author: PETTIGREW, J.

text:
    Joan M. RICHARDSON v. NORTH OAKS HOSPITAL and HSLI. Joan M. Richardson v. North Oaks Health System Foundation.
    Nos. 2011 CA 1258, 2011 CA 1259.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2012.

      Joan M. Richardson, New Orleans, LA, In Proper Person Plaintiff-Appellant.
    C. deShea Richardson, Mandeville, LA, for Defendants-Appellees North Oaks Health System and HSLI.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   PETTIGREW, J.

|2In this workers’ compensation dispute, the claimant, Joan M. Richardson, alleged that she was involved in an on-the-job accident while employed by North Oaks Hospital (“North Oaks”). After a one-day trial, the Office of Workers’ Compensation (“OWC”) judge rendered judgment in favor of North Oaks, finding that although Ms. Richardson was involved in a work-related injury, she failed to carry her burden of proof that the accident had a causal relation to the alleged residual injury claims for any parts of her body after the first two days post-accident. The OWC judge also found that Ms. Richardson violated La. R.S. 23:1208 and 23:1208.1 and “made knowingly false statements and representations for the purpose of obtaining workers’ compensation benefits.” The OWC judge assessed a civil penalty of $2,000.00 against Ms. Richardson Rand ordered her to pay restitution to North Oaks in the amount of $8,000.00 for attorney fees plus the costs of litigation. A judgment in accordance with the OWC judge’s findings was signed on April 8, 2011. This appeal by Ms. Richardson followed.

According to the record, Ms. Richardson filed a motion for appeal in proper person on May 23, 2011, and was granted pauper status. The appeal was returnable to this court on July 7, 2011, and Ms. Richardson was given until August 7, 2011, to file her appeal brief. On August 15, 2011, a Notice of Abandonment of Appeal pursuant to Uniform Rules — Courts of Appeal, Rule 2-8.6 was sent to Ms. Richardson notifying her that no appeal brief had been received and that her appeal would be dismissed if a brief on her behalf was not filed on or before September 14, 2011. On September 13, 2011, Ms. Richardson filed a letter addressed to Christine L. Crow, Clerk of Court, with this court. Attached to the letter was a copy of the Notice of Signing of Final Judgment and Written Reasons, a copy of the Final Judgment, a copy of the Written Reasons for Final Judgment, and copies of various documents and medical records introduced by both parties as exhibits at trial. As Ms. Richardson presumably filed this letter in response to the Notice of Abandonment regarding the brief that was due, we will consider same as her appellate brief.

In response to Ms. Richardson’s brief, North Oaks points out that Ms. Richardson failed to include any issues for review and/or assignments of error. At first glance, it would seem as though an argument could be made for dismissal of Ms. Richardson’s |4appeal for failure to comply with Uniform Rules — Courts of Appeal, Rule 2-12.4. While Rule 2-12.4 sets forth a penalty of contempt, it does not provide for the dismissal of the appeal as a penalty for violating the rule. Likewise, Uniform Rules-Courts of Appeal, Rule 2-12.13, which addresses non-compliant briefs, does not set forth the dismissal of the appeal as a penalty; instead it provides that “[bjriefs not in compliance with these Rules may be stricken in whole or in part by the court, and the delinquent party ... may be ordered to file a new or amended brief.” Thus, the sanction to be imposed for a non-conforming brief is left to the discretion of the court. See Williams v. Fischer, 439 So.2d 1111, 1112 (La.App. 1 Cir.1983).

An appeal is not to be dismissed for a mere technicality. See La.Code Civ. P. art. 2161; Williams, 439 So.2d at 1112. Moreover, appeals are favored in the law and should be maintained unless a legal ground for dismissal is clearly shown. U.S. Fire 5Ins. Co. v. Swann, 424 So.2d 240, 244 (La.1982). In her September 13, 2011 brief to this court, Ms. Richardson does set forth the basic premise of her case. She also argues that she is entitled to workers’ compensation benefits and medical mileage reimbursement and disputes the OWC judge’s finding that she violated La. R.S. 23:1208 and 1208.1. Thus, although not a typical appellate brief, which conforms to Rule 2-12.4 with statements of the jurisdiction of the court, a concise statement of the case, the trial court’s ruling, specification of errors, issues for review, argument confined to the cases’ issues with accurate record citations and authorities, and a short conclusion stating the relief sought; under the circumstances of this case, we feel that striking the brief and/or dismissal of the appeal would be an unreasonably harsh remedy to impose on Ms. Richardson and in deprivation of her right to appeal. Accordingly, we maintain Ms. Richardson’s appeal.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. In applying this standard of review, the appellate court must determine whether the fact finder’s conclusions are reasonable, not whether the trier of fact was right or wrong. Id. Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Even where the appellate court is convinced it would have weighed the evidence differently if it had been sitting as trier of fact, the court of appeal may not reverse if the fact finder’s findings are reasonable in light of the record reviewed in its entirety. Id. (quoting Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990)).

After a thorough review of the record and exhibits in this matter, we conclude that the OWC judge’s factual findings are reasonable and not manifestly erroneous. Furthermore, we find no error in the OWC judge’s ruling that Ms. Richardson violated La. R.S. 23:1208 and 1208.1 with the willful intent to defraud for the purpose of obtaining workers’ compensation benefits. Thus, for the above and foregoing reasons, we affirm the judgment of the OWC judge and issue this memorandum opinion in | ^accordance with Uniform Rules-Courts of Appeal, Rule 2-16.1 B. All costs associated with this appeal are assessed against appellant, Joan M. Richardson.

AFFIRMED.

      . Louisiana Revised Statutes 23:1208 provides, in pertinent part, as follows:
      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.

        D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars payable to the Kids Chance Scholarship Fund, Louisiana Bar Foundation, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.
      E. Any employee violating this Section shall, upon determination by workers' compensation judge, forfeit any right to compensation benefits under this Chapter.
      The only requirements for forfeiture of benefits under La. R.S. 23:1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Const. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12.

      . The clear terms and purposes of La. R.S. 23:1208.1 require that employers notify their employees, in advance, of the consequence of their failure to be candid about prior injuries as follows:
      Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee's forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker’s compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.
      In this case, the OWC judge ruled that North Oak’s questions did in fact contain the required notice of possible forfeiture of benefits pursuant to La. R.S. 23:1208.1 for failure to answer truthfully.

      . Uniform Rules-Courts of Appeal, Rule 2-8.6 states:
      For civil appeals, if an appellant does not file a brief within the time prescribed by Rule 2-12.7 or any extension thereof granted by the court as provided by Rule 2-12.8, a notice shall be mailed by the clerk to counsel for the appellant, or to the appellant if not represented, that the appeal shall be dismissed 30 days thereafter unless a brief is filed in the meantime. If an appellant does not file a brief within 30 days after such notice is mailed, the appeal shall be dismissed as abandoned. Provided, however, that irrespective of the time limit provided in Rule 2-12.7 for the appellee to file a brief, the appellee's brief shall be filed within 20 days from the due date shown on the notice of abandonment.

      . Uniform Rules-Courts of Appeal, Rule 2-12.4 states:
      The brief of the appellant or relator shall set forth the jurisdiction of the court, a concise statement of the case, the ruling or action of the trial court thereon, a specification or assignment of alleged errors relied upon, the issues presented for review, an argument confined strictly to the issues of the case, free from unnecessary repetition, giving accurate citations of the pages of the record and the authorities cited, and a short conclusion stating the precise relief sought.
      A copy of the judgment, order, or ruling complained of, and a copy of either the trial court’s written reasons for judgment, transcribed oral reasons for judgment, or minute entry of the reasons, if given, shall be appended to the brief of the complaining litigant on appeal. If reasons for judgment were not given, the brief shall so declare.
      Citation of Louisiana cases shall be in conformity with Section VIII of the Louisiana Supreme Court General Administrative Rules. Citations of other cases shall be to volume and page of the official reports (and when possible to the unofficial reports). It is recommended that where United States Supreme Court cases are cited, all three reports be cited, e.g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When a decision from another state is cited, a copy thereof should be attached to the brief.
      The argument on a specification or assignment of error in a brief shall include a suitable reference by volume and page to the place in the record which contains the basis for the alleged error. The court may disregard the argument on that error in the event suitable reference to the record is not made.
      All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.
      The language used in the brief shall be courteous, free from vile, obscene, obnoxious, or offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class of persons or association of persons, or any court, or judge or other officer thereof, or of any institution. Any violation of this Rule shall subject the author, or authors, of the brief to punishment for contempt of court, and to having such brief returned.

      . Although Ms. Richardson filed this appeal in fomia pauperis, since we find no merit in her appeal, appeal costs may be assessed against her. See Johnson v. State Dept. of Social Services, 05-1597, p. 11 n. 10 (La.App. 1 Cir. 6/9/06), 943 So.2d 374, 381 n. 10, writ denied, 06-2866 (La.2/2/07), 948 So.2d 1085.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Rajel JOHNSON.
    No. 11-KA-336.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Jerome G. Smith, III, Jarred Brandon Kinnett, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendani/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

|20n February 28, 2008, defendant Rajel Johnson was indicted with second degree murder, in violation of LSA-R.S. 14:30.1, and armed robbery, in violation of LSA-R.S. 14:64. Defendant was subsequently arraigned and pled not guilty.

Defendant filed a “Motion for Hearing to Determine the Admissibility of Detective Jason Barrette’s Arrest at the Trial.” The State then filed a “Motion in Limine in Support of Limiting the Details Underlying the Arrest of Jason Barrette,” which was granted by the trial court.

After a two-day trial commencing on October 27, 2010, a twelve-person jury found defendant guilty of the responsive verdict of manslaughter. Thereafter, defendant filed a Motion for Post-Verdict Judgment of Acquittal and a Motion for New Trial, which the trial court denied on November 3, 2010. On the same day, the trial judge sentenced defendant to 37 years imprisonment at hard labor.

Also, on November 3, 2010, the State filed a multiple offender bill of information against defendant. On January 12, 2011, defendant pled guilty as a | .¡multiple offender, and the trial judge vacated defendant’s original sentence and re-sentenced him to 39 years imprisonment at hard labor. Defendant now appeals based on two assignments of error.

FACTS

Captain Dennis Thorton, Commander of the Homicide Section of the Jefferson Parish Sheriffs Office, investigated a homicide that occurred in the 300 block of Federal Drive in Avondale on October 28, 2007. When he arrived at the scene, he observed the deceased male, Charles Russell, in the passenger seat of a 2007 Pontiac G6 sedan. He testified that the deceased had been shot in the head. He further stated that the Pontiac G6, with a Georgia license plate, had been struck by gunfire and the rear back glass and the rear driver’s door glass had been “shot out” by projectile fire. He collected evidence, which included twelve .40 caliber shell casings, a spent copper projectile, a pair of sandal slippers, a Bic lighter, a pair of dice, a car key on' a key chain, a cell phone, a cigarette butt from the deceased’s mouth and a cigarette pack. He also photographed several different impressions of tire marks and shoe prints. Captain Thorton stated that it appeared that Charles Russell died in the front seat of the vehicle with the projectile striking the rear of his head.

Dr. Karen Ross, a forensic pathologist with the Jefferson Parish Coroner’s Office, performed the autopsy on the body of Charles Russell. She testified that he had a gunshot wound on the back of his head, which caused his death. She stated that the entrance was on the back of the head and the bullet was recovered from the right side of his tongue. She testified that the wound was consistent with a bullet that had travelled through an - interposed target, which could have been windshield glass. She stated that the manner of death was homicide.

|4Louise Walzer, a former senior firearms examiner at the Jefferson Parish Sheriffs Office Crime Laboratory, testified that all the fired cartridge cases possessed characteristics consistent with a Glock weapon. However, her analysis of the fired cartridge casings revealed that two different Glock weapons were involved in the case. She also examined two .40 caliber class projectiles, but she could not conclude they came from the same weapon. At a later date, she received a .40 caliber semi-automatic Glock for examination. After testing, she determined that this particular gun was used to fire four of the fired cartridge casings and was one of the two weapons involved in the shooting. However, with regard to the projectiles, she was unable to identify those bullets as being fired from a particular weapon. The State offered the .40 caliber semiautomatic Glock into evidence.

The State then called Adam Burke. He testified that the semiautomatic Glock was his handgun, which he had purchased in 2005. He stated that the gun was stolen from his car in October 2007.

Joseph Tate testified that he currently resides in Hancock State Prison, in Starter, Georgia, and is serving two years imprisonment for aggravated assault on a police officer, possession of crack cocaine and possession of marijuana. Mr. Tate stated that in October 2007, he drove from Georgia to New Orleans, in his Pontiac rental car, to see a friend. When he arrived in New Orleans, he wanted to purchase some marijuana. He stopped at a couple of gas stations and asked people “that looked like they had a street element to them” where he could buy some marijuana. He met the decedent, Charles Russell, who went by the name “Pookey of the neighborhood,” near a Travel Lodge off of the Manhattan exit. Russell got |smto the front passenger seat of Tate’s vehicle, began making some phone calls and eventually contacted defendant, also referred to as “Robo.”

Tate followed defendant’s directions to a subdivision on Federal Drive. When Tate and Russell arrived, defendant informed Tate that he could obtain the marijuana and to “hang around for a little while.” After they were there for almost two hours, Tate began to grow impatient and Tate and Russell decided to leave and look elsewhere for the marijuana. A little later, Tate received a phone call from defendant, informing him that he had acquired the marijuana.

Tate returned to the house where he had originally been, saw defendant in the street, and defendant signaled for him to drive a little farther down the street to a darker area. Defendant then approached the vehicle and told Tate to give him the cash, and he would get the marijuana. Tate stated that he felt uncomfortable with that plan, and he wanted to see what he was going to purchase in a little more light. Tate exited the vehicle, and he and defendant began walking towards a house. Tate testified that they walked together to the driveway. Defendant then “fell back a few feet, pulled out a weapon” and told him to lie down on the grass. Tate tried to get around a vehicle parked in the driveway, but two other men approached him, both with weapons drawn. At that point, Tate got down on the grass. The three men demanded Tate give them the cash from his pocket, and he complied. Defendant then instructed the two men to see if there was anything else in Tate’s pocket. Tate testified that after they took everything from his pockets, they debated whether or not to shoot him, and then they took off running. When he looked up, he saw defendant and the two other men running in the direction of his vehicle. He testified that they were “shooting up the car while they were running.” Tate then got up and ran to his vehicle. When he saw that Russell had been shot in Rthe back of the head, he ran in the opposite direction to a truck stop, about two miles away, and called the police.

At the police station, Tate gave a statement and signed a Rights of Arrestee form. He testified that that he did not initially tell the police about his attempt to purchase marijuana because he did not want to get into trouble. However, he eventually told them everything. Tate testified that he informed the police about defendant, and he gave the police his cell phone with the contact number. The police showed Tate a photographic line-up. Tate testified that he immediately recognized number two as defendant. He stated he was one hundred percent certain that number two, defendant, was the same individual that he had seen earlier that evening.

Tate testified that he was armed that day for protection with a 9 mm Hi-Point, which he legally owned. He testified that he did not fire a gun that evening, and he denied shooting Charles Russell. At trial, he identified defendant as the individual he knew as “Robo”.

The State then called former detective Jason Barrette. In October 2007, Barrette was employed as a detective with the homicide division of the Jefferson Parish Sheriffs Office. Barrette testified that on the evening of October 27, 2007, he was notified of a homicide in the three hundred block of Federal Drive, and was assigned as lead detective. When he arrived on the scene, he saw a vehicle with numerous bullet holes with a deceased individual inside. He also saw Tate in the back of another detective’s car. He remained on the scene for over an hour and then relocated to the Detective’s Bureau to interview Tate.

17At the Detective’s Bureau, he advised Tate of his Miranda rights, and Tate willingly signed the Waiver of Rights form. Tate informed Barrette about defendant. Thereafter, Barrette compiled a six-picture photographic line-up, which included defendant and five other black males with similar characteristics, and Tate identified number two as defendant. Barrette then obtained an arrest warrant for defendant and a search warrant for defendant’s residence, located at 337 Dome Street.

On October 28, 2007, Barrette conducted a search of defendant’s residence, and defendant subsequently turned himself over to the police. Upon arrival at the Detective’s Bureau, defendant was placed in an interview room and advised of his rights. He signed a Rights of Arrestee form, waived his rights and gave two taped statements. Barrette testified that he did not threaten, coerce or promise defendant anything in exchange for his statement. The State played both of defendant’s taped statements for the jury.

In defendant’s first statement, he recalled shooting dice on the three hundred block of Federal Drive on October 27, 2007. Thereafter, the driver of a silver vehicle asked defendant where he could buy two pounds of marijuana, and indicated that he was willing to pay $100. When Detective Barrette asked defendant who was in the vehicle, he stated, “[the driver], the victim and ... somebody else in the back seat.” Defendant stated that the victim was sitting in the front passenger’s side seat. Later that day, defendant informed an individual named Ernest Pierce of the driver’s interest in purchasing some marijuana. Defendant stated that Pierce indicated that he wanted to rob the driver.

|RLater that evening, defendant was with Pierce and two other individuals, Rashad and Ross, when the driver of the silver vehicle arrived and exited the vehicle. He stated that Pierce had a .40 caliber Glock, and Ross and Rashad also both had guns. Defendant stated that Pierce pulled out his gun and the driver attempted to run, but he fell down. Defendant then ran over and grabbed the money. Defendant stated that Pierce “started shooting,” and they all “started running.”

In his second statement, defendant admitted to firing a gun at the vehicle. He stated that he picked up the money, began running, and when he was about 50 feet away from the car, he started shooting back at the vehicle with a .40 caliber Hi-Point. He stated he also saw Pierce shooting at the vehicle.

At trial, former Detective Barrette testified that he arrested Ernest Pierce, Ross Kelly and Rashad Robinson in connection with the case. He also stated that a DNA test was performed on slippers found at the scene that were a match for Ernest Pierce.

Detective Jeffrey Rodriguez testified that in October 2007, he worked for the Homicide Section of the Jefferson Parish Sheriffs Office. On the evening of October 27, 2007, he was called to the three hundred block of Federal Drive in Avon-dale with former Detective Barrette to investigate a homicide. Detective Rodriguez further stated that he participated in the interview and subsequent taped statements of defendant on October 30, 2007. He testified that he did not threaten or promise defendant anything in exchange for his statement.

LAW AND DISCUSSION

|aBy his second assignment of error, defendant argues that the evidence was insufficient to support the charge of second degree murder or the responsive verdict of manslaughter. Defendant contends that negligent homicide was the most appropriate verdict.

The State counters that it proved beyond a reasonable doubt that defendant was guilty of second degree murder. The State further contends that defendant is not entitled to relief since: (1) he did not object to the responsive verdict of manslaughter, and (2) the State met its burden with regard to the charged offense.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Lawson, 08-123, p. 7 (La.App. 5 Cir. 11/12/08), 1 So.3d 516, 522.

In cases involving circumstantial evidence, the trial court must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could | innot have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135, p. 4 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

In the present case, defendant was charged with second degree murder but was convicted of the responsive verdict of manslaughter. When a defendant does not object to a legislatively responsive verdict, the defendant’s conviction will not be reversed, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged. State ex rel. Elaire v. Blackburn, 424 So.2d 246, 252 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983); State v. Austin, 04-993, p. 13 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, 878, writ denied, 05-0830 (La.11/28/05), 916 So.2d 143. The Blackburn court explained:

It would be unfair to permit the defendant to have the advantage of the possibility that a lesser “compromise” verdict will be returned (as opposed to being convicted of the offense charged) and then to raise the complaint for the first time on appeal, that the evidence did not support the responsive verdict to which he failed to object.

Blackburn, 424 So.2d at 251-52.

In the present case, defendant did not object to the responsive verdict of manslaughter prior to the jury rendering its verdict. Therefore, we find that it is only necessary to consider if the evidence was sufficient to support the offense of second degree murder.

Second degree murder is defined as the killing of a human being when the offender: (1) has specific intent to kill or to inflict great bodily harm; or (2) is engaged in the perpetration or attempted perpetration of one of several enumerated | ¶ í felonies, including armed robbery, even though he has no intent to kill or to inflict great bodily harm. LSA-R.S. 14:30.1(A). See also State v. Kirkland, 01-425, p. 6 (La.App. 5 Cir. 9/25/01), 798 So.2d 263, 268, writ denied, 01-2967 (La.10/14/02), 827 So.2d 415. One need not possess specific intent to kill or inflict great bodily harm to be a principal to a second degree felony murder. See State v. Hill, 98-1087, p. 9 (La.App. 5 Cir. 8/31/99), 742 So.2d 690, 696, writ denied, 99-2848 (La.3/24/00), 758 So.2d 147.

In the present case, the State presented evidence that decedent, Charles Russell, was killed while defendant was engaged in the perpetration of an armed robbery. At trial, Dr. Karen Ross, a forensic pathologist with the Jefferson Parish Coroner’s Office, testified that Charles Russell’s death was caused by a gunshot wound to the back of his head, and that the wound was consistent with a bullet that had trav-elled through an interposed target, such as windshield glass. She further stated that the manner of death was homicide.

Joseph Tate testified that defendant pulled out a weapon and told him to lie down on the grass. He stated that defendant and two other men demanded that he give them his money. Tate testified that after they robbed him, he looked up and saw them running and firing their weapons at his vehicle. When he saw that decedent had been shot in the head, he ran in the opposite direction and called the police. At the police station, he identified defendant in a photographic line-up as the same person who had robbed him that evening.

In defendant’s taped statements, he admitted that Tate was robbed at gunpoint and that he grabbed the money. He further stated that Ernest Pierce had a |12.40 caliber Glock, and that Pierce fired his weapon at the vehicle. Additionally, defendant admitted firing his weapon at the vehicle as he was fleeing the scene.

Regardless of whether defendant fired the fatal shots, we find the evidence was sufficient to prove defendant was at least a principal to second degree murder. Under LSA-R.S. 14:24, “[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” Only those persons who “knowingly participate in planning or execution of a crime” are principals to that crime. State v. Pierre, 93-893, p. 4 (La.2/3/94), 631 So.2d 427, 428; State v. King, 06-554, pp. 7-8 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied, 07-371 (La.5/4/07), 956 So.2d 600.

Mere presence at the scene of a crime does not make one a principal to the crime. Id. However, “[i]t is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s intention.” State v. Page, 08-531, p. 10 (La.App. 5 Cir. 11/10/09), 28 So.3d 442, 449, writ denied, 09-2684 (La.6/4/10), 38 So.3d 299 (citing, State v. Anderson, 97-1301, p. 3 (La.2/6/98), 707 So.2d 1223, 1225 (per curiam)).

In the present case, defendant admitted that he was at the murder scene with knowledge that Pierce planned to rob the victim. However, defendant did nothing to prevent the crime. Rather, by his own admission, he grabbed Tate’s money and fled the scene, firing his gun towards the vehicle, where the deceased was a passenger, as he fled. Although it is not clear if defendant fired the fatal shots, we conclude that the State’s evidence showed that defendant was at least a 1^principal to the crime.

Finally, the credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness, and credibility will not be reweighed on appeal. State v. Rowan, 97-21, p. 7 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. After reviewing the record and viewing the evidence in the light most favorable to the prosecution, we find the evidence was sufficient to support defendant’s second degree murder conviction.

By his next assignment, defendant argues that the trial court erred in not allowing defense counsel to question former Detective Barrette regarding his dismissal from the police department and his reputation for truthfulness. The State contends that defendant’s argument has no merit, citing this Court’s decision in State v. Wiley, 10-811 (La.App. 5 Cir. 4/26/11), 68 So.3d 583.

In the present case, defendant filed a “Motion for Hearing to Determine the Admissibility of Detective Jason Barrette’s Arrest at the Trial,” arguing that testimony regarding Barrette’s arrest should be admissible at trial. In his memorandum, defendant stated that the facts surrounding Barrette’s arrest were not in dispute. He stated that Barrette gave a statement concerning allegations that he had engaged in “doctor shopping” in an attempt to obtain CDS prescriptions by fraud and/or deceit, that he admitted to filing two false police reports that his automobile was burglarized, and was offered an opportunity to enroll in a Diversion Program in lieu of being prosecuted. Defendant contended that in the two statements he gave to Barrette after his arrest, “he merely recited information ... that had previously been provided to him by Detective Barrette.” Therefore, defendant argued that Detective Barrette’s credibility was an issue, and the information surrounding his arrest bears on his credibility.

114The State then filed a “Motion in Li-mine in Support of Limiting the Details Underlying the Arrest of Jason Barrette.” The State argued that under LSA-C.E. Art. 609.1, the use of character evidence concerning a witness’ criminal activity and/or alleged criminal activity is narrowly restricted when attacking credibility. And, the admission of criminal activity is limited to convictions, and “neither an arrest nor any additional details of a convicted offense are admissible as a general rule,” citing LSA-C.E. Art. 609.1(B) and (C). The State argued that Barrette was not convicted of an offense, and questions regarding the details of Barrette’s arrest “would result in an inquest of his prescription drug problem rather than a trial based on the evidence presented against defendant.” The State further noted that the Office of the Jefferson Parish District Attorney and the Office of the Louisiana Attorney General had recused themselves from any charges arising from Barrette’s arrest. The trial court granted the State’s Motion in Limine, finding that evidence regarding Detective Barrette’s arrest was precluded.

At trial, defendant re-urged his motion, and the trial court re-affirmed its earlier ruling. The trial court stated that defense counsel was limited to asking Barrette whether he was still employed with the Sheriffs office.

The credibility of a witness may be attacked by any party, including the party calling him. LSA-C.E. art. 607(A). LSA-C.E. art. 609.1(B) provides that “[generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.” Despite the general rule, the possibility that the prosecution may have leverage over a witness due to that witness’s pending criminal charges is recognized as a valid area of cross-examination. State v. Rankin, 465 So.2d 679, 681 (La.1985); State v. Brady, 381 So.2d 819, 822 (La.1980).15 It is well-settled that a witness’s “hope or knowledge that he will receive leniency from the state is highly relevant to establish bias or interest.” State v. Bowie, 2000-3344 (La.4/3/02), 813 So.2d 377, cert. denied, 537 U.S. 951, 123 S.Ct. 416, 154 L.Ed.2d 297 (2002) (quoting State v. Vale, 95-1230, 95-0577 (La.1/26/96), 666 So.2d 1070). Moreover, a “witness’s bias or interest may arise from arrests or pending criminal charges, or the prospect of prosecution, even when he has made no agreements with the state regarding the conduct.” Vale, 95-1230, 95-0577, 666 So.2d at 1071.

The admissibility of evidence under LSA-C.E. art. 607(A) and LSA-C.E. art. 609.1(B) is subject to the balancing standard of LSA-C.E. art. 403, which states that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” A trial judge’s determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Sandoval, 02-230 (La.App. 5 Cir. 2/25/03), 841 So.2d 977, 985, writ denied, 03-853 (La.10/3/03), 855 So.2d 308.

In Wiley, supra, this Court found that the trial court did not abuse its discretion in ruling that no mention of Barrette’s arrests could be presented at trial. Wiley, 10-811 at 16, 68 So.3d at 592. In Wiley, defendant argued that the trial court erred in refusing to allow him to question Barrette about his felony drug arrests and to present evidence that Barrette had filed false police reports. Id., 10-811 at 14, 68 So.3d at 591. This Court stated that, according to the record, Barrette had not been promised anything by the State in return for his testimony. Nor was there any evidence that Barrette acted inappropriately, and his own arrest was remote from the arrest of defendant. Therefore, this Court found that there was 11BIittIe probative evidentiary value to disclosing the nature of Barrette’s arrest. Id., 10-811 at 16, 68 So.3d at 592. Also see State v. Hollins, 97-627, p. 6 (La.App. 5 Cir. 11/25/97), 704 So.2d 307, 309, writ denied, 99-0507 (La.8/25/99), 747 So.2d 50 (finding that evidence of arresting officer’s suspension was inadmissible for impeachment purposes because it did not involve a conviction).

Similar to Wiley, the record in the present case does not indicate that Barrette was promised anything by the State in return for his testimony. Furthermore, no evidence was presented that Barrette acted inappropriately, and his arrest was remote from the arrest of defendant. Therefore, we find that there was little probative evidentiary value to disclosing the nature of Barrette’s arrest, and we find that the trial court did not abuse its discretion. This assignment of error lacks merit.

Defendant also requests an error patent review which this court routinely performs pursuant to LSA-C.Cr.P. art. 920. Upon review, we have discovered no error which requires corrective action. Accordingly, the conviction and sentence of defendant Rajel Johnson are hereby affirmed.

AFFIRMED

      . On October 27, 2010, the State dismissed the armed robbery charge against defendant.

      . The record does not include the transcript of the multiple bill hearing. However, defendant’s multiple offender proceedings are not challenged herein and are therefore not before us in this appeal.

      . The Jefferson Parish Sheriff's Office seized a .40 caliber Glock semi-automatic pistol in an unrelated case.

      . In the transcript, defendant is also sometimes referred to as "Rebo.”

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The record shows that these individuals were later identified as Rashad Robinson and Ross Kelly.

      . The State and defense counsel stipulated that Sara Corgan, an expert in the field of forensic DNA analysis, tested the DNA extracted from the slippers recovered from the. scene against a sample from an individual named Ernest Pierce and concluded that they were a match.

      . Defendant’s assignments of error are addressed out of order so the sufficiency of the evidence is addressed first in accordance with State v. Hearold, 603 So.2d 731, 734 (La.1992). In Hearold, the Louisiana Supreme Court stated that when the issues on appeal relate to both sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence.

      . In his Motion for Post-Judgment Verdict of Acquittal, defense counsel argued that no evidence was presented at trial that "this crime was committed in the heat of passion or as the result of some sort of provocation.” Therefore, he asked the court to render a verdict of not guilty or render the responsive verdict of negligent homicide. The trial court denied the motion.

      . Armed robbery is the "taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” LSA-R.S. 14:64.

      . The record is unclear under which theory of second degree murder the State presented its case. Because the evidence is sufficient to convict defendant at least as a principal to second degree murder while involved in the commission of an armed robbery, we will not address the merits of the specific intent theory.

      . Contrary to defendant’s statement, Tate testified that it was defendant who initially pulled out his weapon and told him to lie down on the grass.


author: McDonald, j. WHIPPLE, J.,

text:
    HARTEC CORPORATION v. GSE ASSOCIATES, INC., XYZ Insurance Company and Consolidated Waterworks District No. 1.
    No. 2010 CA 1332.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 24, 2012.
    Rehearing Denied March 26, 2012.

      Murphy J. Foster, III, John T. Andri-shok, Baton Rouge, LA, for Plaintiff/1 st Appellant Hartec Corporation and West American Insurance Company.
    Charles F. Seemann, Jr., Joseph L. McReynolds, Scott J. Hedlund, New Orleans, LA, for Defendant/2nd Appellant GSE Associates, Inc. and for Defendant/3rd Appellant Continental Casualty Company.
    David J. Norman, III, Houma, LA, for Defendant/Appellee Consolidated Waterworks District # 1.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McDonald, j.

I «.This case involves a dispute between Hartec Corporation (Hartec), Consolidated Waterworks District No. 1 (Waterworks), and GSE Associates, Inc. (GSE) concerning the Terrebonne Parish Schriever Water Plant Expansion project (the project). Waterworks retained the services of GSE to provide professional architectural and engineering services for the project. Waterworks hired Hartec to construct the plant, for the sum of $4,950,000.00, according to the plans and specifications prepared by GSE.

On June 26, 2002, Hartec notified Waterworks by letter that it was terminating the contract, pursuant to section 15.5 of the general conditions of the contract, due to suspension of work in excess of 90 days on two critical areas of the project, namely the filter trough openings and the dismantled piping in the high service pits. On September 6, 2002, Hartec filed suit against Waterworks, GSE, and Continental Casualty Company, GSE’s insurer. Hartec asserted that Waterworks, upon the recommendation of GSE, had refused to pay for completed work in the form of labor and materials placed on the project, and that in addition to the sums due on the contract, Hartec had suffered substantial additional expenses as a result of the acts and omissions of the defendants. The alleged acts and omissions included negligent undertaking of the architectural and engineering services on the project, failure to adequately prepare the plans and specifications, failure to furnish additional instruction and clarifications, failure to timely and fairly process requests for payments, failure to timely and fairly process requests for extensions of time, and failure to timely and properly inspect areas of work.

In particular, Hartec asserted that it was damaged due to the following acts or omissions of defendants: the failure of Waterworks pumps which contributed to flooding of the project; failure to provide owner-furnished items; failure to provide the correct elevations on the raw water suction piping; failure to timely provide | ..¡electrical drawings; engaging in decision making which unjustly enriched Waterworks and GSE; engaging in speculative investigations that delayed, interfered with and finally caused loss of continuity of construction on the project; failure to make timely and reasonable decisions regarding necessary changes, which caused delays in completion of the project; failure to provide the correct elevations and proper drawings to avoid conflict of piping and concrete beams at corridor No. 1; failure to provide the correct elevations and proper drawings to avoid conflict of piping and electrical services and Pipe Pit C; failure to grant extensions of time, which accelerated the cost; failed to adequately provide for construction joints in the clearwell roof; failure to process change orders in a timely manner; failure to provide the correct elevations and proper drawings to avoid conflict of suction piping; and other acts of negligence and unjust enrichment to be shown at trial.

Hartec asserted that GSE breached its duty of care and skill owed to Hartec by failing to adequately prepare plans and specifications on behalf of Waterworks; failing to accept responsibility for design errors; and failing to objectively, timely and fairly make decisions regarding processing change orders, requests for payments and extensions of contract time. Further, Hartec asserted that as a result of GSE’s failure to perform its duties and obligations, Hartec was damaged and suffered costs and expenses to be shown at trial.

Waterworks filed a Third Party Demand against West American Insurance Company, the surety for Hartec, and a Reconven-tional Demand against Hartec and GSE, seeking damages for liquidated damages, excess completion costs, engineering fees and remediation costs.

In accordance with La. R.S. 13:5105, a bifurcated trial was conducted with a jury deciding the issues concerning the nonpublic entities (Hartec’s claims against GSE) and a judge deciding the issues concerning the public entity (Hartec’s |4claims against Waterworks and Waterworks’ claims against Hartec and GSE). The statute prohibits a jury trial in suits against political subdivisions of the state, except where timely demand for a jury trial is made by the state, a state agency, or a plaintiff in a lawsuit against the state or state agency. La. R.S. 13:5105(A).

After a trial on the merits, the jury rendered a verdict in favor of Hartec and against GSE in the amount of $909,222.49, consisting of the unpaid contract balance, additional costs incurred, and delay damages. The jury also found that GSE was solely at fault and attributed no fault to Hartec. Having taken the Waterworks portion of the case under advisement, the trial judge issued a judgment on February 9, 2009, that is inconsistent with the jury verdict. He found in favor of Waterworks and against Hartec in the amount of $1,555,472.69, consisting of excess completion costs and nearly a half million dollars in liquidated damages, and dismissed Waterworks’ claims against GSE. The judgment, dated February 9, 2009, includes both verdicts. GSE filed a motion for new trial and judgment notwithstanding the verdict, which were denied. This situation points out the difficulty that can occur in bifurcated trials with a jury deciding part of the case and a judge deciding the rest. The judicial history of this situation is very well summarized and discussed by Benjamin David Jones in his excellent Loyola Law Review article.

GSE and Continental appealed the portion of the judgment against them, but later requested that the appeal be dismissed because of a settlement with Har-tec. This appeal was dismissed on September 29, 2010. Hartec appealed the judgment against it, citing nine assignments of error:

1. The lower court erred in rejecting Hartec’s claims for the contract balance.
2. The lower court erred in rejecting Hartec’s claims for delay damages caused [5by the negligent action of CWWs engineer, GSE.
3. The lower court erred in assessing liquidated damages against Hartec in the amount of $479,500.00.
4. The lower court erred in rejecting Hartec’s claims for extra compensation.
5. The lower court erred in finding that the costs to complete the Project, $1,492,637.16 were reasonably incurred and supported by the record.
6. The lower court erred in concluding that the plans and specifications prepared by GSE were adequate.
7. The lower court erred in disregarding the factual findings of the jury.
8. The lower court erred in assessing legal interest from the date of judicial demand.
9. The lower court erred in rejecting the surety defenses of waiver and overpayment and holding West American Insurance Company liable for amounts in excess of the unpaid portions of the contract balance.

Before considering the merits of Har-tec’s appeal, it is necessary to determine the standard of review in a bifurcated trial.

BIFURCATION

In assignment number 7, Hartec suggests that the lower court erred in disregarding the factual findings of the jury and questions whether the jury’s decision to hold GSE liable is binding on the judge.

There are two instances in which bifurcated trials generally take place. The first instance is when the parties believe it is more time efficient to conduct separate trials on the issue of liability and/or causation, quantum, or insurance coverage. Cases with large amounts of evidence and many witnesses may be tried more quickly, simply, and efficiently, if the issues of liability, causation, or insurance are separated from the evidence needed to prove damages. There is no | ^potential for conflicted rulings in this type of bifurcated trial. However, the second type can create problems for the courts. This type occurs when a portion of the trial is decided by a jury and the other by the judge, as in the case before us. This commonly occurs when the claims against a private defendant who has requested a jury trial are consolidated for trial with claims against a public entity, for which a jury trial is prohibited. The problem occurs if the jury verdict and the judge’s verdict are inconsistent.

INCONSISTENT VERDICTS

Appellate courts have resolved the issue of conflicting verdicts in various and contrasting ways. Generally, there are two methods of analysis. The method adopted by the majority of the courts is to determine which of the verdicts is the most reasonable and adopt it. If one is clearly wrong, then the other is the most reasonable. If neither verdict is clearly wrong or manifestly erroneous, then the court will adopt the one that is the most reasonable. If both are clearly wrong, then the court must conduct a de novo review, just as it would if there were a single verdict that was clearly wrong. The other method, adopted by the Fourth Circuit Court of Appeal and by at least one panel of the Third Circuit, provides for a de novo review from the outset, with the appellate court substituting its judgment for that of the judge and jury.

METHODS TO RESOLVE CONFLICTING VERDICTS

In his law review article Benjamin David Jones has studied each court of appeal circuit and chronicled the path each circuit has taken to resolve conflicting verdicts.

17First Circuit: The “more reasonable” standard

As Jones noted, in Thornton v. Moran, 348 So.2d 79, 81-82 (La.App. 1 Cir.1977), writs refused, 350 So.2d 897, 898, & writ denied, 350 So.2d 900 (La.1977), “[t]he court then defined a new standard, in which the reviewing court must ‘harmonize’ the judgment by ‘ascertain[ing] which of the triers of fact accorded á more reasonable measurement to the evidence in reaching a decision, and [deciding] which of the said triers of fact gave a more reasonable evaluation and drew a more reasonable inference from the facts.’ The more reasonable standard, therefore, grants a measure of deference to the findings of the judge and jury by forcing the appellate court to choose which of those findings is more reasonable. The court may not look elsewhere for a determination it considers to be the most reasonable. In applying this new standard, the Thornton II court found that the more reasonable finding was the jury’s conclusion that Moran was free from fault.” However, prior to applying the “more reasonable” standard, the court should first make a determination that there is no manifest error in either verdict.

Second Circuit: The “more reasonable” standard

In Eppinette v. City of Monroe, 29,366 (La.App. 2 Cir. 6/20/97), 698 So.2d 658, 665, the Second Circuit applied the Cornish manifest error standard, then the more reasonable standard. The court found that neither allocation of fault was manifestly erroneous, but that the judge’s allocation was more reasonable. As for damages, the court found that the jury’s awards for medical expenses, loss of future earnings, and lost earning capacity were manifestly erroneous; thus, it affirmed the judge’s awards. As for general damages and loss of consortium, the |8court found the judge’s award of general damages was more reasonable, and the jury’s award for loss of consortium was more reasonable.

Third Circuit: The “more reasonable” standard and the de novo review standard

In Deville v. Town of Bunkie, 364 So.2d 1378 (La.App. 3 Cir.1978), writ denied, 366 So.2d 564 (La.1979), the Third Circuit adopted the “more reasonable” standard. This was the rule in the Third Circuit until July 12, 2006, when two panels of that circuit issued conflicting opinions. In McDaniel v. Carencro Lions Club, 2005-1013 (La.App. 3 Cir. 7/12/06), 934 So.2d 945, 959-960, writ denied, 2006-1998 (La.11/3/06), 940 So.2d 671, the court adopted a new approach to the “more reasonable” standard; in Hebert v. Rapides Parish Police Jury, 2005-471 (La.App. 3 Cir. 7/12/06), 934 So.2d 912, 920 reversed on other grounds, 2006-2001 (La.4/11/07), 974 So.2d 635, the court adopted the de novo standard. 56 Loy. L.Rev. 995, 1019.

As Jones explained, in McDaniel, “the [T]hird [C]ircuit attempted to conflate several approaches taken by the different courts into one workable standard. The court first stated its view that the term ‘harmonize’ must ‘require[ ] one judgment assessing fault percentages to all of the defendants that total 100%’. Accordingly, the court laid out its four-part standard, in which the first step is to consider the ‘trial court’s finding of fault as to the public defendant under the manifest error standard.’ If those findings are not manifestly erroneous, then the appellate court should adopt them without considering the jury’s findings. However, if the findings of the trial court are manifestly erroneous, then the appellate court may conduct de novo review. Second, in deciding the findings of fault as to the other defendants, the court should again review both the trial court’s and the jury’s findings under the manifest error standard. If neither is 1 flmanifestly erroneous, then the court should choose the more reasonable finding. Third, if only one of the findings is manifestly erroneous, then the court should adopt the other finding. If the findings do not equal exactly 100%,- then the court must harmonize the verdicts, which could require adjusting the percentages of fault assigned to the private defendants. If both of the verdicts are manifestly erroneous, then the court must conduct a de novo review based on the record. Finally, in reviewing damages, if the court determines that neither finder of fact abused its discretion in awarding general damages and was not manifestly erroneous in awarding special damages, the court may choose the more reasonable award. If one is manifestly erroneous, the court should adopt the other award. If the court finds both fact-finders abused their discretion or were manifestly erroneous, then the court should conduct a de novo review ...”

In Hebert v. Rapides Parish Police Jury, 934 So.2d at 918-920, the court “began by examining the confusion in its fellow circuits and concluded that, other than the fourth circuit, the standards of review used by the remaining circuits were too ‘cumbersome and unwieldy to survive objective application.’ The court, expressing its opinion that the more reasonable standard ignores the role of the fact-finder, found that the de novo standard was ‘the most practical and legally sound procedure susceptible of uniform application.’ ”

Fourth Circuit: The de novo review standard

The “Fourth Circuit Court of Appeal has continuously held that the reviewing court should conduct an independent review of the record when analyzing conflicting results in a bifurcated trial.” 56 Loy. L.Rev. 995, 1022. See Aubert v. Charity Hospital of Louisiana, 363 So.2d 1223 (La.App. 4 Cir.1978). Jones further observed, that the court found “that the traditional function of the | incourt of appeal is to let the factual findings of the judge or jury stand as long as ‘the record contains credible evidence to support such findings.’ However, when the record does not contain such credible evidence, the decision of the trial court is set aside, and the appellate court may conduct an independent review of the record, without consideration of the findings of the original fact-finder. After discussing the peculiar nature of the function of the appellate court in reviewing inconsistent findings of a bifurcated trial, the court concluded that the proper standard is for the appellate court to conduct a de novo review.” Even though categorized as a de novo standard of review, this sounds like an initial review for manifest error, and finding none, a de novo review, rather than a de novo review from the outset. There is no discussion of what the court should do if there is a finding of manifest error in either the jury or judge’s verdict.

Fifth Circuit: The “more reasonable” standard

In American Casualty Co. v. Ill. Central Gulf R.R., 601 So.2d 712, 715 (La.App. 5 Cir.), writ denied, 604 So.2d 1005 (La.1992), the court found “the manifest error standard of review is inapplicable and we adopt as our own the [more reasonable standard]. We will carefully examine the record and decide which decision, the judge’s or the jury’s, is more reasonable.”

In the case before us, Hartec sued Waterworks, GSE, and Continental Casualty Company, GSE’s insurer. Waterworks in turn filed a Reconventional Demand against Hartec and GSE and a Third Party Demand against Hartec’s surety. In each of the cases previously cited and decided by the various appellate courts there is a common thread: the parties are the same and, more importantly, the verdicts are against the same parties. The allocation of fault between the parties by the jury conflicts with the allocation of fault by the judge as to the same | T1 parties. The verdicts are so inconsistent that it is impossible to fashion a single judgment without harmonizing the conflicting verdicts. That is not the situation |12in the matter before us and we believe there is no need to reconcile the verdicts as each can be implemented regardless of the other. Not only can a single judgment be fashioned for each verdict, the court has done so. Even though the parties in the main demand and reconventional demand are the same, the verdicts by each separate trier of fact are not. The jury found in favor of Hartec and against GSE; the judge found in favor of Waterworks and against Hartec. Therefore, we are not called upon to decide which verdict is more reasonable than the other.

The jury verdict form is where much of the confusion in this case has arisen. Even though the jury was only trying Har-tec’s suit against GSE and Waterworks, interrogatories 7-11 pertain to the liability of GSE for elements of damage claimed by Waterworks against Hartec. The jury was asked to determine percentages of fault by GSE “in the event the judge determines that Hartec is liable to the Waterworks District” against Hartec. This was clearly an error since the judge had the responsibility to determine all aspects of liability and damages in the Waterworks reconventional demand against Hartec, GSE, and Hartec’s surety, West American Insurance Company. We also find that the verdict form contained an additional error. In interrogatory # 5 the jury was asked to determine the percentages of fault of only Hartec and GSE. The verdict form states that the total of the assigned percentages of fault should total 100%. The error was limiting the jury’s finding to only Hartec and GSE. The jury should have been able to determine any fault attributable to any additional entities. (We recognize that the only other potential negligent entity would have been Waterworks.)

| iSHowever, having found these errors we note that the jury verdict is not before us on appeal. The appeal by GSE has been dismissed. The only part of the judgment on appeal is the judgment in favor of Waterworks against Hartec. Even if we were to find that the jury verdict was clearly wrong or manifestly erroneous, it is no longer at issue in this appeal. Our inquiry focuses on the judge’s verdict. The judge deliberated for over eight months and gave 22 pages of written reasons for his judgment. In these reasons, he carefully analyzed the various claims, the testimony of the various witnesses including experts and the evidence that was presented. His findings are subject to the “manifest error” or “clearly wrong” standard of review. Under that rule, a court of appeal must not set aside the trial court’s factual findings unless (1) a reasonable factual basis does not exist in the record for the finding and (2) the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State of Louisiana, DOTD, 617 So.2d 880, 882 (La.1993). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. When findings are based on determinations regarding the credibility ofJ_ywitnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Having already addressed assignment of error number 7, we now address the remaining assignments in the order in which they were briefed by the appellant.

Assignments of Error No. 1 and No. 3: The lower court erred in rejecting Har-tee’s claims for the contract balance of $428,386.80 and the lower court erred in assessing liquidated damages against Har-tec in the amount of $479,500.00.

The contract provided for completion in 540 calendar days or until March 17, 2001. The district court found Waterworks was entitled to $479,500.00 in liquidated damages at the rate of $500 per day from March 18, 2001 through November 1, 2003, or 959 days. As the judge noted, “A major point of contention between the parties was GSE’s refusal to grant Hartec extensions of time to complete the project.” Article 12.2 of the contract provided:

12.2 The Contract Time will be extended in an amount equal to time lost due to delays beyond the control of CONTRACTOR if a claim is made therefor as provided in Paragraph 12.1. Such delays shall include, but not be limited to, acts or neglect by OWNER or others performing additional Work as contemplated by Article 7, or to fires, floods, labor disputes, epidemics, abnormal weather conditions, or acts of God.

The court observed that Article 12.1 required Hartec to make a written request for an extension of time no later than 30 days after the occurrence of the event causing the delay. He found that many of the requests were well beyond the time limit. Additionally, the judge found that Hartec was the cause of some of the delays. The contract specifically refers to “abnormal weather conditions” not “adverse weather conditions” as argued by Hartec in its brief. “Abnormal” is not defined, however. Hartec submitted numerous requests for extensions due to rain. The court found the amounts of rain did not amount to an abnormal weather condition. This finding is not clearly wrong or manifestly erroneous.

There were two flood events that occurred, one on November 15, 2000, and one in June, 2001, as a result of Tropical Storm Allison. GSE contends that the |1swater receded quickly and only delayed construction by two days. Hartec also suggests that the actual problem was contamination from asphalt installed by a subcontractor that washed into the pit causing contamination to pipe that Hartec had installed. Hartec points out that the construction was basically being done in a pit or hole. After these rains, the water poured in damaging the valve actuators, electric motors that operate the valves. Over 30 actuators had to be replaced at a cost of over $2,300.00 each. Once the project was completed, these actuators were protected by the concrete walls that were poured. Several suggestions were made as to what Hartec could have done to prevent the damage to the actuators. These included building dikes around the site to prevent water intrusion, pouring the walls first before installing the actuators, and placing the actuators on stands or platforms. The actuators were supplied by the owners. The contract provided that Hartec was responsible for the care and storage and protection of products and equipment to prevent damage. The trial court found, at least after the first flooding, Hartec should have been on notice to do something to protect the site and equipment located there. The court also found that “under the clear terms of the contract and these circumstances, the risk of damage to these owner-supplied items was to be shouldered by Hartec. Further, in either case, no extension of time was due under the contract because the damage caused was not beyond the control of Hartec.” We cannot say that the trial court’s findings are clearly wrong.

Assignment of Error No. 4: The lower court erred in rejecting Hartec’s claim for extra compensation of $90,091.80.

Hartec sought compensation for additional work that was either outside the original contract or was caused by the actions of Waterworks and GSE. This included the following: RCP Elevational Clash — $1,038.40; Raw Water Pipe Rework — $28,126.09; Late Issuance of Electrical Drawings — $32,311.34; Electrical Duct Bank Remediation Work— $11,840.97; and Additional Roadway Repair — |$16,775.00.i(j In its written reasons the court addressed the electrical duct bank remediation and the electrical drawings. The underground duct bank serviced the old plant and was damaged by Hartec in the course of the construction. The judge found that the duct bank was shown on the plans and it was Hartec’s fault that it was damaged. The court also found that the parties knew and anticipated that the electrical drawings would not be provided at the beginning of the project, but would be forthcoming. The court found that “... submission of the wiring diagrams took place in plenty of time to allow Hartec to complete its installation work within the original contract time.” Evidently, the court also rejected the claim that the delay in providing these drawings caused any additional work or cost on Har-tec.

We find it was error for the trial court not to award extra compensation for the RCP elevational clash, the raw water pipe rework, and the additional roadway repair. The evidence indicates that the RCP elevational clash was not readily apparent without an extensive, miniscule examination of the plans. The repairs to the roadway were necessary because it was not constructed as represented. The plans indicated an 8-inch-thick concrete drive that turned out to be only 4 or 6 inches thick in places. The raw water pipe rework required Hartec to obtain a specially fabricated fitting in order to follow the plans. Therefore, the failure to provide this additional compensation to Hartec is reversed, and the $1,038.40, $16,775.00 and $28,126.09 for a total of $45,939.49 are awarded to them. We find no manifest error with the trial court’s failure to award extra compensation for the remaining claims of late issuance of electrical drawings and electrical duct bank remediation work.

Assignment of Error No. 2: The lower court erred in rejecting Hartec’s claims for delay damages caused by the negligent action of CWW’s engineer, GSE.

Hartec claims delays were caused by Waterworks and GSE, and it is due delay damages totaling $443,458.02. Hartec relies on the testimony of its expert, 117Robert Gregory, who was retained to testify specifically on this claim. He found Hartec was entitled to a total of 509 days of time extensions of which 443 days represented delays for which it was entitled to additional compensation. His opinion was based on the two floods and the consequences as a result thereof.

As previously noted, the trial court did not find Hartec was entitled to any additional contract extensions other than those that had already been allowed and rejected Hartec’s claims that resulted in assignments of error numbers 1 and 3. Since we have found no error in the court’s judgment awarding liquidated damages to Waterworks and rejecting Hartec’s claims for the contract balance, we find no error in the court’s rejection of Hartec’s claims for delay damages.

Assignments of Error No. 5 and No. 6: The lower court erred in finding that the costs to complete the Project, $1,492,637.16 were reasonably incurred and supported by the record and the lower court erred in concluding that the plans and specifications prepared by GSE were adequate.

Each side called various experts who had differing opinions, as would be expected. There were two main problems-concrete leaks and the installation of a rigid piping system. Concerning the concrete issues, the court commented:

The court received evidence from experts on both sides of this concrete leakage issue. The court understands that the issue is not about the “cracking” of the concrete, but about leakage of water from those cracks. Concrete structures of the kind at issue in this case will always crack. Design professionals like GSE are expected to draft plans and specifications in accordance with industry standards to minimize and control cracking so that leaks can be avoided. Contractors like Hartec are expected to follow those plans and specifications and complete the job in a workmanlike manner in accordance with construction standards.
Hartec’s expert in this regard, Dr. Raymond Avent, opined that the concrete leaks in this case were attributable solely to GSE’s failure to include contraction or expansion joints in its design. In his opinion, the concrete walls constructed by Hartec constituted monolithic structures of such length that design standards required the inclusion of contraction or expansion joints in the plans. He alleged that GSE’s failure to do so led to the massive cracks that resulted in the leakage about which the Waterworks District complained.
The Waterworks District’s expert Allison Launey, disagreed with Dr. Avent. He explained that the structures in question were not 11smonolithic structures as claimed by Dr. Avent. He explained that there were massive intersecting concrete walls eighteen to twenty inches wide constructed at intervals sufficient to diminish the length of each wall for purposes of determining the need for contraction or' expansion joints. Under applicable standards, contraction or expansion joints were not required. The inclusion of additional steel, or rebar, as called for by GSE’s plans and specifications, was sufficient compliance with industry standards to avoid the kinds of cracks that would have led to the leaks described in this case. Mr. Launey blamed Hartec’s construction methods for the concrete leaks at issue. He asserted that the leaking problems about which the Waterworks District complained and which he personally observed, were most likely caused by a combination of factors, including the folding over of waterstops installed in the concrete walls by Hartec in accordance with GSE’s requirements, voids in the concrete, and the existence of cold joints. According to Mr. Launey, all of these conditions were attributable to poor construction practices by Har-tec.
The folding over described by Mr. Launey occurred as a result of the improper pumping of concrete by Hartec, most likely from dropping concrete from a great distance above the waterstops. The voids in the concrete, called honeycombing, resulted from the failure of Hartec to adequately distribute the concrete throughout the concrete forms and rebar. The cold joints were the result of pouring wet concrete over sections of concrete that had already hardened. According to Mr. Launey, the physical evidence he observed at the construction site was consistent with these substandard construction practices.
Hartec’s project manager Steve Freeman, who was in charge of quality control for Hartec, denied Hartec’s personnel engage in these improper construction practices. However, he did admit that some honeycombing occurred, but that he never saw “any major water leaks.” He also acknowledged that he was not on the job site everyday
The court also received expert testimony from Joseph Wallwork and Frank Newell, both called by GSE. Mr. Wall-work confirmed the existence of cold joints and honeycombing in the concrete structures built by Hartec, and asserted that the leaks described in this case were beyond anything the Waterworks District should have expected. Both he and Mr. Newell found no deficiencies in GSE’s plans and specifications. Mr. Newell concurred with the opinion of Mr. Launey and blamed the concrete leaks on substandard construction practices by Hartec.
The evidence in this case revealed that in 2006, about three and one-half years after Hartec left the Schriever waterplant site, Waterworks District personnel discovered a massive leak in an area known as the south wall. This exterior wall had a brick veneer. After the bricks were removed by the Waterworks District, a great deal of honeycombing was discovered in the wall. As explained by expert testimony, honeycombing exposes rebar, rebar rusts, and this decomposition and expansion of the rebar destroys the integrity of the 119surrounding concrete which can lead to leaks. The rebar at this location showed signs of rust. The inescapable conclusion is that honeycombing in this wall led to the deterioration of the concrete wall structure and the development of a subsequent leak. This event bolsters the evidence described above that improper construction techniques by Hartec led to the leaks in other parts of the water plant discovered in 2002. Although Hartec claims this leak was created by the removal of the brick veneer and mortar by Waterworks District employees during their investigation, this claim overlooks the fact that the leak was discovered before the brick veneer and mortar were removed.
Hartec has asserted that the evidence does not support a finding that it engaged in improper construction techniques because GSE inspectors monitored its concrete installation work and never complained. The court is satisfied that because of the means and methods selected by Hartec to perform the work, it would have been difficult, if not impossible, for GSE inspectors to discover the deficiencies that subsequently became apparent.
Folded waterstops, honeycombing, and cold joints are not design defects; they are evidence of improper and substandard construction techniques that lead to water leaks in concrete containment vessels. These leakage problems experienced at the Schriever waterplant expansion site were not the fault of GSE or the Waterworks District, but were the fault of Hartec.

The plans provided for a rigid piping system. Such a system has a very small tolerance for misalignment as opposed to a flexible system as was in use in the old plant. Keith Shackelford, a civil and mechanical engineer, testified on behalf of Hartec and criticized GSE’s rigid piping plan for its lack of mechanical joints or filler flanges. Ted Hicks, Chris Hicks, and Steve Freeman also testified for Hartec about the difficulty in assembling the piping. They also testified that the piping was installed correctly. In opposition to this testimony was that of Mike LeCompte and John Amedee who testified about pipe misalignment problems. The court found:

The court is satisfied based on the evidence presented that there was no deficiency in the plans and specifications of GSE with regard to the rigid piping system. The Waterworks District experienced a number of problems with the piping system, but those problems were attributable to the fault of Hartec in failing to respect and strictly adhere to the Loplans and specifications furnished to it by GSE. The evidence causes this court to believe that Hartec’s failure to strictly abide by the engineer’s plans and specifications caused unnecessary stress in the piping system. This [led] to the development of, among other things, a leak in the piping system at the old adjacent plant and the fracture of at least one pump. In addition, Hartec’s failure in this regard led to the excessive use of filler flanges, contrary to the owner’s reasonable expectations.

As previously noted where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Rosell, 549 So.2d at 844. The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Lirette v. State Farm Ins. Co., 563 So.2d 850, 858 (La.1990). We cannot say that the trial court’s conclusions are clearly wrong or manifestly erroneous, and we find no manifest error in the finding that GSE’s plans and specifications were adequate.

Hartec also complains that Waterworks failed to prove the amounts needed to finish the project and it was error for the court to award the $1,492,637.16 to Waterworks. The court listened to the testimony of Sonny Launey, Arthur De-Fraites, John Amedee, Stephen Hornsby, Scott Chehardy, and others. The judge also received numerous documents and a stipulation by the parties as to the amounts paid and work performed (these stipulations did not address whether the amounts were due to Hartec’s failure to complete the project, however). We find no manifest error in the court’s findings.

Additionally, in these assignments of error, Hartec argues that any claims against it are barred by La. R.S. 9:2771 providing for contractor immunity. The trial court considered this argument and found:

|aiThe court notes that the statute provides the claimed immunity for destruction, deterioration, or defects in a project only if the contractor constructed “the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault of insufficiency of the plans or specifications.” The statute has no application in this case because the court believes (1) Hartec did not perform its work according to the plans or specifications furnished by GSE, and (2) any destruction, deterioration, or defect in the project was not due to any fault or insufficiency in the plans or specifications furnished to Hartec.

Concluding that the trial court did not commit manifest error in its factual finding that Hartec did not perform its work according to the plans and specifications, we agree that Hartec has no immunity under this statute.

Assignment of Error No. 8: The lower court erred in assessing legal interest from the date of judicial demand.

The judgment orders interest from April 21, 2003, the date of judicial demand. Hartec submits that this is error and interest on any award should not begin until the date the amount owed was incurred and ascertainable. Interest on awards for active breaches of contract begins to run “from the moment” of an active violation of a contract. L & A Contracting Co., Inc. v. Ram Indus. Coatings, Inc., 99-0354, p. 27 (La.App. 1st Cir.6/23/00), 762 So.2d 1223, 1239, writ denied, 00-2232 (La.11/13/00), 775 So.2d 438. Hartec abandoned the job on June 26, 2002. Hartec was placed in default on March 26, 2001, and the contract provided for liquidated damages in such a ease. Interest could be due from the date of default or the date they ceased work. However, Waterworks did not file an answer to the appeal and has made no argument that interest should begin on either date. Under common law, interest is considered punitive in nature. Civil law doctrine, instead, considers damages as reparation due the creditor. The modern concept of interest considers it additional compensation or damages for the |22loss of the use of money. Trans-Global Alloy Ltd. v. First Nat. Bank of Jefferson Parish, 583 So.2d 443 (La.1991). Finding no error in the award of interest from date of judicial demand, April 21, 2003, we affirm that part of the judgment.

Assignment of Error No. 9: The lower court erred in rejecting the surety defenses of waiver and overpayment and holding West American Insurance Company liable for amounts in excess of the unpaid portions of the contract balance.

West American argues that Waterworks’ actions approving of and paying for the work performed by Hartec, as inspected and approved by GSE, has impaired its subrogation rights. It suggests that Waterworks certified the work as being 98.6% complete and made payments for which Waterworks later claimed included defective work. West American suggests that the most it can be liable for is the amount that was -withheld ($416,664.47) and not paid by Waterworks to Hartec. We again note the trial judge’s reasons in regard to this position and find it persuasive. He found:

Hartec’s position is based on the fact that Hartec’s pay applications were approved by GSE and that each application on which GSE signed off declared that the application met the requirements of the contract documents. Each certification stated that the “application” met the requirements of the contract documents, not that the work had been performed in a proper manner or that the final product would be acceptable to the owner. In fact, the contract documents specifically provide that the engineer’s certification for payment is a representation to the owner, not the contractor, that the work is in accordance with the contract documents to the best of the engineer’s knowledge, information, and belief. The contract documents specifically declare that the approval of an application for payment by .the engineer is not a representation that there may be other matters or issues between the parties that might entitle the owner to withhold payment to the contractor.

We conclude the trial court was correct, and for these reasons, we find no error in this finding.

CONCLUSION

For the foregoing reasons, the judgment is reversed for the failure to provide the additional compensation to Hartec Corporation in the amount of | ^$45,939.49, and the judgment is amended to award this amount to it. In all other respects, the judgment in favor of Waterworks is affirmed. Costs are assessed equally between both parties.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

WHIPPLE, J., concurs for reasons assigned.

McCLENDON, J., concurs and assigns reasons.

WHIPPLE, J.,

concurring.

|,I agree with the result reached herein to affirm the trial court’s award to Consolidated Waterworks District No. 1, and I concur with the award of some additional compensation to Hartec, but write separately to further explain why the modifications are warranted on the record. Specifically, with regard to the raw water pipe rework, the plans called for Hartec to make a “tie-in” to existing 30-inch piping in the raw water building. Chris Hicks, one of the owners of Hartec, testified that in order to tie-in to the existing pipe, the plans called for Hartec to rotate a flange fitting 45 degrees, which could not be achieved with a standard drilled 30-inch fitting due to the location of bolt holes. In a September 15, 2000 letter to Hartec, GSE candidly advised that there was “a problem” with the plans in that while the plans called for the 90-degree fitting to be rotated 45 degrees after it penetrated the west wall of the building, a standard 30-inch fitting will not turn to exactly 45 degrees. In the letter, GSE offered solutions to Hartec to address this “problem,” yet the owner thereafter declined to compensate Hartec for the additional materials and labor it utilized in solving the “problem.”

Moreover, with regard to the additional roadway repair, the contract documents called for Hartec to replace or “re-road” a portion of road, consisting of the road area that Consolidated Waterworks allowed Hartec to use to access the property. However, when Hartec was ready to proceed with this part of the | ^contract, Har-tec was informed that it had destroyed other parts of the road and, thus, would be responsible for replacing those areas as well at Hartec’s expense.

When Hartec began removing the existing roadway, it discovered that the roadway when originally constructed had been “underpoured” and, thus, was substandard. In particular, although the contract documents indicated that the existing roadway was 8 inches thick, the existing concrete was only 4 to 6 inches thick in various locations. Additionally, Hartec noted that Consolidated Waterworks had also used the roadway to haul the owner-provided materials. Thus, given the substandard nature of the roadway and the use by Consolidated Waterworks which likely contributed to the deterioration of the road, Hartec established its entitlement to compensation for this item.

For these reasons and considering the record as a whole, I am constrained to concur in the modification of the judgment and the award to Hartec as set forth in the majority opinion.

McCLENDON, J., concurs and assigns reasons.

| ]I concur with the result reached by the majority. Further, given the contract’s failure to define “abnormal weather conditions” and based on the evidence presented, had I been sitting as trier of fact, I would have found that Hartec was entitled to additional extensions of time. However, I cannot conclude that the trial court’s finding in this regard was manifestly erroneous.

      . Benjamin David Jones, Conflicting Results: The Debate in Louisiana Courts over the Proper Method of Appellate Review for the Inconsistent Verdicts of Bifurcated Trials, 56 Loyola Law Review 995 (2010).

      . We have used the term "Waterworks” to refer to Consolidated Waterworks District No. 1; appellant, however, has chosen to refer to it as "CWW.”

      . Louisiana Code of Civil Procedure article 1562 provides in pertinent part:
      A. If it would simplify the proceedings or would permit a more orderly disposition of the case or otherwise would be in the interest of justice, at any time prior to trial the court may order, with the consent of all parties, separate trials on the issues of liability and damages, whether or not there is to be a jury trial on either issue.
      D. If it would simplify the proceedings or would permit a more orderly disposition of the case or otherwise would be in the interest of justice, at any time prior to trial the court may order, with the consent of all parties, separate trials on the issue of insurance coverage, unless a factual dispute that is material to the insurance coverage issue duplicates an issue relative to liability or damages. The issue of insurance coverage shall be decided by the court alone, whether, or not there is to be a jury trial on the issue of liability or damages.

      . Louisiana Revised Statutes 13:5105(A) provides:
      No suit against a political subdivision of the state shall be tried by jury. Except upon a demand for jury trial timely filed in accordance with law by the state or a state agency or the plaintiff in a lawsuit against the state or state agency, no suit against the state or a state agency shall be tried by jury.

      . 56 Loy. L.Rev. 995, 1015. "Citations omitted.”

      . Cornish v. State Dept. of Transp. & Dev., 93-0194 (La App. 1 Cir. 12/1/94), 647 So.2d 1170, 1178-1179, writs denied, 95-0547 (La.5/5/95), 654 So.2d 324.

      .56 Loy. L.Rev. 995, 1018. "Citations omitted.”

      . 56 Loy. L.Rev. 995,' 1020-1021. “Citations omitted.”

      . 56 Loy. L.Rev. 995, 1024.

      . 56 Loy. L.Rev. 995, 1022-1023. "Citations omitted.”

      . 56 Loy. L.Rev. 995, 1018. "Citations omitted.”

      . In Thornton v. Moran, Moran ran into the rear of Thornton’s vehicle. Each filed suit and the suits were consolidated for trial. Only Moran requested a jury trial. The jury found in favor of Moran and awarded him $90,000.00 in damages. The judge found that Moran had the last clear chance to avoid the accident and awarded Thornton $8,250 in solido with the insurer and $1,993.50, individually. The appellate court found the jury verdict to be the most reasonable. Thornton, 348 So.2d at 82.
      In Cornish v. State Dept. of Trans. & Dev., 647 So.2d at 1176 & 1183-1184, Cornish drove into a cattle guard and sued DOTD for failure to place adequate warning signs on the highway and Ponchatoula Homestead and Savings Association as the owner of the guard for having a hazardous obstacle and failing to warn. The jury, deciding the Ponchatoula portion, allocated the following fault: DOTD-50%, Cornish-25%, Ponchatoula-25%. The judge, deciding the case against DOTD, found the following fault: DOTD-50%, Ponchatou-la-35%, Cornish-15%. The appellate court found both allocations to Cornish to be erroneous and allocated 50% to him.
      In Eppinette v. City of Monroe, 698 So.2d at 663, 667-668, & 671, Eppinette was injured at a municipal airport by contact with an electric fence. Suit was filed against the city and the construction company that erected the fence. The judge allocated 25% of the fault to the city and 75% to the construction company and awarded the plaintiff $130,883.92. The jury allocated fault at 50% to each defendant and awarded the plaintiff $111,000. The appellate court found neither verdict to be manifestly erroneous in the allocation of fault, but that the judge’s allocation was more reasonable. As for damages, the court found that the jury's award for medical expenses and loss of future earnings and earning capacity were manifestly erroneous; thus, it affirmed the judge’s awards. As for general damages and loss of consortium, the court found the judge's award of general damages was more reasonable, and the jury’s award for loss of consortium was more reasonable.
      In Deville v. Town of Bunkie, 364 So.2d at 1379-1380 & 1362, Deville sued two police officers and the town for the use of excessive force in making an arrest and mistreatment. The jury found one officer liable and, therefore, the insurer for the town. The judge found both officers used reasonable force and neither was liable. The appellate court found the judge’s verdict to be more reasonable.
      In McDaniel v. Carencro Lions Club, 934 So.2d at 952-953, 967-968, & 977-980, McDaniel fell into the orchestra pit during a concert. He sued the city who owned the venue, the social club who rented it, and the concert promoter. In the case involving the city, the judge apportioned fault as follows: McDaniel-75%, city-15%, social club-2%, and promoter-8%. The jury assigned fault as follows: McDaniel-35.5%, city-41.5%, club-2%, promoter-21%. The judge made a total damage award of $272,589.00 and the jury awarded $395,598.00. The appellate court found error in both judge and jury in assigning fault to the plaintiff and reduced his fault to 25%. They found the judge's finding of 8% fault on the promoter to be more reasonable and found the city should be 65% at fault. They found portions of each verdict on damages to be manifestly erroneous and, after accepting the awards it deemed reasonable, amended the total award to $409,357.
      In Hebert v. Rapides Parish Police, 934 So.2d at 915-917 & 924-926, Hebert hit a bridge rail and her family sued the police jury, DOTD, and the contractor that built the bridge. The contractor was dismissed and the police jury requested a bench trial and DOTD a jury trial. The jury found each defendant to be 50% at fault and gave an award of $1,568,871.24. The judge allocated fault of 40% to the police jury, 60% to the driver, and no liability to DOTD with an award of $1,380,066.00. The appellate court assessed fault at 10% to the driver, 50% to DOTD, and 40% to the police jury and made its own damage award of $1,653,591.50.
      In Aubert v. Charity Hospital of Louisiana, 363 So.2d at 1225 & 1231-1232, a woman died during childbirth. Suit was filed against the public hospital, anesthesiologist, nurse anesthetist, and several administrators. The jury found no liability on any defendant. The judge, however, found the hospital liable vicariously for the negligence of the two employees, but did not find them individually liable. The appellate court found the judge’s verdict to be more reasonable except found the anesthesiologist and nurse anesthetist to be personally liable.
      In American Casually Co. v. Ill. Central Gulf R.R., 601 So.2d at 713 & 718, the plaintiff was injured at a railroad crossing and sued the railroad and St. Charles Parish. The jury allocated fault: plaintiff-46%, parish-31%, railroad-23%. The judge assigned fault as follows: plaintiff-65%, parish-10%, leaving 25% unassigned. The jury awarded damages of $105,000.00; the judge awarded damages of $205,000.00. The appellate court found the judge's verdict to be the more reasonable including 25% fault on the railroad by implication and also found his damage award to be more reasonable.

      . Louisiana Civil Code article 2323(A) provides:
      In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

      . Ted Hicks is the owner of Hartec, Chris Hicks is the son of Ted Hicks, and Steve Freeman was Hartec’s project manager on this project.

      . Mike LeCompte is a staff engineer for Waterworks and John Amedee is a project supervisor for Volute, Inc., a general mechanical contractor that performed repair work on the project.

      . Sonny Launey is a civil engineer called as an expert by Waterworks, Arthur DeFraites, is the owner/manager of GSE, Stephen Hornsby is general manager of Waterworks, and Scott Chehardy was the field engineer for GSE on the project.

      . Louisiana Civil Code article 1989 provides: Damages for delay in the performance of an obligation are owed from the time the obli-gor is put in default. Other damages are owed from the time the obligor has failed to perform.