author: THIBODEAUX, Chief Judge.

text:
    HEALTH EDUCATION AND WELFARE FEDERAL CREDIT UNION v. The PEOPLES STATE BANK.
    No. 11-672.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.
    Bernard Slattery Johnson, Kristina B. Gustavson, Cook, Yancey, King & Galloway, Shreveport, LA,-for Plaintiff/Appel-lee, Health Education and Welfare Federal Credit Union.
    Christopher Michael Sylvia, Many, LA, for Defendant/Appellant, The Peoples State Bank.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

Lin this redhibition matter, Plaintiff Health Education and Welfare Credit Union (“HEW’) filed suit against Defendant The Peoples State Bank (“the Bank”) seeking a return or reduction in the purchase price of a mobile banking unit sold to HEW because the automated teller machine (“ATM”) on the unit was defective at the time of the sale. After trial, the trial court ruled in favor of HEW, finding that the Bank breached the warranties of fitness and fitness for a particular purpose. The trial court awarded HEW $18,808.00 in specific damages. The trial court held an evidentiary hearing on the issue of attorney fees and costs. The trial court issued a final judgment and awarded HEW attorney fees and costs in the amounts of $53,042.00 and $4,191.19, respectively. We affirm.

I.

ISSUE

We must decide whether the trial court abused its discretion in awarding $53,042.00 in attorney fees to HEW.

II.

FACTS AND PROCEDURAL HISTORY

The facts in this matter are not in dispute. The underlying action stemmed from the sale of a mobile banking unit from the Bank to HEW. The trial court awarded HEW $13,308.00 for the replacement of a defective ATM that was part of the mobile banking unit. The trial court held a separate evidentiary hearing to fix the amount of attorney fees and costs.

In advance of the evidentiary hearing, HEW filed its Motion and supporting proof seeking $58,962.00 in attorney fees and $7,141.44 in costs. At |2the hearing, counsel for the Bank only generally opposed the amount of attorney fees sought by HEW. The Bank’s counsel failed to specifically object to any of HEW’s itemized invoices and was admittedly unprepared to do so. The trial court granted the Bank’s request to file a supplemental brief to specifically challenge HEW’s invoices. HEW subsequently filed a brief in reply.

After the evidentiary hearing and after reviewing both parties’ briefs concerning the invoices, the trial court issued its final judgment and awarded $53,042.00 in attorney fees and $4,191.19 in costs to HEW. The Bank appeals the amount of attorney fees awarded.

III.

LAW AND DISCUSSION

Standard of Review

We review an award of attorney fees in a redhibition case for abuse of discretion. Buteau v. Leleux, 591 So.2d 1261 (La.App. 3 Cir.1991). As this court stated in Buteau, “[bjefore this court will disturb an award by the trial court, the record must clearly reveal that the trier of fact abused its much discretion in making the award.” Id. at 1266 (citations omitted).

Discussion

The supreme court articulated ten factors to be considered in reviewing the reasonableness of an award of attorney fees: “(1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and (10) the court’s own knowledge.” State, Dep’t of Transp. and Dev. v. Williamson, 597 So.2d 439, 442 (La.1992). The supreme court noted that these factors were derived from Rule 1.5(a) of the Rules of Professional Conduct. Id.

A trial court is afforded much discretion in awarding attorney fees in a redhibition case. Dailey v. The Home Furnishings Store, 02-1225 (La.App. 4 Cir. 9/17/03), 857 So.2d 1051. Attorney fees should be awarded on a case-by-case basis after examining the factors listed above. It is not per se unreasonable, as a matter of law, for the attorney fees award to be greater than the award for damages. Id.

At the evidentiary hearing in this matter, the trial court was presented with a plentitude of documentary evidence. It is clear from reviewing the trial court’s ruling and reasons for judgment that the court meticulously analyzed that evidence before awarding attorney fees. We see no reason to re-hash its thorough analysis, and we find no abuse of discretion in the amount of attorney fees awarded. Thus, we affirm, and we adopt the trial court’s well-reasoned opinion as our own. Its opinion is incorporated by reference as Appendix “A” to this opinion.

IV.

CONCLUSION

For the reasons articulated above, we affirm the judgment of the trial court, adopt its opinion as our own, and incorporate its opinion by reference. Costs of this appeal are assessed against The Peoples State Bank.

AFFIRMED.

Appendix “A”

LHEALTH EDUCATION AND WELFARE FEDERAL CREDIT UNION

VERSUS

THE PEOPLE’S STATE BANK

DOCKET NUMBER 82,294 B

10TH JUDICIAL DISTRICT COURT

NATCHITOCHES PARISH, LOUISIANA

RULING AND REASONS FOR RULING CONCERNING ATTORNEY FEES AND COSTS

The Court previously awarded the plaintiff, Health Education and Welfare Federal Credit Union (“HEW”), the amount of $13,308.00 for the replacement of a defective ATM, which was a part of a mobile banking unit (“MBU”) that was sold to HEW by the defendant, The People’s State Bank (“PSB”). The Court also awarded reasonable attorney fees and costs to HEW, to be determined at an evidentiary hearing to fix the amount to be awarded. The reader is referred to the Court’s written reasons for judgment concerning the case on the merits which is incorporated herein by reference.

FACTS

HEW filed its Motion and Application for Court to Fix Attorney’s Fees with attached supporting proof, i.e., invoices, documents, affidavits, etc. HEW is seeking $58,962.00 in attorneys fees and $7,141.44 in costs. (This amount of attorneys fees includes $5,000 estimated post judgment future fees.) The defendant, PSB, filed a Response to Plaintiffs Memorandum in Support of Motion and Application for Court to Fix Attorney’s Fees. Without any particular basis for its argument, PSB asserted that attorney’s fees should be fixed in the amount of $7,500.00, one half of the amount awarded to replace the defective ATM machine built in the MBU it sold to HEW.

|sAt the hearing, PSB was not prepared to argue in opposition to any specific charge on the invoices submitted and filed in the record by HEW’s counsel. While PSB did raise general questions about whether it was reasonable for HEW to have two attorneys for the trial and whether the redacted time entries should be considered, it was PSB’s position that the amount awarded to HEW for replacement of the ATM should essentially be the only or main consideration in determining attorney’s fees. PSB argued that the attorney’s fees should be set at no more than the amount awarded for replacement of the ATM. Ultimately, PSB’s counsel asked for permission to file a post hearing brief in which he would address the individual invoices entered in the record. The Court granted his request and allowed a response to be filed by HEW. Consequently, HEW felt it necessary to respond.

ANALYSIS

Attorney fees are only recoverable when authorized by statute or contract. Fontenot v. State, Department of Public Safety and Corrections, 625 So.2d 1122, 1124 (La.App. 1 Cir.1993). The trial court generally has much discretion in setting an award of attorney fees. Short v. Plantation Management Corp., 781 So.2d 46, 65 (La.App. 1 Cir.2000). While a court’s attorney fee award should not be modified on appeal absent a showing of an abuse of discretion, it is not without parameters but is dependent on the reasonableness of a particular sum. Id. This “reasonableness inquiry” applies where attorney fees are established by statute, as well as by contractual agreement. City of Baton Rouge v. Stauffer Chemical Company, 500 So.2d 397, 400-401 (La.1987).

A trial court has great discretion in awarding attorney’s fees in a redhibition case. Dailey v. The Home Furnishings Store, 2002-1225 (La.App. 4 Cir. 9/17/03, 857 So.2d 1051); citing Philippe v. Browning Arms Company, 395 So.2d 310 (La.1980). Attorney’s fees should be awarded on a case-by-case basis after examining many factors. It is not unreasonable as a matter of law for the attorneys fees to be greater than the damage award. Id.

The Louisiana Supreme Court in State, Department of Transportation and Development v. Williamson, 597 So.2d 439, 441-42 (La.1992), set out the factors to be considered by a court in reviewing the reasonableness of an award of attorney fees:

(1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and (10) the court’s own knowledge.

The Supreme Court noted that these factors were derived from Rule 1.5(a) of the Rules of Professional Conduct:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5), the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

HEW’s counsel attached a memorandum to its application to fix attorney’s fees and costs, citing a number of cases therein which the Court has considered as well. PSB filed memoranda as well citing other cases. The Court has taken all of these factors into consideration in determining the reasonableness of HEW’s attorney’s fees and costs.

\r,Hourly Rate Charged

HEW’s counsel, Kristina B. Gustavson, graduated with honors from Tulane University and has approximately 7 years experience in the field of commercial law. She has had experience practicing in two large law firms known for excellent work.

The Court finds that the skill of the attorney handling the case for HEW is without question. She did excellent work. She was well prepared and responsive to the Court at all times. She diligently provided the Court with numerous detailed and thorough memoranda requested by the Court on all legal issues and on the complicated facts of this case. There were numerous documents involved in this litigation, and HEW’s trial counsel had all of these documents well organized. Presentation of the evidence showed that counsel was well prepared and skilled at eliciting the necessary facts and explanations of complicated technical information and with managing the many documents in court. Trial bench books were prepared for the Court, which made the trial run smoothly. With lesser skills, this trial could have taken twice the time that it did. Actually, PSB did not question the skill of HEW’s counsel.

PSB did not appear to raise any specific question concerning the hourly rate charged by HEW’s counsel either, but simply left that determination to the Court. HEW trial counsel charged an hourly rate of $200.00 per hour. While this may be on the high side in our small community, for all of the above reasons, the Court does not find it to be unreasonable.

\xPSB’s Specific Objections to Charges on HEW Attorney Invoices

In its post-hearing memorandum, PSB reviewed each invoice and raised several specific objections in regard to some of the charges. PSB had specific objection(s) to 14 of HEW’s invoices.

1. In regard to IB of those invoices, an objection is raised to fees associated with redacted time entries, for a total of $3,620.00 in charges.

The Court has read each one of the redacted entries and does not find the redactions inappropriate. Nor does the Court find the charges to be unreasonable, which charges appear in large part to be for consultation with client personnel. The attorney had an obligation to keep her client informed as well as to prepare personnel for trial. Therefore, the Court rejects all of PSB’s objections to fees associated with redacted time entries.

2. PSB objects to the fees charged by the attorney partner, BSJ, at the rate of $250 an hour.

PSB objects to 4 of these entries: $100.00 (.4 hrs.) on Invoice No. 31508; $125.00 (.5 hrs.) on Invoice No. 36026: $75.00 (.3 hrs.) on Invoice No. 39362 and $125.00 (.5 hrs.) on Invoice No. 13153 for a total of $425.00. The time charged by BSJ was minimal. The work done by BSJ does not appear to be duplicative, nor does it appear that BSJ is generally overseeing work performed by Ms. Gustavson. The charges are reasonable. The Court will not disallow these charges.

3. PSB objects to fees charged for what it deemed to be excessive time charged for research.

In this regard, PSB objected to Invoice No. 31508, asserting that HEW’s counsel had charged 6 hours for “trial attorney researching law,” for a total of $1,200.00. PSB claimed that $900.00 of these charges should be disallowed. The Court has reviewed this invoice and cannot find such charges. The only entry 13which includes the word “research” was by “SSS” and was marked “N/C”, indicating there was no charge. There were several entries described as “analysis,” one for analysis regarding causes of action against PSB and broker, for 2 hours; one for analysis of Louisiana law regarding venue and jurisdiction, for 0.60 hours; and one for analysis of principal place of business of entities and of Louisiana law regarding foreign corporation filing suit in Louisiana, for 0.40 hours; for a total of 3 hours.

The Court notes that even if 6 hours were charged for research, it does not find devoting 6 hours to research excessive. There were a number of different issues that needed to be researched concerning code articles or statutes, as well as cases relating to those issues. In addition, throughout the litigation, issues arose which the Court specifically requested that the attorneys research and brief for the Court. The Court, of its own knowledge, is aware of the time necessary to properly research and address these issues.

PSB raised this same objection to Invoice No. 38403. HEW’s counsel charged 2.1 hours for research. PSB objected to the entire charge and believed that the expenditure was unnecessary. The court disagrees. This issue, and how it applied to this particular case, was a serious question. This charge was not inappropriate, nor was the charge excessive.

There were no more specific objections to time charged for research.

4. Invoice No. 31508, PSB raises only 8 other specific objections. PSB objected to the charges for drafting and revising an analysis and for drafting and revising the petition.

On Invoice No. 34-508, HEW’s counsel charged 3.5 hours for “Preparing memorandum regarding potential claims against People’s State Bank,” 1.5 hours [ l(lfor “Preparing draft petition against People’s State Bank,” and 1.5 hours for “Revising drafts of analysis and petition.”

The Court recognizes that a great deal goes into preparing an analysis as well as a petition. It requires reading and considering all applicable law and jurisprudence, reading and considering all documents related to the cause of action, gathering and assimilating all the facts and circumstances of the case and considering all of these in relation to one another. Then it requires actually writing a concise and cogent document in this regard. The amount of time charged in this regard, in the Court’s opinion, is modest.

5. As to Invoice No. 36026, PSB raises only 3 other specific objections. PSB objected to charges for review and analysis of the Answer, preparation of the corporate deposition notice and preparing for corporate deposition.

On Invoice No. 36026, HEW’s counsel charged 2.0 hours, specifically, for “Review and analysis of answer filed by Peoples State Bank; meeting with Bernard S. Johnson regarding discovery process; email correspondence with Jeff Goff, Nora Hinton and Gloria Bowden regarding same.” In regard to the review and analysis of the answer, the Court finds that an analysis of the answer that was filed by PSB should have taken additional time, because the affirmative defenses were raised without any recitation of purported facts upon which they might be based, requiring a lawyer to sift through the facts to try to determine the basis of each such claim. In addition, this time entry includes other things not referenced in PSB’s objection. This time charge is not excessive.

On Invoice No. 36026, counsel for HEW charged 2.80 hours, specifically for “Preparing notice of corporate deposition of Peoples State Bank.” As in the preparation of a petition or analysis, preparation for a corporate deposition requires a review and analysis of all documents, factual assertions and law, and a | ^consideration of how each may relate to PSB, HEW and all of the actors involved in this litigation. The Court finds that 2.80 hours is not excessive.

On Invoice No. 36026, counsel for HEW also charged 2.00 hours, specifically, for “Outlining questions for upcoming deposition of Peoples State Bank;” 3.20 hours for “Preparing outline for upcoming deposition of Peoples State Bank;” and 3.00 hours for “Preparing for deposition of Peoples State Bank;” and 5.60 hours for “Preparing for deposition of Peoples State Bank; traveling to and from Natchitoches; taking deposition of Peoples State Bank.” While not expressly listed in the PSB memorandum, these charges appear to be the 8.2 hours objected to by PSB for “Preparing for corporate deposition.”

This case is document intensive and the facts concerning the equipment complicated and difficult. It takes substantial time to organize and pull together documents to adequately address the issues in this case. In addition, the charge for 5.60 hours also includes time for “traveling to and from Natchitoches” and “taking deposition of Peoples State Bank.” The Court does not find these time charges to be excessive.

6.As to Invoice No. 36730, PSB raises only 1 other specific objection. PSB objected to 2.5 hours charged for “Drafting letter [July 13, 2009] regarding ATM.”.

HEWs counsel charged 2.5 hours to “Prepare letter to Peoples State Bank regarding ATM and inability to be repaired.” This letter was prepared and written by HEWs counsel at the request of PSB. Again, to prepare such a letter requires organizing all the facts and circumstances in light of all information, including that which was received in discovery. It is time consuming and difficult. The work product was excellent. It made clear what the difficulties were, and the great effort made by HEW to mitigate its damages.

112The Court does not find this time charge excessive.

7. As to Invoice No. 38103, PSB raises only 1 other specific objection. PSB objected to 0.20 hours charged for “Analysis of missed opportunities.”

HEWs counsel charged 0.20 hours for “Analysis regarding document received from HEW Federal Credit Union regarding missed opportunities for the branch.” The claim for missed opportunities was rejected, as the Court found the claimed losses were far too speculative. Consequently, the charge for 0.20 hours or $40.00 is disallowed,

8. As to Invoice No. 10893, PSB raises only 1 other specific objection. PSB objected to 3.0 hours charged to “Preparation of settlement offer letter [December 9, 2009].”

HEWs counsel charged 1.50 hours for “Preparing settlement offer letter to Chris Sylvia,” and 1.50 hours for “Preparing settlement offer letter to Chris Sylvia at Peoples State Bank.” This letter was prepared and written at the request of PBS and included additional and clarifying information obtained by the parties through discovery and preparation. The Court finds these charges reasonable.

9. As to Invoice No. ⅛2680, PSB raises only 1 other specific objection. PSB objected to 1.40 hours charged to “Drafting written discovery” which were not ever actually propounded

HEWs counsel charged 1.40 hours to “Draft interrogatories and request for production to defendant Peoples State Bank.” HEW argues that after a conference between counsel and the Court on January of 2010, counsel believed that settlement negotiations would take place between HEW and PSB, and as a result, held off on propounding additional discovery.

Such a conference did occur and the Court did encourage PSB to participate in settlement negotiations. The decision to hold off on propounding additional | iadiscovery was a reasoned decision and an additional effort to resolve the litigation. These charges will not be disallowed.

10. As to Invoice No. 134.53, PSB raises only 2 other specific objection. PSB objected to 7.9 hours for “Fees charged by Nickelson,” [JCN] claiming that an additional attorney working on the lawsuit was not necessary and likely resulted in duplicative work being preformed therefore all of these fees, $1,580.00, should be disallowed.

PSB also objected to 8.6 hours or $1,720.00 in fees for “Deposition preparation.”

HEW was charged 7.9 hours for the work of another attorney, JCN, as follows:

(a) 0.50 hours for “Conference with Kristi B. Gustavson regarding upcoming trial (.2), review pretrial brief (.3).”
(b) 0.80 hours for “Conference with Kristi B. Gustavson regarding trial subpoenas and other matters.”
(c) 0.20 hours for “Conference with Kristi B. Gustavson regarding upcoming trial and review correspondence from opposing counsel regarding scheduling conference.”
(d) 0.50 hours for “Conference with Kristi B. Gustavson regarding settlement and trial strategy.”
(e) 3.80 hours for “Prepare for trial and conference with Kristi B. Gustavson regarding same.”
(f) 1.30 hours for “Prepare for trial and conference with Kristi B. Gustavson regarding same.”
(g)1.3 hours for “Prepare for trial and conference with Kristi B. Gustavson regarding same.

HEW asserts that JCN was preparing for, and performing the cross examination of PSB’s chief witness, Ms. Tori Flynn and that his work was not duplicative of work performed by trial counsel. It appears to the Court that a great deal of time was spent by JCN, learning about the facts and circumstances of this case in general, information already possessed by Ms. Gus-tavson, who was trial counsel, i.e. the numerous conferences with trial counsel and reviewing the same documents that trial counsel would necessarily have to review as well.

While Ms. Gustavson would have had to prepare the cross-examination of Tori Flynn, she would not have had to learn the facts of the case. The Court |14believes that only 3 hours of the above time charged would have been necessary for Ms. Gustavson to accomplish this work. Therefore, 4.9 hours or $980.00 in fees are disallowed as duplicative.

HEWs counsel charged 8.6 hours for work relating to preparation for trial depositions. PSB failed to designate the particular invoice(s) entries at issue, however the Court presumes the following are the entries and charges objected to by PSB:

(a) 1.80 hours for “Preparing for upcoming depositions of Diebold and Advent representatives.”
(b) 0.40 hours for “Teleconference with James Goldbeck in preparation for trial depositions.”
(c) 0.30 hours for “Teleconference with Rich Montague in order to prepare for trial deposition.”
(d) 1.30 hours for “Preparing outlines for trial depositions of Diebold and Advent technicians.”
(e)3.00 hours for “Preparing for depositions of Bill Weimer, Dennis Rainey, Rich Montague and James Gold-beck.”

None of the above charges are objectionable. Preparation for trial depositions in this case not only entail knowing the law, but also entail being able to deal with the complicated technical facts necessary to try this case.

11. As to Invoice No. 4-8109, PSB raises only I other specific objection. PSB objected to 18.5 hours ($3,700.00) charged to “Fees charged by Nickel-son.” [JCN]

HEW charged 18.5 hours for the work of another attorney, JCN, as follows:

(a) 0.50 hours for “Prepare for trial, including discussion Tori Flynn’s cross-examination with Kristi B. Gustavson.”
(b) 0.60 hours for “Prepare for trial.”
(c) 7.10 hours for “Prepare for trial, including cross examination of Tori Flynn, and conference with Kristi B. Gustavson regarding same.”
(d) 10.00 hours for “Bench trial before Judge Dee Hawthorne in Natchi-toches, Louisiana.”
(e) 0.30 hours for “Conference with Kristi B. Gustavson regarding status of settlement discussions with People’s State Bank and other matters.”

| ifiThe Court would note that Mr. Nickel-son (JCN) did excellent work and performed well at trial; and the Court is convinced that trial counsel appreciated his assistance; however, much of what he did was necessarily duplicative. As explained above, JCN had to learn the entire case and spend 10 hours in the court room to primarily cross-examine Tori Flynn.

With her prior knowledge of the case, the Court believes that trial counsel could have prepared for Ms. Flynn’s cross-examination in an additional 5 hours. (The Court previously allowed 3 hours for Ms. Flynn in regard to Invoice No. 48453 above.) Therefore, as to Invoice No. 48109, the Court disallows 13.5 hours of these charges, or $2,700.00 in fees.

12. As to Invoice No. 44771, PSB raises only 1 specific objection. PSB objected to 20.2 hours charged for “Preparation of post trial brief,”

HEW charged 20.2 hours for work relating to post trial brief preparation as follows:

(a) 1.40 hours for “Preparing background facts for post trial brief.”
(b) 2.80 hours for “Review of trial transcript in order to prepare post-trial brief.”
(c) 2.20 hours for “Prepare post-trial brief.”
(d) 2.00 hours for “Preparing post-trial brief regarding legal analysis.”
(e) 2.50 hours for “Preparing post-trial brief regarding background facts.”
(f) 1.50 hours for “Preparing post-trial brief regarding legal analysis.”
(g) 2.80 hours for “Preparing post-trial brief regarding analyst [sic] testimony at trial.”
(h) 5.0 hours for “Preparing and finalizing post-trial brief.”

At the conclusion of the trial of this matter, counsel for PSB requested that a transcript of the trial be prepared, and the Court ordered detailed briefing. There were several legal issues that the Court wanted the attorneys to specifically address. In addition, the case was fact intensive and the Court wanted the facts specifically argued in the briefs. In the Court’s view, any briefing on factual | tissues, assertion of facts and conclusions, needed to be cited to the transcript. This is a lengthy, detailed and time-consuming process. Just reading the transcript and depositions takes hours. Counsel for HEW did an excellent job; and the Court will not disallow any of this time as unreasonable.

13. As to Invoice No. 4.8110, PSB raises only 1 other specific objection. PSB objected to .3 hours for “Fees charged by Nickelson,” claiming that an additional attorney working on the lawsuit was not necessary and likely resulted in duplicative work being preformed.

HEW’s counsel charged 0.30 hours or $60.00 in fees for the work of another attorney, JCN, for “Conference with Kristi B. Gustavson regarding supplemental post trial brief. The Court disallows this charge as duplicative and unnecessary.

PSB made no other specific objections to the charges on HEW’s invoices.

Additional Charges or Fees Asserted by HEW

HEWs argues further that from November 30, 2010 to December 16, 2010, time incurred by HEW’s counsel for preparing for and attending the December 16th hearing amounted to $2,460.00 of billable time, not including preparation time for its post hearing brief which took approximately 2 hours or $400.00. Consequently, HEW claims an additional $2,860.00 in attorney’s fees.

The Court believes these charges to be reasonable.

Attorney fees determined to be reasonable

HEW seeks reimbursement for attorneys’ fees actually incurred in the amount of $56,822.00 ($53,962.00 — billed and paid; and $2,860 not yet billed.). The Court finds that 18.9 hours at $200 an hour should be disallowed in a total amount of $3,780.00. Without further evaluation, that leaves attorney fees in the amount of $53,042.00. (This calculation does not in-elude the request for an estimated future amount of fees.)

1^Costs

The trial judge has great discretion in awarding costs, including expert witness fees, deposition costs, exhibit costs, and related expenses. Suprun v. Louisiana Farm Bureau Mut. Ins. Co., 2009-1555 (La.App. 1 Cir. 4/30/10), 40 So.3d 261, Simpson v. Goodman, 97-2675 (La.App. 1 Cir. 12/28/98), 727 So.2d 555. Absent an abuse of discretion, the courts of appeal will not interfere with an award of costs. Vela v. Plaquemines Parish Government, 811 So.2d 1263, 1282 (La.App. 4 Cir.2002). The only costs taxable against a litigant are those provided for by positive law. Wooley v. Lucksinger, 14 So.3d 311 (La.App. 1 Cir.2008).

HEW seeks reimbursement for costs as follows:

1. Filing fees, $839.00 -I- an additional $425.00 = $1,264.00;
2. Long distance telephone charges, $205.79 + an additional $20.55 = $226.34;
3. Photocopies, $1,031.40 + an additional $120.00 = $1,151.40;
4. Mileage, $307.50 + an additional $75.00 = $382.50;
5. Westlaw Legal Research, $2,853.90 -I- an additional $108.00 = $2,961.90;
6. Courier Fee, $70.00
7. Court Reporter Fees, $893.30;
8. Trial subpoena cost, $325.00;
9. Custom tabs, index tabs, binding, $22.05;
10. Federal Express, $80.20;
11. Conference Call Charges, $13.80;
12. Trial transcript, $477.50

IB. Meals for KBG and JCN, $22.00. for a total of $7,889.99.

The Court finds the following listed expenses are disallowed since these charges are not provided for by law: ½ of the photocopy charge ($575.70); all of the Westlaw charge ($2,961.90); all of the courier fee ($70.00); all of the Federal Express charges ($80.20); and ½ of the meals charges ($11.00); for a total of disallowed charges in the amount of $3,698.80. The Court allowed ½ of the |1sphotocopy charges, because this case involved so many copies and many were used in the trial of the matter.

HEW seeks reimbursement for costs in the amount of $7,889.99. The Court finds that $8,698.80 should be disallowed. Without further evaluation, that leaves costs in the amount of $4,191.19. The Court finds these reasonable and allowed according to law.

Other considerations

PSB argues that any fees or costs relating to HEW’s claim for lost income should be disallowed, because the plaintiff was not successful in regard to this claim at trial, the court having found that any such loss was not reasonably quantifiable. Very little time was spent addressing this issue at trial, and only one witness testified concerning this claim. The Court will not reduce the fees in this regard.

The final consideration by this Court is the main argument made by PSB, whether the amount awarded as attorney’s fees should be completely driven by the amount finally awarded on the substantive claim, $13,308.00.

This Court finds that it should not be so driven, in this case, under these circumstances. The Court finds that PSB, in large part, is the cause for delaying resolution of this matter and for the amount of attorney’s fees and costs necessitated and ultimately expended in this litigation.

HEW purchased a mobile banking unit (MBU) from PSB. The ATM machine built in the MBU was not the product advertised, and the ATM that was there, was inoperable and irreparable. PSB personnel had all of the information it needed to make this determination at the time of the sale.

|19HEW was forced to hire an attorney to represent its interests. PSB has paid no extra attorney’s fees, as it was represented by in-house counsel. As the result of the diligent efforts of HEW and its retained counsel, PSB was urgently advised of the problems and the defect at issue even before the suit was filed, and before any significant fees and costs were incurred.

HEW could have successfully urged a claim for return of the purchase price of $115,000.00, because the MBU was clearly not fit for its intended use without a working (or reparable) ATM. HEW was faced with a dilemma when PSB refused to make good on its sale. At that point, in addition to the costs associated with the sale itself, HEW had invested additional money preparing the MBU for HEW’s use, i.e. having it custom painted with its logo, and other installation expenses. In addition, HEW could not afford to buy a new MBU. HEW could have pursued its claim for the return of the purchase price, all costs relating to sale, and all of the expenses involved in preparing the MBU for HEW’s use. However, when PSB refused to make good on the sale, in an effort to mitigate its losses, HEW personnel searched diligently to find a replacement for the defective ATM. It was not a simple feat, as there were extreme space limitations and most companies could not provide such a product. HEW finally found a company that could provide a replacement and it made the purchase.

PSB was offered the opportunity to simply pay for the replacement, however PSB would not respond at all to any of HEW’s proposals or attempts to settle the case. On several occasions throughout the litigation, PSB specifically requested that HEW prepare and submit to them settlement proposals. Each time PSB requested it, HEW did so; it made the proposal and provided the factual and legal argument supporting its proposal. This was confirmed at the January status 120conference, when counsel for PSB reported that no answer had been made to HEW in regard to any of its settlement proposals. The Court strongly encouraged PSB to participate in efforts to settle this litigation. It is clear that at each step in this process, PSB has been aware of the facts sufficient to know that the ATM was not the product advertised and that the ATM was defective, inoperable and irreparable. Instead, PSB chose to forego actively pursuing a settlement and instead relied on its chances at trial. HEW was forced to continue to incur attorney’s fees and costs.

The purpose of the statutory authority to award attorneys fees and costs is to make the buyer whole. In a redhibition action, reasonable attorney’s fees should be awarded to justly compensate plaintiffs who succeed in establishing liability on the part of the seller or manufacturer under Louisiana Civil Code article 2545. Linoski et al. v. Fleetwood Homes of Texas et al., 38,338, (La.App. 2 Cir. 5/12/04) 873 So.2d 886.

Conclusion

Consequently, the Court awards all the attorney’s fees and costs incurred thus far and not disallowed by the Court herein, $53,042.00 and $4,191.19 respectively. The Court will not award an anticipated amount for future fees and costs at this time.

HEW’s counsel is to prepare the judgment in accordance with this ruling, which will be signed upon presentation.

WRITTEN REASONS FOR RULING RENDERED IN CHAMBERS at Natchi-toches, Natchitoches Parish, Louisiana on 28th day of February, 2010.

/s/ Dee A. Hawthorne DEE A. HAWTHORNE DISTRICT JUDGE-DIVISION “B”

      . Neither the underlying award for damages nor the award for costs is challenged on appeal.


source: Caselaw Access Project

author: MARION F. EDWARDS, Chief Judge.

license: Public Domain

text:
    PAUL PIAZZA AND SON, INC., Baumer Land Company, LLC, and Shepherd A. Baumer v. Louis M. PIAZZA and Vivian B. Piazza.
    No. 11-CA-548.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Kyle Schonekas, Ellie T. Schilling, Schonekas, Evans, McGoey & McEachin, L.L.C., New Orleans, LA, for Plaintiffs/Appellees.
    Virgil A. Lacy, III, Michelle Beaty-Gul-lage, Colleen E. McGaw, Attorneys at Law, Metairie, LA, for Defendants/Appellants.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Chief Judge.

| yPefendants/appellants, Louis M. Piazza and Vivian B. Piazza, appeal the district court’s judgment granting an Exception of No Right of Action and dismissing their claim for return of excessive attorney’s fees. We affirm for the reasons that follow.

Paul Piazza & Son, Inc. (“P & S”) is a closely held corporation engaged in the processing and wholesale distribution of seafood in southeast Louisiana. Until early 2007, P & S was owned by members of the Piazza and Baumer families, individually or through companies controlled by members of those respective families. Louis M. Piazza and Vivian B. Piazza (“Piazzas”) held a 43.1917551 percent ownership interest in P & S. On February 27, 2007, the Piazzas executed a Stock Acquisition Agreement with Baumer Land Company, LLC; Baumer, LLC; Nina and Shepherd A. Baumer; and P & S (the Corporation). In the agreement, the Piazzas agreed to sell their interest in P & S and in Baumer, LLC.

At the time of the Agreement, P & S had pending claims against its insurer for casualty and loss of business income due to Hurricanes Katrina and Rita, as well as an errors and omissions claim against its insurance agent. Prior to the signing of the Stock Acquisition Agreement, on February 24, 2007, a Contingency | sFee Contract was executed by P & S retaining the legal services of Kristen Baumer, an attorney and the son of Shepherd Baumer, to investigate, prosecute, and collect any judgment or compromise of P & S’ claims regarding the insured losses. The agreement assigned 10 percent of the value of the claim to Kristen Baumer, with a proviso that, should the matter proceed to trial, Kristen Baumer would receive 20 percent of the value of the claim. The agreement was on behalf of P & S and was signed by Shepherd Baumer as Secretary/Treasurer of P & S; Louis Piazza, individually; and Kristen Baumer.

Among the terms at issue in the Stock Purchase Agreement is the following paragraph:

Seller shall receive within seven (7) days of receipt thereof by Corporation, Louis M. Piazza’s current percentage in Corporation [PP & S], which is 43.1917551 percent of any insurance proceeds received by Corporation for casualty or a loss of income suffered prior to January 1, 2007, relating to the Katrina and Rita loss, minus all fees and costs of collection, including but not limited to attorney’s fees, brokerage fees and adjusting fees, and less any taxes which may be owed or due on the proceeds by Corporation, less the same percentage of any moneys actually paid by Corporation to Empress [International] or its insurance company.

Empress International is a separate company and is not involved in the limited matter before us. According to the record, the Piazzas received monies from the insurance carrier in installments during 2007 and 2008. At some point, the Piazzas became dissatisfied and began to seek additional sums.

On July 10, 2010, P & S, Baumer, and Shepherd Baumer filed a Petition for Declaratory Judgment, averring that Piazza claimed he was entitled to certain amounts of money received by P & S as a result of the insurance claims. It was alleged that Piazza took issue with certain methods of calculation regarding income taxes. The petition requested a judgment declaring that all payments made to the Piazzas under the stock acquisition agreement had been satisfied in full.

|/The Piazzas answered the petition and filed a Reconventional Demand for Damages, Attorney’s Fees and Return of Excessive Attorney’s Fees. In the Reconven-tional Demand, the Piazzas impleaded the original plaintiffs and added Kristen Bau-mer as a defendant. The Piazzas alleged that, in May of 2007, P & S issued them a check for $478,761.15, which was represented as the total amount due to them based on all insurance monies collected as of that date, minus all fees and expenses. In August 2007, a second check for $168,121.50 was issued that represented the amount due for business income and extra expense payments received to date. A final payment of $281,158.78 was made on January 4, 2008. The Piazzas claimed, among other things, that P & S made improper deductions from the payments owed to them under the stock acquisition agreement by deducting excessive attorney’s fees. The petition alleged that Kristen Baumer was an officer and employee of P & S prior to the formation of the contingency fee contract. The Piazzas contended that the company had already hired an independent adjusting firm, which processed the claims for recovery and insurance proceeds, and that, following the inception of the contingency contract, received a total of $4,465,000. The Piazzas objected to the $465,000 attorney’s fees paid and demanded that P & S recover the fee. Because the fee was not returned, they asked the court to determine whether the decision not to seek recovery of it was a reasonable and prudent decision of the company. The Piazzas further claimed they suffered monetary damages equivalent to their proportional share of the fee that had been deducted from the funds paid to them.

Kristen Baumer filed a peremptory exception of no right of action to the recon-ventional demand, urging that Louis Piazza was not a party to the contract as it was an agreement between himself (Kristen) and P & S and that, if any right to challenge the fees under the contract existed, it belonged to the corporation. It was | ¡¡further alleged that any claim of excessive attorney’s fees lies solely with the corporation. Kristen Baumer urged that, if any action existed, it was solely the right of the corporation. It was finally urged that Louis Piazza had sold all his interest in P & S and no longer had a right to bring a derivative claim on behalf of the company.

The matter was submitted on briefs, following which the trial court issued a judgment, on October 21, 2010, sustaining the exception of no right of action and dismissing the Piazzas’ claim against Kristen Baumer with prejudice. No appeal was taken from this judgment.

Prior to the issuance of the above judgment, the Piazzas amended their reconven-tional demand to remove Kristen Baumer as a defendant.

On November 3, 2010, P & S, Baumer Land Company, and Shepherd Baumer filed an exception of no right of action for the return of excessive attorney’s fees, claiming that, as did Kristen, the action belongs solely to the corporation. On January 25, 2011, the trial court granted the exception and dismissed the claim for return of excessive attorney’s fees. This judgment, designated as final for appeal purposes, is presently on appeal.

Under La. C.C. P. art. 927, the function of an exception of no right of action is a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. The exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. An appellate court reviews an exception of no right of action de novo.

|„In the contingency fee agreement, P & S acknowledged that Kristen Baumer was employed as its director of operations and general counsel, and his duties and representative salary did not include prosecution of the insurance claims. In that document, Paul Piazza specifically agreed that to retain other counsel would typically cost 33-45 percent, depending on whether the case had to be tried and appealed and that P & S was best served financially by the agreement.

In the record on appeal are copies of the checks received by the Piazzas in 2007, along with a breakdown of the calculations performed to determine the sums due. The calculations clearly show the deduction of the 10 percent attorney’s fees.

By its terms, the mutual obligations contained in the contingency agreement existed only between the parties; that is, P & S and Kristen Baumer. There is no separate fee contract with the Piazzas personally. Thus, it is clear that the matter of attorney’s fees was a debt of the corporation, and the evidence in the record shows the debt was paid by P & S.

On appeal, appellants contend that Louisiana law allows a shareholder’s right to bring an individual action against a corporation for injuries the shareholder directly suffers, and they were personally harmed by the decision to pay Kristen Baumer’s fee. They claim that only they suffered the loss as they were the only shareholders who received too little under the Stock Acquisition Agreement.

In Louisiana, generally, a shareholder may only sue to recover losses to a corporation secondarily through a shareholder’s derivative suit. Shareholders do not have a personal right to sue to recover for acts committed against, or causing damage to the corporation. To determine whether the shareholder has a personal 17right to recover, the jurisprudence requires an injury that is “special” or unique to the shareholder.

Under Louisiana law, “if the breach of fiduciary duty causes a direct loss to the shareholder or causes damage affecting the shareholder personally, a shareholder may have the right to pursue a claim individually for breach of fiduciary duty to the corporation under La. R.S. 12:91. However, in situations where the alleged loss to the individual shareholder is the same loss that would be suffered by other shareholders, the loss is considered to be indirect. Where the shareholder, but not the corporation, suffers a loss, that loss is considered a direct loss to the shareholder, and the shareholder may have a right to sue individually.” As the Third Circuit explained:

A shareholder can have a right of action for a personal loss if the cause of action is based on breach of a contract between the share-holder and the corporation and its directors. In Bordelon v. Cochrane, 533 So.2d 82 (La.App. 3 Cir.1988), writ denied, 536 So.2d 1255 (La.1989), we held that a shareholder had both a cause and right of action to assert a claim against the corporation and its officers for breach of a shareholders agreement entered into before he became a shareholder. Implicit in the opinion is that the corporation itself suffered no loss, only the shareholder. Another example is the case of Wilson v. H.J. Wilson Co., Inc., 430 So.2d 1227 (La.App. 1 Cir.), writ denied, 437 So.2d 1166 (La.1983). In that case, a shareholder in a family corporation claimed a breach of fiduciary duty because of an allegedly fraudulent transfer to the corporation’s principal stockholder of shares that actually belonged to the plaintiff. In his suit, the plaintiff sought recovery of the shares or the value thereof. The breach of fiduciary duty caused a direct loss to the shareholder. It was the shareholder, but not the corporation, that suffered a loss, and the court recognized that the shareholder had the right to sue individually. The reasoning of Wilson was followed in Succession of Davis, 463 So.2d 723 (La.App. 4 Cir.1985). There the shareholder sued the succession of a corporate president, alleging fraud and misrepresentation in connection with a stock redemption agreement. The court recognized the suit as a personal action for a breach of contract or fiduciary obligation under La.R.S. 12:91; the contract on which the personal right of action was founded was the redemption agreement. Once more, the corporation^ suffered no loss.

In the present case, the losses asserted by the Piazzas are indirect in nature. The insurance proceeds and ensuing attorney’s fees were owed to and paid by the corporation, and, according to the agreement, were allocated according to the percentage of stock owned. The alleged loss of income would have been suffered not only by the Piazzas but also by P & S. The Piazzas have not demonstrated an individual right of action to challenge the attorney’s fees. A derivative action is not available as the appellants are not shareholders.

Our review of the record discloses no error by the trial court in maintaining the Exception of No Right of Action. Although the Piazzas’ attempt to characterize their situation as a loss peculiar to them, the claim is clearly derivative of the alleged corporate loss.

For the foregoing reasons, the judgment is affirmed. Appeal costs are assessed to appellants.

AFFIRMED

      . Badeauc v. S.W. Computer Bureau, Inc., 05-0612, 05-719 (La.3/17/06), 929 So.2d 1211.

      . First Bank and Trust v. Duwell, 10-481 (La.App. 5 Cir. 12/14/10), 57 So.3d 1076, writ denied, 10-2826 (La.2/11/11), 56 So.3d 1005.

      . St. Bernard Optical Corp. v. Schoenberger, 05-0548 (La.App. 4 Cir. 1/25/06), 925 So.2d 604.

      . Id.

        .Monroe v. Baron One, L.L.C., 04-1392 (La.App. 5 Cir. 4/26/05), 902 So.2d 529 (quoting Sun Drilling Products Corp. v. Rayborn, 00-1884 (La.App. 4 Cir. 10/3/01),798 So.2d 1141, writ denied, 01-2939 (La.1/25/02), 807 So.2d 840).

      . Glod v. Baker, 02-988 (La.App. 3 Cir. 8/6/03), 851 So.2d 1255, 1265-66, writ denied, 03-2482 (La.11/26/03), 860 So.2d 1135 (emphasis added).

      . See, Amador v. Reggie, 05-976 (La.App. 3 Cir. 3/1/06), 924 So.2d 415.


author: CLARENCE E. McMANUS, Judge.

text:
    CONSOLIDATED COMPANIES, INC. v. Newell D. NORMAND, Sheriff and Ex Officio Tax Collector, Bureau of Revenue and Taxation, Jefferson Parish Sheriffs Office and the Parish of Jefferson.
    No. 11-CA-527.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Robert S. Angelico, Cheryl M. Kornick, Brianne S. Rome, Matthew D. Simone, Lisko & Lewis, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellee.
    Kenneth C. Fonte, Golden & Fonte, Attorney at Law, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

| ^Defendant, Newell Normand, Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson (“Tax Collector”), appeals from a decision of the trial court which granted plaintiffs motion for summary judgment. For the reasons that follow, we affirm the decision of the trial court.

On June 3, 2009, plaintiff filed a petition to review denial of refund. In the petition, it alleges that during the period of September 1, 2006 through November 30, 2008, it leased vehicles from Ryder Truck Rental. As part of the lease agreements it was required to obtain and maintain liability and property insurance. It further alleges that it purchased this insurance coverage from Ryder by separate contract, and paid sales tax on the purchase in the amount of $32,948.28, the overpayment. On December 30, 2008, plaintiff filed a claim for refund. On February 20, 2009, the Tax Collector denied the claim, determining that the amounts were includible in the gross receipts derived from the lease of the vehicles. Plaintiff requested a rede-termination, and after a hearing, the refund claim was again denied. Plaintiff filed the present suit, seeking an appeal from the Bureau’s denial.

|sThe Tax Collector filed an exception of no cause of action, alleging that the taxes were not paid “under protest” and that suit was not filed against legal entities. This exception was denied.

Plaintiff filed a motion for summary judgment alleging no issues of material fact, and that it was entitled to judgment as a matter of law. On November 18, 2010, the trial court granted plaintiffs motion and ordered the tax collector to pay plaintiff a refunded of $82,948.28 plus legal interest. This appeal followed.

In its first allegation of error, the Tax Collector alleges that the trial court erred in granting CONCO’s motion for summary judgment. It alleges that the trial court erred in determining that the disputed payments were separate insurance purchases outside of the lease, instead of part of the gross proceeds of the lease. Tax Collector contends that these payments were incidental to the lease, as they were collected for the overhead that Ryder incurred due to its obligation to provide insurance under the lease.

CONCO contends that while payments that form the gross proceeds of the lease of the vehicles are subject to tax, other payments made to the same party that do not form part of the gross proceeds of the lease are not subject to the lease tax. In this case, the payments at issue were for a completely separate purchase, which was insurance, that it apparently was not obligated to purchase from Ryder, since after November of 2008, it did in fact purchase its insurance from a separate entity. It contends that its decision to purchase insurance from Ryder, or from another entity, did not affect the terms of the lease. The payments made to Ryder were actually for insurance purchased from Old Republic, and pursuant to that purchase |4it received a certificate of insurance from Old Republic naming it as an insured, and giving it the right to make claims under that policy.

The undisputed facts in the record before us establishes that during the tax period in question, CONCO and Ryder entered into a lease agreement in which CONCO leased trucks from Ryder. The lease agreement obligated CONCO to obtain and maintain liability insurance. CON-CO chose to purchase that insurance from Old Republic Insurance Company, as affiliate of Ryder. While Ryder collected the insurance premiums on behalf of Old Republic, the amount was billed separate from the lease payments. Old Republic issued a policy of insurance which listed CONCO as an additional insured. CON-CO was allowed to and did make claims on the Old Republic policy. Furthermore, after the tax period in question, CONCO obtained liability insurance from a different entity, with no change in the lease rates paid to Ryder.

The trial court considered the terms of the lease and the payments made, and determined that the payments were not part of the lease payment, but instead were a separate payment for the purchase of insurance and therefore no sale and lease tax were due on these payments. We find that the trial court did not err in ruling that plaintiff was entitled to a refund for sales and lease taxes paid on amounts used to purchase insurance. Compare Pontchartrain Materials Corp. v. Plaquemines Parish Government, 03-1444 (La.App. 4 Cir. 3/31/04), 871 So.2d 1171, writ denied, 04-1093, 04-1152 (La.9/3/04), 882 So.2d 606-607, (freight charges did not form part of the sales tax base where seller charged the same for the materials, regardless of how they were transported).

In his second allegation of error, the Tax Collector alleges that CONCO is procedurally barred from bringing this suit, and therefore the trial court erred in denying its exception of no cause of action. The Tax Collector alleges that the ^rejection of the refund claim is based on a legal determination, rather than a factual determination, and therefore R.S. 47:337.77(B) does not require a refund since the taxpayer made the tax payment without protest. CONCO responds that that it made an overpayment of taxes when none was due, and therefore this is exactly the situation where a refund claim is the appropriate procedure to recover these improperly paid taxes.

LSA-R.S. 47:337.77(A) provides in part that “For the purpose of this Section, ‘overpayments’ means a payment of tax, penalty or interest when none was due[.]” R.S. 47:337.77(B) provides in part that “The collector shall make a refund of each overpayment where it is determined that: (3) the overpayment was the result of an error, omission, or a mistake of fact of consequence to the determination of the tax liability, whether on the part of the taxpayer or the collector.”

R.S. 47:337.79(A) provides that

After three years from the thirty-first day of December of the year in which the tax became due or after one year from the date the tax was paid, whichever is the later, no refund or credit for an overpayment shall be made unless a claim for credit or refund has been received by the collector from the taxpayer claiming such credit or refund before the expiration of said three-year or one-year period. The maximum amount, which shall be refunded or credited, shall be the amount paid within said three-year or one-year period. The collector shall prescribe the manner of filing claims for refund or credit.

CONCO’s made its claim to the Tax Collector and suit was filed within three years from the dates that the tax was due and was therefore timely.

Tax Collector cites LSA-R.S. 47:337.77 which provides that a tax payer’s remedy, when it believes that it has been overcharged due to a mistake of law, is |ñby payment under protest and suit to recover. LSA-R.S. 47:337.77(F). This case does not involve any legal interpretation, but rather the overpayment of taxes assessed against payments factually misclassified as lease payments rather than payments for the purchase of insurance.

We therefore find that the trial court did not err in finding that CONCO’s claim was not proeedurally barred.

For the above discussed reasons, the trial court’s ruling is affirmed. All costs are assessed against appellant.

AFFIRMED

      . In the petition, plaintiffs noted that the same refund claim was made in Caddo and Lafayette Parishes, and in both its refund claims were approved the local sales tax paid on insurance payments were refunded. In addition, the Louisiana Board of Tax Appeals recognized that the payments at issue were insurance premiums and not lease proceeds. The State initially appealed from the decision however the appeal was dismissed after the parties settled.

      . Initially, plaintiff named as defendants Newell D. Normand, Sheriff and ex-Officio Tax Collector, Bureau of Revenue and Taxation, Jefferson Parish Sheriff’s office and the Parish of Jefferson. The appropriate party is Newell D. Normand, Sheriff and Ex-Officio Tax Collector. The judgment on appeal is against that entity only.

      . A. For the purpose of this Section, "overpayment” means a payment of tax, penalty or interest when none was due; the excess of the amount of tax, penalty or interest paid over the amount due; or the payment of a penalty that is later waived or remitted by the collector, provided that the power of the collector to refund overpayments shall be as prescribed and limited in this Section.
      B. The collector shall make a refund of each overpayment where it is determined that:
      (1) The tax was overpaid because of an error on the part of the taxpayer in mathematical computation on the face of the return or on any of the supporting documents.
      (2) The tax was overpaid because of a construction of the law on the part of the taxpayer contrary to the collector's construction of the law at the time of payment.
      (3) The overpayment was the result of an error, omission, or a mistake of fact of consequence to the determination of the tax liability, whether on the part of the taxpayer or the collector.
      (4) The overpayment resulted from a change made by the collector in an assessment, notice, or billing issued under the provisions of this Chapter.
      (5) The overpayment resulted from a subsequent determination that the taxpayer was entitled to pay a tax at a reduced tax rate.
      (6) The overpayment was the result of a payment that exceeded either the amount shown on the face of the return or voucher, or which would have been shown on the face of the return or voucher if a return or voucher were required.
      C. Notwithstanding the provisions of Subsection B of this Section, where it is determined that there is clear and convincing evidence that an overpayment has been made, the collector shall make a refund, subject to conditions or limitations provided by this Chapter.
      D. (1) Such refunds shall be made out of any current collections of the particular tax which was overpaid.
      (2) If a taxpayer has overpaid a particular tax for more than one taxable year and seeks a refund of the total amount, the collector may issue the refund incrementally. The number of increments shall not exceed the total number of years the tax was overpaid.
      E. The collector may recover any refunded amount determined not to be an overpayment through any collection remedy authorized by R.S. 47:337.45 within two years from December thirty-first of the year in which the refund was paid. Any refunded amount determined not to be an overpayment shall bear interest at the rate provided for in this Chapter, which shall be computed from the date the refund was issued to the date payment is received by the collector.
      F.This Section shall not be construed to authorize any refund of tax overpaid through a mistake of law arising from the misinterpretation by the collector of the provisions of any law or of any rules and regulations. In the event a taxpayer believes that the collector has misinterpreted the law or rules and regulations contrary therewith, his remedy is by payment under protest and suit to recover.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Damien JOHNSON.
    No. 11-KA-238.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Charles T. Carr, III, Ernest C. Chen, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law Louisiana, Appellate Project, New Orleans, LA, for Defendant/Appellant.

      Panel composed of SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON, Judges.
   FREDERICKA HOMBERG WICKER, Judge.

| ¿The defendant/appellant, Mr. Damien Johnson, appeals his conviction and sentence for possession of a firearm by a convicted felon. For the following reasons, the conviction and sentence are affirmed.

Factual and Procedural Background

Agent Jason Monnerjahn, a task officer with the United States Drug Enforcement Agency through the Jefferson Parish Sheriffs Office, arranged a controlled buy, with the use of a confidential informant, which gave his team probable cause to obtain a search warrant for 5557 Jordan Drive in Marrero, Louisiana, on July 9, 2008. Agent Monnerjahn had conducted surveillance of the address for approximately one week prior to executing the warrant. During that time period, he never saw the defendant, Mr. Johnson, enter or exit the house. However, on July 9, 2008, Agent Monnerjahn’s team observed two men exit the residence. The officers encountered the two men, later identified as Paul Jackson and Ronald Rome, at a business not far from the residence. The men were detained and brought back to 5557 Jordan Drive where the officers breached the |cjdoor to gain entry. The officers seized three guns during the search. Two of the guns were located in the east bedroom and were identified as belonging to Paul Jackson; the third gun was located in the living room. The west bedroom did not contain weapons or drug paraphernalia; however, it contained an identification card that belonged to Mr. Johnson. Paul Jackson identified Mr. Johnson as his roommate. Agent Monnerjahn investigated further and learned from Mr. David Gambino, the landlord of the residence, that he had leased the home to Mr. Johnson. Based on the fact that Mr. Johnson lived at the residence and the fact that the gun was located in a common area, Agent Monner-jahn applied for a felony arrest warrant for Mr. Johnson for felony possession of a firearm on July 29, 2008.

Sgt. Shane Klein of the Jefferson Parish Sheriffs Office did not participate in nor was aware of the search that occurred at 5557 Jordan Drive on July 9, 2008. He and his team participated in a separate, subsequent investigation which led to Mr. Johnson’s arrest on August 5, 2008. Sgt. Klein obtained a search warrant for 5557 Jordan Drive on August 1, 2008, after successfully arranging a controlled buy through the use of a confidential informant. Once he obtained the warrant, Sgt. Klein’s team continued to conduct intermittent surveillance of the property until August 5, 2008. On August 5th, Sgt. Klein observed Mr. Johnson exit the side door of 5557 Jordan Drive. Once Mr. Johnson left the residence, he walked a few blocks to the convenience store. Sgt. Klein’s team encountered Mr. Johnson at the store. Once they learned his identity, Mr. Johnson was Mirandized, handcuffed, and placed under arrest for the outstanding arrest warrant issued on July 29, 2008. Sgt. Klein relocated, with Mr. Johnson, back to 5557 Jordan Drive to execute the warrant.

|4Mr. Johnson provided Sgt. Klein with two sets of keys but would not identify which key unlocked the door. As Sgt. Klein stood at the side door fumbling with the keys, Mr. Johnson yelled, “the police are here.” At that point, the officers breached the door. The K-9 dog that was present during the search alerted to the west bedroom, which was secured with a deadbolt. Detective Christopher Morris unlocked the bedroom door with the key he obtained from Sgt. Klein. Once he entered the bedroom, he observed a tool bag sitting on the floor. He opened the bag to reveal a .38 handgun. The room also contained a social security card with Mr. Johnson’s name and signature, an ASI Federal Credit Union receipt dated May 18, 2008, which included Mr. Johnson’s name, a tax return document addressed to Mr. Johnson dated July 29, 2008, and a utility bill addressed to Mr. Johnson. Det. Morris also found a plastic bag that contained rice and two wrapped foils of brown powder on top of the refrigerator in the kitchen. That substance tested positive for heroin.

Mr. Johnson was charged by bill of information with possession of a firearm by a convicted felon and possession of heroin in violation of La. R.S. 14:95.1 and La. R.S. 40:966(C), respectively on October 17, 2008. He pled not guilty to both offenses at the arraignment and moved to suppress his statement. The motion was denied, and the case proceeded to trial.

Sgt. Klein testified that he was unaware that a search occurred at 5557 Jordan Drive on July 9, 2008. He stated, however, that he did know that there was an outstanding arrest warrant for Mr. Johnson. He further stated that the target of his investigation was a black male named “Anthony.” He stated that Mr. Johnson did not fit Anthony’s description but explained that he followed Mr. Johnson to learn whether anyone was present in the house. Sgt. Klein added that he did not Ifiknow who Mr. Johnson was until he encountered him and asked him to identify himself.

Det. Morris testified that he found the gun and marijuana in the west bedroom and the heroin in the kitchen at 5557 Jordan Drive. He further stated that he associated the items located in the room with Mr. Johnson based upon the fact that Mr. Johnson stated that it was his bedroom, coupled with the fact that the door was locked and that Mr. Johnson possessed the key to the locked door. Both Det. Morris and Sgt. Klein testified that Mr. Johnson claimed ownership of the marijuana but denied ownership of the gun and heroin.

Mr. Johnson testified in his own defense at the trial. He testified that he leased 5557 Jordan Drive from Mr. Gambino beginning in 2007 through April or May of 2008. He stated that he was four to five months in arrears on his rent which is why he sublet the house to Paul Jackson and his girlfriend in May of 2008. He stated that the rent was $775 per month but that he rented the house to Paul Jackson for $700 because he still stored some of his personal belongings there. Mr. Johnson further testified that he was out in the Gulf working on a shrimp boat on July 9th and did not return to land until July 11th, which is when he first learned that 5557 Jordan Drive had been raided. He stated that when he returned on July 11th, the door was broken and windows were damaged, so he placed a deadbolt on the bedroom door to protect his things.

Mr. Johnson stated that on August 5, 2008, an officer entered the store, pointed a gun in his face, and demanded that he put his hands up. The officer then removed him from the store and brought him outside to Sgt. Klein. Mr. Johnson testified that he was transported back to 5557 Jordan Drive where the officers kicked the door down. He stated that he was never asked for the key and that he | (inever yelled that the police were there. Mr. Johnson explained that he still received mail at 5557 Jordan Drive because he had not yet acquired a permanent address. He stated that the marijuana found inside the room belonged to him. However, he denied ownership of the gun but testified that the tool bag and all of its other contents was his. Mr. Johnson could not explain how the gun got inside the bag that was locked in the room. He denied that the heroin found in the kitchen belonged to him.

A 12-person jury found Mr. Johnson guilty of possession of a firearm but not guilty of possession of heroin. He was sentenced to the Department of Corrections for 10 years and given credit for time served. The sentence was to be served without the benefit of probation, parole, or suspension of sentence and was to run concurrently with the sentence imposed in a separate case. The trial court also imposed a $1,000 fine which was suspended and ordered him to successfully complete a drug rehabilitation program.

Assignments of Error

Mr. Johnson contends that the trial court erred in denying the motion for mistrial. He further argues that the evidence was insufficient to support the verdict in this case.

Discussion

First Assignment of Error

In his first assignment of error, Mr. Johnson argues that the prosecutor’s prejudicial remark was sufficient to justify a mistrial, or at least, an admonishment to the jury in this case.

A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. State v. Davis, 1708—0165, p. 17 (La.App. 5 Cir. 7/29/08), 993 So.2d 295, 305, writ denied, 08-2188 (La.5/1/09), 6 So.3d 810. Whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed absent an abuse of discretion. Id.

La.C.Cr.P. art. 775 provides, in pertinent part, “upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.”

La.C.Cr.P. art. 770 provides, in pertinent part,

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to: ⅜ ⅜ * ⅜
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.

La.C.Cr.P. art. 771 provides:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
⅜ ‡ * ⅜
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

During the cross examination of Mr. Johnson, the prosecutor stated “and you know the system well enough.... ” Mr. Johnson’s counsel immediately lodged an objection. Before that statement was made, however, the prosecutor’s line of ^questioning was in reference to Paul Jackson’s arrest that occurred on July 9, 2008. During the bench conference that followed the objection, the prosecutor explained that the question concerned what a person had to do to make bond. He stated that he was attempting to impeach Mr. Johnson by eliciting Paul Jackson’s address from him in order to show the jury that Paul Jackson did not reside at 5557 Jordan Drive in July of 2008 as Mr. Johnson testified. Mr. Johnson’s counsel did not accept the explanation and stated that the comment was prejudicial in that it was meant to show the jury that Mr. Johnson was a criminal who was very familiar with the criminal system. Mr. Johnson’s counsel re-urged his motion for mistrial. The trial judge denied the motion and stated:

Mr. Lemmon, you have asked on direct to your client his prior convictions. They’ve been brought out. You have stipulated that he has a prior conviction. And he’s testified to that under oath. So the fact that he’s in the system is — I think we all know that. I think the jurors know that. I know that. And I don’t see what, ‘You know the system well enough,” what that means to what extent. I don’t see any harm again.

In State v. Williams, 04-1309, p. 10 (La.App. 5 Cir. 4/26/05), 902 So.2d 485, writ denied, 05-1640 (La.2/3/06), 922 So.2d 1173, the defendant argued that the trial court erred in denying his motion for mistrial. In that case, the prosecutor stated, “your brother has been in jail for close to two years now, is that correct?” Id. at 495. On appeal, this Court found that the statement did not warrant a mandatory mistrial under La.C.Cr.P. art. 770, because it was not unreasonable for the jury to assume that when someone was charged •with armed robbery, aggravated battery, and use of firearms, that that person would be incarcerated pending trial on those charges. Id. In that case, we stated that the remark was only of the magnitude as to fall under the purview of La. C.Cr.P.art. 771, which required an admonition only if requested.

|sThe present case is parallel to Williams, supra. In this case, the prosecutor’s remark was not of the magnitude to warrant a mandatory mistrial. As the prosecutor explained, the remark was meant to elicit Paul Jackson’s address in July of 2008. The trial judge recognized that the question might have been awkwardly worded but found the remark to be harmless. We agree. Mr. Johnson had already testified about his prior conviction and was currently the defendant in a criminal proceeding; so the jury was already aware that he was familiar with the system. Thus, the prosecutor’s remark did not result in substantial prejudice to justify a mandatory mistrial. Rather, the remark falls under the purview of La.C.Cr.P. art. 771, which only requires an admonition if requested. Therefore, we find that the trial court did not err in denying the motion. Mr. Johnson states that if we find that a mistrial was not warranted, we should find that the trial court erred in failing to admonish the jury. However, La.C.Cr. P. art. 771 states that an admonition may be given upon the request of the defendant. Mr. Johnson did not make such a request in this case. Therefore, this assignment of error is without merit.

Second Assignment of Error

In his second assignment of error, Mr. Johnson contends that the evidence was insufficient to show that he possessed the gun.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-0020, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id.

In this case, Mr. Johnson was convicted of La. R.S. 14:95.1, possession of a firearm by a convicted felon. Mr. Johnson argues that the State failed to prove, beyond a reasonable doubt, that he possessed the gun found in the west bedroom.

Actual possession of a firearm is not necessary to satisfy possession; constructive possession is sufficient. State v. Watson, 08-0214, p. 7 (La.App. 5 Cir. 8/19/08), 993 So.2d 779, 784. Constructive possession occurs when a person who is not in actual possession of an object is considered to be in legal possession of an object if the object is subject to his dominion and control. State v. Curtis, 99-0045, p. 21 (La.App. 5 Cir. 7/27/99), 739 So.2d 931, 944. A person’s dominion over a weapon constitutes constructive possession even if it is only temporary in nature and even if control is shared. Id. In addition, our jurisprudence has added an aspect of awareness to the offense. Watson, supra, at 784. Therefore, the, State must also prove that the offender knew that a firearm was in his presence and that the offender had the general criminal intent to possess the weapon. Id.

Our jurisprudence recognizes that constructive possession exists when the gun is found in an area that the defendant has customarily occupied. State v. Ware, 01-0194 (La.App. 5 Cir. 8/28/01), 795 So.2d 495, 500. In State v. Paul, 05-0612, pp. 7-8 (La.App. 5 Cir. 2/14/06), 924 So.2d 345, 350, this Court found that the defendant was in constructive possession of the gun. In that case, the gun was discovered between pillows in a room identified as the defendant’s; the defendant’s father stated that the defendant slept in the room; and the police found personal items bearing the defendant’s name in the room. In State v. Johnson, 98-0604, 98-0605 (La.App. 5 Cir. 1/26/99), 728 So.2d 901, writ denied, 99-0624 (La.6/25/99), 745 So.2d 1187, we also found that the evidence was sufficient to establish constructive possession of a gun found lying between the mattress and box spring of the defendant’s bed. Likewise in that case, we found that the State presented evidence that the defendant resided in the bedroom where the gun was found.

In this case, the evidence sufficiently established, beyond a reasonable doubt, that Mr. Johnson had constructive possession of the gun found in the west bedroom of 5557 Jordan Drive. We first note that on July 9, 2008, Agent Monner-jahn established that Mr. Johnson resided at the residence when he found Mr. Johnson’s identification card there; when Paul Jackson identified Mr. Johnson as his roommate; and when he confirmed that Mr. Johnson leased the residence. And on August 5, 2008, Det. Morris unlocked the west bedroom at 5557 Jordan Drive using a key that Sgt. Klein obtained from Mr. Johnson. Det. Morris found numerous documents in the room that were addressed to Mr. Johnson. In fact, the tax return document found there was postmarked on July 29, 2008 — only a few days before Mr. Johnson’s arrest. And although Mr. Johnson denied living there, he testified that he used the room for storage.

Despite Mr. Johnson’s testimony that the gun did not belong to him, we find that the evidence was sufficient to support the conclusion that he had constructive possession of the gun. When the trier-of-fact is confronted with conflicting testimony, fact finding rests within the sole discretion of the judge or jury, who may accept or reject, in whole or in part, any witness’s testimony. Watson, supra, at 785. It is not the appellate court’s function to assess the credibility of witnesses or to re-weigh the evidence. Id. In light of the evidence presented at trial, we find that the jury could have reasonably inferred that Mr. Johnson had constructive possession of the gun. Therefore, this assignment of error is without merit.

| ^Errors Patent Discussion

We have reviewed the record for errors patent in conformity with La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975). Our review reveals one error that does not require corrective action.

La. R.S. 14:95.1(B) provides that persons found guilty of violating its provision shall be “fined not less than one thousand dollars nor more than five thousand dollars.” Although Mr. Johnson was fined $1,000 as part of his sentence, the trial court suspended the fine. In State v. Jackson, 07-0975 (La.App. 5 Cir. 4/15/08), 985 So.2d 246, 252 n. 4, we found no issue with the trial court’s suspension of the mandatory fine imposed under La. R.S. 14:95.1 Therefore, no corrective action is necessary in this case.

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED

      . Mr. Johnson was charged in a separate bill for possession of marijuana.

      . Mr. David Gambino, the owner of 5557 Jordan Drive, testified that he was not aware that Mr. Johnson sublet the property further testifying that the lease specifically prohibited subleasing.