author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. David J. STEWART.
    No. 08-KA-1265.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark-Appellate Counsel, Assistant District Attorneys, Gretna, Louisiana, for Ap-pellee, State of Louisiana.
    James A. Williams, Rachel Yazbeek, Roger W. Jordan, Jr., Attorney at Law, Gretna, LA, for Appellant, David Stewart.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and MADELINE JASMINE, Pro Tempore.
   SUSAN M. CHEHARDY, Judge.

|2On March 14, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant, David J. Stewart, with first degree robbery in violation of La. R.S. 14:64.1. Defendant was arraigned and pled not guilty.

On October 23, 2007, trial commenced before a twelve-person jury, which unanimously found defendant guilty as charged. On August 15, 2008, the trial court sentenced defendant to imprisonment at hard labor for 25 years without benefit of parole, probation, or suspension of sentence.

Facts

At trial, Corey Bowles testified that, on January 3, 2007, he met his uncle, David Stewart, around lunchtime at Tastee Donuts on the corner of Transcontinental Drive and West Esplanade Avenue in Me-tairie, Louisiana. Both men went to the restaurant often. David Stewart went to Tastee Donuts almost every day to eat and to play video poker. Stewart knew that the manager kept a lock box with money to pay the video poker winners. On that day, both men needed money so they hatched a plan to rob the donut shop.

| ¡¿Pursuant to their plan, the men returned to Tastee Donuts after dark. They parked in the lot behind the restaurant. Stewart went inside Tastee Donuts, briefly played video poker, and scoped out the restaurant, while Bowles sat in the passenger seat of his truck. They were communicating by cell phones.

At trial, another Tastee Donuts customer testified that, on the night of January 3, 2007 a few minutes before the robbery, Stewart, who was playing video poker, received a cell phone call and quickly left the shop. A few minutes later, Bowles, who was dressed all in black, entered the donut shop through the front door. Bowles testified that, as he entered the restaurant, his face was exposed until he pulled a white knit ski-mask down over his face.

Gustavo Aguilar, an employee at Tastee Donuts, and his friend, Brent Thompson, were sitting at a table near the front door of the restaurant. Aguilar testified that he was able to see the robber’s face as he entered the restaurant. Aguilar positively identified Bowles as the gunman. Bowles, who had a BB gun in his hand, grabbed Thompson and dragged him toward the back of the restaurant. Aguilar jumped up, went behind the counter, and told the manager, Chris Tujaque, that they were being robbed. Aguilar testified that he went straight out of the restaurant’s back door and dialed 911.

When Bowles walked to the kitchen area, he saw that there were four more people there. He panicked, found the lock box, broke it open, grabbed the money, ran out the back door, and began walking toward CVS Pharmacy.

Bowles ran behind a nearby apartment building where Stewart was supposed to pick him up. At 7:57 p.m., Bowles used his cell phone to call Stewart to pick him up. After Stewart picked up Bowles, the men parked in front of Stewart’s ^girlfriend’s house, split the money from the robbery, then went their separate ways for a while. Later on, Bowles got a room at Shoney’s Inn in Metairie, and the men spent the night there.

On January 17, 2007, about two weeks after the robbery, Detective David Masca-ro of the Jefferson Parish Sheriffs Office (hereinafter “JPSO”) questioned Bowles about the robbery. Bowles admitted that he had robbed the Tastee Donuts and three other Metairie fast-food establishments. In his recorded statement, Bowles said that he robbed the Tastee Donuts by himself; however, Detective Mascaro testified that Bowles verbally implicated Stewart in that robbery.

At trial, Bowles testified that he would not say in his recorded statement that his uncle, David Stewart, was involved because he wanted to protect him; however, Detective Mascaro testified that Bowles would not go on tape about his uncle because Bowles was scared and did not know what his uncle would do. One week after Bowles’ first statement, JPSO Sergeant John Carroll took another recorded statement from Bowles where he implicated Stewart in the Tastee Donuts robbery.

As part of his investigation, the detective obtained Bowles’ and Stewart’s cell phone records. The records, which were properly authenticated by company representatives, reflected that, in the hour surrounding the robbery, Bowles called defendant at 7:00 p.m., 7:49 p.m., and 7:57 p.m. Furthermore, the calls at 7:00 p.m. and 7:57 p.m. were each two minutes in duration. The call at 7:49 p.m. was a very short duration, which indicates a very short, dropped, or unanswered call.

Bowles testified that he had pled guilty to four counts of first degree robbery, but had not yet been sentenced. He also testified that the prosecutor had not promised him anything in exchange for his testimony, nor did she tell him he [¿would get a certain sentence if he testified. On October 19, 2007, Bowles gave a statement to his attorney, Gerard Archer, again implicating defendant in the Tastee Donuts robbery.

After the State rested its case, the defense called several alibi witnesses who testified that they saw defendant at a Narcotics Anonymous meeting at St. John’s Church on Williams Boulevard in Kenner on the night of the robbery. They all remembered that night because defendant received his five-year sobriety medallion and LSU played in the Sugar Bowl.

One witness testified that, approximately 8:05 p.m., she saw defendant when she went into the meeting. A second witness testified that she arrived at the meeting at approximately 7:55 p.m., and defendant pulled into the lot at the same time, and they walked into the meeting together. She remembered that defendant was there until 9:30 p.m. when the meeting ended. A third witness testified that he had known defendant, who he referred to as his son, for more than 30 years. Defendant has been living at his house since September of 2005. He recalled seeing defendant at the meeting at approximately 8:15 p.m.

Michelle Wise testified that defendant was her sister-in-law’s long-time boyfriend. She remembered that, on the night of January 3, 2007, she was at her sister-in-law’s house for a Sugar Bowl party but neither defendant nor his truck was at the house until 9:45 p.m. When he came into the house, he showed everyone his five-year sobriety medallion. After all of the evidence and testimony was presented, the twelve-person jury found defendant guilty as charged of first-degree robbery.

On appeal, defendant asserts three assignments of error: first, “defense counsel’s assistance was defective by failing to object to inadmissible hearsay at trial and this denied the defendant his Sixth Amendment right to effective ^assistance of counsel;” second, “the trial court erred by refusing to disqualify juror James Daree although he was a neighbor of the co-defendant, Corey Bowles; and third, “David Stewart was denied effective assistance of counsel at trial when his attorney failed to request a jury instruction on accomplice testimony.”

In his first and third assignments of error, defendant argues that his trial counsel was ineffective so we will address them together. In his first assignment, defendant argues that his trial counsel was ineffective for failing to object to inadmissible hearsay at trial. He specifically objects to the introduction of out-of-court statements made by Corey Bowles to Detective Mascaro and Sergeant Carroll, including information regarding cell phone calls he made to defendant on the night of the robbery and the ski mask he wore during the robbery. He also objects to the use of out-of-court statements made by Stewart Holmes, who did not testify at trial, to corroborate Bowles’ testimony. He argues that this inadmissible evidence was not harmless and contributed to the jury verdict.

The State responds that defendant’s claim should be relegated to post-conviction proceedings. Alternatively, the State contends that defendant’s trial counsel was not ineffective, as he introduced Bowles’ and Stewart’s out-of-court statements as part of his trial strategy to show that Bowles’ was lying about defendant’s involvement in the robbery.

Under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution, a defendant is entitled to effective assistance of counsel. State v. McDonald, 04-550 (La.App. 5 Cir. 11/16/04), 889 So.2d 1039, 1042, writ denied, 04-3088 (La.4/1/05), 897 So.2d 599. A claim of ineffective 17assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Dabney, 05-53 (La.App. 5 Cir. 6/28/05), 908 So.2d 60, 63.

Under the Strickland test, the defendant must show: (1) that counsel’s performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance prejudiced the defense. State v. Dabney, 908 So.2d at 63, citing, Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. This requires showing that counsel’s errors were so serious as to deprive the defendant of a trial whose result is reliable. Id. The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. State v. Dabney, 908 So.2d at 63, citing, Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.

A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” State v. Dabney, 908 So.2d at 63, citing, Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065. There is no precise definition of reasonably effective assistance of counsel, so any inquiry into the effectiveness of counsel must be specific to the facts of the case, and must take into consideration the counsel’s perspective at the time. State v. LaCaze, 99-0584 (La.1/25/02), 824 So.2d 1063, 1078-79, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002). The Sixth Amendment does not guarantee errorless counsel or counsel judged ineffective by hindsight. Id.

[gRather than on direct appeal, a claim for ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief filed in the trial court where a full eviden-tiary hearing can be conducted. State v. McDonald, 889 So.2d at 1042. However, when the record contains sufficient evidence to rule on the claim’s merits and the issue is properly raised on appeal by assignment of error, it may be addressed in the interest of judicial economy. Id.

Because defendant’s trial counsel did not object to the admissibility of the testimony in question, defendant argues on appeal that he was ineffective. On appeal, defendant argues that Detective Mas-caro’s testimony about Bowles’ out-of-court statements about his cell phone usage on the day of the robbery constituted hearsay. At trial, Detective Mascaro testified that he talked to Bowles about his cell phone records. According to Detective Mascaro, Bowles said that he called defendant before the robbery to ask if the “coast was clear” and to advise him to get out of the business so he could rob it. Bowles also told the detective that he called defendant after the robbery to pick him up. At trial, Bowles did not testify that he called defendant just before the robbery; however, he did testify that he called defendant immediately after the robbery to pick him up.

Second, defendant objects to Detective Mascaro’s testimony that Bowles implicated defendant in his statement to Sergeant Carroll. Third, defendant objects to Sergeant Carroll’s testimony about Bowles’ out-of-court statements about the mask he wore during the robbery.

|3The record reflects that Corey Bowles gave three recorded statements. In Bowles’ first statement, Bowles said that he committed the Tastee Donuts’ robbery by himself. Bowles also admitted to committing three other robberies with his friend, Stewart Holmes. Bowles stated that he was the gunman in all of the robberies except one. Bowles stated that he robbed Tastee Donuts because he was there all the time and knew robbing it would be easy. He also stated that he parked his vehicle behind the donut shop, and that he wore all black and used a knit cap he had made into a mask to hide his face.

In his second statement, Bowles admitted that defendant was the “mastermind” behind the robbery. Bowles stated that defendant told him where the lock box was kept. Defendant also drove him to Tastee Donuts, waited outside, told him when to go inside, how to leave through the back door, and picked him up after the robbery. Bowles also said, in that statement, that he got $400.00 and defendant got $800.00 from the Tastee Donuts robbery. When asked why defendant got more money, Bowles responded that defendant owed money to someone. Bowles also admitted that the white ski mask the detective found in a safe was the mask that he wore during the Tastee Donuts robbery.

In his third statement (given to his attorney), Bowles again implicated defendant in the Tastee Donuts’ robbery, repeating the substance of his second statement regarding that robbery. Bowles added that defendant knew that Bowles was going to use a BB gun to commit the robbery. Analysis

Upon review, we find that the record before us contains sufficient evidence to rule on this claim’s merits and we will address this issue in the interest of judicial economy. At trial, defense counsel fought to introduce all three of Bowles’ recorded statements into evidence. Defense counsel wanted to cast doubt | inon Bowles’ incriminating testimony about defendant. He introduced the statements so the jurors could see the inconsistencies, use their common sense, and doubt Bowles’ incriminating testimony.

Defense counsel argued in his closing argument that Bowles committed the first robbery at Tastee Donuts on his own, just like he stated in his first statement. He indicated that Bowles was familiar with Tastee Donuts because he frequented it often and, therefore, did not need defendant’s help in robbing it, especially considering that it was a small place. He pointed out that Bowles panicked during that first robbery then realized he needed help to commit the next three robberies.

Defense counsel noted, in his closing argument, that there was an eight-day pe-riocl with no robberies after the first robbery on January 3, 2007. However, the second, third, and fourth robberies occurred in quick succession: January 11, January 13, and January 17. Defense counsel argued that if Bowles had, in fact, committed the first robbery with defendant, there was no reason to find someone else with whom to commit the other ones. He asserted that, if Bowles had actually committed the first robbery with defendant’s help, it made no sense for Bowles to change his plan and use Holmes, another crack addict, as his accomplice. Defense counsel argued that Bowles was lying about defendant’s involvement in the hope of receiving a reduced sentence on his first-degree robbery convictions.

In support of his trial strategy, defense counsel successfully moved the court to admit Bowles’ first statement to the JPSO and his third statement to his attorney for all purposes, even though the State only wanted to introduce them for record purposes. Additionally, defense counsel had no objection when the State introduced the second statement into evidence. Further, during the cross-examination of Bowles, defense counsel introduced Bowles’ second statement as his own exhibit.

InThe record also indicates that defense counsel cross-examined Bowles regarding the discrepancies among his statements. He noted that, in Bowles’ first statement, he told the detective he committed the robbery because he needed the money, but in the second statement, Bowles said defendant needed the money. Bowles testified that after the robbery, he and defendant went to defendant’s girlfriend’s house, stayed outside in the truck, and split the money; however, in his prior statements, he never included that detail.

Under the circumstances, defense counsel’s choice to introduce a co-defendant’s three inconsistent statements “might be considered sound trial strategy.” State v. Dabney, 908 So.2d at 63. While opinions may differ on the advisability of such a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. State v. Brooks, 505 So.2d 714, 724 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987). Neither may an attorney’s level of representation be determined by whether a particular strategy is successful. Id,. If an alleged error falls “within the ambit of trial strategy,” it does not establish ineffective assistance of counsel. State v. Gordon, 00-1013 (La.App. 5 Cir. 11/27/01), 803 So.2d 131, 147, writs denied, 02-0362 (La.12/19/02), 833 So.2d 336 and 02-0209 (La.2/14/03), 836 So.2d 134. Here, we cannot say that defendant has overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”

Furthermore, we also cannot say that defendant established that the deficient performance prejudiced the defense. State v. Dabney, 908 So.2d at 63, citing, Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. First of all, | ^Detective Mascaro’s testimony regarding cell phone calls on the night of the robbery was cumulative and corroborative of other evidence. Bowles and representatives from the cell phone companies testified extensively regarding the cell phone calls between defendant and Bowles on the day of the robbery and particularly regarding calls within an hour before and after the robbery. The cell phone representatives testified that the records showed that, on the night of the robbery, Bowles called defendant a few minutes before the robbery at 7:49 p.m. and immediately after the robbery at 7:57 p.m. Additionally, Bowles testified that he called defendant after the robbery to pick him up. Because Detective Mascaro’s testimony about Bowles’ cell phone calls was cumulative and corroborative of other evidence, any error in admission is harmless. Hester, supra.

Secondly, Sergeant Carroll testified that Bowles gave him a statement on January 24, 2007, implicating defendant in the Tas-tee Donuts robbery. Therefore, the testimony of Detective Mascaro regarding that statement was cumulative and corroborative of other evidence. As such, any error in the admission of Detective Mascaro’s testimony regarding this matter was harmless error as well. Hester, supra.

Thirdly, Sergeant Carroll testified that Bowles admitted that he wore a white ski mask during the Tastee Donuts’ robbery. Bowles discussed wearing a ski mask during his trial testimony. Again, although it may have been inadmissible hearsay, Sergeant Carroll’s testimony was cumulative and corroborative of Bowles’ own testimony. As such, the introduction of Carroll’s statement constitutes harmless error.

Fourth, defendant objects to Detective Mascaro’s testimony about an unrelated arrestee’s out-of-court statements. At trial, Detective Mascaro testified that, on January 17, 2007, Stewart Dennis Holmes gave a statement admitting to [13his involvement in three robberies with Corey Bowles. In that statement, Holmes denied involvement with the robbery at Tastee Donuts. Detective Mascaro further testified that Holmes’ statement corroborated Corey Bowles’ statements about Holmes’ involvement in three robberies.

Holmes did not testify at trial. However, Corey Bowles implicated Stewart Dennis Holmes in three other robberies and exculpated Holmes from involvement in the robbery that is the subject of this charge. Although Detective Mascaro’s testimony regarding Stewart Holmes’ out-of-court statements appears to be inadmissible hearsay, it was cumulative and corroborative of Bowles’ testimony. As such, any ei-ror in the admission of that testimony was harmless error as well. Hester, supra. Based on the foregoing, we cannot say that defendant overcame the strong presumption that his counsel’s choice regarding hearsay was reasonable or that his performance prejudiced the defense.

In his third assignment of error, defendant argues that his trial counsel was ineffective because he failed to request a jury instruction on accomplice testimony. He contends that the jury should have been instructed that Bowles’ testimony was to be considered with great caution due to the fact that he was an accomplice in the crime. Defendant contends that by failing to request such an instruction, his trial counsel inadvertently bolstered the credibility of the State’s evidence.

The State responds that this claim should be addressed through an application for post-conviction relief. Alternatively, the State argues that defendant has failed to demonstrate that his trial counsel performed deficiently or that defendant was prejudiced. The State asserts that the instruction was unnecessary because there was material corroboration of Bowles’ testimony. The State further asserts that the credibility of accomplice testimony was adequately covered by the trial court’s general charge on the credibility of witnesses.

11 ¡Although this claim for ineffective assistance of counsel could also be addressed through an application for post-conviction relief, we find that the record is sufficient to rule on the merits of the claim. In the interest of justice, we will consider defendant’s argument on this issue, also.

Under La.C.Cr.P. art. 807, a requested special jury charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. State v. Smith, 04-340 (La.App. 5 Cir. 10/26/04), 888 So.2d 280, 288-89. A requested jury charge must be supported by the evidence. Id., 888 So.2d at 289. The failure to read a requested special jury charge constitutes reversible error only when there is prejudice to the substantial rights of the defendant or the violation of some constitutional or statutory right. Id.

When the State relies upon the testimony of an accomplice, the trial court should instruct the jury to treat an accomplice’s testimony with caution unless there is material corroboration of the accomplice’s testimony. State v. Smith, 888 So.2d at 289, citing, State v. Schaffner, 398 So.2d 1032, 1035 (La.1981). It is enough if there is evidence that confirms material points in an accomplice’s story, the defendant’s identity and some relationship to the situation. State v. Schaffner, 398 So.2d at 1035. Whether such an instruction should be given is within the sound discretion of the trial court. State v. Smith, 888 So.2d at 289, citing, State v. Schaffner, supra.

In the instant case, Bowles’ testimony was materially corroborated by numerous witnesses. Bowles testified that, just before the robbery, he and defendant went to Tastee Donuts. When they arrived, defendant went inside toj^assess the situation and see if “the coast was clear,” while Bowles remained in the truck. Defendant surveyed the scene as he played video poker.

Chris Tujaque, the manager on duty at Tastee Donuts, testified that, on the night of the robbery, two customers were in Tastee Donuts playing video poker: defendant and a woman. Approximately ten minutes before the robbery, Tujaque went out the back door to return a shopping-cart to a nearby business. As he walked out the back door, he noticed Bowles sitting in the passenger seat of a truck in the parking lot behind Tastee. Tujaque thought that it was strange that Corey would be sitting outside in the truck on a cold night. After returning the shopping cart, Tujaque was back inside Tastee Donuts between 7:30 and 8:00 p.m. He saw defendant and the woman still playing video poker.

Katherine Pardo, the woman playing video poker next to defendant, testified that defendant received several calls on his cell phone while he played video poker. She remembered that, after one of those calls, defendant got up and left very hurriedly, which she thought was unusual. A short while later, the robbery occurred. Tujaque testified that defendant was not present during the robbery.

Bowles also testified that he and defendant communicated many times on January 3, 2007 using their cell phones. Representatives of two cell phone companies showed that there were approximately 44 calls between Bowles and defendant on the day of the robbery. The records specifically showed that Bowles called defendant at 7:49 p.m., a few minutes before the robbery, and at 7:57 p.m., immediately after the robbery. At 7:56 p.m., Gustavo Aguilar reported the robbery in progress to 911.

hJBowles testified that defendant told him where the video poker lock box was kept. Several Tastee Donuts employees testified that defendant was in there several times every day, to eat and play video poker. Further, the manager had hired him to do renovation projects, such as putting in the “drive-thru” window. In fact, defendant felt so comfortable at the restaurant that he would walk behind the counter to serve himself or other customers, without the manager’s permission. The other witnesses agreed that Bowles did not frequent Tastee Donuts that often.

In light of the foregoing, we find that the evidence presented at trial materially corroborated the accomplice’s testimony. Additionally, the credibility of the accomplice’s testimony was adequately covered by the trial court’s general charge on credibility of witnesses. See State v. Smith, 888 So.2d at 289, citing State v. Schaffner, 398 So.2d at 1035. Further, the jury was properly instructed that they could consider the interest that the witness might have for so testifying against defendant. See State v. Castleberry, 98-1388, p. 14 (La.4/13/99), 758 So.2d 749, 762, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999). Thus, we cannot say that defendant has overcome the strong presumption that his trial counsel’s conduct was within the wide range of reasonable professional assistance by proving that his performance was deficient or, if deficient, then prejudicial.

Returning to his second assignment of error, defendant argues that the trial court erred by refusing to disqualify juror James Darce although he was a neighbor of the co-defendant Corey Bowles. Defendant argues that the trial court erred by denying his mid-trial motion to disqualify juror James Darce after he revealed that he was the neighbor of Bowles, an essential prosecution witness. The State responds that the trial court did not abuse its discretion by denying the motion, since Darce assured the court he could still be objective.

|17At the end of the second day of trial, the trial judge excused all the jurors, except for Darce, who had told the bailiff that he realized that he lived two doors down from Bowles’ father. Darce told the trial judge that, when the names of the witnesses were initially read, he did not recognize any of them. However, when Bowles gave his address, Darce realized Bowles lived two doors down from him. Darce said that he did not associate with Bowles and that he had no association with the Bowles’ family other than to wave and say “hello.” When the trial judge asked Darce whether he brought that information to the court’s attention because it was the right thing to do, Darce answered affirmatively.

The prosecutor said she did not have a problem with Darce continuing to be a juror, but defense counsel objected to it. Afterwards, the trial judge excused Darce for a few moments. Defense counsel moved to, at least, disqualify Darce as a juror, and, preferably, for a mistrial. The prosecutor objected, arguing that Darce did not know Bowles and had no problem remaining as juror. She further argued that she saw no prejudice based on what Darce had said. Defense counsel replied that Darce knew the family well enough to say “hello,” and that Darce had said nothing about whether he could remain impartial and continue as a juror.

After hearing arguments of counsel, the trial judge asked Darce to return to the court for additional questioning regarding his relationship with the Bowles’ family. Darce testified that, in 2001, he had moved into his father’s house after his divorce. Darce stated that he had talked to Bowles’ mother only once or twice in the six or seven years that he had lived on the street. Further, those conversations were after Hurricane Katrina and limited to safety and health issues. Darce said he never spoke to the Bowles’ children.

When asked if this affected his feelings about sitting on the jury or changed how he viewed or approached this case, Darce replied that he could still be |lsobjective about “everything.” Defense counsel asked Darce whether living two doors down from the Bowles’ family would affect his thinking, and Darce answered, “I don’t owe them anything, so, I mean, I can be as honest and objective as I have to be.” After defense counsel completed his questioning of Darce, the prosecutor said she had no further questions. Darce then exited the courtroom.

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and die court is satisfied, that he can render an impartial verdict according to the law and the evidence;

Although defense counsel did not doubt that Darce was sincere in what he was saying, he still maintained his objection to Darce continuing to serve on the jury. He said that if that information had been elicited during voir dire, that Darce would have been excused for cause. The trial judge then read La.C.Cr.P. art. 797(3) and stated that Darce had no friendship or relationship with the victims or the district attorney. He also pointed out that article 797 did not mention exclusion of witnesses.

The trial judge stated that Darce said he could be fair and that living two doors down from the Bowles’ family would not influence him. He noted that Darce did not know Bowles, but had talked to his mother once or twice in six or seven years. The trial judge said it was not reasonable to conclude that that would influence Darce in reaching a verdict. He stated that he thought Darce could judge the credibility of Bowles and that he could perform his oath. Based on those reasons, the trial judge denied the motion to disqualify Darce as a juror and the motion for a mistrial. Defense counsel noted his objection.

(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict[.]

Peremptory challenges shall be made before the swearing of the jury panel. La. C.Cr.P. art. 795 B(1). A juror cannot be challenged for cause by the State or | |flthe defendant after having been accepted by the challenging party, unless the ground for the challenge was not known by the challenging party prior to acceptance. La. C.Cr.P. art. 795. However, a challenge for cause must be made before the indictment is read to the jury. Id. If it is discovered after a juror has been accepted and sworn, that he is incompetent to serve, the court may, at any time before the first witness is sworn, order the juror removed and the panel completed in the ordinary course. La.C.Cr.P. art. 796. Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing then-duties. La.C.Cr.P. art. 789.

The law does not require that a jury be composed of individuals who are totally unacquainted with the defendant, the prosecuting witness, the prosecuting attorney, and the witnesses who may testify at trial. Rather, the law requires that jurors be fair and unbiased. State v. Williams, 00-1134 (La.App. 5 Cir. 3/28/01), 783 So.2d 566, 567, citing, State v. Shelton, 377 So.2d 96, 102 (La.1979).

A juror’s disclosure during trial that the juror knows or is related to a witness or the victim is not sufficient to disqualify that juror, unless it is shown that the relationship is sufficient to preclude the juror from arriving at a fair verdict. State v. Holland, 544 So.2d 461, 465 (La.App. 2 Cir.1989), writ denied, 567 So.2d 93 (La.1990). The connection must be such that one must reasonably conclude that it would influence the juror in arriving at a verdict. State v. Holland, 544 So.2d at 465, citing, State v. Hodgeson, 305 So.2d 421 (La.1974).

In State v. Holland, supra, cited by the State in its brief, a juror sent a letter to the trial judge during the trial to inform him that he had just learned he was possibly related to the victim. The juror stated that, even if he was related to the victim, it would not affect him or the process of his decision making and he could be fair and impartial. Defendant challenged the juror for cause. The trial judge |2odenied the challenge and stated that there was nothing to make him conclude that any possible relationship would influence the juror in arriving at a verdict. Defendant objected to the ruling. On appeal, the Second Circuit said that it could not find that the trial judge erred in concluding that the possible relationship, of which the juror was unaware during voir dire, would not prejudice defendant or prevent a fair trial. As such, the Second Circuit found no abuse of the trial judge’s discretion in denying the challenge for cause. Id., 544 So.2d at 465-66.

In the instant case, the record reflects that the juror did not know Bowles and did not realize that he lived two doors down from him until Bowles’ provided his address during his tidal testimony. He only talked to Bowles’ mother once or twice in six or seven years. Additionally, the juror said that, even though he lived near Bowles, he could still be honest and objective when viewing this case.

In light of the foregoing, we find no error in the trial judge’s finding that it was unreasonable to conclude that this new information -would influence the juror in arriving at a verdict. Holland, supra; Hodgeson, supra. As such, we cannot say that trial judge abused his discretion by denying defendant’s motion to disqualify Darce from serving as a juror in this case.

Finally, the record was reviewed for errors patent, according to La.C.Cr.P. art. 920. We have found no errors that require corrective action.

AFFIRMED.

      . Also, on August 15, 2008, the State filed a multiple offender bill of information alleging defendant to be a fourth felony offender, and defendant denied those allegations. The record before this Court does not reflect that the multiple offender adjudication hearing has been held.

      . Sergeant Joseph Chaisson testified that, at 7:56 p.m. on January 3, 2007, a 911 call was received from “Gustavo.”

      . Lynda Santopadre, the manager of Tastee Donuts, testified that a lock box was kept on top of the safe in the office in the kitchen.

      . Tujaque testified that, while the robber was in the kitchen, he and the others in the restaurant ran out the front door.

      . Bowles testified that he got $400.00 and defendant got $800.00. However, Santopa-dre, the manager, testified that her receipts show that approximately $1,600.00 was taken.

      . "Hearsay” is a statement, other than one made by the declarant while testifying at the present trial, which is offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801(C). Hearsay evidence is not admissible except as otherwise specified in the Louisiana Code of Evidence or other legislation. La. C.E. art. 802. Although a statement may constitute inadmissible hearsay, if the statement is merely cumulative or corroborative of other evidence, the admission of the evidence is harmless error. State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 107.

      . Defendant's trial counsel did not object at trial to the testimony that defendant attacks on appeal. In order to preserve the right to seek appellate review of an alleged trial court error, the party alleging the error must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. La.C.Cr.P. art. 841; State v. Gaal, 01-376 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, 949, writ denied, 02-2335 (La.10/3/03), 855 So.2d 294. The purpose behind the contemporaneous objection rule is to pul the trial judge on notice of an alleged irregularity, allowing him the opportunity to make the proper ruling and correct any claimed prejudice to the defendant. Id. A defendant is limited on appeal to the objection that he articulated in the trial court, and a new basis for the objection may not be raised for the first time on appeal. State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 594.

      . See State v. Brooks, supra, where die supreme court did not find that counsel’s ' “no question defense” ' constituted ineffective assistance of counsel, even though it was unsuccessful. State v. Brooks, 505 So.2d at 724. See also State v. Singleton, 05-634, p. 13 (La.App. 5 Cir. 2/14/06), 923 So.2d 803, 811, writs denied, 06-1208 (La.11/17/06), 942 So.2d 532 and 08-2386 (La.1/30/09), 999 So.2d 753, "The defense counsel decision not to object to the admission of Norman’s statement, at the suppression hearing, in order to use it to impeach him, at trial, is a tactic falling within the ambit of trial strategy, and does not establish ineffective assistance of counsel.”

      . But compare State v. Matthews, 450 So.2d 644, 647 (La.1984), "A jury may convict upon an accomplice’s uncorroborated testimony.” See also State v. Higginbotham, 554 So.2d 1308, 1311 (La.App. 1 Cir.1989) and State v. Bonner, 39,187, pp. 6-7 (La.App. 2 Cir. 12/22/04), 895 So.2d 1, 5-6, writ denied, 06-1490 (La.3/9/07), 949 So.2d 435, citing, State v. Matthews, supra, for that proposition.

      . Tujaque testified it was defendant's truck; however, Bowles testified that he was in his truck.

      . See State v. Sehaffner, supra, where the supreme court found that the testimony of the accomplice was materially corroborated, in part, when the police observed defendant walking in the parking lot of the Burger King near the bank, corroborating the accomplice’s story that defendant planned to observe him leaving the bank while waiting at a restaurant. State v. Schaffner, 398 So.2d at 1035.

      . La.C.Cr.P. art. 797 provides, in pertinent part, that the State or the defendant may challenge a juror for cause on the ground that:


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    LANTECH CONSTRUCTION CO., L.L.C. v. David SPEED d/b/a Driftwood Spur.
    No. 08-CA-811.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2009.

      Patricia S. LeBlanc, LeBlanc Butler, LLC, Metairie, Louisiana, for Plaintiffs/Appellants.
    Leonard L. Levenson, Christian W. Helmke, Colleen B. Gannon, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee-Second Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

|2Both plaintiff/appellant, Wilbur J. Ba-bin Jr., as trustee of LanTech Construction Company, LLC (“LanTech”), and defendant/cross-appellant, David Speed d/b/a Driftwood Spur (“Speed”), appeal from a judgment of the district court granting Speed liquidated damages in the amount of $31,400 and the cost of concrete repairs in the amount of $112,212.50.

In January 2000, Speed entered into a contract with LanTech for the renovation/conversion of a Texaco station in Ken-ner. The initial price of the project was $203,507. In its Petition for Breach of Contract and Damages, LanTech averred that change orders increased the price to $217,874 of which $45,598 remained unpaid. Ultimately, Speed filed a Reconven-tional Demand for sums expended to complete and/or repair the project, including the cost of removal and replacement of concrete. Speed also asked for liquidated damages for failure of LanTech to timely complete the project.

| :iTrial commenced on December 13, 2004, at which time only Speed’s testimony was taken. After more delays, the parties agreed in 2008 to submit depositions as trial testimony. On May 22, 2008, the trial court rendered its judgment, finding:

1. That the parties entered into “very sloppy business practices,” and that LanTech failed to show evidence that Speed signed any change orders as mandated by the contract.
2. That Speed benefited by the work done and that LanTech was entitled to the cost of the change orders, subject to setoff for damages due to Speed.
3. That the concrete work in the project was defective because of the poor workmanship of LanTech, and Speed was entitled to $112,212.50 for the cost of repairs.
4. That Speed was entitled to liquidated damages in the amount of $31,400 as per the contract for failure to timely complete the project.

On appeal, LanTech urges that the trial court erred in failing to enforce the express provisions of the contract; that the trial court’s ruling was inherently inconsistent in awarding the cost for the change orders but not the time to perform them; and that Speed’s testimony was contradictory and unreliable and should have been disregarded in toto. On cross-appeal, Speed counters that the court erred- in permitting any recovery by LanTech pursuant to change orders improperly executed and that there was no evidence that the cost of the change orders was approved, or that it was reasonable and justified. Speed also argues that the trial court erred in failing to grant his Motion for Involuntary Dismissal. However, the record was designated by both Lantech and Speed and contains no motion for involuntary dismissal. Therefore, we decline to consider that assignment of error.

In trial testimony, Speed testified that the architect, Charles Ward of Rozas-Ward Architects (“Ward”), designed a renovation of the premises in question. He stated that he did not “think” he had signed a contract with LanTech. Ward orally informed Speed that he knew someone (LanTech) who could handle the Lrenovations. LanTech and Speed orally agreed on a contract price of “around $200,000.” Kevin Marino (“Marino”) was the contractor who worked on the premises. Since Marino left, the roof has been repaired and some of the pipes had recently cracked in the slab. However, Speed stated that recent photographs shown to him at trial depict the premises as they looked when the job was completed, and the station has continued to be in use since August of 2000.

Speed complained to Ward about the renovations several times because of mistakes that were being made. Marino did not come every day. The concrete laid by LanTech is chipping, cracking, and dissolving. The City of Kenner told Speed he needed a “grease trap” behind the building, as well as a dike with a drain. Speed agreed that these items were required. The city also required extra pilings. In addition, Speed told Marino to fence in the property around the dumpster, which had to be moved from one side of the building to the other. Speed also wanted fencing around the air conditioning compressors. The air conditioning units had to be changed because the wrong ones were installed. There was an increase of $5000 in cost regarding the air conditioners, but Speed agreed with Marino to “leave it alone” because he didn’t want to pull the units out. Some changes had to be made because of drainage and lighting problems. The neighbors did not want the big lights that had been installed, and Speed asked Marino to change them. Speed requested an upgrade change in ceiling tiles, which resulted in a delay.

Speed testified that he would pay Mari-no when he was given a bill and when Marino had completed a certain amount of work. He had heard that LanTech was going to go bankrupt and held back on paying Marino because of the problems he saw with the concrete. According to Speed, LanTech did not finish everything when it left the job. When Speed got the final bill, he did not pay it nor did he contact Ward to complain about what had not been completed.

| r,Speed’s deposition, which continued his trial testimony, was taken in 2007. In contrast to that testimony, Speed denied having approved any extensions of time or changes in price. The delays occurred because no one was on the job.

Copies of the Change Orders submitted separately as exhibits by the plaintiff/appellant and the defendant/appellee have significant discrepancies in both the signatures and dates on which they were signed. They can be summed up as follows:

Change Order # 1 — revision of gas company footings — add five days.
Change Order #2 — remove storefront, add seven days; block work in storefront, add seven days; addition of a grease trap, add five days; additional fencing at the rear, add three days; upgrade of air conditioner, add five days. Change Order # 3 — change of ceiling tiles — add fifty-five days. LanTech’s exhibit shows 400 days, clearly an error according to Architect Charles Ward. Date of substantial completion changed to June 2.
Change Order # 4 — additional concrete footage, add ten days. Speed’s exhibit shows addition of forty days, with a substantial completion date of July 12. Change Order # 5 — canopy drainage, add forty days. The completion date is July 27.
Change Order # 6 — adding gate, enclosure around air compressor, fir down between cigarette rack and ceiling, add ten days. Date of substantial completion is August 10. Speed was given credit for overage on contract time, thirty days at $200 per day or $6000.

Ward testified by deposition that Speed was concerned about the delays in the work. Speed received a credit of $6000 on Change Order # 6 for the number of days that the contractor was late. The change order work was discussed primarily between Speed and Marino. The Application Certification for Payment stated that the work was completed by August 10, 2000, but, due to issues with Speed about the delay of the job and the quality of the concrete finish, the document was not signed until March 21, 2001. Ward, who had authority to reject work that did not conform to the contract, felt that the concrete was within the industry standard. | sWarcl did not receive notice of any deficiencies within the one-year period established by the contract. The contract calls for a starting date of January 5, 2000, with a completion date of March 10. According to the contract, the owner or contractor who desired a change order typically contacted the architect, who would figure out the details of the proposed change, have everyone agree on the price and delays, and then get a formal change order. The architect and the owner have to approve any change that would become a formal change order, which had to be submitted by the contractor to the architect and owner. Change orders are typically prepared and signed before the change is made, unless a construction change directive was issued, which was not the case here. In this case, Ward’s actual involvement with the contract was administrative and very limited, and he was not usually involved with the change orders. Change Order # 3, dated July 5 was signed by him August 2, 2000 and by Marino on July 19. Ward believed that the delay in time for his signature was a result of discussing and negotiating the changes with Speed, and, once he felt Speed agreed, Ward signed the order. Order # s 4 and 5 were dated and signed by Ward and Marino on the same day. As before, Ward testified that the dates probably coincided with his visit to the job and a meeting to discuss change orders, signed at the owner’s request after several meetings. The only way he would have signed is if he felt Speed had agreed to the changes.

In his deposition, Marino testified the original contract between Speed and Lan-Tech called for ninety days completion at a price of $238,440 and was for a Texaco station. When the job was changed from a Texaco to a Spur station, the time went down to sixty days and the price to $203,500. According to Marino, Change Order # 1 involved a change of canopy footings and came from Speed’s canopy company’s engineer. Five days were added to the project, and Speed |7agreed to the changes. Change Order # 2 involving concrete block work was done at Speed’s request and added seven days. The Board of Health required a grease trap resulting in Change Order # 3. Change Order # 4 involved additional fencing requested by Speed. Change Order # 5 involved a change in the number and tonnage of AC units. These changes resulted in an additional $9694 added to the contract price and twenty-seven days to the completion deadline. Speed wanted the ceiling tiles upgraded, and he agreed to the increased cost of $593. Twenty-one days were added for the change and nineteen for delayed payments. Additional paving to the parking lot was requested by Speed for $3584 and forty days were added. This change order was signed by Ward as well as by Marino. Installing additional canopy drain lines was requested by Speed adding $518 and forty days because they had to wait for the canopy company to install all the columns. Change Order # 6 reflects a change in the lighting, a gate added by Speed, as well as an enclosure around the air compressors. The certificate of substantial completion was August 10, 2000.

According to Marino, he, Speed, and LaPlace Concrete met and the concrete was tested in the spots about which Speed was concerned.; The tests showed the concreted was well over the p.s.i. required.

Sometimes no one showed up because Speed had not paid sums due on invoices. Speed refused to sign the change orders after the fact. Marino agreed that the change orders were prepared and signed after the work was completed.

The essential issue on appeal is whether the change orders were valid.

The contract in question clearly requires written requests for modification. Nevertheless, the contract does not expressly prohibit oral modification. A written contract is the law between the parties, and the parties will be held to full ^performance of the obligations flowing from their contract. However, the law is clear that written contracts may be modified by oral contracts and the conduct of the parties, even when the written contract contains a provision that change orders must be in writing. Modification of a written agreement can be presumed by silence, inaction, or implication. The party who asserts that an obligation has been modified must prove by a preponderance of the evidence facts or acts giving rise to the modification. It is a question of fact, therefore, as to whether there were oral agreements that modified the written contract. Oral modifications alleged to be in excess of $500 must be proved by at least one “credible witness” and “other corroborating circumstances.” Only general corroboration is required. Parol evidence is admissible for this purpose.

The trial court recognized these principles in its determination that Speed benefited from the work done and allowing the costs of the change orders. On review of the record, we find no manifest error in this regard. Here, Speed testified that he agreed to the changes required by the City of Kenner, including extra pilings (reflected in Change Order # 1) as well as the addition of the grease trap (reflected in Change Order # 2). Speed requested fencing in the property around the dumpster and air conditioning compressor (as per Change Order # s 2 and 5, in part). The lighting changes were also requested by Speed (Change Order # 6, in part) as well as the changes in ceiling tiles (Change Order # 3). Although his credibility was called into question by his deposition testimony, Speed’s statements |sagainst his own interest provide the necessary general corroboration to prove oral modifications of the written contract.

In the present case, the oral modifications must necessarily have provided consent to the extensions allowed in the change orders. Further, the testimony of Ward indicates that the changes were consented to by Speed. The final change order showed August 10 as the date of substantial completion, and the Certificate of Substantial Completion was issued on that date, although not signed by the architect until March 21, 2001. Ward did not recall the reason for the delay in his signature. The record supports a finding that August 10 is the applicable date of completion. Therefore, because the project was substantially completed by that date, Speed was not entitled to liquidated damages.

Speed’s complaint and request regarding replacement of the concrete was supported by the testimony of Roy Carub-ba (“Carubba”). Carubba, accepted as an expert in civil engineering, testified that he inspected the property and determined that the majority of the paving had exposed aggregate, which normally means there was an excessive amount of water that prevented the cement from adhering properly to the aggregate. There were stains indicative of ponding due to improper sloping, and some areas were cracked between the control joints. The concrete could have been placed improperly or it could have been exposed to excessive heat. Carubba agreed that the finish on recently poured concrete could also have been affected by use of a high-pressure hose. In his opinion, the mix design was probably improper at the time of placement. He estimated it would cost $112,212.50 to remove and replace the concrete. Therefore, the trial court correctly awarded this amount to Speed.

For the foregoing reasons, the judgment is affirmed in part, reversed in part, and amended. That portion of the judgment awarding liquidated damages is 1 ^reversed. We affirm the award of $112,212.50 to Speed for the replacement of concrete. The judgment is amended to reflect that LanTech is awarded the amount of $45,598. Each party is assessed its own cost of appeal.

AFFIRMED IN PART; REVERSED IN PART; AMENDED AND RENDERED.

WICKER, J., Concurs.

      . LSA-C.C. arl. 1983; Aqua Pool Renovations, Inc. v. Paradise Manor Community Club, Inc., 04-119 (La.App. 5 Cir. 7/27/04), 880 So.2d 875.

      . Id.; Rhodes Steel Buildings, Inc. v. Walker Const. Co., 35,917 (La.App. 2 Cir. 4/3/02), 813 So.2d 1171, 1177.

      . Aqua Pool Renovations, supra; Cajun Constructors, Inc. v. Fleming Const. Co., Inc., 05-2003 (La.App. 1 Cir. 11/15/06), 951 So.2d 208, writ denied, 07-0420 (La.4/5/07), 954 So.2d 146.

      . LSA-C.C. art. 1831; Aqua Pool Renovations, supra.

      . Cajun Constructors, supra.

        . Peter Vicari Gen. Contractor, Inc. v. St. Pierre, 02-250 (La.App. 5 Cir.10/16/02), 831 So.2d 296.

      . Id.


author: STEWART, J.

text:
    Debra KENDRICK, Plaintiff-Appellee v. SOLO CUP, Defendant-Appellant.
    No. 44,303-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 3, 2009.

      Lunn, Irion, Salley, Carlisle & Gardner, by Walter S. Salley, Shreveport, for Appellant.
    Fischer & Associates, by Mark K. Man-no, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   STEWART, J.

| [Defendant-Appellant, Solo Cup, is appealing a judgment rendered in favor of Plaintiff-Appellee, Debra Kendrick, which awarded her $8,000.00 for penalties for termination of all benefits, $9,500.00 for attorney' fees, and $2,398.93 for litigation expenses. Kendrick has filed an answer requesting additional attorney fees for the appeal. For the following reasons, we affirm the judgment and award an additional attorney fee.

Facts

On August 20, 2003, Debra Kendrick suffered a back injury at the L4-5 disc level while working at Solo Cup. Prior to this accident, she underwent back surgery at'the L5-S1 disc level on April 3, 2001. This surgery was performed by Dr. Robert Holladay.

Dr. Pierce Nunley saw Kendrick on April 9, 2004. His initial diagnosis was low back pain which was cliscogenic in nature, meaning that the pain was coming from the disc itself. He compared pre-accident ' and post-accident MRI films. The post-accident film revealed a herniated disc at L4-5, which was not present in the pre-accident film. Dr. Nunley opined that her back pain was causally related to the work accident. He recognized that she was in pain prior to the accident. However, it was not disabling and her pain worsened after the accident.

On October 21, 2005, Kendrick filed a Disputed Claim for Compensation. Kendrick also filed an Opposition to the Orthopedic Independent Medical Evaluation (IME) with Dr. Karl Bilderback. The hearing on the opposition to the IME was heard on December 5, 2005. The WCJ denied the opposition and ordered Kendrick to appear at the IME with |2Pr. Bilderback on January 11, 2006, at 3:15 p.m. Based on his findings from the IME, Dr. Bilderback recommended that Kendrick undergo a Functional Capacity Evaluation (FCE), and “if the results of the FCE shows that she could not return to her previous occupation, that she be considered for retraining.”

Solo Cup filed a Motion to Compel the FCE on February 27, 2006. This motion was initially denied by the WCJ. However, after a re-evaluation by Solo Cup’s choice of orthopedic surgeon, Dr. Robert Holla-day, the WCJ ordered Kendrick to submit to a FCE at Solo Cup’s request.

Dr. Holladay and Dr. Bilderback determined that Kendrick’s current back condition was unrelated to the August 20, 2003 work accident. Based on these findings, Solo Cup terminated Kendrick’s medical benefits and indemnity benefits on January 11, 2007. Solo Cup believed that she did not suffer any new injuries in the work accident, and that her back problems stemmed from the prior back surgery.

The WCJ rendered his judgment in favor of Debra Kendrick, finding that she was temporarily and totally disabled as a result of the accident and injury and that she was entitled to all benefits under the Workers’ Compensation Act. He determined that she was entitled to total disability benefits and reinstated such benefits at a rate of $228.63 per week from January 11, 2007. The WCJ approved the lumbar spine surgery recommended by Dr. Nunley and found Solo Cup’s adjuster arbitrary and capricious in terminating her benefits. Kendrick was also awarded penalties |3in the amount of $8,000.00 for the termination of her benefits, attorney fees in the amount of $9,500.00, and litigation fees in the amount of $2,398.93, for the denial of medical and indemnity benefits. Solo Cup now appeals.

LAW AND DISCUSSION

Solo Cup asserts four assignments of error in its appeal. In the first assignment, Solo Cup argues that the WCJ erred in finding that Debra Kendrick’s alleged disability/injury after January 11, 2007, was related to the work accident which occurred on or about August 20, 2003. More specifically, Solo Cup argues that Dr. Bilderback’s testimony should have been given greater weight than that of Dr. Pierce Nunley.

Solo Cup’s second assignment of error contends that the trial court erred in finding that Debra Kendrick’s surgery was reasonable and necessary. In this assignment, Solo Cup reiterates its argument in the first assignment of error by asserting that Kendrick’s current condition is unrelated to the work accident. Solo Cup urges this court should find that the surgery recommendation made by Dr. Nunley is not related to the work accident.

Due to the fact that these two assignments both involve the issue of whether Kendrick’s injury resulted from her workplace accident, we will address these interrelated errors together.

In a workers’ compensation case, as in other cases, the appellate court’s review is governed by the manifest error or clearly wrong standard. Williams v. Wal-Mart Stores, 2000-0863 (La.App. 4 Cir. 5/16/01), 787 So.2d 1134. Whether the claimant has carried his burden of proof and |4whether testimony is credible are questions of fact to be determined by the hearing officer. Harris v. Casino Magic, 38,137 (La.App. 2 Cir. 1/28/04), 865 So.2d 301. Unless shown to be clearly wrong, the trial court’s factual findings of work-related disability will not be disturbed where there is evidence which, upon the trier of fact’s reasonable evaluation of credibility, furnishes a reasonable, factual basis for those findings. Id. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Blanson v. GM Inland Fisher Guide, 33,498 (La.App. 2 Cir. 6/23/00), 764 So.2d 307.

In a workers’ compensation proceeding, the claimant bears the burden of demonstrating by a preponderance of the evidence that an employment accident resulted in disability. Blanson v. GM Inland, Fisher Guide, supra. Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Key v. Insurance Company of North America, 605 So.2d 675 (La.App. 2 Cir.1992).

The causal connection can be established when the employee proves that before the accident he was in good health, but commencing with the accident, symptoms of the disabling condition appeared, and there is sufficient medical evidence to show a reasonable possibility of causal connection between the accident and the disabling condition. Harris, supra.

|5The general rule is that the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. Williams v. Wal-Mart Stores, Inc., 2000-0863 (La.App. 4 Cir. 5/16/01), 787 So.2d 1134. However, the treating physician’s testimony is not irre-buttable, and the trier of fact is required to weigh the testimony of all medical witnesses. Williams, supra; Celestine v. U.S. Fidelity & Guaranty Co., 561 So.2d 986 (La.App. 4 Cir.1990).

If the trial court concludes that the appointed physician is a disinterested party, his conclusions will be entirely objective and accordingly his opinion will be given significant weight. Green v. Coca Cola Bottling Company, Ltd., 477 So.2d 904 (La.App. 4 Cir.1985), writ denied, 478 So.2d 910 (La.1985). The significant weight given to the opinion of the court-appointed expert can vary in accordance with the various factors which a trial judge utilizes in evaluating the testimony of any other witness. Id. Thus, the significant weight can be lesser or greater depending on the qualifications or expertise of the physician, the type of examination he performs, his opportunity to observe the patient, his review of other physicians’ examinations and tests, and any other relevant factors. Id.

Solo Cup asserts that in determining whether a claimant’s condition is related to a specific traumatic event, one of the primary issues is whether the claimant has a preexisting condition and the extent in which that preexisting condition affects the traumatic incident. Solo Cup argues that Dr. Holladay, who treated and examined Kendrick prior to a work accident and then | (¡examined her after the work accident, would clearly be in the best position to provide the court with his opinion as to whether or not the current injuries are related to the traumatic event. Dr. Holla-day treated Kendrick prior to her work accident at Solo Cup and performed a lumbar discectomy on April 3, 2001. Dr. Holladay was also hired by Solo Cup to examine Ms. Kendrick and provide a second medical opinion.

The WCJ relied heavily on Dr. Nunley’s testimony. After reviewing Kendrick’s medical history, exam records, a CT scan pre-accident, and post-accident MRIs, Dr. Nunley stated that Kendrick’s symptoms were coming from the L4-5 disc and that the injury is causally related to the work accident. He ultimately decided that Kendrick was a surgical candidate and conducted a discography, which is a test to find the specific source or disc level of the pain. After the discography confirmed that the source of Kendrick’s pain was the L4-5 disc, Dr. Nunley recommended lumbar disc surgery.

Dr. Holladay testified that there is a possibility that the accident caused the new injury at L4-5. However, he disagreed with Dr. Nunley’s surgery recommendation. Dr. Bilderback, the independent medical examiner, deferred to Dr. Holla-day’s testimony.

Solo Cup included a summary of Dr. Holladay’s medical records, which it argues proves that Kendrick suffered from a preexisting back condition. Kendrick began having back problems in 2001.

An employee’s preexisting disease or infirmity does not disqualify his workers’ compensation claim if the work-related injury either aggravated, or [7combmed with the disease or infirmity to produce the disability for which compensation is claimed. Lubom v. L.J. Earnest, Inc., 579 So.2d 1174 (La.App. 2 Cir.1991). When a claimant proves that before the accident he had not exhibited disabling symptoms, but that commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter, and that there is either medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and the activation of the disabling condition, a claimant’s work injury is presumed to have aggravated, accelerated or combined with any preexisting disease or infirmity to produce his disability. Id. If the evidence is evenly balanced, or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation, then the claimant fails to carry his burden of proof. Id.

Kendrick testified that her pain and problems after the 2003 work accident were different and worse than those after her 2001 surgery. Additionally, Dr. Nun-ley recognized that Kendrick experienced pain prior to the work accident, but it was not disabling, and that her pain was more severe after the work accident. The WCJ accepted Kendrick’s testimony as credible and determined that her current back condition was caused by a work-related accident during her employment with Solo Cup. Her testimony was confirmed by medical records and tests.

Dr. Nunley reviewed Kendrick’s medical history, exam records, a CT scan pre-acci-dent, and post-accident MRIs before determining that the lumbar spine surgery was medically necessary. The WCJ agreed that the |slumber spine surgery was necessary after noting that Dr. Nun-ley’s diagnosis and recommendations were the most reliable and credible and somewhat supported by Solo Cup’s medical exam, which was conducted by Dr. Holla-day, and the independent medical exam, which was conducted by Dr. Bilderback.

We conclude that the WCJ correctly found that Kendrick’s current back condition was caused by a work-related accident during her employment with Solo Cup and that the lumbar spine surgery was medically necessary.

Solo Cup asserts in the third assignment of error that the WCJ erred in finding that Debra Kendrick was entitled to reinstatement of TTD benefits from January 11, 2007. Citing La. R.S. 23:1221(l)(c) Solo Cup argues that the Louisiana Workers’ Compensation Act and our jurisprudence indicates that an employee must prove by clear and convincing evidence, unaided by any presumption of disability, that an employee is physically unable to engage in any employment. La. R.S. 23:1221(l)(e) states in pertinent part:

(c) For purposes of Subparagraph (l)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (l)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, 1 notwithstanding the location or availability of any such employment or self-employment.

Dr. Holladay commented that Kendrick could lift up to 10 pounds. Dr. Nunley agreed with this work restriction. The WCJ found that Kendrick cannot continue to perform her job due to her work-related injury, but that she was capable of “restricted light” duty as outlined in the functional capacity evaluation performed by Occ-Fit. Further, the WCJ determined that temporary total disability payments should be reinstated at the rate of $228.63 per week from January 11, 2007.

Kendrick was restricted to modified duty work. The record fails to indicate that Solo Cup made any effort to provide Kendrick a light duty job to accommodate these work restrictions. Therefore, the award of benefits should be affirmed.

In the fourth and final assignment of error, Solo Cup contends that the WCJ erred in providing penalties and attorney fees for termination of all benefits on January 11, 2007. Kendrick requests an increase in attorney fees awarded by the WCJ. She argues that this award is low, considering the length of the many medical exhibits, the four expert depositions, the adjuster’s deposition, her deposition, and the pretrial hearings.

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. hnLa. R.S. 23:1201(1). A WCJ has great discretion in deciding whether to award or deny penalties and attorney fees and such a decision will not be disturbed absent abuse of discretion. Moore v. Transmissions, Inc., 41,472 (La.App. 2 Cir. 9/27/06), 940 So.2d 694. A workers’ compensation insurer has a duty to investigate to determine cause of exacerbation of claimant’s injuries before terminating benefits. Lynn v. Berg Mechanical, 582 So.2d 902 (La.App. 2 Cir.1991).

After finding that Solo Cup’s adjuster was arbitrary and capricious in terminating benefits on January 11, 2007, the WCJ awarded Kendrick $8,000.00 for termination of benefits. The WCJ referred to the adjuster’s admission that she did not review the medical records, and therefore was unaware of Dr. Nunley’s opinion as to the causation of the injury. We agree with the WCJ in determining the adjuster was indeed arbitrary and capricious in terminating Kendrick’s benefits without first performing her duty to investigate.

Up until the time of trial, Kendrick’s legal counsel spent 123 hours on the case. Her legal counsel also spent an additional seven hours at trial and in preparing a post-trial brief, which increased the total time to 130 hours. After taking into consideration the number of depositions taken and the discovery necessaiy to prepare this matter for trial, the WCJ awarded Kendrick $9,500.00 in attorney fees. We cannot say that the WCJ erred in awarding $9,500.00 in attorney fees. This award is a fair and just amount for the efforts made to recover Kendrick’s benefits.

| uAdditionally, Kendrick is requesting additional attorney fees for the appeal. She asserts that her legal representation has spent at least 12 hours on this brief and requests an additional $2,500.00 in attorney fees.

A workers’ compensation claimant is entitled to an increase in additional attorney fees to reflect additional time incurred in defending the employer’s unsuccessful appeal. Frith v. Riverwood Inc., 2004-1086 (La.1/19/05), 892 So.2d 7. Taking into consideration the complexity of the case and the fact that the WCJ already awarded counsel a fee of $9,500.00, we find an additional fee of $2,000.00 is warranted.

CONCLUSION

For the aforementioned reasons, the judgment of the WCJ is affirmed. Judgment is further rendered in favor Kendrick for an additional attorney fee of $2,000.00. Cost of this appeal are assessed against the appellant, Solo Cup.

AFFIRMED. ADDITIONAL ATTORNEY FEE AWARDED.


author: DREW, J. CARAWAY, J.,

text:
    Eric ALEXANDER, Raymond Weber, Tamara Alexander, Robert J. Alexander, and Toya Alexander, Plaintiffs-Appellees v. Othell DUNN, Defendant-Appellant.
    No. 44,272-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 3, 2009.
    Rehearing Denied June 18, 2009.

      William A. Jones, Jr., for Appellant.
    Culpepper & Carroll, PLLC, by Bobby L. Culpepper, Jonesboro, for Appellees.
    Before GASKINS, CARAWAY and DREW, JJ.
   DREW, J.

hln this appeal, the issue presented is whether a co-owner of standing timber can be liable to his fellow co-owners for treble damages under La. R.S. 3:4278.1 when he sells the timber without the co-owners’ consent. We conclude that the punitive “timber trespass” statute is inapplicable against co-owners. Accordingly, we reverse the judgment in part, amend the judgment in part and affirm the judgment as amended; we reject the demand by the appellees for additional attorney fees on appeal.

Othell Dunn and his wife Ella owned, as community property, a 24.72-acre tract of land in Lincoln Parish. After Ella died in 1986, her succession was opened; in 1991, the district court rendered a judgment of possession which recognized Othell Dunn as the owner of an undivided one-half interest in the immovable property. The judgment awarded the remaining one-half interest in the property to five particular legatees of Ella (her children): Toya Howell, Raymond Weber, Tamara Gayles, Robert J. Alexander, and Eric Alexander (“the co-owners”). Each legatee received an undivided one-tenth interest (a one-fifth interest of their mother’s one-half interest) in the property.

In 1995, Dunn filed a petition to set aside the judgment of possession. That matter continued for many years until it was finally decided against Dunn in 2007. In the meantime, in 2004, Dunn contracted with a timber company to cut some of the standing timber on the property; he said that he had planted the trees too close together and that they needed to be thinned out. The company cut and removed the timber. Dunn claimed that the company paid him $300. Dunn did not inform or ask permission from the |2co-owners concerning the sale of the timber and he did not share the proceeds of the sale with them.

In 2005, the co-owners learned- that Dunn had sold the timber, and in 2006, the co-owners filed the instant lawsuit against Dunn. Citing La. R.S. 3:4278.1, the plaintiffs demanded treble damages and attorney fees from Dunn for the wrongful cutting of the timber. The plaintiffs did not file suit against the timber company but stated in their petition that they reserved the right to do so when they learned its identity. Dunn answered and reconvened, seeking reimbursement from the plaintiffs of one-half of the cost of taxes paid as well as his costs for reforestation and overseeing the property. An expert witness retained by the plaintiffs valued the timber cut from the property at $4,792.80. The court overruled Dunn’s exceptions of prescription and no right of action.

The matter was tried in June 2008; the court considered the documentary evidence showing the ownership of the property and heard testimony from the timber value expert, one of the co-owners, and Othell Dunn. In August 2008, the court issued reasons for judgment. The court ruled that La. R.S. 3:4278.1 applied to this case and that Dunn had willfully and intentionally violated the statute; the court awarded the plaintiffs both treble damages ($7,188.45, three times one-half of the value of the timber) and attorney fees in the amount of $5,000.00. Dunn now appeals; the plaintiffs have answered the appeal and asked for an additional award of attorney fees. On appeal, Dunn argues, inter alia, that the trial court erred pby applying La. R.S. 3:4278.1 to these facts and in finding that Dunn had acted in violation of this rule.

All the parties to this lawsuit are co-owners in indivisión of a single piece of immovable property. La. C.C. art. 480 provides:

Two or more persons may own the same thing in indivisión, each having an undivided share.

La. C.C. art. 797 provides, in part:

Ownership of the same thing by two or more persons is ownership in indivisión.

The immovable property contained standing timber, an immovable, which was owned in indivisión by the co-owners of the land and not a third person, so the timber was a component part of the land. La. C.C. arts. 462-464. Typically, standing timber is considered a capital asset, or product, of land unless the timber is managed as a tree farm or regularly exploited forest. See, e.g., Kennedy v. Kennedy, 96-0732 (La.11/25/96), 699 So.2d 351 (on rehearing).

In a typical case involving the fruits or products of a tract of land, La. C.C. art. 798 governs the relation of the co-owners in indivisión:

Co-owners share the fruits and products of the thing held in indivisión in proportion to their ownership.
When fruits or products are produced by a co-owner, other co-owners are entitled to them shares of the fruits or products after deduction of the costs of production.

See Pender v. Elmore, 37,690 (La.App. 2d Cir.9/24/03), 855 So.2d 930, fn. 2, writ denied, 2003-2968 (La.1/16/04), 864 So.2d 632. An action for an |4accounting, a personal obligation, is subject to a prescriptive period of 10 years. La. C.C. art. 3499; Stockmon v. Van Alstyne, 42,922 (La.App. 2d Cir.2/13/08), 976 So.2d 336.

However, as this court recognized in McConnico v. Red Oak Timber Co., 36,985 (La.App.2d Cir.5/16/03), 847 So.2d 191, fn. 2, in cases involving timberland the provisions of La. C.C. art. 798 are secondary to the rules outlined in a more specialized statute, La. R.S. 3:4278.2, which provides, in part:

A. A co-owner or co-heir of land may execute an act of timber sale whereby he sells his undivided interest in the timber, and any condition imposing a time period within which to remove the timber shall commence from the date of its execution.
B. A buyer who purchases the timber from a co-owner or co-heir of land may not remove the timber without the consent of the co-owners or co-heirs representing at least eighty percent of the ownership interest in the land, provided that he has made reasonable effort to contact the co-owners or co-heirs who have not consented and, if contacted, has offered to contract with them on substantially the same basis that he has contracted with the other co-owners or co-heirs.
E. Failure to comply with the provisions of this Section shall constitute pri-ma facie evidence of the intent to commit theft of the timber by such buyer.

Section A of this statute recognizes the rule allowing standing timber to be sold and become a separate immovable. Under this section and La. C.C. art. 464, Dunn had the right to sell his undivided interest in the timber to a third person without the consent of the other co-owners.

1 r,However, Section B requires a buyer to obtain the consent of at least 80% of the ownership interest in the land prior to actually cutting the timber. Sections B and E of this rule specify that the penalty for noncompliance falls to the buyer, not a co-owner. In McConnico, supra, this court recognized that a buyer who cuts the timber but has the consent of less than 80% of the ownership interest in the land is subject to the harsh penalty of the “timber trespass” or “timber piracy” statute, La. R.S. 3:4278.1, which provides, in part:

A. It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.

This rule contains no explicit provisions governing the rights and duties of co-owners of timberland, and McConnico was a lawsuit by a co-owner against a timber company; no co-owner was a defendant.

In the instant case, the plaintiff co-owners have not sought damages against the timber company that harvested the timber. Plaintiffs sought and obtained an award under the timber trespass statute against a co-owner — who has a less-than-80% share of ownership — who sold the timber without the plaintiffs’ permission. It is the application of the timber trespass statute to a co-owner of the land, rather than to a timber buyer, to which the co-owner defendant objects.

La. R.S. 3:4278.1 is a punitive statute and thus must be strictly construed. Hornsby v. Bayou Jack Logging, Inc., 2004-1297 (La.5/6/05), 6902 So.2d 361; Sullivan v. Wallace, 37,399 (La.App. 2d Cir.10/20/03), 859 So.2d 245. After scrutinizing the language of this statute, we conclude that the timber trespass statute cannot be applied to co-owners.

Initially, the facts in the instant case raise the question of whether the timber buyer here serves as an “agent or employee” of the co-owner seller. The seller entered into a contract with the timber cutter to sell the timber to the cutter; the buyer is not functioning as the seller’s agent or employee in furtherance of the seller’s interest. Although it is possible for a contract of mandate to serve the interests of the mandatory or a third person in addition to the interest of the principal, La. C.C. art. 2991, here the buyer and seller have competing interests and in no sense is the buyer acting to transact any affair on behalf of the seller. La. C.C. art. 2989.

Moreover, the statute is facially ambiguous with regard to co-owners, neither expressly including nor excluding these persons from its provisions. La. R.S. 1:4. However, the statute is violated only when a person acts with respect to trees growing or lying “on the land of another” and when this action is taken without “the consent of ... the ownerf.]” In addition, the timber trespasser owes the penalty to “the owner or legal possessor of the trees,” a phrase which clearly describes a person other than the wrongdoer as described in the statute. Because co-ownership of timberland is the subject of La. R.S. 3:4278.2, La. R.S. 3:4278.1 must be read in pari materia with La. R.S. 3:4278.2. Where two or more statutes deal with the same subject matter, they should be harmonized if possible; but if there is a conflict, the statute specifically directed to the matter at issue must prevail |7as an exception to the statute more general in character. Louisiana Associated General Contractors v. Louisiana Dept. of Agriculture & Forestry, 2005-0131 (La.2/22/06), 924 So.2d 90; see also generally La. C.C. art. 13.

Here, Dunn certainly acted without the consent of the other co-owners. Although older jurisprudence recognized this act as a “trespass,” see Cotten v. Christen, 34 So. 597, 598, 110 La. 444, 447 (1903), later jurisprudence suggests that a co-owner who engages in wrongful conduct with regard to the whole property is not a trespasser with regard to his co-owners. Juneau v. Laborde, 228 La. 410, 82 So.2d 693 (1955).

Finally, La. R.S. 3:4278.1 cannot be read to apply to co-owners without doing violence to the provisions of La. R.S. 3:4278.2. The latter statute allows a timber buyer to cut standing timber when the buyer has the consent of co-owners holding 80% of the ownership interest. Because La. R.S. 3:4278.1 does not explicitly refer to co-owners, it contains no exception for the “80% rule” in La. R.S. 3:4278.2. If La. R.S. 3:4278.1 applies to co-owners, then one co-owner who holds more than 80% of the ownership interest and permits timber to be cut in accordance with La. R.S. 3:4278.2 would nevertheless be liable to the other co-owners for treble damages under La. R.S. 3:4278.1 even though the timber buyer would escape the penalty because of La. R.S. 3:4278.2(B).

|sThis contradiction cannot be what the legislature intended in enacting these statutes. The rules, like the Civil Code articles on co-ownership, recognize the truism that a co-owner ordinarily acts in his own economic self-interest with respect to his property. To apply the timber trespass statute to co-owners would allow the owner of a 10% share of timberland to recover treble damages from the owner of a 90% share who, following La. R.S. 3:4278.2, obtains an excellent price for the timber and shares the proceeds with the 10% owner. Thus, in the context of co-owned timber-lands, “any person” as expressed in La. R.S. 3:4278.1 cannot be read to include a co-owner because the penalty applies to those who cut timber “on the land of another.” La. R.S. 1:3. Any other application of the statute would violate the principle holding that such penalty statutes must be strictly construed.

Because neither La. R.S. 3:4278.1 nor 3:4278.2 governs the rights and duties of co-owners of timberlands vis-a-vis each other, the ordinary rules of Title VII of Book II of the Civil Code apply. On this point, we respectfully disagree with our brethren on the Third Circuit. Prewitt v. Rodrigues, 2004-1195 (La.App. 3rd Cir.2/2/05), 893 So.2d 927.

Because Dunn acted without the permission of the other co-owners, the other co-owners have a right of action for their proportionate share of the proceeds of the timber sale. La. C.C. art. 798; compare Ellwood Oil v. Anderson, 26,907 (La.App. 2d Cir.5/10/95), 655 So.2d 694, writ denied, 95-1485 (La.10/6/95), 661 So.2d 466. Their action, for an accounting, had not prescribed when it was filed. La. C.C. art. 3499. However, under |;ithese rules, the plaintiff co-owners are not entitled to an award of attorney fees, nor are they entitled to such an award on appeal. We find no error in the trial court’s reliance upon the valuation of the timber supplied by the plaintiffs’ expert; such findings are subject to the manifest error standard of review. Hornsby v. Bayou Jack Logging, supra.

CONCLUSION

Accordingly, the district court’s judgment is reversed insofar as it awards attorney fees to the plaintiffs, and the plaintiffs’ demand for additional attorney fees on appeal is rejected. The judgment awarding the plaintiffs damages for the cutting of the trees is amended to award the plaintiffs $2,396.15, the fair market value of their share of the timber and is, as amended, affirmed. Costs of this appeal are assessed equally to plaintiffs and defendant.

REVERSED IN PART; AMENDED AND AFFIRMED IN PART.

CARAWAY, J., concurs with written reasons.

CARAWAY, J.,

concurring.

Li join in agreement with the majority’s ruling interpreting the special Title 3 timber trespass statutes. Co-ownership is not the same as sole ownership, but it is still ownership which removes any notion of trespass.

I write to address further the Civil Code articles on co-ownership, and in particular, a co-owner’s violation of the joint management requirement of Article 801. That article provides:

The use and management of the thing held in indivisión is determined by agreement of all the co-owners.

In this case, there was no agreement by the co-owners for the management of their timberland and a violation of Article 801 occurred. Nevertheless, based upon the implications of the other Civil Code articles governing the co-ownership regime, any violation of the joint management rule of Article 801 is regulated by the Civil Code and not remedied with the imposition of punitive damages.

For various reasons a co-owner may violate the joint management rule, whether innocently or deliberately. There are disagreements and the lack of communication which inherently exist between co-owners. The co-owner may act unilaterally on the mistaken belief that the cutting of timber is necessary to preserve the property. See La. C.C. art. 800. The thinning of closely planted pine timber may be necessary at a certain age of the timber. The tract may have been damaged by a storm or the infestation of insects. Just as our courts have difficulty characterizing the revenues from a properly managed pine timber tract as either a “product” or “fruit” of the land, a co-owner may view the timber as a crop to be harvested in a timely 12manner and act without the agreement of all other co-owners. While this will be a violation of the joint management rule of Article 801 in most instances, the co-owner is still acting in his own economic best interests which coincide with those of his co-owners. The Civil Code implicitly recognizes that this type of violation of Article 801 may occur and provides for the rule of reimbursement in Article 798. See also, La. C.C. art. 804 regarding the remedies for a co-owner’s alteration and improvement of the co-owned property without the consent of the other co-owners. The code further provides for reimbursement for damages which a co-owner causes to the property. La. C.C. art. 799. Finally, when co-owners cannot agree and the type of controversy of this case erupts, the right of partition is the primary remedy for ending the conflict between them. La. C.C. art. 807. The Civil Code articles on co-ownership therefore provide a complete framework for remedying disputes between co-owners which afford the plaintiffs their remedy in this case without resort to a strained and improper interpretation of the timber trespass statutes.

APPLICATION FOR REHEARING

Before GASKINS, CARAWAY, PEATROSS, DREW and MOORE, JJ.

11Rehearing denied.

      . See also the specific rule governing the usu-fruct of timberlands in La. C.C. art. 562.

      . This is true also, to the extent these articles are implicated, with regard to the other articles in Title VII of Book II of the Civil Code.

      . If there is a conflict between two statutes, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. Kennedy v. Kennedy, supra (on rehearing).

      . In some circumstances, a wood cutter may trespass as to a co-owner when he enters property with another co-owner’s permission; see Sullivan v. Wallace, supra, citing Breaux v. Albert Hanson Lumber Co., 125 La. 421, 51 So. 444 (1910).


author: LOVE, Judge.

text:
    Ashton R. O’DWYER, Jr. v. Ernest L. EDWARDS, Joseph L. Shea, Jr., and Charles R. Talley.
    No. 2008-CA-1492.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 10, 2009.

      Ashton R. O’Dwyer, Jr., Law Offices of Ashton R. O’Dwyer, Jr., L.L.C., New Orleans, LA, In Proper Person, Plaintiff/Appellant.
    Kim M. Boyle, M. Nan Alessandra, Tar-yn S. Nunes, Phelps Dunbar LLP, New Orleans, LA, for Ernest L. Edwards, Jos-peh Shea, Jr., & Charles R. Talley.
    Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE.
   LOVE, Judge.

12This appeal arises from a petition for nullity. The defendants filed a peremptory exception of no cause of action, which the trial court granted. We find the plaintiff did not allege factual allegations sufficient to state a cause of action against the defendants and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Ashton O’Dwyer, Jr. (“Mr. O’Dwyer”) filed a petition for nullity against Ernest Edwards, Joseph Shea, Jr., and Charles Talley (collectively “Defendants”) alleging that two judgments and a stay of discovery were obtained through fraud or ill practices and improper procedural practices. Mr. O’Dwyer also alleged

that each of the said final Judgments were obtained by fraud or ill practices, and more particularly by abuse of power by at least one, and maybe more, Supreme Court Justice, Judges of the Court of Appeal, Fourth Circuit and a Judge of Civil District Court, as well as judicial collusion and/or other judicial misconduct, and misconduct involving other State officials, including, without limitation, employees of the Office of Disciplinary Counsel and the Louisiana Department of Justice....

Mr. O’Dwyer sought damages, attorney’s fees, pre-judgment interest, and costs.

The Defendants filed a motion to transfer the petition for nullity to the trial |scourt division that handled the underlying matter. Additionally, the Defendants filed a peremptory exception of no cause of action, a declinatory exception of the lack of subject matter jurisdiction, and the dilatory exceptions of vagueness and nonconformity. The trial court held a combined hearing and denied the motion to transfer. The trial judge asked Mr. O’Dwyer if he was asserting that he did not “even know if these defendants engaged in any wrongdoing in terms of fraud or ill practice?” Mr. O’Dwyer responded, “I’m saying that, yes.” He then asserted that he was “enti-tied to discovery of their phone records, computer hard drives, and other things.” The trial court granted the exception of no cause of action and dismissed Mr. O’Dwyer’s claims with prejudice against the Defendants. The trial court held that the remaining exceptions were moot. Mr. O’Dwyer’s appeal followed.

STANDARD OF REVIEW

Exceptions of no cause of action present legal questions, which are reviewed using the de novo standard of review. Tuban Petroleum, L.L.C. v. SIARC, Inc., 09-0302 (La.App. 4 Cir. 4/15/09), 11 So.3d 519, 522.

NULLITYINO CAUSE OF ACTION

Mr. O’Dwyer filed a petition for nullity seeking the annulment of a trial court judgment rendered on December 22, 2006, a trial court’s stay of discovery, and an opinion of this Court dated November 26, 2007. La. C.C.P. art. 2004(A) provides that a “final judgment obtained by fraud or ill practices may be annulled.” However, the “action to annul a judgment on these grounds must be brought within Lone year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.” La. C.C.P. art. 2004(B).

The Defendants filed an exception of no cause of action on the basis that Mr. O’Dwyer failed to allege facts to show that they were involved in the alleged fraud or ill practices. “The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition.” Indus. Co., Inc. v. Durbin, 02-0665, p. 6 (La.1/28/03), 837 So.2d 1207, 1213. Louisiana utilizes fact pleading, meaning that the “mere conclusion of the pleader unsupported by facts does not set forth a cause or right of action.” Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131. The well-pleaded factual allegations must be accepted as true. City of New Orleans v. Bd. of Comm’rs of Orleans Levee Dist., 93-0690 (La.7/5/94), 640 So.2d 237, 241. The burden remains with the mover. Id. at p. 28, 640 So.2d at 253.

“No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La. C.C.P. art. 931. The petition may be amended if “the grounds of the objection pleaded by the peremptory exception may be removed.” La. C.C.P. art. 934. If the petition cannot be amended to state a cause of action and remove the grounds of the exception, the claims shall be dismissed. La. C.C.P. art. 934. “In appraising the sufficiency of the petition we follow the accepted rule that a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief.” City of New Orleans, 93-0690, p. 28, 640 So.2d at 253.

|sMr. O’Dwyer’s petition seeks to nullify judgments obtained in favor of the Defendants, but fails to provide factual recitations that allege the Defendants were a part of the alleged collusion of various judges. The trial court judge stated at the hearing that Mr. O’Dwyer did not “make any specific allegations against these defendants” and Mr. O’Dwyer replied, “[r]ight.” The trial judge asked Mr. O’Dwyer if he was asserting that he did not “even know if these defendants engaged in any wrongdoing in terms of fraud or ill practice?” Mr. O’Dwyer responded, “I’m saying that, yes.” He then asserted that he was “entitled to discovery of their phone records, computer hard drives, and other things.” Mr. O’Dwyer’s response connotes that he would not be able to amend his petition to state specific factual allegations of fraud and/or ill practices committed by the Defendants. See La. C.C.P. art. 934. Accordingly, we find that the trial court did not commit legal error in granting the Defendants’ exception of no cause of action and affirm.

DECREE

For the above mentioned reasons, we find that the trial court correctly granted the Defendants’ exception of no cause of action, as Mr. O’Dwyer failed to allege sufficient facts to sustain a cause of action against the Defendants. Therefore, we affirm.

AFFIRMED.

      . The subject matter of the judgments sought to be annulled is irrelevant except that the Defendants in the case sub judice were identical in the underlying matter.

      . Only final judgments can be nullified pursuant to La. C.C.P. art. 2004. Therefore, as a stay of discovery is an interlocutory judgment, a petition for nullity is the improper procedural vehicle to contest its validity. Gorvine v. Travelers Ins. Companies, 98-0287, pp. 3-4 (La.App. 4 Cir. 11/18/98), 724 So.2d 248, 250.