author: GREMILLION, Judge.

text:
    Martha B. BONIN, et al. v. Brian A. VERRET, et al.
    No. CA 09-270.
    Court of Appeal of Louisiana, Third Circuit.
    June 24, 2009.
    Gerald Charles deLaunay Jean Albert Ouellet Perrin, Landry, deLaunay, Dartez & Oullet, Lafayette, LA, for Plaintiff/Appellant: Martha B. Bonin.

      Kenny Layne Oliver, David Oliver Way, Oliver & Way, Lafayette, LA, for Defendant/Appellee: State Farm Mutual Auto Ins. Co.
    Katherine P. Martin, Gretchen Heider Mayard, Katherine P. Martin, APLC, Lafayette, LA, for Defendants/Appellees: State Farm Mutual Auto Ins. Co. and Brian A. Verret.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| [Martha Bonin, appointed tutrix of the minor child, K.D.T., appeals summary judgment granted in favor of State Farm Mutual Automobile Insurance Company (State Farm). The dispute involves uninsured motorist (UM) coverage. For the reasons that follow, we affirm.

FACTS

K.D.T. tragically lost his parents in an automobile accident on September 30, 2006. It was alleged in the petition filed by Bonin that Brian A. Verret was traveling northbound on Ambassador Caffery Parkway in Lafayette, Louisiana, at approximately 9:52 p.m., when he lost control and crossed the center line, colliding head-on with K.D.T.’s parents, James Dean Thi-bodeaux and Danielle Conrad Thibodeaux. Mr. Thibodeaux was driving a 1995 Honda Accord registered in his name and insured by Imperial Fire and Casualty Insurance Company. Ms. Thibodeaux was listed on the policy as the named insured. Ms. Thibodeaux also owned a 2000 Toyota Corolla that was insured by State Farm.

The petition named Verret, State Farm as his liability insurer and State Farm as Ms. Thibodeaux’s uninsured motorist carrier. State Farm answered and filed a motion for summary judgment, asserting that, because Ms. Thibodeaux was occupying a vehicle owned by her but insured by Imperial and not described in the State Farm policy, there was no coverage for this accident. Bonin argued that K.D.T. was an insured under the State Farm policy but did not own the car and, therefore, |2was entitled to UM benefits for his wrongful death claims. The trial court accepted State Farm’s . argument and granted summary judgment. Bonin then perfected this appeal.

ANALYSIS

Courts of appeal in Louisiana review summary judgments de novo, meaning that we utilize the same standards as would a trial court. Schroeder v. Board of Sup’rs. of La. State Univ., 591 So.2d 342 (La.1991). It is therefore incumbent upon us to review the pleadings, depositions, affidavits and other submissions and determine whether a genuine issue of material fact exists. If so, we must reverse, and if not, we must affirm. La.Code Civ.P. arts. 966 and 967.

We are required to first determine whether the policy provides coverage. The policy, as a contract, carries the force of law between the parties. Livas v. State Farm Mut. Auto. Ins. Co., 99-1169 (La.App. 3 Cir. 7/18/00), 797 So.2d 694. Revised Statute 22:680(1)(e), on which State Farm relies, does not prohibit State Farm from providing coverage in such situations.

State Farm’s policy defines “bodily injury” as “physical injury to a person and sickness, disease or death which results from it.” Bonin urges that this coverage applies to KD.T.’s claim, however, because she is not seeking to recover UM benefits for Ms. Thibodeaux’s bodily injury, but rather KD.T.’s injury for the loss of his parent. In support of her theory, Bonin has cited the cases of Mayo v. State Farm Mutual Automobile Insurance Co., 03-1801 (La.2/25/04), 869 So.2d 96, and Salvaggio v. Allstate Insurance Co., 08-585 (La.App. 3 Cir. 11/5/08), 997 So.2d 845.

The Mayo decision involved a wife who was injured through the fault of an uninsured motorist while she was a passenger in an automobile separately owned by|,.;her husband. That vehicle had been purchased by her husband before the couple’s marriage and was insured by Allstate Insurance Company. The plaintiff had acquired a GEO Spectrum before the marriage and insured it with State Farm. The Louisiana Supreme Court analyzed the ancestor of the provision with which we are concerned, La.R.S. 22:1406(D)(l)(e), and determined that there was coverage because the plaintiff did not own her husband’s vehicle. Bonin argues that the Mayo reasoning applies to KD.T.’s loss because he, as a resident relative of Ms. Thibodeaux, is an insured under her policy, and he was not an owner of the Honda Accord; thus, his loss is covered by State Farm.

In Salvaggio, the mother and father were living separate and apart and had filed for divorce. The father lived in an apartment above his parents’ home. He and his two sons were injured in a one-vehicle accident when he plowed his pickup into a ditch. The mother sought to recover UM benefits on behalf of the two sons from the grandmother’s carrier. The father and two sons were residents of the grandmother’s home and thus insureds. We extended the Mayo rationale to conclude that the two sons were insureds and did not own the father’s truck; thus, summary judgment granted on behalf of the grandmother’s UM carrier was improper, and we reversed.

The common thread coursing through Mayo and Salvaggio is that in both cases the party seeking to recover benefits did not own the vehicle and had sustained physical injuries. The distinction in this matter is that Bonin is pursuing a wrongful death claim on K.D.T.’s behalf for the death of his mother. Thus, Bonin argues, the focus of our analysis should be on the nature of KD.T.’s loss. We disagree.

State Farm’s policy insuring agreement provides:

We will pay nonpunitive damages for bodily injury an insured is legally entitled to collect from the owner of an uninsured motor vehicle. The \ ¿bodily injury must be sustained by an insured and caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.

State Farm’s policy excludes coverage for “bodily injury” to an insured while occupying a motor vehicle owned by or leased to the insured if it is not a car described in the declarations page or a newly acquired car. The issue as expressed by Bonin is on whose injuries the analysis should focus. She maintains that the focus should be on K.D.T.’s injuries.

In Crabtree v. State Farm Insurance Co., 93-509 (La.2/28/94), 632 So.2d 736, the supreme court decided the issue of whether a spouse’s claim for mental anguish resulting from witnessing her husband’s motorcycle accident constituted a separate bodily injury, thus entitling her to a separate “per person” limit of recovery. In that case, the supreme court determined that the rather loose definition of “bodily injury” expanded enough to encompass the wife’s bystander damages. The court in Crabtree stated that had State Farm intended the policy only cover external bodily injuries, it could have stated that in the policy.

Similarly, in Hill v. Shelter Mutual Insurance Co., 05-1782 (La.7/10/06), 935 So.2d 691, the court faced the same issue in the context of the wrongful death claims of three children for the death of their father, with identical policy language as found in Crabtree. The court, in ruling that a separate “per person” limit applied to the wrongful death claims, stated that the elements of wrongful death are loss of love, affection, companionship and mental pain, suffering and distress are all “mental injuries which could be termed ‘bodily injury under the policy.” Id. at 695.

More recently, the supreme court decided the case of Hebert v. Webre, 08-60 (La.5/21/08), 982 So.2d 770. There, the supreme court faced the identical issue as hit faced in Hill, but in the context of insuring agreement language identical to that in the matter before us. The court stated, “we find that the addition of the word ‘physical’ is sufficient under Crabtree to differentiate a ‘bodily injury’ sustained in a physical manner ... from an injury which is emotional in nature and, though it might have physical consequences, is not a ‘physical’ bodily injury.” Id. at 777.

The insuring language requires that the focus is properly upon the party who sustained physical bodily injury, i.e., the occupant of the car, and not on his beneficiaries for purposes of wrongful death or survival actions.

This analysis is supported by previous decisions of this court. In Lafleur v. Fidelity & Casualty Co. of New York, 385 So.2d 1241 (La.App. 3 Cir.1980), writ denied, 392 So.2d 684 (1980), we held that UM benefits were not covered under the policies of children whose mother, who did not reside with any of them, was not a named insured under any of the policies and was not occupying an insured vehicle. This decision followed our previous ruling, under similar facts, in Chapman v. Allstate Insurance Co., 306 So.2d 414 (La.App. 3 Cir.1975).

To rule to the contrary would lead to absurd consequences. The Lafleur case illustrates this principle perfectly. If the court were to look to the claimant’s damages, each plaintiff in Lafleur would have been entitled to recover even though the mother was in no way an insured under any of the policies.

Similar rationale governs this matter. State Farm’s policy excludes coverage for “bodily injury” to an insured while occupying a motor vehicle owned by or leased to the insured if it is not a car described in the declarations page or a newly acquired car. The Honda was not described in the State Farm policy and did not meet the definition of a newly acquired car, as it was listed in Imperial’s policy. Because liiBonin, on behalf of K.D.T., is seeking to recover damages that result from “bodily injury,” to an insured, her claims for UM benefits are not covered by the policy’s language. This does not end our analysis, however.

Louisiana public policy in favor of uninsured motorist coverage is reflected in the fact that it is mandated by statute. Currently, the statute that mandates UM coverage is designated La.R.S. 22:1295; at the time of this accident in 2006, it was La.R.S. 22:680. The statute provided that no automobile insurance liability policy shall be delivered or issued for delivery unless coverage in an amount not less than the bodily injury liability limits for the protection of insureds who are entitled to recover from owners or operators of uninsured or underinsured drivers, unless the named insured selects lower limits, elects coverage for “economic only” losses, or rejects UM coverage altogether. La.R.S. 680(l)(a)(i). The statute mandates coverage for bodily injury, sickness or disease, including death resulting therefrom. Id. The public policy in requiring UM coverage is so strong that the Louisiana Supreme Court has instructed the lower courts that the mandate of coverage is to be liberally construed, while the exceptions to mandatory coverage in the statute must be strictly construed. Gray v. American Nat'l. Prop. & Cas. Co., 07-1670 (La.2/26/08), 977 So.2d 839.

The provision of section 680 with which the court is faced in this matter is La.R.S. 22:680(l)(e), which states:

(e) The uninsured motorist coverage does not apply to bodily injury, sickness, or disease, including death of an insured resulting therefrom, while occupying a motor vehicle owned by the insured if such motor vehicle is not described in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy. This provision shall not apply to uninsured motorist coverage provided in a policy that does not describe specific motor vehicles.

17This provision plainly allows State Farm to include its exclusion, but requires us to determine whether State Farm has established in its motion that Ms. Thibo-deaux owned the Honda and that it was not described in the State Farm policy. The petition filed by Bonin alleges that Mr. Thibodeaux was driving a 1995 Honda Accord with no allegation admitting ownership of the car. State Farm offered, without objection or motion to strike, the un-certified Imperial Fire and Casualty policy that lists the Honda and a Z71 pickup truck as the insured vehicles, and shows Ms. Thibodeaux as the named insured. Bonin has offered nothing to suggest that the vehicle was not owned by the Thibo-deauxs, and the evidence that was introduced establishes that it was. The State Farm policy does not describe that Honda as an insured vehicle. Therefore, the second requirement for applicability of the statute has been met.

We determine that under the tei*ms of the statute, the damages claimed by Bonin are precluded. She is making a claim on KD.T.’s behalf for damages sustained by Z.D.T.; however, those damages arise from the bodily injury and resulting death of an insured, Ms. Thibodeaux, while occupying a vehicle she owned and not described in State Farm’s policy. The precise situation this provision was intended to preclude — paying for UM coverage on only one of several vehicles, then making a claim for injuries sustained while occupying a car that had no such protection — is illustrated by Bonin’s demands against State Farm.

CONCLUSION

Ms. Thibodeaux’s death occurred while occupying a vehicle she owned that was not described in State Farm’s policy. That claim is not covered by the insuring agreement between Ms. Thibodeaux and State Farm. Because Ms. Thibodeaux was occupying a car she owned that was not described in State Farm’s policy at the time |sshe was killed, coverage for the wrongful death claim is not mandated by La.R.S. 22:680(l)(e). The judgment of the trial court in favor of State Farm is affirmed. All costs of this appeal are taxed to Plaintiff/Appellant, Martha B. Bonin.

AFFIRMED.

      . Pursuant to Rule 5-2 of the Uniform Rules-Courts of Appeal, the initials of the minor will be used to protect the child's privacy.

      . Given die relevant dispute on appeal, because State Farm was sued in two capacities, we henceforth only refer to "State Farm” in its alleged capacity as uninsured motorist carrier.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge.

license: Public Domain

text:
    COMMERCIAL UNION ASSURANCE PLC, Royal and Sun Alliance P.C., Axa Global Risks UK, Ltd., Independent Insurance Company, Ltd., Terra Nova Insurance Company, Ltd., and A.N. underwriter for himself and on behalf of all other Lloyd’s underwriters subscribing to Policy Nos. MM96M0199 and LE9605111 v. TIDEWATER MARINE SERVICE, INC. and Zapata Gulf Marine International Ltd. Commercial Union Assurance PLC, et al. v. Tidewater Marine Service, Inc., et al.
    Nos. 2008-CA-1114, 2008-CA-1131.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 24, 2009.

      H. Alston Johnson III, Phelps Dunbar LLP, Baton Rouge, LA, and Edward F. Lebreton III, Fowler Rodriguez Valdes-Fauli, New Orleans, LA, for Navigators Insurance Company.
    C. Henry Kollenberg, Melinda M. Rise-den, Crain Catón & James P.C., Houston, TX, and James A. Babst, Hamilton Brown & Babst, LLC, New Orleans, LA, for Marsh Inc., Marsh USA, Inc.
    Cliffe E. Laborde III, Robert E. Torian, Laborde & Neuner, Lafayette, LA, for Tidewater Marine Service, Inc., Tidewater Inc., Zapata Gulf Marine International Limited, TT Boat Corporation, Pental Insurance Co., Ltd., Tidewater Crewing Ltd., Tidewater Marine, L.L.C. and Tidewater Marine West Indies Limited.
    (Court composed of Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   JAMES F. McKAY III, Judge.

Lin this marine insurance case, the defendant, Navigators Insurance Company, appeals the trial court judgment holding it liable for damages based upon an excess insurance policy it issued. The defendant also appeals the trial court’s denial of its claim for indemnification. We affirm.

FACTS AND PROCEDURAL HISTORY

On or about December 15,1996, the port stern anchor of the M/V Oceanic Seahorse hooked a subsea electric cable owned by the Trinidad and Tobago Electric Commission (T-TEC). This caused significant damage to a major electrical conduit running between Trinidad and Tobago. At the time of the accident, the M/V Oceanic Seahorse, which was owned by Tidewater Marine Services, Inc. (Tidewater), had been chartered by Amoco and then sub-chartered by Tucker Energy Services, Inc. (Tucker) to perform subsea cable repairs off the coast of Trinidad. In the contract, Tidewater required that Tucker indemnify Tidewater up to five million dollars for any damage that might occur during the work.

^Commercial Union Assurance, PLC (Commercial Union) issued a property insurance policy to T-TEC and paid T-TEC for the damage to the cable. Thereafter, Commercial Union brought suit against Tidewater in Orleans Parish. Thereupon, Tidewater brought a third party action against Tucker for contractual indemnity under the sub-charter contract. Tucker had specifically added the M/V Oceanic Seahorse to the schedule of covered vessels in its primary P & I policy. This policy provided $1.5 million of liability coverage. Tucker also had an existing excess P & I policy underwritten by Navigators Insurance Company (Navigators).

Tidewater and Commercial Union reached a settlement, and Tucker’s primary P & I underwriter honored Tucker’s obligation to indemnify Tidewater and paid its policy limits of $1.5 million. Navigators, however, denied coverage and Tidewater contributed $500,000.00 toward the settlement. Tidewater reserved its rights against Navigators as an additional assured/third party beneficiary under the excess policy. For added measure, Tucker assigned any rights it had against Navigators for this loss over to Tidewater. Shortly thereafter, Tidewater brought suit against Navigators to recover its settlement contribution as well as defense costs (items that were covered under Tucker’s primary and excess P & I policies). Navigators denied liability and third-partied Marsh Inc. and Marsh USA, Inc. (collectively Marsh); Marsh was an insurance broker who procured Tucker’s insurance policies.

| ¿Trial in this matter was bifurcated into liability and damages phases. The liability phase of the case was tried to the court, without a jury on four days, December 11 and 12, 2007 and April 8 and 9, 2008. On April 29, 2008, the trial court found coverage for the M/V Oceanic Seahorse under the excess policy issued by Navigators to Tucker. The trial court also dismissed Navigators’ third-party demand against Marsh. After the entry of that judgment, Tidewater filed motions to tax its trial expert’s fees as costs, to admit certain exhibits into evidence that would support its claims against Navigators for indemnity and defense, and for a monetary judgment for the amount of its claim for indemnity and defense. On July 14, 2008, the trial court awarded Tidewater $1,535,519.00, together with judicial interest from the date of judicial demand until paid. The trial court also awarded Tidewater $24,300.00 in expert fees. Navigators now appeals the trial court’s judgment.

DISCUSSION

On appeal, Navigators raises the following assignments of error: 1) the trial judge erred in concluding that excess coverage which Navigators Insurance Company had provided to its insured with respect to one vessel had been expanded by Navigators to include a different vessel; 2) even if excess coverage is held to have been expanded to include a different vessel, the coverage was “following form” coverage and the underlying primary policy did not have coverage for any contractual indemnity obligation owed by the insured, nor could any of the policy’s | coverages be assigned by the insured to anyone else; 3) even if there were excess coverage which included contractual indemnity and as to which assignment by the insured was permitted, the insured actually had no reimbursable claim under the policy and thus nothing to assign; 4) the trial judge erred in dismissing Navigators’ third-party claim against Marsh, whose sub-standard conduct either wholly or partially caused Navigators to be cast in judgment to Tidewater; and 5) the trial judge erred in including certain items in the damage award.

Assignment of Error No. 1

In its first assignment of error, Navigators contends that the trial court erred in concluding that the excess policy it issued to Tucker provided coverage for the M/V Oceanic Seahorse. Navigators contends that its excess policy was limited to a single vessel, a liftboat known as the Gene Bums Elevator. Navigators’ position is largely based on two documents, a binder and a blank form of the American Institute Hull Clauses. At trial, Navigators’ insurance broker opined on how he believed the American Institute Hull Clauses form would have read in this case, but that was really nothing more than conjecture on his part because no actual form was filled out in this case. As to the binder, Louisiana law holds that the binder is of no effect or import once the policy is issued. La. R.S. 22:870. See also Liberty Mut. Ins. Co. v. Ads, Inc., 357 So.2d 1360, 1362-1363 (La.App. 4 Cir.1978); Commercial Credit Equip. Corp. v. Evans, 302 So.2d 727, 728 (La.App. 3 Cir.1974).5 Navigators’ position is largely based on the opinion testimony of its experts and not the actual facts and documents pertinent to this case.

On the other hand, the trial court specifically found that trial exhibit 14 introduced by Tidewater was a policy as it was properly counter-signed by Navigators’ duly authorized representative, called itself a policy no fewer than thirteen times, and contained the essential terms required for it to qualify as a policy. Navigators failed to issue any policy documents necessary to restrict or limit the coverage under its policy to a single vessel. The trial court also found that this excess policy was by its terms a “following form” P & I policy that provided coverage for any vessel covered by the primary policy. The M/V Oceanic Seahorse was covered by the primary policy. Because this was a following form policy and Navigators failed to limit or restrict its coverage, the law provides that the excess policy adopts the terms and conditions of the primary P & I policy. Accordingly, based on the record before this Court, we find no error regarding Navigators’ first assignment of error.

Assignment of Error No. 2

In its second assignment of error, Navigators contends that the underlying policy did not cover contractual indemnity and could not be assigned. However, Navigators never raised these defenses in its answer or at the liability phase of the trial. Navigators first attempted to raise these defenses after the liability phase of the trial. The trial court found that any and all defenses or claims regarding liability should have been argued at trial and any defenses asserted after the trial |6were waived and abandoned. Because Navigators failed to assign the trial court’s ruling on Navigators’ waiver and abandonment as error, it is precluded from raising these defenses on appeal. Outdoor Systems, Inc. v. Entergy Corp., 2001-0613 (La.App. 4 Cir. 12/19/01), 804 So.2d 848, 852; Box v. French Market Corp., 2000-1880 (La.App. 4 Cir. 9/5/01), 798 So.2d 184, 190. Accordingly, Navigators is precluded from asserting defenses on liability that it failed to raise at trial. See McDaniel v. Charity Hospital, 2008-0229 (La.App. 4 Cir. 8/13/08), 991 So.2d 1138, 1140.

Even if Navigators were not precluded from raising its second assignment of error, the assignment of error has no merit. The trial court held that Navigators’ excess policy follows the coverage of the primary P & I policy. The primary policy lists the following as assureds: “Tucker Energy Services, Inc. and/or affiliated and/or associated companies and/or as expiring.” Tucker was hired by T-TEC to perform repair work on a cable resting on the seabed. Tucker needed a vessel from which to perform the work, and sub-charted the M/V Oceanic Seahorse from Tidewater for that purpose. Tidewater provided the vessel along with her captain and crew, and Tucker furnished its own crew to perform the repair work on the cable. As a company engaged by Tucker to perform an integral part of Tucker’s work for T-TEC, Tidewater would qualify as an “associated company” of Tucker for purposes of assured status.

Assignment of Error No. 3

|TIn its third assignment of error, Navigators contends that Tidewater has no reimbursable claim under the policy. However, Navigators did not raise this defense at trial and is precluded from doing so now on appeal for the same reasons discussed in assignment of error number two.

Even if Navigators’ third assignment or error was not waived, its contention that Tidewater has no reimbursable claim under the policy is wrong. The purpose of protection and indemnity (P & I) insurance is to provide protection to a shipowner for damages caused by the operation of its vessel. Because maritime law provides that a vessel may be seized to satisfy liability claims against it, the typical hull policy includes P & I coverage up to the value of the vessel. In the instant case, Tucker was contractually obligated to obtain insurance coverage to indemnify Tidewater from any damages arising out of its operation of the M/V Oceanic Seahorse. One of the primary reasons for Tucker’s procuring these insurance policies was to indemnify Tidewater. The insurer should have been aware of this situation. See generally Gulfwide Boat Rentals, Inc. v. Security Ins. Co., 292 So.2d 796 (La.App. 1 Cir.1974). It is clear from the circumstances that Tidewater has a reimbursable claim under the policy.

Assignment of Error No. 4

In its fourth assignment of error, Navigators argues that Marsh should bear the entire loss, or alternatively, half of it.

The trial court found no liability on the part of Marsh, for the simple reason that Navigators’ liability was based on a policy document created by Somerset 1 ¡^Insurance Services, Inc. (Somerset) and signed by Somerset on behalf of Navigators with Marsh playing no part in the creation of the document. In any event, Marsh was the agent of Tucker, not Navigators. There is no cause of action for negligently causing another party to enter into a contract. Neither Tucker nor Tidewater sued Marsh. Navigators sued Marsh only for indemnity.

However, in this Court, Navigators raises a new set of arguments against Marsh, based principally on a misrepresentation theory. As stated above, Navigators is not permitted to raise arguments in this Court that were not urged in the court below. See Graubarth v. French Market Corp., 2007-0416 (La.App. 4 Cir. 10/24/07), 970 So.2d 660, 664; Boudreaux v. State, DOTD, 2001-1329 (La.2/26/02), 815 So.2d 7, 9.

Texas law governs Navigators’ claims against Marsh. Navigators never disputed the applicability of Texas law in the trial court. Under Texas law, common law indemnity has been essentially abolished. Common law indemnity survives only in two limited circumstances: (1) in products liability actions and (2) in negligence actions when a defendant’s liability is purely vicarious. Aviation Office of America, Inc. v. Alexander & Alexander of Texas, Inc., 751 S.W.2d 179, 180 (Tex.1988); Cypress Creek Util. Serv. Co. v. Muller, 640 S.W.2d 860, 864 (Tex.1982). Neither of those limited circumstances is involved in the instant case. Furthermore, there is no contract of any kind between Navigators and Marsh, and thus there can be no contractual indemnity. There is really no way under the facts |9and pertinent law that Marsh can be liable in this case. Accordingly, Navigators’ fourth assignment of error has no merit.

Assignment of Error No. 5

In its fifth assignment of error, Navigators contends that the trial court erroneously included several items in its damage award totaling $304,348.80. This assignment of error is without merit. As the excess P & I insurer of the M/V Oceanic Seahorse, Navigators was responsible for all defense costs once the primary policy limits were exhausted. Tidewater presented its billing entries to the trial court and the trial court saw how the bills were apportioned and was aware why certain experts were retained. Based on our review of the record, the trial court’s award of damages for these items was not clearly wrong or manifestly erroneous.

CONCLUSION

Based on the record before this Court, we find nothing clearly wrong or manifestly erroneous with the trial court’s judgment. Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . P & I insurance provides protection to a shipowner for damages caused by the operation of its vessel.

      . A following form policy is an insurance policy that adopts the terms and conditions of another insurance policy.

      . A preliminary document used in the insurance industry to temporarily bind coverage pending issuance of a policy. See La. R.S. 22:870.


author: STEWART, J.

text:
    BARCAT, LLC, Plaintiff-Appellee, v. Rodney James NAIL and Connie Nail, Defendants-Appellants.
    No. 44,416-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 1, 2009.

      Wayne E. Webb, Shreveport, for Appellants.

      Blanchard, Walker, O’Quin & Roberts, by M. Thomas Areeneaux, Jerry Edwards, Shreveport, for Appellee.
    Before BROWN, STEWART and MOORE, JJ.
   STEWART, J.

| ,In this dispute involving a contract to build a home, the trial court awarded the contractor / plaintiff, Bareat, L.L.C., the sum of $12,563.85 representing unpaid invoices and a five percent profit on the contract, plus attorney fees totaling $12,500, and costs. The judgment also recognized the validity of a lien filed by Bareat under the Private Works Act, La. R.S. 9:4801 et seq. The defendants / homeowners, Rodney James Nail and Connie Nail, have appealed. Finding no error, we affirm.

FACTS

On June 8, 2006, the Nails entered a contract with Bareat for the construction of their home. Rodney Nail and Barcat’s owner, Tony Barnes, had known each other since teenagers, and Rodney, who is a painter, had done some work for Barnes over the years. The Nails were designated as the owner of the home in the contract. Barnes was to act as construction-manager. The contract was priced as a “cost plus project” with a five percent (5%) profit to Bareat upon substantial conyoletion. Payments were to be disbursed from the project building account on an as-needed basis, allowing review and discussion with the Nails. Moreover, the contract provided that the Nails could perform some subcontractor work such as painting, flooring, and landscaping “as joartial down payment.”

On July 6, 2006, Bareat purchased the lot on which the Nails’ house was to be built and obtained financing for the project in the amount of $300,000 secured by a mortgage on the lot. Construction then began.

12According to Barnes’ testimony, the first part of the project included clearing trees off the lot, laying the foundation, and framing the house. Connie Nail believed this phase of the project took too long to complete and cost too much. Barnes disputed this and testified that she complained about payment of basic labor costs. As the project proceeded, the Nails exercised their option to perform some of the work by coordinating subcontractors for flooring, painting, interior trim finish, landscaping, and pouring the driveway. Connie Nail testified that she also purchased fixtures, lighting, counter tops, and appliances. Payments for work done on the house were made out of a project account controlled by Bareat. The check register admitted into evidence shows over $20,000 in payments made directly to Connie Nail. Her claim that she did not receive this much from Bareat and that she paid for certain items from her personal account was unsubstantiated.

To have the Nails in their new home in time for the holidays, the transfer of the property from Bareat to the Nails took place on November 21, 2006. According to the “Cash Sale Deed” executed by Bareat and the Nails, the stated consideration was the Nails’ “assumption of the outstanding mortgage executed by Bareat LLC in favor of Bancorp - South.” The Nails obtained financing to pay off the Bancorp mortgage and additional amounts listed on the “Settlement Statement,” including unpaid construction costs submitted by Barnes at the time of the closing.

After the property transfer, Barcat sought to collect additional construction costs that had become due as well as the five percent profit |8owed under the contract to build. When the Nails failed to pay, Barcat filed a lien against their property. It then filed suit to collect the amount claimed due and to enforce its lien. The Nails denied that it owed any additional payment and reconvened seeking cancellation of the lien and damages. The matter proceeded to trial.

Barnes testified that he spoke to Rodney Nail around the time of the closing and that Nail knew that additional costs and the profit remained to be paid. Both Nails denied agreeing to pay any additional money after closing. Though Connie Nail asserted that Barcat paid itself the profit during the construction instead of waiting until substantial completion as provided in the contract, Barnes denied that Barcat included the profit in its invoices. He explained that any markup was to cover labor costs, such as taxes and workers’ compensation insurance.

Robert McKinzie, the attorney who handled the closing, had little recollection of his conversation with Barnes. He recalled that Barnes faxed him unpaid invoices that were used to prepare the settlement statement, but he did not recall any discussion of amounts owed Barcat. He explained that Barcat had to sign the title of the property over to the Nails whose loan was being processed as a refinance. We note that the settlement statement in conjunction with the Nails’ loan does not list a seller or make any reference to Barcat. McKinzie also testified that he would not have proceeded with the closing if he had known that payments were still due. He explained that the mortgage company required him to guaranty there was no possibility of liens priming its mortgage.

1 ¿After hearing the testimony, the trial court rendered judgment in favor of Bar-cat for $12,563.85, representing the amount due for certain unpaid construction costs and the five percent profit. The trial court found that there had been mistakes in the closing, that Barcat was entitled to recover additional bills that became due, and that no records credibly showed that Barcat had previously billed for its five percent profit. As allowed by a provision in the contract to build, the trial court also awarded Barcat attorney fees in the amount of $12,500 plus court costs. The Nails’ appeal followed.

DISCUSSION

In their first assignment of error, the Nails argue that the trial court erred in finding that the contract to build survived the closing on the sale of the home. They contend that the June 8, 2006 agreement between the parties should be viewed as a contract to “sell and buy,” with the intent being for Barcat to sell a completed house to them with their performance being to buy the residence. They further contend that the cash sale deed evidences the closure of their obligation to Barcat. Absent allegations of fraud, error or mistake, the trial court should not have considered par-ol evidence to determine that anything other than the consideration stated in the deed was owed.

The Nails describe the contract between them and Barcat as a sales contract. However, the parties did not agree to a contract for the sale of a | ¿house. Instead, they contracted for the construction of a house for a stipulated price. A contract to build or a construction contract is distinct from a contract for a sale of a home. Price v. Huey Childs Builder, Inc., 426 So.2d 398 (La.App. 2d Cir.1983), writ denied, 433 So.2d 164 (La.1983); Duhon v. Three Friends Homebuilders Corp., 396 So.2d 559 (La.App. 3d Cir.1981); Broussard v. R.G. Pierret, 215 So.2d 136 (La.App. 3d Cir.1968). As stated in La. C.C. art. 2756, “To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price.” The person who undertakes the work may furnish his work and industry alone, or may also furnish the materials necessary for the work. La. C.C. art. 2757. Thus, an agreement in which one party undertakes to construct a building for a specified price and furnishes either his work alone or his labor and materials is a construction contract or contract to build. The price is not for the purchase of the property as in a sale; rather, the price is compensation for the work performed and materials used in constructing the home.

Contracts are the law between the parties and must be performed in good faith. La. C.C. art.1983. The Nails and Barcat entered a contract to build a single-family home for the stipulated price of cost plus a five percent profit. Barcat performed its obligations under the contract by building the home and by transferring the property to the Nails. The cash sale deed by which the property was transferred by Barcat to the Nails makes no reference to the obligations set forth in the contract to build, including payment of the price stipulated in the agreement. Under the building | ficontract, the Nails were considered the owners of the home throughout the project. Their obligation was not to purchase the property for consideration as in a sale but to pay Barcat the stipulated price for its work according to their contract to build. The cash sale deed does not evidence the Nails’ payment of Bar-cat’s profit under the contract to build but merely evidences their acceptance of the finished product and assumption of the mortgage that financed the costs of construction. The trial court heard the testimony of the parties and that of the closing attorney who prepared the settlement statement in conjunction with the Nails’ refinancing of the mortgage assumed in the cash sale deed. The trial court then found that the Nails had not paid Barcat its five percent profit and had not paid certain costs that had accrued after the transfer of the property. These are factual findings made by the trial court.

The trial court’s findings of fact will not be disturbed on appeal unless they are found to be clearly wrong or manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993). Where two permissible views of the evidence exist and where the finding of fact is based on credibility determinations, the fact finder’s choice can never be manifestly erroneous or clearly wrong. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646; Mayzel v. Gould, 44,081 (La.App.2d Cir.2/25/09), 4 So.3d 979. Having reviewed the record, we cannot say that the trial court’s findings in this matter are clearly wrong or manifestly erroneous.

[7In their second assignment of error, the Nails argue that Barcat had no legal basis to file the lien. They point out that the cash sale deed was made with “full guarantee of title, and with complete transfer and subrogation of all rights and actions of warranty against all former proprietors .... ” They also assert that any lien rights were lost to Barcat through confusion under La. C.C. art.1903.

We are not persuaded by the Nails’ arguments. The language referred to in the deed, which warrants title to the property, does not preclude the assertion of a lien against the property for the Nails’ failure to pay the price stipulated in the contract to build for Barcat’s work and the other unpaid construction-related costs. Moreover, the doctrine of confusion is not applicable here. Even after transfer of the property, Barcat remained obligor as to amounts owed by the Nails, the obli-gees, under the contract to build. There was no uniting of the qualities of obligor and obligee in the same person as is required to extinguish an obligation by confusion under La. C.C. art.1903. The cash sale deed transferring title of the property does not preclude or extinguish the Nails’ obligation to perform by paying the amounts found due under the contract to build. We also observe that as between the parties, the Nails were considered the owners of the property from the inception of the contract to build.

Under La. R.S. 9:4801(1), contractors have a privilege on an immovable to secure the owner’s obligation to pay the price of their work. As provided in La. R.S. 9:4806(A):

A. An owner, co-owner, naked owner, owner of a predial or personal servitude, possessor, lessee, or other person owning or | ^having the right to the use or enjoyment of an immovable or having an interest therein shall be deemed to be an owner.

In LeBlanc v. Chateau Riviere Home for the Aged, Inc., 97-883 (La.App. 5th Cir.2/11/98), 708 So.2d 468, the court found a lien enforceable against Chateau even though it was not the record owner of the property when the work was done and when the lien was filed. The court reasoned that Chateau contracted with Le-Blanc, the lien holder, for the performance of his architectui’al services and breached the contract. Chateau held itself out as owner of the work, intended to become owner, and actually became the owner of the property on which the work was completed. The recorded lien attached to the property when Chateau acquired it.

In Circle H Building Supply, Inc. v. Dickey, 558 So.2d 680 (La.App. 1st Cir.1990), a materialman’s lien was held to be unenforceable against the purchasers of a home. The purchasers were merely parties to an unrecorded purchase agreement when the plaintiff supplied building materials to the contractor, who was then the property owner. The court rejected the argument that a prospective purchaser who signed a purchase agreement has an interest in the property sufficient to be considered an “owner” within the intent of the Private Works Act. However, the court’s reasoning suggested that a party to a construction contract could be considered an owner. The court noted that the Private Works Act provides relief to an owner from personal liability for claims arising out of the performance of a contract by a general contractor when a bond is given and the contract filed in accordance with La. R.S. 9:4802(C). A prospective purchaser, unlike a party to a construction contract, would not be able to avail himself of this protection.

| nThis record shows that the Nails contracted with Barcat to build a house for a price of cost plus a five percent profit. The parties did not enter a mere purchase agreement. Rather, they entered a construction contract to build the Nails’ home. The Nails were designated the owners of the property in the contract to build. They intended to become the property owners and did so. Moreover, .they oversaw and performed a significant part of the work in completing the house. They had an interest in the immovable as well as the right to use and enjoy it as indicated by their active involvement in the building process. Under the facts set forth in this record, we find that the Nails are “owners” under the Private Works Act and that the lien asserted by Bareat to secure payment of the price of its work is valid and enforceable. No damages are due to the Nails.

Lastly, the Nails argue that even if the judgment is upheld the attorney fees awarded Bareat should be reduced to reflect the fact that it was awarded less than half of the contractual damages it claimed.

Section 6.11 of the contract states that “the defaulting or nonprevailing party shall be liable to the other party for all costs, including reasonable attorneys fees, incurred in enforcing or defending any rights or obligations created by this agreement.” We find no merit to the argument that Barcat’s attorney’s fees should be reduced because it was nonprevailing to the extent of the damages claimed but not awarded. Under Section 6.11 and the resolution of this dispute, the Nails are the “defaulting and nonprevailing” party and are contractually liable for all costs, including | ^reasonable attorney fees incurred by Bareat in enforcing its lights under the contract.

A trial court is vested with considerable discretion in setting attorney fees. Woodall v. Weaver, 43,050 (La.App.2d Cir.2/13/08), 975 So.2d 750; Minsky v. Shumate, 40,375 (La.App.2d Cir.3/10/06), 924 So.2d 488. The record shows that Bareat sought over $14,300 in attorney fees. The trial court thought the amount was excessive and determined a reasonable fee to be $12,500, which included work done from the time of trial until the hearing on the fee issue. We find no abuse of discretion by the trial court in making this award.

In its appellee brief, Bareat has argued for an increase in the attorney fee award. However, the issue was not raised in a timely filed answer and will not be considered. Hill v. Cloud, 26,391 (La.App.2d Cir.1/25/95), 648 So.2d 1383, writ not considered, 95-0486 (La.3/17/95), 651 So.2d 260.

CONCLUSION

For the reasons explained, the judgment of the trial court is affirmed. Costs of appeal are assessed against appellants, Rodney James Nail and Connie Nail.

AFFIRMED.

      . Bareat purchased Lot 125 in the Lakeside on Longlake Subdivision in Caddo Parish. We note that the contract to build referred to a lot in Twelve Oaks subdivision. Apparently, the parties agreed to a change in location for the construction of the home, and this change did not otherwise affect the agreement between them.

      . The Nails timely filed a request for written reasons for judgment. La. C.C.P. art. 1917(A) directs the trial court to provide written findings of fact and reasons for judgment when a timely request is made. Although the trial court did not comply with the mandate of this article, it did state reasons for its ruling in open court.


author: LOLLEY, J. CARAWAY, J.,

text:
    STATE of Louisiana, Appellee, v. Edmund Ray STANDFILL, Appellant.
    No. 44,407-KA.
    Court of Appeal of Louisiana, Second Circuit.
    July 1, 2009.

      Malone Law Firm by Mary Ellen Winchell, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Charles A. Smith, Dale Newton Montgomery, II, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

|, This criminal appeal arises from the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, where a jury convicted the defendant, Edmund Ray Stanfill, of simple cruelty to an animal, a violation of La. R.S. 14:102.1(A)(1)(I). Stanfill was sentenced to six months’ jail time. The sentence was suspended, and Stanfill was placed on two years active probation with special conditions including 180 eight-hour days of community service to be performed at the Bossier Animal Control Center. Stanfill was also ordered to pay $1,000.00 restitution to the victims. For the following reasons we affirm the conviction; however, the sentence is vacated in part, amended in part, and as amended affirmed.

FACTS

The defendant, Stanfill, was in his backyard, in Haughton, Louisiana, on the morning of March 12, 2008, when he realized the neighbor’s pit bull was in his yard. Stanfill told the dog to “go home” and the dog retreated over the four-foot chain link fence that separated his neighbor’s property from his. Stanfill watched as the dog ran around the neighbor’s yard for a few seconds before charging up to the fence again. Stanfill shot the dog, claiming he believed it was going to jump the fence again and that he feared for his safety. After shooting the pit bull, Stanfill called the sheriffs department. The incident was investigated, and Stanfill was charged with aggravated cruelty to an animal.

|2After a jury trial, Stanfill was convicted of the lesser charge of simple cruelty to animals, a misdemeanor. Stanfill was sentenced to six months’ jail time. The sentence was suspended and Stanfill was placed on two years’ active probation with special conditions including 180 eight-hour days of community service to be performed at the Bossier Animal Control Center. Stanfill was also ordered to pay $1,000 restitution to the victims. A timely filed motion to reconsider was denied, and the instant appeal followed.

Trial Testimony

At trial, the neighbor and dog’s owner, Shana Burke, testified that she was at home on March 12, 2008, preparing to shower when she heard a gunshot. Shana opened the door and called to her pit bull, Gage, but the dog did not respond. She went into the yard where she saw the dog lying near the fence. Shana testified that Gage had never jumped the fence. Shana also stated that Gage would bark while in the backyard but he had not bitten anyone. According to Shana, she was sitting with the dead dog, when Stanfill came to the fence and told her, “Sorry, I had to shoot your dog.”

Shana’s husband, Britt Anthony Burke, testified he had Gage for approximately seven years, and the dog was an unregistered pit bull. Britt explained that he had gone to work when his wife called to tell him Gage had been shot. Britt stated that Stanfill had complained, in the past, about Gage’s barking so they shortened the amount of time Gage would spend outside. Britt also stated that he had never seen Gage jump a fence so that had never been a concern.

| ..¡The Burkes’ 22-year-old son, Kenny, testified he was at home sleeping on the morning of the shooting and awoke to the sound of his mother screaming “He’s dead. He’s dead.” Kenny went to the backyard and found Gage in a pool of blood. Kenny recalled Stanfill being near the fence and saying, “Sorry, I shot your dog.”

Deputy David Reynolds of the Bossier Parish Sheriffs Office testified that he was dispatched to Stanfill’s home after Stanfill called in to report that a dog had been shot. While on the scene, Reynolds received another call to go to the Burkes’ residence. Reynolds testified that as he was listening to Stanfill recount the details leading up to the shooting, he noticed a spent shotgun shell and a coffee cup on the grass. The shell casing was about 8 to 10 feet from the fence.

Brenda Stanfill, the defendant’s wife, testified she had been living next door to the Burkes for approximately five years. According to her, they were friendly with the neighbors and had no issues with their three other dogs — only the pit bull. Brenda testified that she and her husband even gave a graduation gift to the neighbor’s son. Brenda testified she would garden in her backyard but her activities would be interrupted by Gage, “barking, growling, jumping, clawing up the dirt.... [I]t just seemed like it was getting more and more aggressive.” Brenda stated she was afraid of the dog.

Brenda recalled that, on the day of the incident, she was in her kitchen getting coffee when her husband came in and told her he was going to shoot the snake he had seen near their chicken coop early that morning. Shortly thereafter, Brenda heard a noise and Stanfill returned to the house, |4telling her to call the sheriffs department because he shot the Burkes’ dog. Brenda called the sheriff and waited in the house while Stanfill stood outside in their backyard.

Stanfill testified on his own behalf. Stanfill, who was retired at the time of the shooting, discussed his previous employment. He was a professor of criminal justice at Bossier Parish Community College for 18 years. Prior to this, he served as a probation officer and is a retired Air Force officer. Stanfill explained that because of the dog’s increasingly aggressive behavior, Stanfill made a video of some of the dog’s actions in November 2007. His wife, at trial, testified that the dog had become more aggressive since this video was taken. Stanfill explained he made about a dozen complaints to Britt about the dog’s behavior. Stanfill testified that Britt would tell him that the dog was harmless, well trained, and would never jump the fence. Stanfill stated he was afraid that one day the dog would jump the fence since he was well trained and a big dog; however, he had never seen him do so before the day of the shooting.

Stanfill testified he had a shotgun that he used to kill snakes on his property, and he had the gun with him the morning the dog was shot. When Stanfill walked toward his chicken coop, the dog started barking at him. Stanfill recalled taking a few more steps then hearing the fence rattle. When he turned, Stanfill saw the clog now standing in his yard. Stanfill said he told the dog to “go home.” The dog jumped back into the neighbor’s yard. The clog then ran to the middle of its own yard before turning back toward Stanfill. Stanfill stated he saw the dog’s eyes turn red and the dog moved towards the fence again. He aimed at the dog’s collar and shot the dog. The |r,dog dropped to the ground, and Stanfill put another shell in the shotgun, waiting to see what would happen. When the dog did not move, Stanfill testified he went into his house, told his wife to call the sheriffs office, then went back outside to await the arrival of the sheriffs deputy. Stanfill testified he did not believe he could have outrun the clog and there was no doubt in his mind that the dog was going to jump the fence again.

LAW AND DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Stanfill argues that there was insufficient evidence to support a jury verdict of simple cruelty to an animal beyond a reasonable doubt, specifically in that he was justified in shooting the animal since it was aggressive in the past and acted aggressively toward him on the morning of the shooting.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.01/09/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 643,819 (La.App.2d Cir.01/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or re-weigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App.2d Cir.05/09/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.01/14/09), 2 So.3d 582; State v. Parker, 42,311 (La.App.2d Cir.08/15/07), 963 So.2d 497.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La.App.2d Cir.01/14/09), 2 So.3d 582; State v. Allen, 36,180 (La.App. 2d Cir.09/18/02), 828 So.2d 622, 7writs denied, 2002-2595 (La.03/28/03), 840 So.2d 566, 2002-2997 (La.06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.02/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.01/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/09/06), 941 So.2d 35.

The state must show that Stanfill mistreated “any living animal by any act or omission whereby unnecessary or unjustifiable physical pain, suffering, or death is caused to or permitted upon the animal.” La. R.S. 14:102.1(A)(1)(I). State v. Muneer, 1998-663 (La.App. 5th Cir.01/13/99), 733 So.2d 26.

In the instant case, primarily through Stanfill’s testimony, the state was able to show that he shot the pit bull while it was in the neighbor’s yard. Though Stanfill testified that he was scared for his life, the jury chose not to believe his explanation that he killed the dog in self-defense. Stanfill testified that the animal was not in his yard. Furthermore, several people testified that they had never seen the dog jump the fence — including Stanfill — except for the morning of the shooting. In addition, the record is clear that there had been an ongoing issue with the neighbors concerning the pit bull’s general demeanor. Considering the fact that the dog returned to his own yard when told to do so by Stanfill, as well as the fact that the dog had not physically attacked Stanfill in the past, it was not unreasonable for the jury |Hto conclude that Stanfill mistreated Gage by shooting him and causing his death. However, the jury did not find Stanfill’s action to be so egregious to justify an aggravated cruelty charge, and instead found him guilty of a lesser responsive verdict — simple cruelty to an animal. This assignment of error is therefore without merit.

Community Service

In his second assignment of error, Stanfill states that the trial court imposed an excessive amount of community service. Stanfill states that the community service imposed is in excess of that set forth in the sentencing provisions of La. R.S. 14:102.1 and given his current living situation creates an undue hardship for him. However, the state contends that the trial court imposed an appropriate sentence considering the facts of the case and Stanfill’s personal history.

A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864.

| <,The trial court is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. William, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.04/09/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.01/26/05), 892 So.2d 710. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

Louisiana R.S. 14:102.1(A) provides in pertinent part:

(2)(a) Whoever commits the crime of simple cruelty to animals shall be fined not more than one thousand dollars, or imprisoned for not more than six months, or both.
(b) In addition to any other penalty imposed, a person who commits the crime of cruelty to animals shall be ordered to perform five eight-hour days of court-approved community service. The community service requirement shall not be suspended.

Louisiana C. Cr. P. art. 895 Conditions of probation provides, in part,

A. When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct and to pay a supervision fee to defray the costs of probation supervision, and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following. That the defendant shall:
(7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court; (11) Perform community service work.

We find the 180 eight-hour days of community service excessive given the jury’s finding of simple cruelty to an animal. While we do not make light of the loss suffered by the Burkes, the sentence is disproportionate to the crime. Considering Stanfill’s background as a |10retired probation officer and a professor, the fact that he called the police after he shot the pit bull, and the life changes he has had to make since the incident, we find the trial court abused its discretion in its sentence.

We recognize that the Stanfills have had to move to east Texas for fear of retaliation from the local population arising from this incident. Furthermore, the animal shelter in east Texas denied his request to work there leaving Stanfill with no alternative but to drive to and from Bossier City, Louisiana. We also take into consideration that Stanfill is 65 years old and was once retired but now must work due to the various costs associated with this incident. The 1,440 hours of community service prevents him from making a living and has created an undue hardship.

Louisiana R.S. 14:102.1 provides guidance as to what the legislature deemed appropriate as punishment for cruelty to animals. The only mandatory portion of the statute is that Stanfill must complete five eight-hour days of community service, the rest is discretionary. Clearly, there is a vast discrepancy between the five days of community service the specific statute governing cruelty to an animal provides and the 180 days the trial court issued. While the trial court has discretion under La. C. Cr. P. art. 895, we find the trial court abused its discretion given the facts of this case. We therefore, amend the sentence to impose only the mandatory five eight-hour days of court-approved community service set forth in La. R.S.14:102.1(A)(2)(b) to be completed at the Bossier Animal Control Center. We vacate the rest of the sentence, specifically the six months’ suspended sentence and two years’ active probation with special conditions |nincluding 180 eight-hour days of community service to be performed at the Bossier Animal Control Center.

“Reparation Payment

In his third assignment of error Stanfill argues that the “reparation payment” ordered by the trial court is excessive in that it exceeds the actual reasonable losses incurred by the victims. We agree. Here the trial court stated that Stanfill would have to:

[P]ay the sum of $1,000 to the victims, that’s I’m going to refer to that as reparation payment. That’s pursuant to article 895. That is to be paid within 90 days. Now that simply is an amount that I have chosen. I’m not pretending to suggest that this in any way would satisfy or constitute full restitution to the victims. It’s my understanding that there is perhaps some civil action that is pending so that will — what ever [sic] course or what ever [sic] outcome of that matter that’s between the parties.

Louisiana C. Cr. P. art. 895 and 895.1 provides, as an additional condition of probation, that the defendant may be ordered to make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court. Specifically 895.1 provides, in pertinent part:

A. (1) When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain. However, any additional or other damages sought by the victim and available under the law shall be pursued in an action separate from the establishment of the restitution order as a civil money judgment provided for in Subparagraph (2) of this Paragraph. The restitution payment shall be made, in discretion |12of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.

(Emphasis added.)

Because the monetary amount is to be a reasonable sum not to exceed pecuniary loss, we find the trial court erred in its imposition of a $1,000.00 fine. The $1,000.00 is not a reparation but rather punitive in nature, noting the trial court’s reference to emotional loss. Further, there was no evidence as to how much the actual loss was and instead the trial court, as indicated above, simply chose an amount. Considering there is a civil mechanism to compensate the Burkes, we vacate the “reparation” of $1,000.00 imposed by the trial court. We pretermit discussion on the failure to inform Stanfill the right to have a judicial determination of the amount of restitution in light of our findings.

| ^CONCLUSION

For the foregoing reasons, Edmund Ray Stanfill’s conviction is affirmed. We vacate the sentence and impose only the five days community service mandated by La. R.S.14:102.1(A)(2)(b).

CONVICTION AFFIRMED; SENTENCE VACATED IN PART, AMENDED IN PART, AND AS AMENDED, AFFIRMED.

CARAWAY, J., concurring in part and dissenting in part with written reasons.

CARAWAY, J.,

concurring in part and dissenting in part.

hi concur in the majority affirmation of the conviction and the ruling on the reparation payment. I dissent from the ruling regarding the sentencing. The trial court’s 180-day community service sentence in this case has a harsh effect similar to a six-month jail sentence which is the maximum punishment for this misdemean- or offense. A maximum sentence should not have been imposed on this first offender. Nevertheless, I would remand the matter to the trial court for resentencing within certain parameters that would allow for a sentence in proportion to the crime and in keeping with the background of this first offender.

      . The defendant testified his name is spelled ''Stanfill”; however the record, specifically the Bill of Information, contains the spelling "Standfill.” The state orally amended the spelling of the defendant’s name on the bill of information, during the trial, without defense objection.

      . Louisiana C. Cr. P. art. 895.1(A)(2)(a) provides, in pertinent part:
      The order to pay restitution together with any order to pay costs or fines, as provided in this Article, is deemed a civil money judgment in favor of the person to whom restitution, costs, or fines is owed, if the defendant is informed of his right to have a judicial determination of the amount and is provided with a hearing, waived a hearing, or stipulated to the amount of the restitution, cost, or fine ordered. In addition to proceedings had by the court which orders the restitution, cost, or fine, the judgment may be enforced in the same manner as a money judgment in a civil case. Likewise, the judgment may be filed as a lien as provided by law for judgment creditors. Prior to the enforcement of the restitution order, or order for costs or fines, the defendant shall be notified of his right to have a judicial determination of the amount of restitution, cost, or fine. Such notice shall be served personally by the district attorney's office of the respective judicial district in which the restitution, cost, or fine is ordered. (Emphasis added.)