and Carl Santana. Mr. Santana in particular stated that he worked “shoulder to shoulder” with Mr. Lestage. All denied that he ever injured himself. Mr. Lestage continued to work after the alleged accident. He then worked two additional twelve-hour shifts on the two days following the incident, including lifting and moving one hundred pound sacks of gel for up to six hours by his own admission, without trouble, according to Mr. Santana. Martin Crawford, Mr. Lestage’s supervisor on the rig, testified that it was Nabors policy to report injuries immediately and that Mr. Lestage never reported being injured to him. He also testified that it would not have been possible for the elevator to pin Mr. Lestage against the chain guard, and that in the unlikely event it did happen, he would have seen it from his position on the floor.

Nabors also introduced a video depicting the drilling floor showing that the elevators, due to their suspended nature, swung back and forth in a pendulum-like manner, making Mr. Lestage’s claim of being pinned for seconds unlikely and his claim that he was pinned for three minutes all but impossible. Finally, Nabors introduced a surveillance video of Mr. Lestage effortlessly working on a car and at his current job as a trucker. He performed a range of activities from climbing a ladder and undoing a tarp while nonchalantly talking on a cell phone to unhooking his trailer, bending, stooping, kneeling, walking, and carrying his child on his hip. At no point did he show any signs of discomfort or anguish, in spite of his testimony at trial |,,that bending and squatting caused pain.

The workers’ compensation judge clearly found Mr. Lestage to be incredible as a witness, noting that his claims were “too inconsistent to be believed.” When factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’ testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The determinations by the workers’ compensation judge as to whether the claimant’s testimony is credible and whether the claimant has discharged his burden of proof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992). Based on the record before us, there is clearly a reasonable factual basis for the workers’ compensation judge’s decision. We can find no error in the workers’ compensation judge’s credibility determination as to Mr. Les-tage, or in its finding that he failed to carry his burden of proving he sustained a workplace injury.

Mr. Lestage next claims the workers’ compensation judge erred in failing to address his allegations of fraud in his written reasons. “[I]t is well settled that a trial court’s judgment and reasons for judgment are two separate and distinct legal documents, and appeals are taken from the judgment, not the written reasons for judgment.” McCalmont v. Jefferson Parish Sheriff’s Office, 99-940, p. 6 (La.App. 5 Cir. 1/12/00), 748 So.2d 1286, 1290, unit denied, 00-679 (La.4/20/00), 760 So.2d 1160, (citations omitted). See also La.Code Civ.P. art. 1918. “[Wjritten reasons are not binding or appealable; only the judgment itself has judicial effect and is subject to appeal.” Guidry v. Gulf Coast Coil Tubing, 09-621, p. 13 (La.App. 3 Cir. 12/9/09), 24 So.3d 1019, 1027. This assignment requires no action by this court.

IrJFinally, Mr. Lestage asserts two assignments of error dealing with the admission of evidence. Because the assignments are so similar, we shall address them together in the interest of judicial economy.

Mr. Lestage claims that the workers’ compensation judge erred in refusing to admit phone records that had not been timely produced, and in admitting a letter from Dr. Michael Duval indicating his belief Mr. Lestage was malingering. “The decision to admit evidence into the record rests within the sound discretion of the workers’ compensation judge and will not be reversed in the absence of manifest error.” Jones v. Trendsetter Prod. Co., Inc., 97-299, p. 11 (La.App. 3 Cir. 2/25/98), 707 So.2d 1341, 1346, writ denied, 98-793 (La.5/15/98), 719 So.2d 463. Louisiana Revised Statutes 23:1317(A) provides, in part:

The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself.

After reviewing the record as a whole, we can not find that the workers’ compensation judge abused his vast discretion in disallowing the phone records which Mr. Lestage admits were not submitted in a timely fashion. Furthermore, considering the relaxed standard for the admissibility of evidence in workers’ compensation matters, we can find no error in the workers’ compensation judge’s admission of the letter from Dr. Duval. These assignments of error are without merit.

For the above reasons, the decision of the workers’ compensation judge is affirmed. Costs of this appeal are assessed against Mr. Lestage.

AFFIRMED.

      . Mr. Baines’ name was spelled both "Banes” and "Baines” in the record.


text:
    Andrew COX v. EXTREME REAL ESTATE, INC.
    No. CA 10-756.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.
    Thomas Overton Wells, Alexandria, LA, for Defendant/Appellant, Extreme Real Estate, Inc.
    Koby D. Boyett, Alexandria, LA, for Plaintiff/Appellee, Andrew Cox.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

| TExtreme Real Estate, Inc. appeals a summary judgment in favor of Andrew Cox. The summary judgment ordered Extreme to return a $2,000.00 deposit to Mr. Cox which he had deposited for the purchase of two residences.

FACTS

On April 14, 2008, Mr. Cox entered into two separate contracts with Extreme for the purchase of two residences in Alexandria. A deposit of $1,000.00 was made on each contract by Mr. Cox. On August 25, 2008, Mr. Cox’s attorney wrote a letter to Jeff Melder, owner and president of Extreme, requesting a return of the deposits because the requisite financing for the proposed purchase was not obtained.

Mr. Cox filed a petition for the return of the deposits on September 29, 2008. On June 15, 2009, Mr. Cox filed a motion for summary judgment. A hearing on the motion for summary judgment was held on July 24, 2009. At that time, Extreme had offered no evidence in opposition to the motion for summary judgment. The trial court gave Extreme three days to file any evidence in opposition to the motion for summary judgment and also gave Mr. Cox time to file any response to any evidence offered by Extreme. The case was taken under advisement.

The trial court issued written reasons for judgment on September 14, 2009. Finding that the language concerning financing was ambiguous and had to be interpreted against Extreme as the drafter of the contracts, the trial court ruled that Extreme must return the $2,000.00 in deposits to Mr. Cox. Judgment was signed on September 22, 2009.

The judgment also ordered Extreme to pay an additional $2,000.00 in damages to Mr. Cox for its failure to perform under the contracts. However, pursuant to a motion for new trial filed by Extreme, the trial court modified the award to eliminate 12the $2,000.00 in damages awarded. Extreme appeals the judgment arguing that it should not have been ordered to return the deposits. It asks us to the reverse the judgment of the trial court and remand for a full trial.

SUMMARY JUDGMENT

Appellate courts review motions for summary judgment de novo to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Id. The mover bears the initial burden of proof to show that no genuine issue of material fact exists. La.Code. Civ.P. art. 966(C)(2).

“Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 09-1633, pp. 9-10 (La.4/23/10), 35 So.3d 1053, 1059 (citing Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606).

In support of his motion for summary judgment, Mr. Cox submitted both “CONTRACTS TO SELL REAL ESTATE”. The contracts are form contracts with blanks to fill in the necessary information. Each contract provides that the purchase price is $64,000.00. Each contract also provided that the original deposit was to be $2,500.00, but this number was marked through, and $1,000.00 was inserted. This correction was initialed by both parties. Section one of the contracts is also marked through and initialed. Section one provided for the terms of the buyer’s financing. Section two on the first contract provides: “The buyer will have 30 days to find | ^financing. If buyer cannot find financing, seller will seek financing for 30 days. If buyer or seller cannot find financing, then deposit of $2,500.00 will be refunded to buyer”. The second contract has the same language, but the blank for the number of days is left blank. Both contracts provided that the offer expired on June 14, 2008, at five p.m.

Mr. Cox additionally submitted his own personal affidavit, his wife’s affidavit, and the affidavit of Donnie Hayes, a loan officer at Evangeline Bank & Trust Company. Mr. Hayes stated that he was the loan officer who personally handled Mr. Cox’s loan application for the two residential properties. Mr. Cox submitted the loan application on May 22, 2008, seeking financing for the entire purchase price of both properties. Mr. Hayes determined that the purchase price of each property was $64,000.00 based on the contracts between Mr. Cox and Extreme. As a requirement of the loan process, an appraisal of the properties was conducted. The resulting appraisal evidenced a current fair market value of $123,000.00 for both properties collectively. For this particular loan application, Evangeline Bank would loan only seventy-five percent of the appraised value, or $92,250.00. Mr. Cox was notified that only partial financing was available for the purchase of the two residences.

Mr. Cox attested that he was unable to obtain financing for the purchase price of the two residential properties and that Extreme failed to provide alternative financing. His wife’s affidavit confirmed Mr. Cox was unable to obtain financing or that Extreme offered alternative financing.

Extreme argues that Mr. Cox’s affidavit should not have been considered because it contained hearsay, assumptions, and statements of intent. We find that Mr. Cox’s affidavit was proper pursuant to La.Code Civ.P. art. 967 since it was based on his personal knowledge.

pExtreme further argues that there is a question of material fact regarding the term “find financing”. It claims that Mr. Cox did obtain financing from Evangeline Bank, just not 100 percent financing.

In Louisiana Real Estate Commission v. Butler, 04-1514 (La.App. 8 Cir. 4/6/05), 899 So.2d 151, the purchasers of a home submitted a purchase agreement to the sellers. The sale was contingent on the purchasers obtaining financing for the home, the amount of which was “to be determined,” at an eight and one-half percent interest rate. The purchasers applied for a loan which was denied. This court found that nowhere in the purchase agreement was there listed any specific monetary amount the purchasers must have obtained loan approval for. The only condition was the interest rate. We found that the purchasers failed to meet the obligations set forth for them in the contract.

However, we also recognized that, pursuant to La.Civ.Code art. 2056, the provision “to be determined” had to be interpreted against the purchasers as the supplier of the contract. In the present case, Extreme provided the contract.

There is no indication in the contracts as to an amount of financing that would be required to complete the sale. In fact, the parties specifically marked out and initialed section one where Mr. Cox could have indicated that he receive approval for financing for at least a certain amount. That section provided: “This offer is subject to Buyer’s obtaining a real estate mortgage for no less than $_ Payable over _ years with interest not to exceed_% at customer terms with a firm commitment thereto _days from date hereof.” There is also no indication in the contract as to what happens if the property does not appraise for the purchase price. Furthermore, nowhere in the affidavits is there any indication that Mr. Cox informed Extreme about his financing situation, giving Extreme a | ¡¡chance to obtain financing pursuant to the terms of the contract. The affidavits do indicate that Mr. Cox was able to secure financing for seventy-five percent of the appraised value.

We find that there are genuine issues of material fact. The trial court erred in granting summary judgment. For the foregoing reasons, we reverse the judgment of the trial court and remand for further proceedings. Costs of this appeal are assessed to Andrew Cox.

REVERSED AND REMANDED.


author: PETERS, J.

text:
    The LEMOINE COMPANY, L.L.C. v. LAFAYETTE AIRPORT COMMISSION.
    No. 10-0833.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Murphy J. Foster, III, Yvonne R. Olinde, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Plaintiff/Appellant, The Lemoine Company, L.L.C.
    Rickey W. Miniex, Clyde R. Simien, Todd M. Swartzendruber, Erica R. Mayon, Simien & Miniex, APLC, Lafayette, LA, for Defendant/Appellee, Lafayette Airport Commission.
    H. Bruce Shreves, Denise C. Puente, Simon, Peragine, Smith & Redfearn, L.L.P., New Orleans, LA, for Interve-nor/Appellee, The Harper Company of Ohio.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.

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

   PETERS, J.

| jThis litigation involves a dispute over the award of a contract for a public works project at the Lafayette, Louisiana airport. The plaintiff, The Lemoine Company, L.L.C. (Lemoine), brought suit against the Lafayette Airport Commission (Airport Commission) seeking to have the bid of The Harper Company of Ohio (Harper) rejected and seeking to be awarded the contract as the next lowest bidder. Lem-oine now appeals the trial court’s judgment dismissing all of its requests for relief. For the following reasons, we affirm the trial court’s judgment in all respects.

PROCEDURAL HISTORY OF THE LITIGATION

In late 2009, the Airport Commission sought bids for a public works project designed to upgrade its cargo apron and connector taxiways at the Lafayette Regional Airport. When the bids were opened on December 23, 2009, Harper’s $7,890,511.03 bid was the lowest of the seven bids submitted and was followed closely by Lemoine’s $7,960,946.54 bid.

On January 6, 2010, Lemoine submitted a formal bid protest to the Airport Commission, asserting that Harper’s bid should be rejected and its bid should be accepted. Specifically, Lemoine asserted that Harper’s failure to satisfactorily complete and sign the required bid form rendered its bid unacceptable. The- next day, January 7, 2009, the Airport Commission rejected Lemoine’s protest.

Lemoine responded to this rejection on January 15, 2010, by filing suit against the Airport Commission. In its suit, Lemoine sought a preliminary and permanent injunction prohibiting the Airport Commission from awarding the contract to Harper, an order of mandamus compelling the Airport Commission to award the contract to its company, and a declaratory judgment to the effect that any contract entered into between Harper and the Airport Commission was null and void. Alternatively, LLemoine sought a monetary damage award. On January 26, 2010, Harper intervened in the lawsuit, asserting that its bid complied with the public bid law.

The trial court entertained and rejected Lemoine’s request for a preliminary injunction at a hearing held on January 29, 2010. Thereafter, the parties stipulated that all of Lemoine’s claims would be considered on the merits by the submission of the pleadings and evidence presented at the hearing on the preliminary injunction. Based on this stipulation, the trial court executed a judgment on April 14, 2010, dismissing all of Lemoine’s claims for relief.

In its appeal to this court, Lemoine asserts three assignments of error:

1) The District Court erred in failing to conclude that the bid submitted by Harper should have been disqualified as non-responsive and non-conforming for its failure to fill in all of the blanks on the bid form as required in the bidding documents.
2) The District Court erred in failing to conclude that the bid submitted by Harper should have been disqualified as non-responsive and non-conforming because the signature on the bid did not conform with the records of the Secretary of State, nor was any evidence of agency, corporate, or partnership authority attached to the submission of the bid.
3) The District Court erred in failing to determine the validity of the bid by examining only the bid, and instead referring to evidence beyond the bid documents submitted.

OPINION

This litigation is governed by Louisiana’s Public Bid Law, La.R.S. 38:2212, et seq., a law which “was enacted in the interest of the taxpaying citizens and has for | aits purpose their protection against contracts of public officials entered into because of favoritism and involving exorbitant and extortionate prices.” Haughton Elevator Div. v. State Div. of Admin., 367 So.2d 1161, 1164 (La.1979). In enacting the public bid law, the legislature has specifically prescribed the conditions under which the state will permit public work to be done on its behalf or on behalf of its political subdivisions. Hamp’s Constr., L.L.C. v. The City of New Orleans, 05-489 (La.2/22/06), 924 So.2d 104; Broadmoor, L.L.C. v. Ernest N. Mortal New Orleans Exhibition Hall Auth., 04-211 (La.3/18/04), 867 So.2d 651. In the words of our supreme court, it is “a prohibitory law founded on public policy.” Broadmoor, L.L.C., 867 So.2d at 656.

Given the nature of the legislative mandate, a political entity such as the Airport Commission has no authority to take any action that is inconsistent with the public bid law. Broadmoor, L.L.C., 867 So.2d 651. Specifically, the public entity may not waive any requirements of the public bid law, any requirements stated in the advertisement for bid, nor any requirements stated on the bid form. La.R.S. 38:2212 A(l)(b); Hamp’s Constr., L.L.C., 924 So.2d 104.

As a further effort to specify the prescribed conditions relating to the letting of public works projects, a Louisiana Uniform Public Work Bid Form was developed by the Louisiana Division of Administration pursuant to the mandate of La.R.S. 38:2212, which provides that the form so developed

shall require only the information necessary to determine the lowest bidder and the following sections and information-. Bid Security or Bid Bond, Acknowledgment of Addenda, Base Bid, Alternates, Bid Total, Signature of Bidder, Name, Title and Address of Bidder, name of Firm or Joint Venture, Corporate Resolution and Louisiana Contractors License Number, and on public works projects where unit prices are utilized, a section on the bid form where the unit price utilized in the bid shall be set forth.

|4La.R.S. 38:2212(A)(l)(b)(ii)(aa) (emphasis added).

Any other documentation of information not required to be included on the public bid form itself “shall be furnished by all bidders at a later date and time, in accordance with the Bidding Documents.” La. R.S. 38:2212(A)(l)(b)(ii)(bb).

The content, or lack of content, of Harper’s submitted bid form is the basis of all three of Lemoine’s assignments of error.

Assignment of Error Number One

In its instructions to the bidders, the Airport Commission stated in Section 2 that “[a]ll blank spaces in the proposal form shall be properly filled in.” Additionally, in Section 3, as amended by the Airport Commission, the following language appears:

The Bidder is required to fill in all blank spaces and to furnish all information required by the Louisiana Uniform Public Work Bid Form with Bid Bond. Only the Louisiana Uniform Public Work Bid Form with Bid Bond is required at the time of bid submission. Any other information or certifications required by the contract documents can be submitted following conditional notice of award.

The section of the public bid form at issue in this assignment of error reads as follows:

ALTERNATES: For any and all work required by the Bidding Documents for Alternates including any and all unit prices designated as alternates in the unit price description.
Alternate No. 1 (Owner to provide description of alternate and state whether add or deduct) for the lump sum of: _ Dollars($_)
Alternate No. 1 (Owner to provide description of alternate and state whether add or deduct) for the lump sum of: _ Dollars($_)
Alternate No. 1 (Owner to provide description of alternate and state whether add or deduct) for the lump sum of: _ Dollars($_)

Despite the inclusion of this language in the bid form furnished to Harper, the bidding | F,documents provided by the Airport Commission contained no provision for alternates applicable to the proposed project. That being the case, rather than placing a “not applicable” or similar notation in this section, Harper left this section completely blank. Lemoine asserts in this assignment of error that Harper’s failure to fill in the blank spaces of this section is fatal to the sufficiency of its bid and that its bid should be rejected.

In considering Lemoine’s argument, we first note that the supreme court in Hamp’s Construction, L.L.C., 924 So.2d at 110, addressed this form completion issue in general:

According to the basic rules of statutory construction, when the written law is clear and unambiguous, and its application leads to no absurd consequences, the law shall be applied as "written. Rosenbush Claims Service, Inc. v. City of New Orleans, 94-2223 (La.4/10/95), 653 So.2d 538, 544. Further, the legislature is presumed to have enacted a statute in light of the preceding statutes involving the same subject matter and court decisions construing those statutes, and where the new statute is worded differently from the preceding statute, the legislature is presumed to have intended to change the law. Id. There is nothing ambiguous about La. R.S. 38:2212 A(l)(b); the requirements of the Public Bid Law, the advertisement for bids and the bid form shall not be waived by any public entity. The legislature changed the wording of this statute several times in an attempt to change the law, and to make clear that the requirements of the advertisement for bids and the bid form, as well as the Public Bid Law, shall not be waived. The most recent amendment to the statute serves to emphasize that these requirements cannot be waived under any circumstances, regardless of whether they could be considered as informalities. Accordingly, the public entity should not include any requirements in its advertisement for bids or bid form that it considers insignificant or waivable, because once included, these requirements are non-waivable as a matter of law.

In that decision, the supreme court concluded that the public entity did not have the authority to waive the bidder’s failure to attach a copy of its invitation to bid to its public bid form, a requirement of the public entity’s bid form. See also Roof Tech., Inc. v. State, Div. of Admin., Office of Facility Planning and Control, 09-925 (La.App. 1 Cir. 10/28/09), 29 So.3d 621 (where the court held that when the instructions to bidders required that “[a]ny interlineations, alteration or erasure must be initialed by the Signer of the bid or his authorized representative,” the public entity was required to reject a bid on a public works project where the bidder failed to initial typing errors that were corrected using the typewriter’s “word-out” function); Beverly Constr. Co., L.L.C. v. Parish of Jefferson, 07-847, p. 3 (La.App. 5 Cir. 2/6/08), 979 So.2d 551, 552, (where the bidder submitted its own corporate resolution form and did not complete and return the blank corporate resolution form that was in the bid package, the public entity properly rejected the bid because the advertisements for bids stated that “this bid package must be returned in its entirety” and “bid package, including instructions and specifications, must be returned in its entirety for bid to be valid.” (capitalization in original removed)). Both of these appellate court decisions relied on the supreme court decision in Hamp’s Construction, L.L.C., 924 So.2d 104.

In this appeal, Harper and the Airport Commission argue that the Airport Commission’s acceptance of Harper’s bid was not a waiver of any requirement under the bid documents. Instead, they argue that because there were no alternate proposals to respond to, Harper was not required to complete this section of the public bid form. We agree.

As previously stated, the public bid law was enacted to protect Louisiana taxpayers from public contracts “entered into because of favoritism and involving exorbitant and extortionate prices.” Haughton Elevator Div., 367 So.2d at 1164. Also, as previously stated, we apply the law as written when it is “clear and unambiguous, and its application leads to no absurd consequences.” Hamp's Constr., L.L.C., 924 So.2d at 110 (emphasis added). Requiring a bidder to fill in blanks 17having no bearing on its bid simply for the sake of making a notation on the document would lead to an absurd consequence in that it would require a bidder to perform a vain and useless act. As pointed out by Harper and the Airport Commission in argument, there was no information available for Harper to “properly” fill in the blanks. In fact, the language immediately following the title in the “ALTERNATES” section provides that the section is “[f]or any and all work required by the Bidding Documents for Alternates including any and all unit prices designated as alternates in the unit price description.” Thus, absent “work required by the Bidding Documents for Alternates,” nothing was required of the prospective bidder, and, unlike the situation in Hamp’s Constr., L.L.C., 924 So.2d 104, the Airport Commission did not “waive” any requirement imposed by the Louisiana Public Bid Law, the advertisement for bids, or the bid form package.

We find no merit in Lemoine’s first assignment of error.

Assignment of Error Number Two

This assignment of error relates to the manner in which Harper’s corporate officer executed its bid form. The Airport Commission’s written instructions to potential bidders provided that relative to corporations, the bid form “shall be signed by the name of the corporation, followed by the signature of the officer authorized to sign, and the printed designation of the office he holds in the corporation.” Additionally, the bid form itself contains a footnote that reads as follows:

If someone other than a corporate officer signs for the Bidder/Contractor, a copy of a corporate resolution or other signature authorization shall be required for submission of bid. Failure to include |8a copy of the appropriate signature authorization, if required, may result in the rejection of the bid unless bidder has complied with La.R.S. 38:2212(A)(l)(c) orRS [sic] 38:2212(0).

Harper’s bid form contains the signature of Jim Thomas, whom the bid form identifies as Harper’s vice president. Attached to the bid form is a notarized affidavit signed by Jim Thomas wherein he asserts, among other things, that he is the vice president of the Harper corporation.

In arguing that the signature on Harper’s bid form is not sufficient, Lemoine points to the facts that Mr. Thomas’ affidavit is not in the form of a corporate resolution and that the current annual report on file with the Louisiana Secretary of State identifies “James R. Thomas,” not “Jim Thomas,” as a vice president of the corporation. While not seriously disputing that “Jim Thomas” and “James R. Thomas” are the same person, Lemoine asserts that because Mr. Thomas signed the bid form as “Jim Thomas” and not as “James R. Thomas,” the bid should have been rejected as not conforming with the bid requirements.

We find no merit in this argument. Nothing in the Airport Commission’s instructions to bidders requires proof of corporate authority. These instructions merely require that the corporate office of the individual signing the bid form be identified. The footnote on the bid form requires proof of corporate authority only when the individual signing on behalf of the corporation is not a corporate officer. Nothing in the instructions requires that the corporate officer’s name and signature be exactly the same as the name which appears on the secretary of state’s records. |9Thus, the question is not whether “Jim Thomas” is listed with the secretary of state as one of Harper’s corporate officers, but rather whether the signature of “Jim Thomas” on the bid form is that of one of Harper’s corporate officers. Lemoine bears the burden of proof by a preponderance of the evidence to establish that the Airport Commission violated the public bid law in accepting Harper’s bid. Broadmoor, L.L.C., 867 So.2d 651. Lemoine offered no evidence to establish that Jim Thomas was not a officer in the Harper corporation. We, therefore, hold the trial court did not err in finding that Harper’s bid was properly signed by a corporate officer.

Assignment of Error Number Three

In this final assignment of error, Lem-oine argues that the trial court erred in considering a January 23, 2010 affidavit executed by Mr. Thomas wherein he again asserted that his nickname is “Jim,” that he is the same “Jim Thomas” who signed the bid, and that he is also the same person listed as “James R. Thomas” in the records of the secretary of state. Specifically, Lemoine argues that it was improper for the trial court to look beyond the “four corners” of the bid document, to “parole evidence,” to confirm the validity of Harper’s bid. Because of our disposition of the second assignment of error, we need not consider this assignment.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s judgment dismissing all of the claims of The Lemoine Company, L.L.C., against the Lafayette Airport Commission. We assess all costs of this appeal to The Lemoine Company, L.L.C.

AFFIRMED.

      . The evidence included a copy of the bids submitted by Lemoine and Harper; the records of the Louisiana Secretary of State concerning the status of Harper's organization in Louisiana; the Airport Authority’s instructions to bidders and amendments thereto; Lemoine’s January 6, 2010 protest letter; an affidavit by Paul Segura, Jr., the Airport Authority chairperson; and an affidavit by Harper's vice-president, James R. Thomas. Lem-oine timely objected to the introduction of Mr. Thomas’ affidavit.

      . Even before the judgment was signed, on March 22, 2010, the Airport Commission had awarded the contract to Harper.

      . Harper also asserts that Lemoine's interpretation of the bid instructions is inconsistent given the fact that Lemoine failed to complete all the blank spaces on its own bid. However, the question of whether Lemoine’s bid meets the requirements of the public bid law is not before us, and we will not consider this argument.

      4. Louisiana Revised Statutes 38:2212(A)(l)(c)(i) relates to bids submitted to the division of administration while La.R.S. 38:2212(0) relates to bids submitted to a public entity. Both provide conditions that, if met, would establish the authority of the individual signing the bid submission. However, neither are applicable to the matter before us because Jim Thomas signed as a corporate officer of Harper.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Henry D. GILMORE.
    No. 10-709.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      James E. Beal, Louisiana Appellate Project, Jonesboro, Louisiana, for Defendant/Appellant, Henry D. Gilmore.
    Asa A. Skinner, District Attorney— Thirtieth Judicial District, Terry W. Lam-bright — Assistant District Attorney, Lees-ville, Louisiana, for Appellee, State of Louisiana.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.

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

   GENOVESE, Judge.

_|jln this criminal case, Defendant, Henry D. Gilmore, appeals his sentence on his felony conviction for possession of cocaine and also his sentence on his misdemeanor conviction for possession of marijuana, alleging excessive sentence and failure of the trial court to implement La.Code Crim.P. art. 894.1 in fashioning its sentence. For the following reasons, we affirm Defendant’s sentence on his felony conviction for possession of cocaine, and we sever Defendant’s appeal as it relates to his misdemeanor conviction and sentence for possession of marijuana.

FACTS AND PROCEDURAL HISTORY

On August 5, 2009, Defendant was charged under trial court docket number 77011 with one count of possession of cocaine, a violation of La.R.S. 40:967, and under trial court docket number 77012 with one count of possession of marijuana, a violation of La.R.S. 40:966. He was also charged with aggravated battery and disturbing the peace under trial court docket number 76325.

On December 2, 2009, Defendant pled guilty to possession of cocaine, possession of marijuana, and disturbing the peace. Pursuant to Defendant’s plea agreement, the aggravated battery charge was dismissed, and the State agreed not to file an habitual offender bill against Defendant in exchange for his guilty pleas. The facts, as stated at the guilty plea, are that “on or about March the 30th, 2009[,] persons of the Narcotics Task Force obtained a warrant to search a residence of Mr. Gilmore. As a result of that[,] it was discovered that there were Marijuana and Cocaine in that residence in his possession.” Subsequent to Defendant’s guilty plea, the trial court ordered a presentence investigation report.

On February 23, 2010, Defendant was sentenced to five years at hard labor on his conviction for possession of cocaine, six months in the parish jail on his 12conviction for possession of marijuana, and thirty days in the parish jail on his conviction for disturbing the peace. All of the sentences were ordered to be served concurrently. However, as noted below, Defendant’s conviction for disturbing the peace was severed from this appeal because it was a misdemeanor, and it was subsequently dismissed. See State v. Gilmore, an unpublished opinion bearing docket number 10-708, 2010 WL 3154563 (La.App. 3 Cir. 8/11/10). Defendant filed a Motion to Reconsider Sentence, which was denied without written reasons on March 15, 2010. Defendant has timely filed an appeal.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

PROCEDURAL ISSUE

As noted above, Defendant pled guilty to three separate charges on the same day. These charges were filed in separate charging instruments with separate docket numbers: possession of cocaine (a felony), trial court docket number 77011; possession of marijuana (a misdemeanor), trial court docket number 77012; and, disturbing the peace (a misdemeanor), trial court docket number 76325. The Motion for Appeal and Designation of Record included all three trial court docket numbers. The trial court granted Defendant’s appeal on all three docket numbers. The Vernon Parish Clerk of Court’s office submitted two records to this court: one containing trial court docket number 76325, assigned appellate court docket number 10-708; the other containing trial court docket numbers 77011-12, assigned appellate court docket number 10-709. The proper appellate review for a misdemeanor conviction is | ..¡generally by writ of review and not by appeal. See La.Code Crim.P. art. 912.1.(C) Therefore, a procedural issue arises from the inclusion of the misdemeanors with the felony in Defendant’s motion for appeal.

Defendant’s appeal of the misdemeanor conviction for disturbing the peace was dismissed by this court. Gilmore, 10-708, 2010 WL 3154563. However, his misdemeanor conviction for possession of marijuana is still part of the current appeal.

In State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La.12/12/05), 917 So.2d 1084, defendant sought appellate review of his two felony convictions and his one misdemean- or conviction. This court noted that although defendant contested his misdemeanor conviction, he did not specifically make any argument with regard to that conviction. This court severed the misdemeanor conviction from the appeal and ordered defendant to file a writ of review regarding the misdemeanor conviction in compliance with the Uniform Rules of Court. This court considered the notice of appeal as a notice to file a writ of review within thirty days of its opinion if defendant desired to seek review of the misdemeanor conviction.

As in Turner, Defendant has not raised any assignment of error regarding his misdemeanor conviction for possession of marijuana. In his brief to this court, defense counsel acknowledges that the proper mode for review of Defendant’s misdemeanor conviction is by writ of review. Defense counsel requests that this court give Defendant the opportunity to file a writ application regarding his misdemeanor charge. Therefore, we shall follow our holding in Turner and sever Defendant’s misdemeanor conviction and sentence for possession of marijuana from the appeal, and we order Defendant to file a writ of review of his misdemeanor |4conviction and/or sentence in compliance with the Uniform Rules of Court should he so desire.

ASSIGNMENTS OF ERROR

Defendant raises two assignments of error. First, he alleges that his sentence of five years at hard labor is constitutionally excessive under the circumstances of the case. Secondly, he alleges that the trial court failed to particularize his sentence as required by La.Code Crim.P. art. 894.1.

Defendant asserts that his maximum sentence of five years is constitutionally excessive in that maximum sentences are reserved for the most egregious and blameworthy of offenders, and he is not the worst of offenders. Furthermore, he alleges that the offense is not the most serious of violations. Finally, he argues that the trial court failed to adequately comply with La.Code Crim.P. art. 894.1 in particularizing the sentence to the offender.

In State v. Williams, 07-490, p. 3 (La.App. 3 Cir. 10/31/07), 969 So.2d 744, 746-47, while discussing the standard to be used in reviewing excessive sentence claims, this court quoted State v. Barling, 00-1241, 01-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, unit denied, 01-838 (La.2/1/02), 808 So.2d 331, as follows:

La. Const, art. 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. State v. Campbell, 404 So.2d 1205 (La.1981). 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. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether |sthe trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. 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).

Moreover, in State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citing State v. Smith, 99-606, 99-2015, 99-2019, 99-2094 (La.7/6/00), 766 So.2d 501), this court provided a list of factors that may be considered when determining whether a sentence was excessive: “the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment!,] and a comparison of the sentences imposed for similar crimes.”

Defendant pled guilty to possession of cocaine. The range of punishment provided by statute for this offense is not more than five years, with or without hard labor; additionally, he “may be sentenced to pay a fine of not more than five thousand dollars.” La.R.S. 40:967(0(2).

At the sentencing hearing, the trial court noted for the record:

Okay, the Court considers the sentencing guidelines under Article 894.1, the pre-sentence report and its contents, the fact that this is this defendant’s at least fourth or fifth felony offense. It’s hard to tell from his record, it’s so horrible. The Court finds that during — that there may be an undue risk that during a period of probation this defendant may commit another crime. A lesser sentence would deprecate the seriousness of defendant’s crime.

Defense counsel argues that Defendant was a twenty-four-year-old, fourth felony offender. (Contrary to this assertion, the presentence investigation report indicates Defendant is twenty-eight years of age.) Defense counsel also argues that “[a]ge was not mentioned by the Court in the sentencing of this defendant, nor were family ties, marital status, health, employment history, nor any other factor except his prior criminal history.” We note that the presentence investigation report contained | (¡none of the above information, and Defendant does not supply the information in his brief.

While admittedly the trial court’s articulation of its reasons behind the imposition of Defendant’s sentence was brief, “[i]f there is an adequate factual basis for the sentence contained in the record, the trial court’s failure to articulate every circumstance listed in [La.Code Crim.P. art.] 894.1 will not necessitate a remand for resentencing.” State v. Bey, 03-277, p. 6 (La.App. 3 Cir. 10/15/03), 857 So.2d 1268, 1273 (quoting State v. Iron, 00-1238, p. 10 (La.App. 3 Cir. 2/14/01), 780 So.2d 1123, 1128-29, writ denied, 01-1232 (La.3/15/02), 811 So.2d 898). We find that there was an adequate factual basis for Defendant’s sentence contained in the record and that the trial court adequately complied with La. Code Crim.P. art. 894.1 in particularizing the sentence to the offender.

Furthermore, a five-year sentence under circumstances similar to the present case is not uncommon in Louisiana. In Williams, 969 So.2d 744, defendant received the maximum sentence of five years at hard labor and a fifteen hundred dollar fine for a conviction for possession of cocaine. This court found no abuse of discretion on the part of the trial court. The defendant was a three-time felony offender who benefitted significantly from his plea agreement, and the State agreed to not prosecute him as an habitual offender.

The defendant in State v. Fairley, 02-168 (La.App. 5 Cir. 6/26/02), 822 So.2d 812, received five years at hard labor on a conviction for possession of cocaine. He alleged that the trial court abused its discretion in sentencing him to a maximum sentence. However, the fifth circuit held that defendant did not receive the maximum sentence, since he did not receive a fine as allowed by statute. The fifth circuit stated:

|7The sentence is in line with similarly situated defendants. In State v. Hill, 33-322 (La.App. 2 Cir. 4/5/00), 756 So.2d 1254, 1255, the court held that the maximum term of five years at hard labor was not excessive for a 31-year-old defendant with two prior drug convictions. In State v. McCorkle, 708 So.2d at 1219, this Court held that the defendant’s sentence of five years at hard labor for possession of cocaine was not constitutionally excessive. The McCorkle court pointed out that the defendant had not received the maximum sentence that could have been imposed, since the trial judge could have ordered the defendant to pay a fíne as well. This Court also observed that the defendant had a criminal history, which was indicated by the arrest report and probable cause affidavit containing the phrase, “Career criminal, Intercept Unit, Code-6.” Id.

Id. at 815.

In State v. Allen, 09-1281 (La.App. 3 Cir. 5/5/10), 36 So.3d 1091, a case factually similar to the instant case, this court did not find that defendant’s sentence shocked its sense of justice. Allen received a prison term of five years and a fine of two thousand dollars on a conviction for possession of cocaine. This court noted:

Possession of cocaine is punishable by imprisonment, with or without hard labor, for not more than five years, or a fine of not more than $5,000.00, or both. La.R.S. 40:967(C). Thus, Allen’s five-year sentence was the maximum possible, but his $2,000.00 fine was less than one-half of the maximum possible. Allen received a significant benefit from his plea agreement. In addition to the reduction of two charges, two charges were dismissed, significantly diminishing his sentencing exposure.
Finally, Allen maintains that he is not the worst type of offender and the offense was not the most serious of offenses. He asserts that no one was injured in the crime and that the effect on society, in general, should not be a factor in justifying a maximum sentence. Allen does not refer to any jurisprudence upon which he relies in making this argument.
The record reflects that the trial court considered Allen’s Presentence Investigation Report which contained a plethora of information, including his personal, employment, social, and criminal history. The trial court then referred to several of the facts contained in the report at sentencing. Most notable is that Allen is a fourth felony offender.
|sThis court affirmed a $1,500.00 fine and the maximum five-year sentence for possession of cocaine in a case in which the defendant had two previous drug convictions, was originally charged with possession of cocaine with intent to distribute, and in which the State refrained from billing the defendant as a habitual offender. State v. Williams, 07-490 (La.App. 3 Cir. 10/31/07), 969 So.2d 744.
A five-year sentence for possession of cocaine was also affirmed in a case in which the trial court imposed no fine on a defendant who had a criminal history indicating that he was a career criminal with no prior convictions. State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212.
Finally, this court affirmed a sentence of five years at hard labor in a case in which the twenty-six-year-old defendant, originally charged with possession with intent to distribute cocaine, was a third-time felony drug offender with a history of probation and parole revocations. State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127.

Id. at 1094-95.

In the instant case, Defendant was twenty-eight years of age at the time of sentencing and had already had four felony convictions. Defendant’s presentence investigation report revealed that he had an extensive arrest record, starting in 1998, which included arrests for drug offenses, theft, violent crimes against persons, and attempted sex crimes. He received a significant benefit from his plea agreement in that a serious offense, aggravated battery, was dismissed, and the State agreed not to file an habitual offender bill against him. Considering the record before this court, we do not find that the trial court abused its vast discretion when it sentenced Defendant to five years imprisonment. Accordingly, we find no merit in either of Defendant’s assignments of error.

DISPOSITION

We affirm Defendant’s sentence on his felony conviction for possession of cocaine. Due to the procedural error discussed above, we sever Defendant’s appeal as it relates to his misdemeanor conviction and sentence for possession of marijuana. 19Should Defendant choose to seek review of his misdemeanor conviction and/or sentence, he shall file an application seeking supervisory review with this court within thirty days of the date of this opinion.

AFFIRMED IN PART AND SEVERED IN PART WITH INSTRUCTIONS.