source: Caselaw Access Project

author: JAMES F. McKAY III, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Joseph PERKINS.
    No. 2012-KA-0662.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 29, 2014.
    Leon A. Cannizzaro, Jr., District Attorney. of Orleans Parish, Scott G. Vincent, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JAMES F. McKAY III, Chief Judge.

hOn September 3, 2014, the Louisiana Supreme Court issued a Per Curiam, in a five to two split panel decision, finding that this Court erred as a matter of law in reversing the defendant’s conviction and sentence and instructed this Court to consider the defendant’s remaining assignments of error which had been pretermit-ted. This opinion follows.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error the defendant asserted that the trial court erred when it refused to give his requested instructions regarding self-defense, necessity and justification. This Court reversed the district court’s ruling in a split panel decision. The State filed a writ of certiorari with the Louisiana Supreme Court which was granted. State v. Perkins, 2013-1917 (La.3/21/14), 135 So.3d 626. The Louisiana Supreme in the September 3, 2014 Per Curiam, held that the defendant, Joseph Perkins, was not entitled to jury instructions on self-defense and justification for the charge offense of possession of a “shank” by a convicted felon, |¡>a violation of La. R.S. 14:95.1, while he was incarcerated in the Orleans Parish Prison and reinstated his conviction and sentence.

ERRORS PATENT

A review of the record for errors patent reveals two pertaining to the sentence imposed. The sentencing provisions of La. R.S. 14:95.1 provide that a person convicted of possession of a concealed weapon by a convicted felon “shall be imprisoned at hard labor for not less than ten nor more than fifteen years, without benefit of parole, probation or suspension of sentence and pay a fine of not less than one thousand dollars nor more than five thousand dollars.” The district court failed to impose the mandatory fine as required. The court also failed to deny the defendant’s eligibility for parole, probation, or suspension of sentence. Accordingly, the defendant’s sentence is illegally lenient.

In State v. Williams, 2003-0302 (La. App. 4 Cir. 10/6/03), 859 So.2d 751, this Court held that a reviewing court must remand cases for the imposition of a mandatory fine where the trial court failed to do so. Thus, in accordance with this Court’s jurisprudence, the matter is remanded to the district court for the imposition of the mandatory fine. See State v. Hams, 2011-0663, p. 4 (La.App. 4 Cir. 3/28/12), 88 So.3d 1223, 1225; State v. Jefferson, 2004-1960 (La.App. 4 Cir. 12/21/05), 922 So.2d 577; and State v. Brown, 2003-2155 (La.App. 4 Cir. 4/14/04), 895 So.2d 542.

In addition to these two sentencing errors, the bill of information failed to state that the defendant possessed a concealed weapon. The requirement that the weapon be concealed applies when it is a weapon other than a firearm which is possessed by the convicted felon. La. R.S. 14:95.1. The failure to include the 1 slanguage of concealment is raised in the defendant’s second assignment of error and will be discussed there.

ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, the defendant avers that the bill of information was fatally defective as it failed to properly charge him with an offense. Thus, he contends he was convicted of conduct which does not constitute a crime in Louisiana. The State in its brief responds that any error in the bill was not raised in a timely matter by the defense, and therefore, no relief is warranted. The State is correct.

As noted in the errors patent discussion, the bill of information filed in this matter failed to properly charge the defendant with violating La. R.S. 14:95.1. That statute provides that a convicted felon is prohibited from possessing or carrying a concealed dangerous weapon; also under the statute a convicted felon is prohibited from possessing a firearm, without any requirement that the firearm be concealed. Here, the State in the bill charged the defendant in pertinent part with having “possessed a dangerous weapon, to wit: a shank (homemade knife), the said Joseph Perkins having been previously convicted of a felony, ...” Thus, the bill of information omitted the necessary element that the weapon was concealed. This omission, an error patent on the record, rendered the bill “defective because it failed to charge a crime punishable by a valid statute.” State v. Ordon, p. 3, 96-1710 (La.App. 4 Cir. 7/16/97), 697 So.2d 1074, 1075. However, as was ^recognized by this Court in Ordon, in State v. James, 305 So.2d 514 (La.1974), the court held that such an error does not necessarily require reversal:

[T]he James court held that constitutional considerations did not require reversal “where in fact an accused has been fairly informed of the charge against him by the indictment and has not been prejudiced by surprise or lack of notice, the technical sufficiency of the indictment may not be questioned after conviction where, as here, no objection was raised to it prior to the verdict and where, without unfairness, the accused may be protected against further prosecution for any offense or offenses charged by it through examination of the pleadings and the evidence in the instant prosecution.” Id. at 516-17.

Ordon, p. 3, 697 So.2d at 1075-76. See also State v. Allen, 2001-2494, p. 1 (La.6/21/02), 824 So.2d 344, “[A] defendant may not raise the sufficiency of an indietment for the first time after conviction ... especially when the charging document fairly informed him of the charge against him and the alleged defect did not prejudice him.”

In the instant case, there was no motion to quash the bill of information filed. There was no objection to the bill made when it was read to the jury. The first time the defect in the bill was raised was after the jury had retired to deliberate. At that time, defense counsel moved for a mistrial on the basis that the jury instruction given by the court regarding the offense and responsive verdicts was not “consistent with the bill of information.” Defense counsel noted that the bill of information was read to the jury at the beginning of the trial and that the bill did not contain the allegation that the knife was a concealed weapon. The district court read the bill of information into the record, and then agreed that “the law says it has to be a concealed weapon. When you read 14:95.1, that’s the elements of the crime charged.” The district court then denied the mistrial. A review of the trial transcript, specifically the charge conference between the trial court and the attorneys regarding the proposed jury instructions, confirms that the district court Dread the elements of the offense and attempted offense directly from the statute; thus the jury was instructed that an element of the offense was that the weapon had been concealed. No objection was made to the proposed jury instruction during the charge conference. However, following his conviction, the defendant did raise the issue of the defective bill of information in a Motion in Arrest of Judgment which the district court denied.

There was no objection to the defective bill of information on a timely basis. The motion for mistrial was directed more toward the jury charge, which was a correct statement of the law, than to the defective nature of the bill of information. Furthermore, a review of the entire record amply demonstrates that the defendant and his attorney were on notice that the State contended that he concealed the knives, as required to commit the offense of violating La. R.S. 14:95.1. For example, at arraignment the State turned over a copy of the police report to defense counsel. In that report, found in the record at pages 223-24, the offense is specifically listed as possessing or carrying of a concealed weapon. In the narrative portion, the detective who prepared the report stated that he advised the defendant that he was going to be arrested for carrying a concealed weapon. At the preliminary examination and motion' hearing conducted on September 30, 2010, defense counsel extensively questioned the State’s witness about where in the clothing or on his person the defendant allegedly concealed the weapons. At the conclusion of the hearing, the district court specifically found that there was probable cause to hold the defendant for the crime of carrying a concealed weapon.

Furthermore, in addition to the jury being correctly instructed on the elements of the offense, the parties discussed the element of concealment of the weapon throughout the voir dire. The jury verdict form correctly provided for |fithree verdicts: (1) Guilty; (2) Guilty of attempted carrying a concealed weapon by a convicted felon; and (3) Not Guilty. Thus, despite the bill of information being defective, the jury was aware throughout the trial that in order to have committed the crime, the defendant had to have concealed the.weapon; if the State did not prove concealment beyond a reasonable doubt, the jury could not render a verdict of guilty as charged as it did. The defendant was not convicted of a non-existent crime as he contends.

Based on the entire record, and the failure of the defendant to raise the issue of the defective bill on a timely basis, this assignment of error does not merit reversal of the conviction for violating La. R.S. 14:95.1 because the defendant was not prejudiced.

CONCLUSION

Accordingly, based on this Court’s consideration of the defendant’s second assignment error and finding no merit to the defendant’s argument, we affirm the defendant’s conviction and sentence of fifteen years. However, finding a patent error, the matter is remanded for imposition of the mandatory fine required by La. R.S. 14:95.1.

AFFIRMED AND REMANDED

      . The specific facts concerning this case are fully reported in this Court's opinion. State v. Perkins, 2012-0662, pp. 2-6 (La.App. 4 Cir. 7/31/13), 120 So.3d 912, 914-16.

      . The defendant does not contend that he is not within the class of felons who are prohibited from possessing a concealed weapon, nor does he contend that the State failed to prove at trial his status as a convicted felon as charged in the bill of information.


author: EZELL, Judge. AMY, J.,

text:
    Sylvester HARRIS v. OLIVIER’S CONTRACTORS, et al.
    No. CA 14-765.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.

      Frank Edward Barber, New Iberia, LA, for Defendants/Appellants, Jason Olivier, Olivier’s Contractors.
    Craig Alan Davis, Lafayette, LA, for Plaintiff/Appellee, Sylvester Harris.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

|, Sylvester Harris filed suit for damages in district court pursuant to La.R.S. 23:1032.1 asserting that his employer neither had workers’ compensation insurance nor was self-insured, and failed to pay a workers’ compensation judgment for sixty days after it was final. Jason Olivier d/b/a Olivier’s Contractors (hereinafter collectively referred to as Mr. Olivier) appealed the trial court judgment which awarded $205,547.90 in damages to Mr. Harris.

FACTS

Mr. Harris was employed as a “jack man” in 2009 by a business that raised houses to higher elevations. During that time many houses were raised due to hurricane standards. On March 13, 2009, Mr. Harris placed a shimmy underneath a house when the jack bled out and an I-beam fell, smashing his left hand. After releasing his hand, Mr. Harris was transported to Abbeville General Hospital. Subsequently, he was transferred to Our Lady of Lourdes Regional Medical Center where an orthopedic surgeon performed surgery on his hand. For the next five to six months, Mr. Harris received physical therapy on his hand.

A default judgment awarding temporary total disability benefits, medical expenses and penalties and attorney fees against Mr. Olivier was confirmed in the Office of Workers’ Compensation on January 9, 2012. When the judgment was not paid, Mr. Harris filed the present suit pursuant to La.R.S. 23:1032.1 against Mr. Olivier and Terry Engeron on April 2, 2012. After a preliminary default was entered against Mr. Olivier, Mr. Olivier answered the suit. He then filed peremptory exceptions of prescription, no cause of action, and no right of action on December 12, 2013, the day of trial. Ruling on the exceptions was deferred until after trial. The trial court found in favor of Mr. Harris and against Mr. Olivier and [2awarded him $125,000.00 in general damages, $25,947.90 for medical expenses, and $54,600.00 for lost wages. Mr. Olivier then filed the present appeal.

NEGLIGENCE

In his first assignment of error, Mr. Olivier claims that the trial court erred relieving Mr. Harris of the burden of establishing that Mr. Olivier was negligent in causing Mr. Harris’s injuries. Mr. Olivier argues that La.R.S. 23:1032.1 requires that a petitioner prove all of the elements of a tort action, which includes establishing that any injuries were caused by the negligence of the defendant.

Louisiana Revised Statutes 23:1032.1 provides that any employee has a right to sue a “direct employer for all legal damages” when the employer:

fails to secure workers’ compensation insurance or proper certification of self-insured status pursuant to R.S. 23:1168, and fails to pay a final judgment for sixty days after the parties have exhausted their rights of appeal and no other insurance or self-insurance policy or contract of workers’ compensation coverage has paid the benefits due under this Chapter.

There is no reported case law on the application of La.R.S. 23:1032.1 except for two cases from this court that simply refer to La.R.S. 23:1032.1 as permitting an employee to assert a claim in tort but which do not address the application of La.R.S. 23:1032.1. See Hector v. Mo-Dad Env’tal Serv., LLC, 13-1184 (La.App. 3 Cir. 3/5/14), 134 So.3d 133, 139 n. 1; and Eads v. Chartis Specialty Ins. Co., 13-224 (La.App. 3 Cir. 2/26/14), 133 So.3d 722. This case presents a res nova issue.

Interpretation of this statute begins, as it must, with the language of the statute itself. David v. Our Lady of the Lake Hosp., Inc., 02-2675, p. 11 (La.7/2/03), 849 So.2d 38, 46; Touchard v. Williams, 617 So.2d 885, 888 (La.1993). When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. La. C.C. art. 9; La. R.S. 1:4. When the wording of a section of the revised statutes “is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.” La. R.S. 1:4. In interpreting the Workers’ ^Compensation Act, courts must be mindful of the basic history and policy of the compensation movement, which includes the provision of social insurance to compensate victims of industrial accidents. Brown v. Adair, 02-2028, p. 5 (La.4/9/03), 846 So.2d 687, 690; Roberts v. Sewerage & Water Bd. of New Orleans, 92-2048, p. 7 (La.3/21/94), 634 So.2d 341, 345.

Trahan v. Coca Cola Bottling Co. United, Inc., 04-100, pp. 6-7 (La.3/2/05), 894 So.2d 1096, 1102. In reviewing a question of law, the appellate court must simply decide whether the trial court’s decision was legally correct. Harruff v. King, 13-940 (La.App. 3 Cir. 5/14/14), 139 So.3d 1062.

We first observe that the title of La.R.S. 23:1032.1 is “Failure of employer to secure payment; penalties.” We recognize that headings to sections are given for convenient reference and do not constitute part of the law, but it is obvious that the legislature intended that this be a penalty section. La.R.S. 1:13(A). We must keep in mind that under the scheme of the Workers’ Compensation Act, an employee losses his right to full damages for his injury and instead receives compensation measured as a percentage of wages while the employer surrenders the immunity against liability which he would otherwise enjoy when he is not at fault. Gagnard v. Baldridge, 612 So.2d 732 (La.1993). Penalties in workers’ compensation cases “are imposed to deter indifference and undesirable conduct by employers and their insurers toward injured workers.” Trahan, 894 So.2d at 1108.

It is obvious in enacting La.R.S. 23:1032.1, the legislature intended to punish employers who failed to secure workers’ compensation insurance and failed to pay a final judgment after all rights to appeal have been exhausted. Under these circumstances, the employer has failed to secure insurance coverage as required by La.R.S. 23:1168 and failed to pay a final judgment. The legislature has determined that this is the most egregious conduct on the part of the employer. It would be |4ridiculous for an employee to establish the negligence of the employer when the employee has already pursued his workers’ compensation action in the Office of Workers’ Compensation, established his rights to compensation, and obtained a judgment.

Louisiana Revised Statutes 23:1032.1 only requires that the employee prove: (1) the direct employer failed to secure workers’ compensation insurance or proper certification of self-insured status pursuant to La.R.S. 23:1168; and (2) the direct employer failed to pay a final judgment for sixty days after the parties have exhausted their rights of appeal and no other insurance or self-insurance policy or contract of workers’ compensation coverage has paid benefits. At that point all the employee has to establish in the trial court is the amount of any legal damages he would be entitled to under tort law. This is the penalty an employer must face for failure to secure insurance and pay a resulting workers’ compensation judgment. We find no error in the trial court’s determination that Mr. Harris did not need to establish that any negligence had occurred.

DIRECT EMPLOYER

Mr. Olivier argues that Mr. Harris did not prove that he was Mr. Harris’s direct employer. Mr. Olivier argues that before the accident he sold the business to Mr. Engeron. He claims the trial court erred in not granting his exception of no right of action.

“The function of an exception of a no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.” Hood v. Cotter, 08-215, 08-237 p. 17 (La.12/2/08), 5 So.3d 819, 829. Whether a plaintiff has a right to bring an action raises a question of law which requires a de novo review. Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267, 10-2272, 10-2275, 10-2279, 10-2289 (La.10/25/11), 79 So.3d 246.

In order to prove an oral agreement to sell his business, which was valued over $500.00, Mr. Olivier had to prove the contract by at least one witness and other corroborating circumstances. La.Civ.Code art. 1846; Commercial Flooring and Mini Blinds, Inc. v. Edenfield, 13-523 (La.App. 1 Cir.2/14/14), 138 So.3d 30. “A party may serve as his own witness and the ‘other corroborating circumstances’ may be general and need not prove every detail; however, the corroborating circumstances that are required must come from a source other than the party claiming the oral agreement.” Id. at 36.

Testimony at trial revealed that Mr. Olivier was working on Mr. Harris’s mother’s house. During conversations at the mother’s house, Mr. Olivier learned that Mr. Harris worked for a different company which also raised houses. A couple of months later, Mr. Oliver called Mr. Harris and asked him to come work for him. Mr. Harris went to work for him the next day. Mr. Harris was on the job for two to three days when the accident occurred. Mr. Olivier agreed that he met Mr. Harris at his mother’s house and later talked to Mr. Harris’s mother about Mr. Harris. However, he denied that he called Mr. Harris and asked him to work for him. Instead, Mr. Olivier claims that he relayed the information to the person he sold the business to, Mr. Engeron.

Mr. Olivier testified that he initially sold the business to another man. This sale was contingent on the buyer obtaining so many jobs. This buyer did not succeed, so Mr. Olivier tried to sell it again by contacting Mr. Engeron. Pursuant to his agreement with Mr. Engeron, Mr. Engeron was going to perform five jobs and then pay Mr. Olivier $90,000.00 for the equipment. When Mr. Harris was | ^injured, it was the third job Mr. Engeron had worked on since allegedly entering into the agreement with Mr. Olivier.

Mr. Olivier testified that he gave advice to Mr. Engeron on how to perform these jobs. He also did the initial meet and greet with the homeowner on the third job. Mr. Olivier also gave Mr. Engeron advice on where he would place the equipment needed to raise the house. Mr. Olivier testified that he did not receive any money from these jobs.

Mr. Olivier’s own testimony was the only evidence he introduced to support his argument that he sold his business to Mr. Engeron. Therefore, he failed to meet his burden of proof. However, the trial court determined that Mr. Olivier and Mr. En-geron entered into a contract to sell pursuant to La.Civ.Code art. 2623. We agree with the trial court for the following reasons.

A contract to sell is “[a]n agreement whereby one party promises to sell and the other promises to buy a thing at a later time, or upon the happening of a condition, or upon performance of some obligation by either party[.]” Id. “Such a contract does not transfer ownership of the property involved.” Hewitt v. Safeway Ins. Co. of Louisiana, 01-115, p. 4 (La.App. 3 Cir.6/6/01), 787 So.2d 1182, 1185. Further, as noted by the trial court, Comment (c) to La.Civ.Code art. 2623 provides that ownership and risk remain with the vendor in a contract to sell because a contract to sell does not effect a transfer of ownership.

Mr. Olivier himself agreed that ownership of the equipment of the business would not transfer until Mr. Engeron had completed five jobs. This appears to be the same arrangement he had with the first buyer, which was never finalized. Furthermore, the evidence strongly supports Mr. Harris’s testimony that Mr. Olivier himself hired him. It was Mr. Harris’s impression that Mr. Engeron was |7the supervisor. There are receipts for two checks for $400.00 in evidence given to Mr. Harris after the accident from Mr. Engeron. Cindy Harris, Mr. Harris’s wife, testified that Mr. Engeron presented her with these checks as payment for salary for two weeks. She testified that Mr. Engeron told her that Mr. Olivier told him to give her those checks for her husband and that he was going to continue paying her husband.

The trial court was correct in denying Mr. Olivier’s exception of no right of action. . The evidence establishes that Mr. Olivier was still Mr. Harris’s direct employer at the time of the accident.

PRESCRIPTION

Mr. Olivier’s next assignment of error claims that Mr. Harris’s claim has prescribed because it was filed more than one year after the accident. The petition filed by Mr. Harris made no mention of a previously filed workérs’ compensation suit and its resulting judgment.

Generally, “prescription statutes 'are strictly construed against prescription and in favor of the obligation sought to be extinguished.’ ” Quinn v. Louisiana Citizens Prop. Ins. Corp., 12-152 (La.11/2/12), 118 So.3d 1011 (quoting Taranto v. La. Citizens Prop. Ins. Co., 10-105, p. 5 (La.3/15/11), 62 So.3d 721, 726). Usually it is the party pleading prescription that bears the burden of proof at trial on the exception; however, when the petition is prescribed on its face, the burden shifts to the plaintiff to establish that his claim is not prescribed. Id.

The prescriptive period for a del-ictual action is one year. La.Civ.Code art. 3492. Because Mr. Harris’s claim for legal damages was filed more than one year after the work injury, the action has prescribed on its face. However, La.R.S. 23:1032.1(A) permits a suit against an employer who has no insurance or ^certification of self-insured status and failed to pay a workers’ compensation judgment for sixty days.

Pursuant to La.Code Civ.P. art. 931, evidence may be introduced to support or controvert the exception of prescription when the grounds do not appear from the petition. As permitted by La.Code Civ.P. art. 928, Mr. Olivier raised his exception of prescription on the day of trial, so the trial court heard evidence regarding the exception during the trial. In controverting Mr. Olivier’s exception of prescription, Mr. Harris introduced a certified copy of the workers’ compensation judgment against Mr. Olivier, which was objected to by Mr. Olivier. The trial court allowed this judgment to be introduced as a self-authenticating domestic public document pursuant to La.Code Evid. art. 902(1).

On appeal, Mr. Oliver claims that this was error because the judgment was a nullity pursuant to La.Code Civ.P. art. 2002(A)(2) because the petition was served on his wife while they were separated and living apart. Mr. Harris argues that he introduced evidence indicating that service was made on Jennifer Olivier who identified herself as Mr. Olivier’s wife. Mr. Olivier agreed that he lived at the residence where service was made but was not home all the time due to marital difficulties. Mr. Olivier’s own testimony indicates that the parties reconciled and were still together by the time of this trial. We find service of process at Mr. Olivier’s domicile was proper pursuant to La.Code Civ.P. art. 1234.

Mr. Olivier also argued that the workers’ compensation judgment was not relevant to the proceedings. The workers’ compensation judgment was necessary and relevant for Mr. Harris to establish that he had obtained a judgment against Mr. Olivier from the Office of Workers’ Compensation. The trial court properly admitted the judgment.

RThe judgment was signed on January 9, 2012. Mr. Harris filed the present suit on April 2, 2012. This was after sixty days elapsed from the judgment but well within the one-year prescriptive period provided by La.Civ.Code art. 3492. Therefore, the trial court properly denied Mr. Olivier’s exception of prescription.

NO CAUSE OF ACTION

Mr. Olivier argues that Mr. Harris’s petition fails to state a cause of action because there are no allegations linking the workers’ compensation action to the present action. Furthermore, Mr. Olivier claims that there is no way to determine that Mr. Harris is seeking recovery pursuant to La.R.S. 23:1032.1.

A cause of action in the context of a peremptory exception of no cause of action “refers to the operative facts which give rise to the plaintiffs right to judicially assert an action against the defendant.” Maw Enters., L.L.C. v. City of Marksville, 14-90, p. 6 (La.9/3/14), 149 So.3d 210, 215. “The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the plaintiffs petition by determining whether the law affords a remedy on the facts alleged in the petition.” Id. “The exception is triable on the face of the pleadings and, for purposes of resolving the issues raised by the exception, the court must presume that all well-pleaded facts in the petition are true.” Id.

It is the mover who has the burden of proving that a petition fails to state a cause of action. Id. Review of a lower court’s decision on an exception of no cause of action is de novo. Id. The appellate must determine whether the petition states any valid cause of action for relief when viewed in a light most favorable to the plaintiff and with every doubt resolved in favor.of the plaintiff. Id.

“Generally, under LA. C.C.P. art. 931, no evidence may be introduced to support or controvert the exception of no cause of action.” Id. at 215. “However, |inan exception to this rule has been recognized by the jurisprudence, and a court may consider evidence admitted without objection to enlarge the pleadings.” Id.

Mr. Olivier’s counsel did object to the introduction of the workers’ compensation judgment stating, “I don’t know what’s the relevancy, the worker’s [sic] compensation judgment.” Counsel for Mr. Harris then explained that it was to establish that Mr. Harris already sought relief in the Office of Workers’ Compensation and that it remains unpaid. The trial court then allowed the judgment to be admitted into evidence.

As previously discussed, we do find that the judgment is relevant and properly admitted to defeat Mr. Olivier’s exception of prescription during the course of proceedings. While there was an objection as to the relevancy of the judgment, no objection was made to the trial court’s consideration of the judgment for purposes of determining the exception of no cause of action. Block v. Bernard, Cassisa, Elliott & Davis, 04-1893 (La.App. 1 Cir. 11/4/05), 927 So.2d 339. Furthermore, without objection, Mr. Olivier agreed during his testimony that Mr. Harris had a workers’ compensation judgment against him which he brought to his attorney.

Based on the petition, evidence, and testimony introduced at trial, we find that the pleadings were enlarged such that the trial court was correct in denying Mr. Olivier’s exception of no cause of action. We find that Mr. Harris stated a cause of action for penalties under La.R.S. 23:1032.1.

JUDGMENT SILENT AS TO ONE DEFENDANT

Originally Mr. Harris sued both Mr. Olivier and Mr. Engeron in tort. Pri- or to trial, counsel for Mr. Harris stated that he was not pursuing Mr. Engeron because Mr. Harris was working for Mr. Olivier at the time of his injury. On Inappeal, Mr. Olivier argues that a valid judgment cannot be rendered where a co-defendant has not filed an answer nor had a default judgment taken against him. Mr. Olivier claims that the trial court judgment does not dismiss Mr. Engeron nor is there language certifying that the judgment is a final appealable judgment as required by La.Code Civ.P. art. 1915.

“A judgment that determines the merits in whole or in part is a final judgment.” La.Code Civ.P. art. 1841. Pursuant to La.Code Civ.P. art. 1841 “[a] judgment is the determination of the rights of the parties in an action”, so that “[a] judgment cannot determine rights or award relief to persons or entities who are not parties to the litigation.” Minton v. Crawford, 98-478, p. 10 (La.App. 3 Cir. 10/7/98), 719 So.2d 743, 748 (first alteration in original).

Prior to trial, counsel for Mr. Harris related to the trial court that he was not seeking any relief from Mr. Engeron. By not pursuing his action against Mr. Enger-on, Mr. Harris risked the fact that the trial court may have found, based on the evidence, that Mr. Engeron was his employer at the time of the accident. Under those circumstances, Mr. Harris would not be entitled to judgment granting him relief against Mr. Engeron. This does not affect Mr. Olivier’s liability toward Mr. Harris. As already confirmed by this court, the evidence established that Mr. Olivier was Mr. Harris’s employer at the time of the accident. Therefore, the judgment finding Mr. Olivier liable to Mr. Harris for legal damages was a proper final judgment which granted Mr. Harris all the relief he asked for and not a partial final judgment. La.Code Civ.P. art. 1915(A).

DAMAGES

In his final assignment of error, Mr. Olivier claims that the award of damages was excessive. He argues that Mr. Harris was able to return to work [ ^making twice the money he did before the accident. Mr. Olivier also claims that while Mr. Harris has some discomfort with his hand, he seems to have full use of his hand. The trial court awarded $125,000.00 in general damages. Special damages awarded included $25,947.90 for medical expenses and $54,200.00 for loss of wages.

The trial court is given great discretion in its assessment of both general and special damages. La.Civ.Code art. 2324.1; Monte v. State Farm Mut. Auto. Ins. Co., 13-979 (La.App. 3 Cir. 5/21/14), 139 So.3d 1139, writ denied, 14-1289 (La.9/26/14), 149 So.3d 267. A trial court’s decision as to the appropriate amount of damages is entitled to great deference on review. Monte, 139 So.3d 1139. Therefore, an appellate court should rarely disturb an award on review. Id. “Special damages are those which theoretically may be determined with relative certainty, including medical expenses and lost wages.” Id. at 1148. “An appellate court, in reviewing a jury’s factual conclusions with regard to special damages, must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusions, and the finding must be clearly wrong.” Id. “A general damage award cannot be fixed with pecuniary exactitude.” Id. at 1150. “An appellate court may disturb a damages award only after an articulated analysis of the facts discloses an abuse of discretion.” Id.

In awarding medical expenses, the trial court relied on the award in the workers’ compensation judgment itself. Also, Mr. Olivier designated the record on appeal and did not include the medical bills submitted by Mr. Harris, so based on the evidence in the record before us, we find that trial court’s award for medical expenses is proper.

11sThe trial court also relied on Mr. Harris’s testimony that he was making $700.00 a week and he was out of work for one-and-half years, or seventy-eight weeks, in awarding damages for loss of wages. We also find this award appropriate.

Regarding general damages, again we have no medical records to review. Mr. Harris testified that he was initially brought to Abbeville General Hospital where it was determined that he needed to be transferred to Our Lady of Lourdes Regional Medical Center due to the severity of the injury to his left hand. An orthopedic surgeon operated on his hand. Mr. Harris explained that all his fingers and his wrist were severely injured. He had to stay in the hospital for three days. He then went to physical therapy for five to six months. Mr. Harris testified that the therapy hurt worse than the initial accident.

Mr. Harris was unemployed for a year and half because he could not pick up anything with his left hand. Mr. Harris was able to secure employment with Monc-la originally as a driller, with a promotion to a toolpusher by the time of trial. His hand continued to bother him at the time of trial. He explained that his wrist is weak and cold weather creates problems when he tries to open his hand. Mrs. Harris confirmed that her husband continues to have problems with his hand bothering him, especially when it is cold. Considering the testimony of the Harrises, we find no abuse of discretion in the trial court’s award of $125,000.00 in general damages.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Jason Olivier d/b/a Olivier’s Contractors.

AFFIRMED.

AMY, J., concurs in part, dissents in part, and assigns reasons.

AMY, J.,

concurring in part and dissenting in part.

|¶1 agree with the majority’s affirmation of the rulings on the defendant’s exceptions. However, I respectfully dissent from the opinion’s resolution of the foundational issue of whether La.R.S. 23:1032.1 requires that an employee prove all elements of a tort action. In this case, the element at issue is that of fault/negligence. Affirming the trial court’s finding on this point, the majority concludes that La.R.S. 23:1032.1 does not require, demonstration of that element as the statute is punitive in nature.

In my opinion, however, the actual penalty to the employer is the risk of being “sue[d] ... for all legal damages” which would eliminate the employer’s protections under the workers’ compensation provisions and expose it to liability for general damages as well as a less structured framework for loss of earnings, etc. Simply put, I find that La.R.S. 23:1032.1 provides an avenue for an employee’s recovery under a general tort cause of action. With that “penalty” in mind, I do not see language otherwise within La.R.S. 23:1032.1, or in surrounding statutory authority, that would eliminate a requirement as fundamental as a plaintiffs burden of proof in a suit for “legal damages.” For that reason, I find error in the trial court’s determination that the plaintiff was not required to establish negligence. I would reverse on that issue and remand for further proceedings.


author: AMY, Judge.

text:
    Dannie K. DAVIS, et ux. v. BURKE’S OUTLET STORES, LLC, et al.
    No. 14-686.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.

      Barry J. Heinen, A Professional Law Corporation, Lafayette, LA, for Plaintiffs/Appellants, Dannie K. Davis, Dee Ro-binette Davis.
    Lewis 0. Lauve, Jr., Bussey & Lauve, LLC, Alexandria, LA, for Intervenor/Ap-pellant, City of Alexandria.
    Brett M. Bollinger, L. Peter Englande, Jr., Zaunbrecher Treadaway, L.L.C., Cov-ington, LA, for Defendants/Appellees, Hartford Fire Insurance Company, Burke’s Outlet Stores, LLC.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

[,The plaintiff, an Alexandria police officer, alleges that, after responding to a call at a local store about a matter of suspected shoplifting, he was injured when he crashed through a locked glass door while in pursuit of a suspect. The plaintiff and his wife sued the store, alleging that the store was negligent in locking the glass door. The store filed a motion for summary judgment, contending that the plaintiff, who was acting in his capacity as a police officer, was precluded from recovery under the professional rescuer’s doctrine. The trial court granted the motion for summary judgment, dismissing the plaintiffs’ claims. The plaintiffs and the inter-venor appeal. For the following reasons, we reverse and remand.

Factual and Procedural Background

The undisputed facts in the record indicate that the plaintiff, Dannie K. Davis, was employed as a police officer by the Alexandria Police Department. In in that capacity, he responded to a call concerning a suspected shoplifter at Burke’s Outlet Stores, L.L.C. The record indicates that the store had a pair of glass ingress/egress doors and that the “right”-side door was locked, forcing pedestrian traffic to enter and exit through the “left”-side door. According to Officer Davis, after he confronted the suspect, she fled. While in pursuit, Officer Davis ran into the locked glass door, causing the glass to shatter. Officer Davis alleges that he suffered severe injuries as a result.

Thereafter, Officer Davis and his wife, Dee Robinette Davis, filed this suit against Burke’s and its insurer, Hartford Fire Insurance Company, seeking damages they allege occurred as a result of the incident. The City of Alexandria intervened, seeking reimbursements of workers’ compensation benefits and medical expenses paid to Officer Davis or on his behalf. Burke’s filed a motion pfor summary judgment, contending that Officer Davis’ suit was precluded by the professional rescuer doctrine. After a hearing, the trial court granted the motion for summary judgment and dismissed the plaintiffs’ claims.

The plaintiffs appeal, asserting that:

1. The trial court committed reversible error by granting defendant’s motion for summary judgment in that there was a genuine issue of material fact for the fact finder to consider.
2. The trial court committed reversible error by not considering the affidavit of Mr. Phillip Beard, P.E., a licensed civil engineer, an expert in structural engineering, who verified that Burke’s Outlet Store had violated the National Fire Prevention Life Safety Code (NFPA), which created a hazard at the store and as a result, there was a genuine use of fact whether the defendant owed a duty and/or whether there was a breach of that duty [sic].
3. The trial court committed reversible error, independent of the affidavit of Mr. Beard, in finding that the Professional Rescuer Doctrine bars recovery by officer Dannie Davis when the circumstances of the incident were clearly not barred because the actions of Dannie Davis were exceptions to the application of the Rescuer’s Doctrine. A professional rescuer may recover for an injury caused by a risk which is independent of the emergency or problem he has assumed the duty to remedy. Alternatively, if the risk is a dependent risk, recovery is not allowed unless (A) the dependent’s risks encountered by the professional rescuer are so extraordinary that it cannot be said' that the parties intended the rescuer to assume them; or (B) the conduct of the defendant is so blameworthy that tort recovery should be imposed for the purpose of punishment or deterrence.

Additionally, the City of Alexandria has appealed, asserting that the trial court erred in determining that no genuine issues of material fact existed and in granting summary judgment in favor of the defendants.

Discussion

Evidentiary Issues

The plaintiffs first assert that the trial court erred in refusing to consider one of their expert’s affidavits. The trial court found that, because the expert did not [sknow when the Burke’s building was constructed or remodeled and simply assumed which version of the National Fire Prevention Life Safety Code applied, that the affidavit was not based on personal knowledge and therefore could not be considered.

The trial court’s determination whether to admit or exclude evidence will not be reversed absent an abuse of discretion. Gutierrez v. Baldridge, 10-1528 (La.App. 3 Cir.5/11/11), 65 So.3d 251, writ denied, 11-1589 (La.10/7/11), 71 So.3d 319. Pursuant to La.Code Civ.P. art. 967:

A. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts’ opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

An expert’s affidavit need not be based on personal knowledge and may be based on hearsay or other evidence that would be inadmissible at trial. Thierry v. State Through Dept. of Health & Hosp. & Univ. Med. Ctr. of Lafayette, 06-1133 (La.App. 3 Cir. 2/7/07), 948 So.2d 1200.

The plaintiffs offered the affidavit of Phillip Beard, P.E., in order to show that locking the ingress/egress door was a violation of the Life Safety Code. The defendants argued that Mr. Beard’s affidavit was not competent evidence because Mr. Beard stated that he had no knowledge when Burke’s building was constructed or remodeled and simply assumed that the 2003 version of the Life Safety Code applied.

14Our review of the record shows that the affidavit was admitted into evidence. However, in granting the motion for summary judgment, the trial court stated that he could not consider Mr. Beard’s affidavit because it must be based on personal knowledge. We conclude that the trial court erroneously determined that Mr. Beard’s affidavit could not be considered as it was not based on personal knowledge. However, although the trial court discounted his affidavit, the record reveals that Mr. Beard’s affidavit was admitted into evidence. Because the appellate court reviews the grant of summary judgment de novo, including the evidence properly admitted into the record, and in light of our conclusions regarding the existence of a genuine issue of material fact, we find that any error concerning the trial court’s refusal to consider Mr. Beard’s affidavit was harmless.

Summary Judgment

The parties also complain that the trial court erred in granting summary judgment. Finding that genuine issues of material fact exist, we conclude that the trial court erred in granting the motion for summary judgment.

Summary judgment is favored in our law and is designed to secure the just, speedy and inexpensive determination of actions. La.Code Civ.P. art. 966(A)(2). A party is entitled to summary judgment if “the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue Las to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2). Although the burden of proof remains with the moving party,

if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2). Additionally, pursuant to La.Code Civ.P. art. 967(B):

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

The appellate court reviews a grant of summary judgment de novo and applies the same standards as the trial court. Gutierrez, 65 So.3d 251. With regard to genuine issues of material fact, a genuine issue is one as to which reasonable persons could disagree. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764. A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Id.

The parties do not address whether Officer Davis’ claim falls under the general tort articles in the Civil Code or the merchant liability statute. However, under any of those theories, Officer and Mrs. Davis must satisfy their burden of proof with regard to the duty-risk analysis. See Zacher v. Harrah’s New Orleans Mgmt. Co., 13-1237 (La.App. 4 Cir. 2/12/14), 136 So.3d 132. We find that under |6any of these provisions, a genuine issue of material fact remains.

Louisiana has adopted a “duty-risk” analysis for negligence claims, and, in order to prove a claim for general negligence, a plaintiff must prove all of the elements thereof. Pitre v. La. Tech Univ., 95-1466, 95-1487 (La.5/10/96), 673 So.2d 585, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996). The duty-risk analysis requires the plaintiff to prove 1) that'the defendant had a duty to meet a certain standard of conduct; 2) that the defendant’s conduct failed to meet that standard; 3) that the substandard conduct was a cause-in-fact of the plaintiffs injuries; 4) that the substandard conduct was the legal cause of the plaintiffs injuries; and 5) that the plaintiff suffered actual damages as a result of the breach. Bonin v. Ferrellgas, Inc., 03-3024 (La.7/2/04), 877 So.2d 89.

. Whether a duty exists is a question of law for the court to determine, and whether that duty was breached is a question of fact. Broussard v. State ex rel. Office of State Bldgs., 12-1238 (La.4/5/13), 113 So.3d 175. Further, whether framed as “proximate cause,” “legal cause,” or “duty,” the scope of the duty is a legal determination which concerns whether an enunciated rule or principle of law is intended to protect a particular plaintiff from a particular type of harm. Henry v. Barlow, 04-1657 (La.App. 3 Cir.5/4/05), 901 So.2d 1207.

Whether a condition is unreasonably dangerous is a determination of whether the defendant breached a duty owed, which the factfinder must determine in light of the facts and circumstances of each particular case. Broussard, 113 So.3d 175. In making that determination, the factfinder should consider the utility of the complained-of condition; the likelihood and magnitude of the harm, which includes the obviousness and apparentness of the condition; the cost of preventing the harm; and the nature of the plaintiffs activities in terms of its social utility, i.e., [7whether or not it is dangerous by nature. Id. However, not every minor imperfection or variation constitutes an unreasonable risk of harm. Id.

Under any of these theories of liability, Burke’s had a duty to keep its premises safe from unreasonable risks of harm and to warn its patrons of known dangers. Pryor v. Iberia Parish Sch. Bd., 10-1683 (La.3/15/11), 60 So.3d 594. See also La. R.S. 9:2800.6; La.Civ.Code art. 2317.1. In this case, the uncontested facts in the record show that Burke’s locked one side of the double glass ingress/egress doors; that Officer Davis ran into those doors while chasing a suspect; and that he suffered injuries as a result. Having reviewed the record, we conclude that reasonable persons could disagree about whether Burke’s actions in locking one side of the ingress/egress doors constituted an unreasonable risk of harm, and that, therefore, a genuine issue of material fact remains with regard to this element.

Further, we must also consider whether Burke’s duty to keep its premises safe from unreasonable risks of harm and to warn its patrons of known dangers extended to Officer Davis and the manner in which he sustained his injuries. It is arguably foreseeable that a police officer responding to a business’ report of shoplifting might become involved in some sort of altercation with the suspect, and. that the responding officer might be injured by a condition which constitutes an unreasonable risk of harm. Thus, we cannot conclude as a matter of law that Officer Davis and Mrs. Davis would not be able to prove that the damages sustained were within the scope of the duty owed.

Professional Rescuer Doctrine

Having found that a genuine issue of material fact remains with regard to the the plaintiffs’ underlying claims, we must consider whether the trial court erred in ^determining that the professional rescuer doctrine precludes Officer Davis’ recovery in this matter. The professional rescuer doctrine is a jurisprudential rule that provides that professional rescuers, such as firemen and policemen, assume the risk of injuries incurred in the performance of their duties and are not entitled to damages. Henry, 901 So.2d 1207. The doctrine addresses the risks included within the scope of the defendant’s duty and to whom the duty is owed. Holloway v. Midland Risk Ins. Co., 36,262 (La.App. 2 Cir.10/30/02), 832 So.2d 1004, writ denied, 02-3247 (La.3/28/03), 840 So.2d 571.

This prohibition is not, however, absolute — the courts have found that professional rescuers do not assume the risk of all injury without recourse and have recognized two exceptions. Henry, 901 So.2d 1207. The first exception provides that a professional rescuer may recover for injuries resulting from risks independent of the emergency or problem he or she has assumed the duty to remedy. Henry, 901 So.2d 1207. A risk is independent when the risk-generating object could pose a risk to the rescuer in the absence of the emergency or specific problem undertaken. Gann v. Matthews, 03-640 (La.App. 1 Cir. 2/23/04), 873 So.2d 701, writ denied, 04-761 (La.6/18/04), 876 So.2d 804. The second exception applies to injuries that are the result of dependent risk, i.e., one which arises from the emergency that the rescuer was hired to remedy. Gann, 873 So.2d 701. This exception applies when the risk is either 1) “so extraordinary that it cannot be said that the parties intended for the rescuers to assume them[,]” or 2) that the defendant’s conduct is “so blameworthy that tort recovery should be imposed for the purposes of punishment or deterrence.” Henry, 901 So.2d at 1213 (quoting Holloway v. Midland Risk Ins. Co., 33,026 (La.App. 2 Cir.5/15/00), 759 So.2d 309).

[^Before addressing whether the mechanism of Officer Davis’ injuries were a dependent or independent risk, we observe that under current Louisiana tort theory, the professional rescuer’s doctrine addresses the risks included within the scope of the defendant’s duty and to whom that duty is owed. Henry, 901 So.2d 1207 (quoting Worley v. Winston, 550 So.2d 694 (La.App. 2 Cir.), writ denied, 551 So.2d 1342 (La.1989)). In order to be entitled to summary judgment, a party must not only show that no genuine issue of material fact remains, but that he or she is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B)(2). Having found that this court was unable to determine, as a matter of law, whether Officer Davis’ damages were within the scope of the duty owed by Burke’s, we are similarly unable to find, as a matter of law, that the plaintiffs’ claims would be barred by the professional rescuer doctrine.

Accordingly, we find that summary judgment is inappropriate and that the trial court erred in granting summary judgment in favor of Burke’s.

DECREE

For the foregoing reasons, the trial court’s judgment granting Burke’s Outlet Stores, L.L.C.’s motion for summary judgment and dismissing the plaintiffs claim is reversed and remanded for further proceedings. Costs of this appeal are assessed to the defendants, Burke’s Outlet Stores, L.L.C. and Hartford Fire Insurance Company.

REVERSED AND REMANDED.

      . However, although personal knowledge is not required, La.Code Evid. art. 702 requires that the expert’s testimony be “based on sufficient facts or data.” In that vein, the trier of fact may reject an expert's opinion when it is “based upon assumed facts not supported by the record.” Ayres v. Beauregard Elec. Coop., Inc., 94-811, p. 10 (La.App. 3 Cir.9/6/95), 663 So.2d 127, 133, writs denied, 95-2432, 95-2434 (La.12/15/95), 664 So.2d 455. See also Guillory v. Ins. Co. of N. America, 96-1084 (La.4/8/97), 692 So.2d 1029. We observe that Mr. Beard's conclusion about the applicability of the Life Safety Code is based on assumptions about the date of construction or renovation of the Burke’s building which are not contained in the record.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. James Craig JOHNSON, Jr.
    No. 14-710.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.
    Brent Hawkins, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, James Craig Johnson, Jr.

      James C. “Jam” Downs, District Attorney — Ninth Judicial District, Monique Y. Metoyer, Assistant District Attorney, Alexandria, LA, for Appellee, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

_JjIn this criminal case, Defendant, James Craig Johnson, Jr., appeals his second degree murder conviction, alleging insufficiency of the evidence and the impermissible withholding of Brady material and exculpatory evidence. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The facts in the record reveal that on the afternoon of January 4, 2012, the body of the victim, Ms. Jacqueline Bazert, was discovered in her home at 222 Fifteenth Street, Alexandria, Louisiana. Ms. Bazert had been stabbed 137 times and died as a result of those stab wounds.

On November 13, 2013, a Rapides Parish jury found Defendant guilty of the second degree murder of Ms. Bazert, a violation of La.R.S. 14:30.1. Defendant was sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence. Defendant filed a Motion for Reconsideration of Sentence, which was denied.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Our review of the record does not establish any errors patent.

ASSIGNMENTS OF ERROR

Defendant has submitted for our review the following two assignments of error:

ASSIGNMENT OF ERROR NO. 1: The evidence presented at trial was insufficient to convict the Appellant of second-degree murder.
| ^ASSIGNMENT OF ERROR NO. 2: The State committed reversible error by failing to disclose facts favorable to Appellant in violation of Brady.

ASSIGNMENT OF ERROR NUMBER ONE:

Defendant argues that his conviction was the result of “circumstantial evidence that was the product of a poor police investigation to gain a conviction, where, due to the poor police investigation, the State was unable to exclude every reasonable hypothesis of innocence.” Defendant’s reasonable hypothesis of innocence is that another person, Joseph Wilkerson, killed Ms. Bazert.

In State v. Williams, 13-497, pp. 4-5 (La.App. 3 Cir.11/6/13), 124 So.3d 1236, 1240, writ denied, 13-2774 (La.5/16/14), 139 So.3d 1024, this court discussed direct and circumstantial evidence in light of whether the evidence was sufficient, as follows:

“Evidence may be either direct or circumstantial.” State v. Jacobs, 07-887, p. 12 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 551, writ denied, 11-1753 (La.2/10/12), 80 So.3d 468, cert. denied, — U.S. -, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012). We note that, whether the conviction is based on direct evidence or solely on circumstantial evidence, the review is the same under the Jackson v. Virginia standard.[] State v. Williams, 33,881 (La.App. 2 Cir. 9/27/00), 768 So.2d 728 (citing State v. Sutton, 436 So.2d 471 (La.1983)), writ denied, 00—[30]99 (La.10/5/01), 798 So.2d 963. Circumstantial evidence is that where the main fact can be inferred, using reason and common experience, from proof of collateral facts and circumstances. Id. Where the conviction is based on circumstantial evidence, in order to convict, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La.R.S. 15:438.
In State v. Chism, 436 So.2d 464, 469 (La.1983) (citations omitted), the supreme court discussed the use of circumstantial evidence, stating:
13Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference by which a conclusion is drawn. Like all other evidence, it may be strong or weak; it may be so unconvincing as to be quite worthless, or it may be irresistible and overwhelming. There is still no man who would not accept dog tracks in the mud against the sworn testimony of a hundred eye-witnesses that no dog passed by. The gist of circumstantial evidence, and the key to it, is the inference, or process of reasoning by which the conclusion is reached. This must be based on the evidence given, together with a sufficient background of human experience to justify the conclusion.
Consequently, before a trier of fact can decide the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made. In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.

In the instant case, the following testimony was adduced at trial. Stephanie Williams lived across the street from Ms. Bazert. Ms. Williams spoke with Ms. Ba-zert outside her house in the late afternoon of January 3, 2012. She saw Ms. Bazert again around 8:30 p.m. in front of her house and did not see her again until the next afternoon, when she and the victim’s father opened the door to the victim’s house and saw her lying on the living room floor. There was no other evidence presented establishing that Ms. Bazert was seen alive after 8:30 p.m. on the evening of January 3rd.

14There was evidence placing Defendant at the scene of the killing in that drops of the victim’s blood were, on one of his Air-Force One tennis shoes, along with his DNA found under one of the victim’s fingernails.

William Bates, a sergeant with the Alexandria Police Department, described the crime scene. He testified that the house appeared to have been searched by the killer, who, the sergeant speculated, wore gloves because of the absence of definable finger prints and bloody smears on the drawers and light switches located throughout the house. In the victim’s bedroom, items were tossed about and drawers were pulled out and rifled through. Sergeant Bates discovered a footprint pressed into some clothing on the floor. From the print, he determined that the shoe was an AirForce One tennis shoe. A photograph of the shoe print was shown to the jury. The same print was found pressed into a shirt on the floor of the living room, close to the victim’s body. Having been informed that Defendant was recently seen in the company of the victim, Sergeant Bates went to the home of Defendant’s girlfriend, Latonya Spradley, with whom he was living at the time. Because the house belonged to Ms. Spradley, Sergeant Bates obtained permission from her to search the premises and found a pam of AirForce One tennis shoes belonging to Defendant.

Ms. Spradley testified at trial that Defendant came home the evening before the victim’s body was discovered covered with blood on his pullover shirt and jeans. She stated that he told her it was paint-ball dye. She did not know what became of the clothes. It was noted at trial that in her first two statements to the police, Ms. Spradley stated that Defendant did not have any blood on his clothing when he arrived home the evening of January 3rd. On February 3, 2012, she told | sthe police that Defendant had called her on the evening of January 3rd and told her “they” had gotten into an altercation with the victim and that “they” had stabbed her. After he arrived home, she asked him about the blood on his clothing, and he told her it was red dye. She said that he never revealed whom he was with that night. However, at trial, Ms. Spradley stated that she did not remember him telling her that he had an altercation with the victim and that she did not tell the police he spoke of an altercation with the victim. In a statement made on April 2, 2012, Ms. Spradley told the police Defendant wrote her a letter and threatened that he would do to her what he had done to the woman over on Fifteenth Street. According to the State’s exhibit at trial, the victim’s house was on Fifteenth Street. She stated that she did not produce the letter because she had thrown the letter away.

Jasmine Spradley, Latonya Spradley’s sister, testified she was living with her sister and Defendant at the time. She stated that when he arrived home around 2:00 a.m. (January 4th), she did not see any blood on his clothing.

Defendant produced witnesses who testified that they were with him all afternoon and until he went home at 11:00 p.m. on January 3rd. Kevin Young testified he gave Defendant a ride home around 11:00 p.m. and did not see blood on his clothes. Kenterrick Martin testified he was with Defendant during the afternoon and evening of January 3rd. Mr. Martin testified that around midnight, while they stood outside his mother’s house, Joseph Wilkerson, also known as “JW,” walked up to them wiping off a knife and whispered in Defendant’s ear. JW bought a rock of cocaine and paid him with a twenty dollar bill. Mr. Martin stated he then walked with Defendant to the store where Defendant got a ride home. Mr. Martin testified that the next morning after he heard about the victim’s death, |fihe examined the twenty dollar bill and saw blood on the bill. He explained he went to the store and spent the money because he did not want anything to do with it. Mr. Martin further testified that he was currently incarcerated and that he had several prior convictions for burglaries, possession of a controlled dangerous substance with intent to distribute, and theft. Devon Jordan, who also admitted he had a criminal history of violent crimes and drug convictions, testified he was with Defendant and Mr. Martin the night of January 3rd when JW approached them in the street. Mr. Jordan stated he went into a friend’s house, and, when he came out, JW was gone. Defendant and Mr. Martin then left the area, heading down the street.

Joann Taylor testified that JW was living with her at the time of this incident. She stated that when she came home around 9:00 the evening of January 3rd, there were drops of blood all over her bathroom floor and in his bedroom. She stated he asked her daughter for a band-aid because he had cut his little finger. She said he also had scratches on his neck and that he was acting real “jittery.” Ms. Taylor also mentioned a prior incident wherein JW had lunged at her with a broken steak knife. She testified that JW hurriedly left town three days after the victim was killed. She called the police and told them to come get the bloody comforter that was on his bed. Ms. Taylor stated that Detective Fairbanks came and got the comforter and that she never heard anything of it thereafter.

Clifton Fairbanks, a detective with the Alexandria Police Department, and Sergeant Bates both testified that they went to Ms. Taylor’s house following a phone call from her that she had information regarding the death of Ms. Bazert. They testified that they did not see blood on the bedding. Ms. Taylor told them she had washed everything, including the comforter. However, they did see what |7looked like spaghetti or barbecue sauce stains around the bed. They stated they did not take the comforter with them.

Detective Fairbanks had testified earlier that JW was a person of interest at the time of the investigation. He said that he had brought JW back from Indiana. A buccal swab was taken from JW and submitted for DNA testing. JW told the police he had given a knife to Defendant that evening. After testing, it was determined that JW’s DNA was not associated with the offense.

Defendant argues that the three pieces of evidence the State relied on were inconclusive as to his guilt or participation in the murder. He suggests that the “small drop of the victim’s blood” discovered on the top of his shoe was either deposited at some time when he was in the victim’s company while doing an odd job for her, or when JW was wiping off the knife he stabbed the victim with when he stood with Defendant and his friends on the street corner that evening. He contends that the testimony established that the crime lab tested only two of the eight fingernail clippings from the victim’s hands. He argues that had the crime lab tested for DNA from all eight of the fingernail clippings, “in a best case scenario a highly reliable DNA profile could have been identified[,]” possibly of another person.

The State produced a recorded conversation between Ms. Spradley and Defendant while he was incarcerated wherein the State asserted Defendant confessed. As to the alleged jailhouse confession, Defendant argues:

Thirdly, there is a jailhouse recording of a conversation between James and Latonya Spradly (“Spradly”), his girlfriend, where during that conversation he says I’m guilty. In listening to the conversation, it is clear that James and Spradly are arguing or, at the very least, are argumentative. Just prior to James saying the word guilty, he is discussing the filing of motions before anything can transpire. Then, very abruptly he says, “I’m’ [sic] guilty you think I like being in here, kyou think I want to be here”. (State Ex. 28 @ ~ 4:18). Listening to the recording there is a sense of frustration, as he feels he is being treated as if he is guilty until proven innocent; that nothing is going to change his position; and that Spradly, his girlfriend, is treating him and talking to [him] as if he is guilty.

The jury listened to the recording and also heard Defendant encourage Ms. Spradley to lie and say that she did not give the police permission to search the house, as testified to by Detective Fairbanks.

The State also produced a recorded statement Defendant gave to the police, which was also transcribed. The jury heard the recorded statement. In the statement, Defendant described the days of January 3rd and 4th. On January 3rd, he stated that he spent the day smoking crack cocaine and consuming alcohol. He described being with his friends, Kenter-rick Martin and Devon Jordan, all day. He stated that about 11:00 p.m., he got a ride home with Kevin Young. He believed the last time he saw the victim was when he fixed her cable for her television before or just aftér Christmas. .

We find the evidence was sufficient to convict Defendant of second degree murder. The jury heard both the direct and circumstantial evidence and all of the contradicting and inconsistent testimony. The fact finder is given much discretion in making determinations of credibility and sufficiency of the evidence, and appellate courts are not required to determine whether witnesses are believable or the evidence establishes guilt beyond a reasonable doubt. State v. Mussall, 523 So.2d 1305 (La.1988). Appellate courts are to “impinge[] upon ‘jury’ discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

Considering the totality of the evidence in a light most favorable to the prosecution, we find the jury’s decision to convict Defendant was based on reason |fland common experience from the physical evidence presented, proof of collateral facts, and the circumstances. Defendant’s reasonable hypothesis of innocence was that JW was the one who stabbed the victim to death. However, there was no évidence of JW’s presence in the house at the time of the murder. There was substantial evidence establishing that Defendant was in the victim’s house at the time of the murder by the presence of the victim’s blood on his shoes and his DNA under one of her fingernails. Furthermore, a shoe print consistent with Defendant’s shoe, on which the victim’s blood was found, was located in the victim’s bedroom and living room under circumstances that indicated he searched though her house the night of the murder.

We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO:

Defendant further contends that the State withheld material evidence in violation of Brady, which undermines confidence in the verdict. The evidence allegedly withheld was Ms. Taylor’s revelation to the police that the evening before the victim’s body was discovered, JW left a trail of blood in her bathroom and on the comforter on his bed and that he threatened her with a knife prior to the victim’s death.

At trial, Detective Fairbanks testified that on January 18, 2012, he and Sergeant Bates went to Ms. Taylor’s home regarding a bloody comforter. He stated he did not include the information regarding his visit to Ms. Taylor’s home in his supplemental report. However, he stated that he did take a recorded statement and that the statement was transcribed.

110In brief to this court, the State attaches a copy of Ms. Taylor’s statement taken January 18, 2012, bates stamped pages 266-85, and asserts that the statement was included with the discovery. The State argues:

As previously stated, Appellant, through his counsel of record was provided with a complete copy of the State’s file, “bates stamped” pages numbered 001-629, on September 27, 2012. A duplicate copy of the same with filed with the Ninth Judicial District Clerk of Court, under seal, on September 27, 2012. (See Exhibit 2, letter to the Clerk of Court). The State continued to provide Appellant, through his counsel of record, supplemental information and/or documents, as evidence by letters from the State to defense counsel delineating the additional information provided. (See Exhibit 3).

Thus, the record indicates that the State provided Defendant, through his counsel of record, a copy of the State’s entire file, consisting of “bates stamped” pages numbered 001-629. Included in the State’s file was the statement Ms. Taylor gave to Detectives Fairbanks and Howard on January 18, 2012, which included the information Defendant contends was not disclosed to him. Therefore, the alleged undisclosed information was not withheld from Defendant, and this argument of error is without' merit.

DISPOSITION

Defendant’s second degree murder conviction is affirmed.

AFFIRMED.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . When the issue of sufficiency of the evidence is raised, the inquiry of the court is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . In this opinion, Defendant refers to Ms. Spradley as “Spradly.”


author: PICKETT, Judge.

text:
    TWO OIL SERVICES, LLC v. SIMONS PETROLEUM, LLC, et al.
    No. 14-712.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.

      Michael W. Magner, T.A., Donald W. Washington, Virginia W. Gundlach, Blaire B. Suire, Jones, Walker LLP, New Orleans, Louisiana, for Defendant-Appellant, Simons Petroleum, LLC.
    J. Bryan Jones, III, Attorney at Law, Lake Charles, LA, for Plaintiff-Appellee, Two Oil Services, LLC.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   PICKETT, Judge.

_|jAfter a default judgment was confirmed against Simons Petroleum, LLC (Simons), it filed a motion for new trial that the trial court denied. Simons now appeals the default judgment and the denial of its motion for new trial. For the following reasons, the judgment is reversed, and the matter is remanded for further proceedings.

FACTS

In July 1999, Two Oil Services, L.L.C. (Two Oil) entered into a Facilities Utilization Agreement (Utilization Agreement) with J.A. Pallet Company, Inc. and J.C.B. Marine Rentals, Inc. (collectively, Pallet), wherein Pallet granted Two Oil use and access to portions of its shore-based facility in Cameron Parish to put Two Oil’s fuel equipment on the facility for the purpose of selling fuel and lubricants. By a Second Addendum, dated February 4, 2000, the original five-year term of the Utilization Agreement was extended until February 28, 2010, with the option to renew for three successive five-year periods upon mutual agreement of the parties as to terms and conditions.

On November 11, 2002, Two Oil and Simons entered into a Purchase, Assignment and Facilities Management Agreement (Assignment and Management Agreement) whereby Two Oil sold all of its fuel and lubricants inventory to Simons, assigned all of its rights in the Utilization Agreement to Simons, and leased its fueling equipment and tankage to Simons. In exchange, Simons agreed to pay Two Oil a 40% share of the net profits from the fuel dock operations and a fee of $0.10 per gallon of lubricant.

|2In a Third Addendum to the Utilization Agreement, Pallet agreed that if Simons purchased all of Two Oil’s equipment and tankage before February 28, 2010, it could renew the first five-year option on the same terms as provided under the Utilization Agreement, by providing ninety (90) days prior written notice. The second and third renewals remained subject to the parties reaching mutually agreeable terms and conditions as provided in the first and second Utilization Agreements. Two Oil was not a party to the Third Addendum.

On November 30, 2009, Two Oil agreed to sell Simons the equipment it leased to Simons under the Assignment and Management Agreement for a purchase price of $175,000.00, which was represented by a promissory note. The promissory note was payable in quarterly installments of $10,000.00 each on the last day of each quarter beginning March 31, 2010, and continuing on the last day of each quarter until December 31, 2014. At that time, any unpaid principal and interest became due and payable. The promissory note provided for 5% per annum interest, unless any amount was not paid when due. In that event, the unpaid balance would accrue interest at a rate of 10%. Two Oil had the right to declare the entire indebtedness immediately due and payable “if not paid within ten (10) days after written demand.”

On June 25, 2013, Two Oil filed this suit against Simons and Pallet. In its petition, Two Oil alleged that Simons’ payments on the promissory note were “fully paid until no quarterly payment was received on March 31, 2013” and that because the, March 31, 2013 payment was not received, Simons owed Two Oil the balance on the note, $75,459.00, plus 10% per annum interest, reasonable attorney’s fees, court costs, and other collection expenses. Two Oil further alleged that Simons was in breach of its contracts and in breach of the fiduciary ^responsibility it owed Two Oil for failing to secure renewal of the Utilization Agreement and failing to ensure that its operations continued.

On July 1, 2013, Simons was served through its agent for service of process. Simons did not file an answer or otherwise respond to the suit, and a preliminary default was on November 19, 2013. Thereafter, on December 11, 2013, a confirmation hearing was held. At the conclusion of the hearing, judgment confirming the default was rendered in favor of Two Oil. The judgment awarded Two Oil $75,459.00, plus 10% interest per year, beginning January 1, 2013, and attorney’s fees in the amount of $20,618.85, plus legal interest from the date of the judgment on the promissory note. The judgment also awarded Two Oil damages in the amount of $1,064,469.00, plus legal interest from the date of judicial demand on its breach of contract claim and all costs of the proceeding.

Simons filed a motion for new trial and to set aside the default judgment and peremptory exceptions of prescription and no cause of action. After a hearing, the trial court denied the motion for new trial and the exceptions. Simons appealed the judgment.

ASSIGNMENTS OF ERROR

Simons’ appeal presents the following issues for review:

1. Did the trial court err in entering a default judgment against Simons on the [pjromissory [njote and denying a new trial, when Simons showed that the principal amount was unsupported, the penalty interest of 10% was awarded for a time period when the note was not in default, and the award of $20,618.85 in attorney’s fees was unsupported by evidence of its reasonableness and is manifestly erroneous under Louisiana law:
2. Did the trial court err in granting a default judgment in favor of Two Oil for $1,064,468.00, plus legal interest, for lost profits through 2025 and compound that error by denying Si-mons’ motion for new trial, peremptory exceptions of no cause of action Land prescription when: 1) Simons had no contractual obligation to exercise an option to renew the Utilization Agreement^] and therefore, Two Oil has no cause of action for breach of contract; 2) Simons had no fiduciary duty to renew because the parties expressly agreed there was no fiduciary relationship between them[,] and therefore, Two Oil has no cause of action for breach of fiduciary duty; 3) even assuming a fiduciary duty existed, the claim is prescribed on the face of the petition; 4) the parties expressly agreed that neither would be entitled to consequential damages, including loss of profits, and therefore, the award was erroneous; 5) Simons did in fact exercise its right to renew, which Pallet dishonored, and therefore, the premise of Two Oil’s claim is incorrect; and 6) the opinion of Dr. Bettinger regarding past, present, and future lost profits was based on erroneous assumptions and the existence of two legally invalid renewal options.

STANDARD OF REVIEW

Appellate review of default judgments is limited to a determination of whether the evidence offered in support of the judgment was sufficient to prove the plaintiffs claims. Bordelon v. Bayer, 01-717 (La.App. 3 Cir.3/13/02), 811 So.2d 1232, writ denied, 02-1009 (La.6/21/02), 819 So.2d 340. This determination is factual and governed by the manifest error standard of review. Id. The standard of review for the denial of a motion for new trial is abuse of discretion. Zeno v. Nixon, 13-1267 (La.App. 3 Cir. 3/12/14), 133 So.3d 1285.

DISCUSSION

Pursuant to La.Code Civ.P. art. 1001, a defendant’s failure to file an answer within fifteen days after service of citation exposes the defendant to a judgment of default, unless he files an exception prior to answer or the trial court grants additional time for answering upon motion. Notwithstanding the specified delay periods for answering, a “defendant may file his answer at any time prior to confirmation of a default judgment against him.” La.Code Civ.P. art. 1002.

|fiWhen the defendant fails to timely file an answer, a default judgment may be obtained against him by oral motion in open court or by written motion, entered in the minutes of the court; the judgment consists merely of a minute entry. La. Code Civ.P. art. 1701(A). The judgment of default may then be confirmed two days, exclusive of holidays, after the entry of the default judgment. La.Code Civ.P. art. 1702(A).

Confirmation of a default requires “proof of the demand that is sufficient to establish a prima facie case” with admissible evidence. La.Code Civ.P. art. 1702(A). The elements of a prima facie case must be established “with competent evidence, as fully as though each of the allegations in the petition [was] denied by the defendant.” Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254, 1258 (La.1993) (quoting Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989)). Accordingly, “the plaintiff must present competent evidence that convinces the court it is probable that he would prevail on a trial on the merits.” Thibodeaux, 538 So.2d at 1004. A plaintiff seeking to confirm a default must prove both the existence and the validity of his claim. A default judgment cannot “be different in kind from what is demanded in the petition[,]” and any damages sought to be recovered must be “proven to be properly due.” La.Code Civ.P. art. 1703.

Although no opponent is present at the confirmation hearing, the plaintiff must follow the rules of evidence. La.Code Evid. art. 1101(A)(1). A default judgment is presumed to be supported by sufficient evidence; however, the presumption “may be rebutted by the record upon which the judgment is rendered.” Arias v. Stolthaven New Orleans, L.L.C., 08-1111, p. 8 (La.5/5/09), 9 So.3d 815, 820. On appeal, review of a default judgment “is restricted to 1 ^determining the sufficiency of the evidence offered in support of the judgment” under the manifest error standard of review. Id. at 818.

Pursuant to La.Code Civ.P. art. 1702, the plaintiff confirming a default judgment based on a conventional obligation is allowed to prove his claim with affidavits and exhibits. Affidavits and exhibits that “contain facts sufficient to establish a pri-ma facie case shall be admissible, self-authenticating, and sufficient proof of such demand.” La.Code Civ.P. art. 1702(B)(1). When the suit seeks to recover the amount due on a promissory note, “an affidavit of the correctness thereof shall be prima fa-cie proof.” La.Code Civ.P. art. 1702(B)(3). Oral testimony may also be required by the trial court before it will award the plaintiff judgment. La.Code Civ.P. art. 1702(B)(1).

Was the Default Judgment on the Promissory Note Supported by Prima Facie Evidence?

Simons’ promissory note was in the principal amount of $175,000.00. Under the terms of the promissory note, the $175,000.00 debt together with interest at the rate of 5% per annum beginning January 1, 2010, would be repaid with $10,000.00 quarterly installments commencing March 31, 2010, and ending December 31, 2014. Two Oil alleged in its petition that Simons’ payments on the promissory note were “fully paid until no quarterly payment was received on March 31, 2013.” Two Oil submitted the affidavit of Kelly Doyle Stephens to prove its claims. In his affidavit, Mr. Stephens stated that the principal balance due after the March 31, 2013 payment was not received was $75,459.00.

Simons argues that based on Mr. Stephens’ affidavit, the principal balance on the promissory note was $55,000.00, not $75,459.00. As noted by Two Oil, this argument fails to account for the accrual of interest at the rate of 5% per annum as |7provided in the promissory note. Nonetheless, we conclude that the affidavit submitted by Two Oil fails to establish Si-mons’ indebtedness on the promissory note as fully as though Simons denied each of the allegations in the petition because, while it does state the principal balance due, it does not reflect the calculation of interest or the application of payments against the principal and accrued interest. Considering the terms of the promissory note and Simons’ payments, we find Mr. Stephens’ affidavit to be insufficient proof of the balance due on the note. Accordingly, that portion of .the judgment awarding Two Oil $75,549.00 on Simons’ promissory note is manifestly erroneous, and the trial court abused its discretion in denying Simons’ motion for new trial on this issue.

The judgment also awards Two Oil 10% interest per year, beginning January 1, 2013, on the $75,459.00 awarded as principal due. The promissory note provides for interest “on the unpaid principal amount from January 1, 2010, until payment in full at the rate of 5% per annum” and further provides: “Any amount not paid when due shall accrue interest at a rate of 10% per annum.”

Simons contends that the balance due on the promissory note should not bear 10% interest until after the March 31, 2013 payment was not paid because Two Oil admitted that all previous payments were “fully paid.” Pursuant to the terms of the promissory note and Two Oil’s admission that all payments due before March 31, 2013, were paid, the promissory note continued to accrue interest at the rate of 5% per annum until after the payment due March 31, 2013, was not made. Accordingly, Simons failed to present prima facie proof that interest began accruing at the rate of 10% per annum on the unpaid principal balance until after the March 31, 2013 payment was not paid, and the trial court erred in denying Simons’ motion for new trial on this issue.

[^Attorney’s Fees

Two Oil sought and was awarded attorney’s fees in the amount of $20,616.85, which is 25% of the principal and interest Two Oil calculated as due on the promissory note. Two Oil based its request for attorney’s fees on the Retainer Agreement in which it retained its attorney’s services to represent it herein. Pursuant to the terms of the promissory note, Simons is liable to pay Two Oil for “its reasonable attorney’s fees ... incurred in collecting” the note. Two Oil did not present any evidence regarding the work performed by its attorney to obtain its judgment against Simons. Therefore, the record is insufficient to establish a prima facie case that the attorney’s fees sought by Two Oil was reasonable. We further note that although Two Oil was free to negotiate with its attorney the terms of his collection services, there is no evidence that Simons was a party to that agreement.

A trial court’s award of attorney’s fees should not be modified on appeal unless it has been shown to be an abuse of discretion. Health Educ. & Welfare Fed. Credit Union v. Peoples State Bank, 11-672 (La.App. 3 Cir. 12/7/11), 83 So.3d 1055. Two Oil failed to establish a prima facie case that is entitled to an award of $20,616.85 in attorney’s fees. Accordingly, the trial court abused its discretion in making the award, and it is reversed.

Breach of Contract Damages

Simons asserts the trial court erred in awarding Two Oil lost profits for the period 2013 through 2025 plus legal interest for a number of reasons. Two Oil urges that because Simons has not established a valid excuse for its failure to appear and respond to the Petition, it is not entitled to a new trial. Two Oil further contends that it presented prima facie proof to support its breach of contract claim.

. 1 ;,The Third Addendum to Facilities Utilization Agreement (emphasis added) between Pallet and Simons provides in pertinent part:

Notwithstanding any provision of the foregoing to the contrary, in the event that, prior to the Expiration Date, Si-mons has purchased all of the equipment owned by Two Oil ... then Simons shall have the option to renew the Utilization Agreement for an additional five-year period ending February 28, 2015, on the then existing terms without Pallet’s consent, by providing ninety days’ prior notice of the Expiration Date.

Arguing that it did not have a contractual obligation to exercise the option to renew the Utilization Agreement as provided in the Third Addendum, Simons urges that Two Oil failed to present prima facie evidence that Simons breached the terms of the Utilization Agreement. Two Oil asserts that Simons represented to it that it wanted to buy the tankage and equipment to take advantage of the “automatic renewal” and that the affidavit of Mr. Stephens establishes this fact. It contends that in doing so, Simons obligated itself to exercise the “automatic renewal.”

In his affidavit, Mr. Stephens stated, in pertinent part:

In 2009, SIMONS PETROLEUM approached TWO OIL SERVICES, L.L.C., through me, about purchasing its equipment. SIMONS PETROLEUM stated to me that they wanted to take advantage of the “trouble free” extension that the third addendum to the Facilities Utilization Agreement provided, as explained in paragraph 13 and purchasing the equipment would enable them to do so. The sale was agreed at “book value.” Otherwise, nothing else would change[,] and the management agreement executed in 2002 would continue in effect.

| mThe above reference to paragraph 13 appears to refer to paragraph 13 of Two Oil’s petition which states:

On November 8, 2002, a third addendum was executed between PALLET, and SIMONS that modified the prior agreements by recognizing that if SIMONS purchased all the equipment and tankage from TWO OIL before the expiration of the initial term, then SI-MONS would have the option to renew the term ending February 28, 2015 without PALLET and J.C.B.’s consent by providing ninety (90) days prior notice to PALLET and J.C.B.

Two Oil further alleges in paragraph 15 of its petition:

In 2009, SIMONS approached TWO OIL about purchasing its equipment to take advantage of the “trouble free” extension that the third addendum provided, as explained in Paragraph 13. To further those ends, on November 30, 2009, TWO OIL and SIMONS entered into an Equipment Purchase Agreement wherein TWO OIL sold the equipment to SIMONS for $175,000.00. The parties stipulated that the Management
Agreement executed on November 8, 2002[,] would otherwise remain in effect.

Simons cites Olympia Minerals, LLC v. HS Resources, Inc., 13-2637, 13-2717 (La.10/15/14), — So.3d -, 2014 WL 5394124, for the proposition that only the grantor of an option is bound to perform. Olympia does stand for this proposition; however, Simons’ reliance on the proposition on this issue is misplaced because the contract at issue is between it and Two Oil, not it and the grantor of the option, Pallet, as in Olympia. Therefore, we must look to Simons’ contract with Two Oil to determine whether Simons bound itself to exercise the option granted to it by Pallet.

As the supreme court noted in Olympia, — So.3d at - (quoting La. Civ.Code art. 1908): “A contract is bilateral, or synallagmatic, when the parties obligate themselves reciprocally, so that the obligation of each party is correlative to the obligation of the other.” Two Oil argues the Equipment Purchase Agreement obligated Simons to exercise the option. We agree for the following reasons.

InParagraph 1 of the Equipment Purchase Agreement provided that the sale of the equipment is “related to the continued use of the Equipment consistent with past and intended use.” Additionally, paragraph 16 of the Equipment Purchase Agreement provided: “Except with respect to ownership of the Equipment, the Management Agreement shall remain in full force and effect.” Pursuant to these paragraphs, Simons had the correlative obligation to maintain the Management Agreement in order to continue using the equipment in a manner “consistent with past and intended use. In order to do so, Simons had to exercise the option granted by Pallet to renew the Utilization Agreement.

We now consider whether Two Oil established a prima facie case that Simons did not exercise the option as the trial court determined. “An option is a contract whereby the parties agree that the offeror is bound by his offer for a specified period of time and that the offeree may accept within that time.” La.Civ.Code art. 1933. The supreme court explained the principles of an option in Olympia, — So.3d at - (quoting Saul Litvinoff, Of the Promise of Sale and Contract to Sell, 34 La.L.Rev. 1017, 2020 (1973-1974)): “[O]ne party obligates himself towards another to conclude a contract on the. terms set forth, upon the other party’s consent to enter into the contemplated contract.” The supreme court further explained that an option is an “atypical unilateral contract” in which only the grantor of the option is bound. Id.

Pursuant to the option it granted Si-mons in the Third Addendum, Pallet bound itself to renew the Utilization Agreement for an additional five-year term if Simons provided it “ninety days’ prior notice to the Expiration Date.” Pallet’s consent to Simons’ exercise of the option was not required.

|12At the confirmation hearing, Two Oil did not present any direct evidence that Simons failed to satisfy the only requirement to exercise the option granted by giving Pallet the requisite ninety-day notice. Rather, it relied on inferences it argued could be drawn from Mr. Stephens’ affidavit, which outlines Simons’ lack of sales, payments, and reporting, as required by the Management Agreement, beginning in 2011, and documentation provided to Two Oil by Simons of Simons’ sales after November 2009 to establish that Simons did not exercise the option granted by Pallet. We find the evidence presented by Two Oil at the confirmation hearing did not establish a prima facie case that Simons did not exercise the option granted to it by Pallet.

Two Oil also argues that a letter introduced by Simons at the hearing on its motion for new trial establishes that Pallet did not honor the option granted to Simons in the Third Addendum because Simons was in default in its obligations under the Utilization Agreement. The supreme court explained in Olympia that an option is a unilateral contract in which only the grantor is bound. Simons introduced evidence that it provided the ninety-day notice to Pallet at the hearing on its motion for new trial. Accordingly, Pallet was bound to honor the option it granted Si-mons once Simons provided the requisite ninety-day notice.

For these reasons, we conclude that Two Oil failed to present a prima facie case that Simons did not exercise its option to renew the Utilization Agreement and that the trial court committed manifest error in finding that it did. Furthermore, Simons introduced evidence of the ninety-day notice it provided Pallet to exercise the option at the hearing on its motion for new trial; therefore, the trial court committed manifest error in not granting Simons’ motion for new trial.

| ^Having determined Two Oil did not establish a prima facie case that Simons breached its obligations under the Equipment Purchase Agreement because it failed to exercise its option to renew the Utilization Agreement, we need not address Two Oil’s claim that Simons owes it damages for breach of contract.

DISPOSITION

For the reasons discussed, Two Oil Services, LLC failed to present prima facie evidence sufficient to establish its claims against Simons Petroleum, LLC. Accordingly, the trial court’s judgment granting judgment against Simons Petroleum, LLC is reversed, and the matter is remanded to the trial court for further proceedings. Costs are assessed to Two Oil.

REVERSED AND REMANDED.

AMY, J., concurs in the result.

      . The copy of the Third Addendum to Facilities Utilization Agreement Two Oil introduced into evidence at the confirmation of default hearing consists of four pages labeled pages 1, 2, 3, and 7. As a result, it appears as though three pages of the Addendum are missing. There is no evidence in the record, however, that anything in the missing pages of the Addendum predicated Pallet's grant of the option to renew on any obligation of Simons. As a result, our determination on this issue is based solely on that portion of the Third Addendum introduced by Two Oil.