author: THIBODEAUX, Chief Judge.

text:
    Nancy TAYLOR v. PROGRESSIVE SECURITY INS. CO., et al.
    No. 09-791.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      David W. Groner, New Iberia, LA, for Plaintiff/Appellee, Nancy Taylor.
    Ian A. MacDonald, Jones Walker, Lafayette, LA, for Defendants/Appellants, Progressive Security Ins. Co. and Aimee Lemaire.
    John J. Erny, III, Casler, Bordelon & McGinty, Metairie, LA, for DefendantyAp-pellee, Progressive County Mutual Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

| T Nancy Taylor and Aimee LeMaire were involved in a low-speed motor vehicle accident. Ms. Taylor suffered personal injuries to her neck and filed suit against Ms. LeMaire and her insurance company, Progressive. After a jury trial, the jury awarded Ms. Taylor special damages in the amount of $307,500.00, but it did not award her general damages. The trial court then granted Ms. Taylor’s motion for judgment notwithstanding the verdict and awarded Ms. Taylor an additional $500,000.00 in general damages. Ms. Le-Maire and Progressive appeal the jury’s award, the subsequent modification by the trial court, and they claim additional errors by the trial court. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUES

We must decide whether:

(1) the trial court erred when it allowed Dr. David Barczyk, a chiropractor, to testify as an expert in biome-chanics as it relates to chiropractic treatment and whether it erred in allowing Dr. Barczyk to use demonstrative evidence of rear impact accidents to explain the biomechan-ics of a low-speed crash to the cervical spine;
(2) the trial court erred when it refused to allow the jury to review an exhibit and erred when it stated that the exhibit was “not evidence;”
(3) the jury erred in its award of past and future medical expenses and loss of earning capacity to Ms. Taylor;
(4) the trial court erred in rejecting Appellants’ motion for a new trial or, alternatively, judgment notwithstanding the verdict and erred when it modified the jury’s general damages award; and,
(5)the trial court erred in assessing Progressive Security Insurance Company with all court costs.

_kIL

FACTS AND PROCEDURAL HISTORY

On December 21, 2004, Ms. LeMaire rear-ended Ms. Taylor in a low-speed motor vehicle accident on Louisiana Hwy. 182 in Iberia Parish. Both vehicles suffered minor damage. Immediately following the accident, Ms. Taylor reported that she did not need medical attention. Prior to the completion of the investigation, however, Ms. Taylor noticed soreness in her neck. That soreness continued, and she treated the injury with over-the-counter medication. Six days after the accident, Ms. Taylor’s pain increased to such a degree that she visited the emergency room at Dauterive Hospital for treatment of pain and muscle spasms in her neck. Following a visit with her primary care physician, Dr. Andrew Clarke, Ms. Taylor sought treatment through physical therapy. When physical therapy did not resolve the pain or neck spasms, Ms. Taylor sought treatment from Dr. David Barczyk, a chiropractor. Dr. Barczyk treated Ms. Taylor and later referred her to Dr. John Cobb, an orthopaedic surgeon. Dr. Cobb recommended surgery for relief of her constant neck pain and muscle spasms. Dr. Iliyas Munshi, a neurosurgeon, confirmed Dr. Cobb’s diagnosis. In total, Ms. Taylor has been seen over 200 times by a variety of medical care providers and has endured a myriad of medical tests. She has spent thousands of dollars on pain medications and other medications prescribed by her doctors.

Ms. Taylor filed suit against Ms. Le-Maire and Progressive for personal injuries sustained as a result of the accident. A jury trial was held on the issue of damages, as it was previously determined that Ms. LeMaire was 100% at fault in causing the accident. Following testimony, the jury returned a verdict in Ms. Taylor’s | ¡¡favor and awarded special damages for past medical expenses ($65,000.00), future medical expenses ($180,000.00), loss of past earning capacity ($35,000.00), and loss of future earning capacity ($27,500.00). The jury did not award Ms. Taylor general damages.

Ms. Taylor filed a motion for judgment notwithstanding the verdict, and Ms. Le-Maire and Progressive filed a motion for new trial and, in the alternative, a motion for judgment notwithstanding the verdict. The trial court granted Ms. Taylor’s motion and awarded Ms. Taylor general damages totaling $500,000.00.

Due to the offer of judgment Ms. Taylor made to Progressive and Ms. LeMaire pri- or to trial, Ms. Taylor filed a motion to tax costs which the trial court granted, assessing all of Ms. Taylor’s expert, trial, and court costs to Progressive.

Ms. LeMaire and Progressive appeal the judgment of the trial court. For the following reasons, we affirm the trial court’s judgment.

III.

LAW AND DISCUSSION

Standard of Review

This case poses mixed questions of law and fact. It poses questions of law as it involves the interpretation of codal articles. Thus, the appropriate standard of review regarding interpretation of codal articles is de novo.

[Ajppellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. If the trial court’s decision was based on its erroneous interpretation or application of the law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court.

Domingue v. Bodin, 08-62, p. 2 (La.App. 3 Cir. 11/5/08), 996 So.2d 654, 657 (citations omitted).

14Moreover, under the de novo standard of review, the appellate court gives no additional weight to the trial court but, instead, conducts a de novo review and renders judgment on the record. Id. Accordingly, we will review the record in its entirety to determine whether the trial court’s decision was legally correct.

As to questions of fact, we review the trial court’s judgment for manifest error.

[A] court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is a 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.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted).

Expert Testimony

Ms. LeMaire and Progressive argue that the trial court erred in admitting the testimony of Ms. Taylor’s witness, Dr. David Barczyk, a chiropractor. They argue that Dr. Barczyk was not properly qualified as an expert and that his opinions were not based on “demonstrated and acceptable scientific principles.” Moreover, they allege that the trial court’s error in allowing Dr. Barczyk to testify regarding the biomechanics of low-speed crashes was compounded by its decision to allow him to use demonstrative aids regarding other crashes. With these arguments, Ms. Le-Maire and Progressive assert that the trial court failed to adhere to the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and State v. Foret, 628 So.2d 1116 (La.1993) gate-keeping function. In connection with their assertion that the trial court improperly allowed Dr. Barczyk to testify, Ms. LeMaire and Progressive urge that the probative value of his testimony was substantially outweighed by its unfair prejudicial effect. Ms. Taylor asserts that the trial court’s ^admission of Dr. Barc-zyk’s testimony as an expert was proper under Daubert/Foret and La.Code Evid. arts. 702, regarding expert testimony, and 403, regarding exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.

The trial court allowed Dr. Barczyk to testify as an expert in biomechanics as it relates to chiropractic treatment. The trial court also allowed Dr. Barczyk to use demonstrative evidence of rear-end impact tests. The starting point for analyzing the trial court’s actions is La.Code Evid. art. 702 which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Comment (d) to Article 702 states that the trial judge should have broad discretion in determining whether expert testimony should be admissible and who should be permitted to testify as an expert. Moreover, well-established case law supports the trial court’s great discretion in determining who should be allowed to testify as an expert, and the trial court’s decision should not be reversed on appeal absent clear error. Cleland v. City of Lake Charles, 01-1463, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writs denied, 03-1380, 03-1385 (La.9/19/03), 853 So.2d 644, 645; Mistich v. Volkswagon of Germany, Inc., 95-939 (La.1/29/96), 666 So.2d 1073, on rehearing on other grounds, 95-939 (La.11/25/96), 682 So.2d 239; Massie v. Cenac Towing Co., Inc., 00-1596 (La.App. 3 Cir. 4/25/01), 796 So.2d 14, writ denied, 01-1511 (La.8/31/01), 795 So.2d 1213. Manifest error is found only when the trial court was clearly wrong in accepting the expert’s opinion upon which it relied. Under Daubert, trial courts are required to perform a gate-keeping function by deciding whether the expert’s evidence or testimony is both reliable and relevant. Daubert, 509 U.S. at 588, 113 S.Ct. at 2794.

LTo fulfill its gate-keeping function with respect to admitting expert testimony, the trial court should consider the following non-exclusive factors: (1) whether a theory or technique “can be (and has been tested);” (2) “whether the theory or technique has been subjected to peer review and publication;” (3) “the known [or] potential rate of error” in using a particular scientific technique “and the existence and maintenance of standards controlling the technique’s operation;” (4) whether the theory or technique has been generally accepted in the particular scientific field. Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2797. The Daubert court commented on the non-exclusivity of these factors by stating: “Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test.” Id. at 593, 2797, 113 S.Ct. 2786. “Thus, the ‘general observations’ listed in Daubert are not a list of requirements that must be met in each instance of proposed expert testimony or even a list of facts that are necessarily applicable to all types of expert testimony.” Cleland, 840 So.2d at 695 (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).

Here, LeMaire and Progressive challenge Dr. Barczyk’s qualifications, the fact that he conducted no independent investigation of Ms. Taylor’s motor vehicle accident, and the demonstrative evidence he presented at trial. Dr. Barczyk testified that he is a state-licensed chiropractor and has extensive post-graduate training in the diagnosis and treatment of whiplash and spinal trauma and post-graduate training in neurology. He also has over four years of training involving car crashes to study the biomechanics of a person’s body as they are subjected to these crashes. Dr. Barczyk testified that as a chiropractor, he is knowledgeable in understanding the biomechanics of the spine and that the Spine Research Institute of San Diego in conjunction with the Texas A & M University biomechanics department conducted the |7crash courses that he attended. Dr. Barczyk testified previously in court in Louisiana as an expert in the field of biom-echanics specific to rear-end crashes. Neither Ms. LeMaire nor Progressive offered an expert to refute Dr. Barczyk’s testimony nor did they submit a Daubert motion prior to trial, leading this court to doubt their objection to Dr. Barczyk as an expert witness.

The fact that Dr. Barczyk did not perform an independent investigation of Ms. Taylor’s motor vehicle accident goes to the weight and credibility of his testimony, not its admissibility, “and it is up to the opposing party to examine the factual basis of the opinion in cross-examination.” Square v. LeBlanc, 04-1500, p. 7 (La.App. 3 Cir. 6/1/05), 903 So.2d 1178, 1183, writ denied, 05-1746 (La.1/13/06), 920 So.2d 240 (quoting Rowe v. State Farm Mut. Auto. Ins., 95-669, p. 17 (La.App. 3 Cir. 3/6/96), 670 So.2d 718, writ denied, 96-824 (La.5/17/96), 673 So.2d 611).

Finally, Dr. Barczyk’s use of demonstrative evidence was not overly prejudicial. The videos and demonstrative evidence helped the jury to understand the mechanics of rear-end collisions and the human neck. The jury knew that the videos were not actual videos of Ms. Taylor’s motor vehicle accident, but instead were a learning tool to explain biomechanics. Similarly, the powerpoint presentation and anatomical model used by Dr. Barczyk assisted the jury in evaluating the spectrum of rear-impact crashes. The jury was able to make a value judgment as to the weight of the testimony, and it acted accordingly.

For these reasons, we find that the trial court properly performed its gate-keeping function in finding that Dr. Barczyk’s testimony and accompanying evidence were both reliable and relevant. Thus, the trial court properly admitted Dr. Barczyk as an expert in the field of biomechanics of low-speed crashes and properly allowed him to use relevant demonstrative evidence in presenting his testimony.

| Jury Request for Exhibit Number 7

Ms. LeMaire and Progressive claim that the trial court erred by failing to allow the jury to view “Exhibit Number 7,” an old petition from a separate personal injury case where Ms. Taylor averred that she had injured her neck prior to the motor vehicle accident at issue. Ms. LeMaire and Progressive also claim that the trial court erred by commenting on the evidence.

Appellants argue that these actions should be considered reversible error for a couple of reasons. First, they point to the provisions of La.Code Civ.P. art. 1795 which they claim requires the trial judge to give the jurors any piece of evidence the jurors request. Second, they assert that the court’s statement that the petition was “not evidence” effectually indicated to the jury that Ms. Taylor was a credible witness.

Louisiana Code of Civil Procedure Article 1795 provides:

A. If the jury, after retiring for deliberation, requests a review of certain testimony or other evidence, they shall be conducted to the courtroom.
B. After giving notice to the parties, the court may have the requested testimony read to the jury and may permit the jury to examine the requested materials admitted into evidence.

The Louisiana Fourth Circuit Court of Appeal considered a similar issue in Fowler v. Bauman, 95-145 (La.App. 4 Cir. 10/12/95), 663 So.2d 438. In determining that the trial court has discretion as to the items it provides to the jury, that court stated: “Although La.C.C.P. art. 1795(A) does use the mandatory word ‘shall,’ La. C.C.P. art 1795(B), by use of the word ‘may,’ clearly gives the trial judge discretion to determine whether to provide the jury with requested items.” Id. at 443. We agree with the fourth circuit’s analysis of this issue and find that the trial court did not err in refusing to provide the jury with the requested exhibit.

|9Moreover, we decline to adopt Appellants’ argument that the trial court’s statement that the exhibit was “not evidence” somehow prejudiced Appellants by lending credence to the veracity of Ms. Taylor’s testimony. The jury had ample opportunity to form its own opinion of Ms. Taylor. The jury heard Ms. Taylor testify about the accident, they heard Appellants’ cross-examination, and they heard Ms. Taylor testify about Exhibit Number 7. The jury evaluated the testimony and reached a verdict in favor of Ms. Taylor.

In sum, we find no reversible error on the part of the trial court on this issue.

Damages

Appellants argue that the jury erred in its award of past and future medical expenses and loss of earning capacity to Ms. Taylor. It is well-settled that a judge or a jury is given great discretion in its assessment of the amount of both general and special damages. Louisiana Civil Code art. 2324.1 provides: “[i]n the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” The appropriate amount of damages is a determination of fact and is entitled to great deference on review. Guillory v. Lee, 09-75 (La.6/26/09), 16 So.3d 1104. “Because the discretion vested in the trier of fact is so great, and even vast, an appellate court should rarely disturb an award on review.” Id. at 1117 (citations omitted).

(1) Special Damages (Past and Future Medical Expenses)

The Louisiana Supreme Court articulated the definition and standard of review for an award of special damages as follows:

Special damages are those which have a ‘ready market value,’ such that the amount of damages | ^theoretically may be determined with relative certainty, including medical expenses and lost wages. An appellate court, in reviewing a jury’s factual conclusions with regard to special damages, must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusions, and the finding must be clearly wrong.

Guillory, 16 So.3d at 1118 (citations omitted).

Ms. Taylor introduced past medical expenses totaling $64,966.85. Ms. Taylor incurred these expenses over a four-year period with numerous doctor visits, tests, treatments, injections, and medications. Notably, however, Ms. Taylor had not yet undergone surgery, as recommended by her orthopaedic surgeon, Dr. John Cobb. Specifically, Dr. Cobb recommended a three-level fusion, and he testified that it was possible that Ms. Taylor would require a second surgery. Glenn Hebert, a licensed rehabilitation counselor, testified that one surgery would cost $87,120.00. Moreover, Dr. Barczyk testified that he would continue to offer chiropractic therapy to manage Ms. Taylor’s pain, and Doctors Duhe and Martin, Ms. Taylor’s counselor and pain management doctor, respectively, both testified that they would continue treating Ms. Taylor. Dr. Womack, an economist, testified that Ms. Taylor could expect to live another fifty years.

The jury awarded Ms. Taylor $65,000.00 for past medical expenses. Appellants argue that the jury erred because it awarded Ms. Taylor an additional $33.15 she is not entitled to receive. Appellants’ argument is frivolous and without merit. As mentioned previously, special damages may be determined with relative certainty, not absolute certainty. Thus, it was within reason and within the jury’s discretion to award Ms. Taylor $65,000.00 in past medical expenses.

The jury also awarded Ms. Taylor $180,000.00 in future medical expenses. Again, Appellants assert that Ms. Taylor received more than she deserved. |n Again, they are mistaken. The evidence in the record demonstrates that Ms. Taylor has incurred almost $65,000.00 in medical expenses in a four-year period, without yet having an expensive neck surgery recommended by her physician. Ms. Taylor’s future expenses (including a possibility of two costly surgeries and a multitude of additional treatments) were established with some degree of certainty. Thus, the jury did not err in awarding Ms. Taylor $180,000.00 for future medical expenses, and we will not disturb that award.

(¾) Loss of Earning Capacity

Appellants argue that the jury erred in awarding Ms. Taylor damages for past and future loss of earning capacity. We disagree. In Bennet v. City of New Iberia, 08-1369, pp. 11-12 (La.App. 3 Cir. 4/1/09), 7 So.3d 822, 830 (quoting Batiste v. New Hampshire Ins. Co., 94-1467, pp. 3-4 (La.App. 3 Cir. 5/3/95), 657 So.2d 168, 170, writ denied, 95-1413 (La.9/22/95), 660 So.2d 472 (citations omitted)), we stated:

Loss of earning capacity is not the same as lost wages. Rather, earning capacity refers to a person’s potential. Earning capacity is not necessarily determined by actual loss. While the plaintiffs earnings at the time of the accident may be relevant, such figures are not necessarily indicative of his past or future lost earning capacity. The plaintiff need not be working or even in a certain profession to recover this type of award. What is being compensated is the plaintiffs lost ability to earn a certain amount, and he may recover such damages even though he may never have seen fit to take advantage of that capacity.
In determining whether a personal injury plaintiff is entitled to recover for the loss of earning capacity, the trial court should consider whether and how much plaintiffs current condition disadvantages him in the work force. The trial court should thus ask itself what plaintiff might be able to have earned but for his injuries and what he may now earn given his resulting condition.
112The very nature of lost earning capacity makes it impossible to measure the loss with any kind of mathematical certainty. The facts of each case must take into account a variety of factors, including the plaintiffs condition prior to the accident, his work record prior to and after the accident, his previous earnings, the likelihood of his ability to earn a certain amount but for the accident, the amount of work life remaining, inflation, and the plaintiffs employment opportunities before and after the accident.

On appeal, an award of damages for loss of earning capacity is reviewed for manifest error. Id. Mr. Hebert testified that Ms. Taylor experienced a loss of earning capacity of $6,000.00 to $7,000.00 per year. Specifically, Mr. Hebert testified that because of Ms. Taylor’s disability, she would be at a disadvantage in the workplace compared to other, non-injured workers, and therefore, would sustain a loss of earning capacity. Dr. Womack, the economist, estimated Ms. Taylor’s loss of earning capacity at $140,383.00, plus past and future loss of household services of $91,388.00. Moreover, Karen Keller, Appellants’ vocational rehabilitation expert, testified that but for the accident, Ms. Taylor would likely have been able to secure a teaching job at the college level earning $50,000.00 per year. Given the evidence presented at trial, we find no error in the jury’s award for past and future loss of earning capacity.

JNOV and Modification of the General Damages Award

Ms. LeMaire and Progressive assert that the trial court erred by rejecting their motion for a new trial or, alternatively, judgment notwithstanding the verdict. While rejecting Appellants’ motion, the trial court simultaneously granted Ms. Taylor’s motion for judgment notwithstanding the verdict and subsequently increased the jury’s award of general damages from nothing to $500,000.00. Appellants argue that the trial court’s actions effectually abrogated their right to a jury trial.

11SWe must first review the trial court’s actions in granting Ms. Taylor’s motion for JNOV and rejecting Appellants’ motion. The supreme court set out the criteria for the reviewing court’s evaluation of the trial court’s grant or rejection of a JNOV in Joseph v. Broussard Rice Mill, Inc., 00-628, pp. 4-5 (La.10/30/00), 772 So.2d 94, 99.

La.code civ.proc. art. 1811 controls the use of JNOV. Although the article does not specify the grounds on which a trial judge may grant a JNOV, in Scott v. Hospital Serv. Dish No. 1, 496 So.2d 270 (La.1986), we set forth the criteria used in determining when a JNOV is proper. As enunciated in Scott, a JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when, there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. Scott, 496 So.2d at 274. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Anderson v. New Orleans Pub. Serv., Inc., 588 So.2d 829, 832 (La.1991). This rigorous standard is based upon the principle that “[w]hen there is a jury, the jury is the trier of fact.” Scott, 496 So.2d at 273; Jinks v. Wright, 520 So.2d 792, 794 (La.App. 3 Cir.1987).

The appellate court must determine if the trial court erred in granting or denying the JNOV “by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict?” Id. If the answer to that question is in the affirmative, then the motion should have been granted. If not, it should be rejected. Id.

114The evidence presented at trial pointed overwhelmingly in favor of Ms. Taylor. Before trial, it was determined that Ms. LeMaire was at fault in the accident, so the issues at trial were limited to Ms. Taylor’s injuries. Ms. Taylor’s injuries are profound. Her lifestyle has been permanently altered as a result of the injuries to her neck. At only twenty-eight years of age, she faces a lifetime of pain and medical treatments to relieve that pain. We find that reasonable persons could not have arrived at a verdict that would give Ms. Taylor anything less than all relief possible — including general damages. Thus, we affirm the trial court’s rejection of Appellants’ motion for JNOV and its grant of Ms. Taylor’s motion for JNOV.

Moreover, we reject Appellants’ argument that the trial court abrogated their right to a jury trial. A JNOV corrects an erroneous jury verdict. Consequently, it enhances the legitimacy of the jury system. Thus, the very nature of the grant or rejection of a JNOV assists, rather than hinders, the jury process.

Ms. LeMaire and Progressive also assert that the award of general damages is excessive. “We review the trial court’s award of damages pursuant to the JNOV using the manifest error standard of review.” Boxie v. LeMoine, 07-905, p. 16 (La.App. 3 Cir. 7/16/08), 988 So.2d 309, 320, writ denied, 08-2014, 08-2019 (La.11/10/08), 996 So.2d 1071.

The award of general damages is broken down into past, present, and future pain and suffering ($250,000.00), mental anguish ($125,000.00), and loss of enjoyment of life ($125,000.00). A review of the award finds that it is not unreasonable. The evidence presented indicates that Ms. Taylor has been to over 200 appointments with health care providers since the injury. She remains in pain, and it is likely that pain will continue for the rest of her life. She treats the pain with medication continuously, and she undergoes therapy for depression related to the 115constant pain and loss of enjoyment of life. Ms. Taylor, though a young woman, can no longer enjoy the lifestyle she enjoyed prior to the accident. Accordingly, we find that the trial court did not manifestly err in awarding Ms. Taylor $500,000.00 in general damages.

Costs

Finally, Ms. LeMaire and Progressive assert that the trial court erred in assessing Progressive Security Insurance Company with all court costs, including costs to present at trial. Specifically, they argue that the trial court’s action constitutes an unauthorized amendment of the judgment. Appellants’ argument is misplaced.

The trial court did not amend the original judgment which assessed court costs jointly to Progressive and Progressive County Mutual Insurance Company. Instead, the trial court ruled on a Motion to Tax Costs and properly assessed those costs in a separate judgment. In that motion, pursuant to an offer of judgment, Ms. Taylor requested that the court tax the costs of the experts, exhibits, and jury books against Progressive. The court correctly assessed those costs against Progressive since Ms. Taylor forwarded an offer of judgment to Progressive with no response. Thus, the trial court did not err in assessing Progressive with all costs, including costs to present at trial.

IV.

CONCLUSION

_JjjjFor the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are assessed against Appellants, Progressive Security Insurance Company and Aimee LeMaire.

AFFIRMED.

      . Ms. Taylor originally filed suit against both Progressive and Progressive County Mutual Insurance Company as her own underinsured motorist carrier. During the pendency of this appeal, Ms. Taylor dismissed her claims against Progressive County Mutual Insurance Company.

      . Court costs are those costs assessed by the Clerk of Court. Court costs differ from costs to present at trial, which include expert witness fees, deposition fees, and expenses of expert witnesses, among other items.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Wendell BOURQUE.
    No. 09-1092.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      G. Paul Marx, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Wendell Bourque.
    Michael Cade, Cassidy District Attorney, Stacey C. Naquin, Assistant District Attorney, Jennings, LA, for Plaintiff/Ap-pellee, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

| j Herein, the Defendant appeals his conviction and sentence on the charge of sexual battery pursuant to La. R.S. 14:43.1. For the following reasons, we affirm both the conviction and sentence.

FACTS AND PROCEDURAL HISTORY:

Defendant, Wendell Bourque, was charged on October 15, 2004, by a bill of information with one count of sexual battery, a violation of La. R.S. 14:43.1. A jury trial commenced on May 24, 2005, and on May 26, 2005, Defendant was found guilty as charged. On February 4, 2009, Defendant filed a “Motion for New Trial.” A hearing was scheduled for February 26, 2009, following which Defendant’s motion was denied. On March 5, 2009, Defendant was sentenced to ten years at hard labor without the benefit of probation, parole, or suspension of sentence, with credit for time served. Defendant filed a “Motion to Reconsider Sentence” on March 23, 2009, which was denied without written reasons or a hearing on the same date.

At trial, A.S. testified that the seven-year-old victim, who was her cousin, was living with her at the time of the incident. On the evening of April 2, 2004, Defendant, who was a long time friend of the family, stopped by A.S.’s house around 6:00 p.m. He stated that his daughter, who was fifteen at the time, was coming over to his house to visit for the weekend and asked if the victim could spend the weekend also. Later, in the evening, A.S. stopped by Defendant’s house and asked to borrow some money. She noticed Defendant’s daughter was not there and asked where she was. Defendant told her his daughter went to town with some friends. She stated that “[the victim] seemed fíne and happy, and I said, okay, and he let me borrow the money, and then I left.” A.S. stated that the next day, Sunday, when she was at a Lake Arthur baseball field, she saw Defendant’s daughter and asked where was her 12father. The daughter stated she did not know. A.S. asked her if she had spent the weekend with Defendant and she said that she had not. This fact was corroborated during trial by Defendant’s daughter. Later, Defendant called A.S. on her cell phone and then dropped the victim off at the ball field. That evening, when the victim got into a tub of hot water she started crying, saying that her “bottom” burned. A.S. testified:

I asked her what was wrong, and she said her bottom burned real bad, and then I already had, you know, him say that Selena was suppose[d] to be there, and I started putting things together in my head, and I asked her if anyone had touched her, and that’s whenever she had told me Wendell had.

A.S. called her mother, L.R., to come over. According to A.S., the victim told them that “she was at Wendell’s house play fighting and he had stuck his finger in her private area — her vagina.” A.S. asked her mother to take the victim to the hospital because her own baby was ill and she could not leave.

On cross examination, A.S. testified that she had known Defendant all her life and that she often visited at his house and on occasion she had left her own three children in his care. She said that he told her that the victim had “loose bowels” the evening of the alleged battery and that he had given her some Pepto-Bismol.

L.R. testified that at the hospital, the doctor showed her the victim’s vaginal area and that “[t]here was redness.” She stated that police officers met her at the hospital and she followed them back to Danny Semmes’ office, who was an investigator with the Sabine Parish Sheriffs Officer. There, he told her to return again the next day because the victim was too traumatized “to talk about it anymore.”

Danny Semmes testified that after he interviewed the victim the next day, he went to Defendant’s house and advised him of the complaint. He stated that | «¡Defendant said he was aware of the allegation. Defendant was Mirandized and his house was searched. A pair of little girls panties and shorts were found in the washing machine.

Dr. William Gaar was the emergency room physician at Jennings American Legion Hospital on the evening L.R. took the victim in for an examination. He testified that he saw redness in the vaginal area of the victim, but did not see any tearing of the hymen. He indicated that he thought the redness was vaginitis and recommended the area to be treated with Neos-porin. He testified that the vaginitis could have been caused by a finger being inserted into the vagina, or possibly by soap, sweat, or too tight underpants.

The victim, who was nine years old at the time of trial, testified. She stated that on the evening of the alleged battery, after she and Defendant ate dinner, she went into his bedroom to watch TV. He came into the bedroom and they began to wrestle. She said that during the wrestling, he “stuck his finger in my wrong spot .... my privates.” She said that she left the room for a minute then asked him when she could go home and he told her tomorrow. She told A.S. the next evening while she was bathing. She testified that she did not recall A.S. coming over to Defendant’s house that night and agreed that she experienced “loose bowels” that evening.

Finally, Dr. Lee J. Monlezun was qualified as an expert in obstetrics and gynecology. Using Doctor Gaar’s medical report from the evening the victim was admitted into the emergency room for possible molestation, he explained his interpretation of the results of the examination. He noted that Doctor Gaar wrote in his report that the victim’s vaginal opening was “approximately one point five centimeters (1.5cm). No tears noted.” He stated that he examined Defendant’s |4fingers, and that only his little finger may have been small enough to enter the victim’s vagina without tearing the hymen. The doctor explained that the burning the victim experienced when she got into the bath tub was caused by “vulvovaginitis, it’s going to burn, especially if it’s warm water.” The doctor opined that the condition was undoubtedly caused by the loose bowels or diarrhea and not the result of a finger being inserted into her vagina. While admitting that there was a possibility that Defendant could have inserted his little finger into the victim’s vagina, he seriously doubted he could have done so without some tearing because the victim said they were wrestling around.

Defendant has perfected a timely appeal and raises four assignments of errors, as follows: (1) the evidence was insufficient to sustain the verdict; (2) the trial court erred when it denied Defendant’s motion for mistrial based on other crimes evidence which was impermissibly introduced; (3) the trial court erred when it denied Defendant’s “Motion for a New Trial”; and (4) the trial court “did not provide notice of time limitation for post conviction application under Article 881.1 of the code of criminal procedure.”

APPELLANT’S ASSIGNMENTS OF ERROR:

1.The verdict in this case is contrary to law in that the physical evidence and the direct [evidence] conclusively established that the offense conduct did not occur. The alleged victim’s testimony was rebutted by physical evidence through expert medical testimony establishing that the alleged victim’s medical condition was scientifically unrelated to the claimed conduct, and the State never established the intent necessary to support conviction under the Statute for Sexual Battery.
2. The Trial Court erred when it denied a Mistrial in spite of the introduction of testimony on a videotape regarding what the alleged victim had heard about the defendant’s past conduct. This had nothing to do with the documentation of a child’s first report or any other material or relevant issue. The Trial Court could not | Ballow admission of such information because it considered that part of the tape not specifically included in the objection.
3. The trial Court erred when it denied the Motion for New Trial, despite evidence provided by the State to the Defense after trial that key elements of the State’s Case were based on Perjury. The Defense was under no burden beyond proving that there was exculpatory evidence which could change the result and which had not been available despite due diligence.
4. The Trial Court did not provide Notice of Time Limitation for Post Conviction Application under Article 881.1 of the Code of Criminal Procedure.

LAW AND DISCUSSION ON THE MERITS:

Assignment of Error Number 1

In pertinent part, sexual battery is defined as:

A. Sexual battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender.

La. R.S. 14:43.1.

Defendant argues that the evidence, as presented by the State, was insufficient to support a conviction for sexual battery.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27.

Moreover, this court has held that the testimony of the victim alone may be sufficient to prove the elements of the offense, even if there was no physical evidence of the alleged conduct. State v. Jaramillo, 06-1377 (La.App. 3 Cir. 3/7/07), 953 So.2d 146, writ denied, 07-732 (La.11/2/07), 966 So.2d 600.

Defendant argues in brief that the State failed to prove that he inserted his finger into the victim’s vagina because the medical history shows that the redness or irritation experienced by the victim was caused by a bout of diarrhea, and not Defendant’s finger. Defendant argues that “[t]he State cannot change its approach to this case simply because the evidence fails to support its charge: the Defendant was not alleged to have simply touched the child, but to have penetrated her with his fingers.”

We find that when viewed in a light most favorable to the State, the evidence was sufficient to prove all the elements of the charged offense. To prove that Defendant was guilty of sexual battery, the State had only to prove he touched the anus or genitals of the victim and that the touching was without consent. The victim’s trial testimony was consistent with what she told her cousin initially and the Children’s Advocacy Center interviewer. While Doctor Monlezun testified that Defendant’s fingers were too big to have penetrated the victim’s vagina without tearing the hymen-he measured them against the emergency room’s doctor’s estimation of the size of the victim’s vaginal opening. We find that it cannot be speculated what a seven-year-old would consider “in” her wrong spot. Furthermore, we find that although the medical evidence does not prove that he actually penetrated |7her with his finger, the victim could have had the vaginitis caused by the diarrhea and still have been touched inappropriately by Defendant.

Finally, Defendant argues that “[t]he likely reason for the State to rely on the penetration of Bourque’s fingers was to establish intent, particularly important where there was a story of wrestling for sport around the time this happened, and a penetration might rule out ‘unintentional’ touching.”

As noted by Defendant, sexual battery is a general intent crime. State v. Stevenson, 05-52 (La.App. 5 Cir. 6/28/05), 908 So.2d 48, writ denied, 05-2592 (La.6/2/06), 929 So.2d 1247.

Louisiana Revised Statutes 14:10, criminal intent, provides:

(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.
(2) General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act for failure to act.

In general intent crimes, criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal. State v. Howard, 94-23 (La.6/3/94), 638 So.2d 216.

We find that criminal intent was established when the State offered uncontested testimony that after he asked if the victim could visit for the night, Defendant misled A.S. that his own daughter would be there at his house, and then again lied when A.S. went to his house and noticed the daughter was not there. Defendant intentionally deceived A.S. so that he could be alone with the victim. Accordingly, we find that Defendant exhibited specific intent, and, therefore, there was general intent to commit |sthe offense.

We, thus, find that there is no merit to this assignment of error.

Assignment of Error Number 2

At trial, the jury was shown an edited version of a videotape made when Joelyn Doland, director of Children’s Advocacy Center, interviewed the victim regarding the alleged sexual battery. Defendant objected after the jury was shown the video because during the interview the victim mentioned having heard about another incident involving Defendant and a juvenile. Defendant moved for a mistrial, which was denied by the trial court for the reason that there was no contemporaneous objection made prior to the publication of the video to the jury.

Defendant argued that he specifically requested that any references to other crimes or bad acts be redacted from the tape, to which the trial court had agreed and ordered the State to do so during a motion-in-limine hearing held just prior to commencement of the trial. The trial court took a recess and, in chambers, reviewed the video and compared a specific list of areas in the video that Defendant had objected to during the motion-in-li-mine hearing.

Having reviewed the video, and its own notes, the trial court stated:

THE COURT: All right. Right now is where it’s at, 10:09:34, 5, and so forth.
THE COURT: All right. The hand notations that I have, again, do not show that as an area that was object to. Mr. Bull, maybe you can correct me?
MR. BULL: Well, Your Honor, not a—not a specific—in other words, I tried to provide this to the Court without having the—the—the full tape, but I objected to any reference to any other crimes, and that’s—that’s one of my exact statements in the motion in limine.
!••••
THE COURT: The Court finds that there was not a contemporaneous objection at the time of the motion in limine specifying which area of the tape that we’re dealing with now. As a result, the objection is waived. The defense provided the Court with its specific list of those specific objections throughout the tape, including the counter numbers. The counter number of the area that we’re now dealing with is not on this list. The Court relied on that in making its ruling yesterday after it had viewed the tape as well, and, again, the Court finds that there is — there was not a specific objection to the — the area that we are now dealing with in which there is now an objection. The — the defense objection is overruled, and the motion — and the motion for a mistrial as well is denied.

Defendant asserts that he had objected to the playing of any portion of the tape which contained any other crimes evidence. He argues that “[t]his ruling is reversible error because it misapplies the contemporaneous objection rule and violated the Code of Criminal Procedure.” Defendant cites La.Code Crim.P. art. 770, which mandates a mistrial when a prejudicial comment refers to other crimes evidence or bad acts by a judge, district attorney, or a court official within the hearing of the jury.

However, whereas the victim was not any of the persons listed, La.Code Crim.P. art. 771 is the appropriate statute dealing with prejudicial comments made in front of the jury. Louisiana Code of Criminal Procedure Article 771 provides that an admonition to the jury be made to disregard the remark and “[i]n such case, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

As a general matter, mistrial is a drastic remedy which should only be declared upon a clear showing of prejudice by the defendant. State v. Scott, 04-1312 (La.1/19/06), 921 So.2d 904; State v. Wilkerson, 403 So.2d 652, 659 (La.1981) (mere possibility of prejudice is not enough to warrant mistrial). In addition, a trial judge has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial. State v. Sanders, 93-0001, pp. 20-21 (La.11/30/94), 648 So.2d 1272, 1288-89; State v. Wingo, 457 So.2d 1159, 1166 (La.1984).

| in State v. Leonard, 05-1382, p. 11 (La.6/16/06), 932 So.2d 660, 667.

The comment made by the victim to the Children’s Advocacy Center’s interviewer was to the effect that she had heard Defendant had done something like this to other “kids.” There was no indication of the source of this information or any detail as to what the “this” was. The comment was brief and without elaboration. A mistrial in this case is only authorized where substantial prejudice will otherwise result. State v. Dozier, 97-1564 (La.App. 3 Cir. 5/20/98), 713 So.2d 729, writ denied, 98-1694 (La.11/25/98) 729 So.2d 573. We cannot say that the remark of the victim made it impossible for Defendant to have received a fair trial; accordingly, the trial court did not abuse its discretion.

We find that there is no merit to this assignment of error.

Assignment of Error Number 3

Defendant argues that a witness who testified at trial, L.R., came forward after the trial and told the assistant district attorney who prosecuted the case that because she had concerns about Defendant being a child molester, after he had returned the victim to A.S., she asked the victim if anyone, including Defendant, had inappropriately touched her. She said that the victim told her no. L.R. stated that she told A.S. the victim said she had not been touched by the Defendant, but A.S. persuaded her not to say anything because she believed the victim was telling the truth when she said she was sexually battered by Defendant. This information was relayed to defense counsel via a letter. A hearing was held on February 26, 2009 on Defendant’s “Motion for New Trial.” The trial court denied the motion stating that it could not grant a new trial based solely on a letter.

Defendant argues that the trial court erred when it denied his motion. |nHowever, we find that Defendant’s “Motion for New Trial” was untimely filed. The verdict was rendered on May 26, 2005. The District Attorney’s Office sent the letter to defense counsel on June 6, 2005. Defendant’s “Motion for New Trial” based on the alleged newly discovered evidence was not filed until February 4, 2009.

Louisiana Code of Criminal Procedure Article 851, in pertinent part, provides:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

Louisiana Code of Criminal Procedure Article 853 provides that a motion for a new trial based on newly discovered evidence “may be filed within one year after verdict or judgment of the trial court, although a sentence has been imposed.... ” In State v. Jackson, 09-45 (La.App. 3 Cir. 10/7/09), 19 So.3d 631, this court addressed the issue of timeliness in a factually similar case. In Jackson, the accuser made an affidavit stating that he had falsely accused the defendant. The defendant filed a motion for a new trial based on newly discovered evidence. The motion was filed more than one year after judgment was rendered and the defendant was awaiting sentencing on a habitual offender adjudication. He argued that he had one year from the date of habitual offender sentencing in his case. The trial court denied the motion based on the untimely filing of the motion. On appeal, this court stated that the | 12statute specifically meant that a motion for new trial must be filed within one year from the date of the judgment and not from the date of sentencing. In the current case, Defendant’s “Motion for New Trial” was filed more than four years after the verdict was rendered.

Accordingly, we will not consider Defendant’s assignment of error number three.

Assignment of Error Number J

In brief, Defendant asserts the trial court failed to advise him of the two years from the date the conviction and sentence becomes final in which to file for post-conviction relief as set forth in La.Code Crim.P. art. 930.8. However, this assertion is not correct. The trial court did advise Defendant of the two-year time delay after it imposed the sentence.

Further, trial counsel filed a “Motion to Reconsider the Sentence” asserting that the sentence was excessive. This motion was timely filed on March 23, 2009. It was denied without written reasons. Trial counsel then filed a “Motion and Order to Appeal Sentence,” which was granted by the trial court on March 24, 2009. However, when appellate counsel submitted his appellate brief, except for the reference to La.Code Crim.P. art. 881.1 in this assignment of error, he did not raise any issue regarding the sentence. According to the Uniform Rules — Courts of Appeal, Rule 3 — 2, this court will not review issues raised for the first time on appeal, “unless the interest of justice clearly requires otherwise.” Accordingly, we will not address this assignment of error.

^CONCLUSION:

For the foregoing reasons, the Defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: PAINTER, Judge.

text:
    Steven B. FONTENOT v. DELHOMME’S FUNERAL HOME, INC., Professional Collection Services, Inc., James King and/or James A. Dorsa, Jr., DFH Insurance Company, Inc., and PCS Insurance Company, Inc.
    No. 09-1017.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.
    S. Stephen Spring, II, Baton Rouge, LA, for Plaintiff-Appellant, Steven B. Fonte-not.
    Charles M. Rush, Lafayette, LA, for Defendant-Appellee, Delhomme’s Funeral Home, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

[ ] Plaintiff, Steven B. Fontenot, appeals the trial court’s judgment dismissing his appeal for failure to pay costs timely. Finding no error in the trial court’s judgment, we affirm.

FACTS

On March 5, 2008, Plaintiff filed a motion to annul a judgment denying him pauper status. The trial court, on March 11, 2008, denied the motion ex parte for failure to state any grounds for annulment. In denying the motion, the court noted that the appropriate way to challenge a ruling on a denial of pauper status would be by writ application. On May 29, 2008, Plaintiff filed a motion for appeal of the March 11 denial of his motion to annul. The appeal was granted on June 5, 2008. On May 13, 2008, a notice of the estimated costs of appeal was sent to Plaintiff giving him until July 3, 2008 to pay. On July 18, 2008, he filed a motion to extend the time to pay the estimated costs of appeal. The court denied the motion noting that it was untimely because the costs were due by July 3, 2008. In October 2008, Defendant, Delhomme’s Funeral Home, moved to dismiss the appeal as abandoned, and the matter was set for a hearing. On March 12, 2009, Plaintiff paid $1000.00 of the appeal costs. A hearing was held on March 16, 2009, and judgment issued dismissing the appeal on April 17, 2009. Plaintiff appeals that judgment.

DISCUSSION

Plaintiff argues that dismissal of his appeal pursuant to La.Code Civ.P. art. 2126 is a harsh remedy and should not have been used to deprive him of his appeal.

Louisiana Code of Civil Procedure Article 2126 provides that:

A. The clerk of the trial court, immediately after the order of appeal has been granted, shall estimate the cost of the preparation of the | ¿record on appeal, including the fee of the court reporter for preparing the transcript and the filing fee required by the appellate court. The clerk shall send notices of the estimated costs by certified mail to the appellant and by first class mail to the appellee.
B. Within twenty days of the mailing of notice, the appellant shall pay the amount of the estimated costs to the clerk. The trial court may grant one extension of the period for paying the amount of the estimated costs for not more than an additional twenty days upon written motion showing good cause for the extension.
C. The appellant may question the excessiveness of the estimated costs by filing a written application for reduction in the trial court within the first twenty-day time limit, and the trial court may order reduction of the estimate upon proper showing. If an application for reduction has been timely filed, the appellant shall have twenty days to pay the costs beginning from the date of the action by the trial court on application for reduction.
D. After the preparation of the record on appeal has been completed, the clerk of the trial court shall, as the situation may require, either refund to the appellant the difference between the estimated costs and the actual costs if the estimated costs exceed the actual costs, or send a notice by certified mail to the appellant of the amount of additional costs due, if the actual costs exceed the estimated costs. If the payment of additional costs is required, the appellant shall pay the amount of additional costs within twenty days of the mailing of the notice.
E. If the appellant fails to pay the estimated costs, or the difference between the estimated costs and the actual costs, within the time specified, the trial judge, on his own motion or upon motion by the clerk or by any party, and after a hearing, shall:
(1) Enter a formal order of dismissal on the grounds of abandonment; or
(2) Grant a ten day period within which costs must be paid in full, in default of which the appeal is dismissed as abandoned.
F. If the appellant pays the costs required by this Article, the appeal may not be dismissed because of the passage of the return day without an extension being obtained or because of an untimely lodging of the record on appeal.

This article grants the trial court the discretion to dismiss the appeal as abandoned where the appellant fails to pay the costs within the time specified. In this | scase, Plaintiff failed to pay the costs timely, failed to move for an extension of time prior to the expiration of the time to pay the costs, and, finally, attempted a partial payment of appeal costs well after opposing counsel moved to dismiss the appeal. Therefore, we find no abuse of discretion by the trial court in dismissing the appeal, and we decline to overturn the dismissal.

CONCLUSION

For the foregoing reasons, the judgment of the trial court dismissing Plaintiffs appeal is affirmed. Costs of this appeal are to be paid by Plaintiff-Appellant, Steven Fontenot.

AFFIRMED.


author: JUDE G. GRAVOIS, Judge.

text:
    WILLWOODS COMMUNITY v. ESSEX INSURANCE COMPANY and R.S.U.I. Indemnity Company.
    No. 09-CA-651.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 13, 2010.
    Rehearing Denied May 10, 2010.

      William P. Connick, Attorney at Law, Metairie, LA, Patrick G. Kehoe, Jr., Attorney at Law, New Orleans, LA, for Plain-tifi/Appellant/Cross-Appellee.
    Jason P. Waguespack, Frederick W. Swain, III, Mary Lorenz, Attorneys at Law, New Orleans, LA, H. Alston Johnson, III, Attorney at Law, Baton Rouge, LA, for Defendant/Appellee/Cross-Appel-lant.
    Panel composed of Judges CLARENCE E. McMANUS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

12This appeal is taken from judgments of the trial court awarding penalties and attorneys’ fees pursuant to LSA-R.S. 22:658, and damages for delay in performance in the form of legal interest pursuant to La. C.C. art. 2000, to an insured against one of its excess insurance carriers. For the reasons that follow, we affirm in part, vacate in part, and remand.

FACTS AND PROCEDURAL HISTORY

Numerous properties owned by the plaintiff, Willwoods Community (“Will-woods”), were damaged by Hurricane Katrina on August 29, 2005. After receiving the policy limits from its primary .insurer, Landmark American Insurance Company (“Landmark”), and several payments from its first excess insurer, Essex Insurance Company (“Essex”), Willwoods sought to recover the balance of its damages from its second excess insurer, R.S.U.I. Indemnity Company (“RSUI”). |sOn August 28, 2006, Willwoods filed suit against Essex and RSUI, alleging in its petition for damages that the defendants “have failed to pay amount [sic] due under their policies issued to petitioner and are liable unto petitioner for all such damages as are reasonable and equitable, together with legal interest thereon from the date of judicial demand until paid and for all cost, penalties, attorney fee [sic] and all other relief provided by R.S. 22:658, R.S. 22:1220 and all other relevant statutes.” Willwoods’ petition further alleged that the defendants “have been provided with adequate proof of loss for damages caused by Hurricane Katrina, indicating damage to these eleven properties [owned by Willwoods] totaling over twenty five million dollars ($25,000,000.00).”

On November 30, 2006, Essex tendered the remainder of its policy limits to Will-woods and was subsequently dismissed from this suit. This matter then proceeded solely against RSUI.

Because Willwoods and RSUI could not agree as to the value of Willwoods’ property and the amount of Willwoods’ remaining losses, they proceeded to follow the following appraisal process provided for in the RSUI policy, to-wit;

If we and you disagree on the value of the property or the amount of loss, either may make'written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding.

Willwoods selected James A. Conn as its appraiser, while RSUI selected Edward R. Reilly, Jr. as its appraiser. Since Mr. Conn and Mr. Reilly could not agree on the remaining losses due Willwoods and on the selection of an umpire to settle |,,their differences, on January 18, 2007 the trial court appointed David J. Halpern to act as the umpire in this matter.

On July 2, 2007, RSUI tendered payments to Willwoods totaling $602,574.94. In accordance with the appraisal process, Mr. Conn and Mr. Reilly then proceeded to each submit separate documentation to Mr. Halpern as to the nature and extent of Willwoods’ losses. Mr. Conn’s damage appraisal report was submitted to Mr. Hal-pern on November 6, 2007. Mr. Reilly’s damage appraisal report was submitted to Mr. Halpern on November 26, 2007, with a supplemental letter thereto dated November 29, 2007. In his detailed appraisal report, as supplemented, Mr. Reilly appraised Willwoods’ remaining damages at $11,256,059.00. Based on Mr. Reilly’s appraisal report, after subtracting the prior payments and applicable deductibles, the amount owed at that point by RSUI to Willwoods was $4,735,183.00. On January 29, 2008, RSUI made an additional “unconditional tender” of $4,708,865.00 to Will-woods, which is $26,318.00 less than the appraised value of Willwoods’ remaining damages as found in Mr. Reilly’s report, as adjusted for prior payments and applicable deductibles. On June 19, 2008, Mr. Hal-pern rendered a decision that additional sums were due Willwoods. On July 18, 2008, RSUI acknowledged that it would not appeal Mr. Halpern’s award. On July 21, 2008, in accordance with Mr. Halpern’s award, RSUI tendered a final additional payment of $4,552,076.74 to Willwoods.

On July 23, 2008, Willwoods filed a Motion for Partial Summary Judgment seeking penalties and attorneys’ fees under LSA-R.S. 22:658 and 22:1220. On August 6, 2008, Willwoods filed a second Motion for Partial Summary Judgment seeking damages for RSUI’s delay in performance in the form of judicial interest 15under La. C.C. art. 2000. On August 20, 2008, RSUI filed a Cross-Motion for Summary Judgment regarding Willwoods’ claim for penalties and attorneys’ fees, and a second Cross-Motion for Summary Judgment regarding Willwoods’ claim for damages for delay in performance in the form of judicial interest under La. C.C. art. 2000. The motions for summary judgment were heard by the trial court on September 26, 2008.

On March 27, 2009, the trial court rendered judgment granting Willwoods’ Motion for Partial Summary Judgment against RSUI and awarded Willwoods $2,354,432.50 in penalties and $1,177,216.20 in attorneys’ fees pursuant to LSA-R.S. 22:658. This judgment also found Will-woods’ claim for damages for delay in performance in the form of judicial interest to be premature. This judgment correspondingly denied RSUI’s Cross-Motions regarding Willwoods’ claims for penalties, attorneys’ fees and judicial interest.

Pursuant to a timely request made by RSUI, on April 20, 2009, the trial court issued written reasons for its March 27, 2009 judgment. The trial court found that RSUI was in receipt of sufficient proof of Willwoods’ damages claim as of November 29, 2007, the date of Mr. Reilly’s supplemental report. The trial court noted that Mr. Reilly’s report was based on his research and analysis of volumes of documents. The trial court also found that RSUI’s failure to pay to Willwoods the amount set forth in Mr. Reilly’s report within the thirty-day payment period mandated by LSA-R.S. 22:658 was without any justification or reasonable cause and in violation of LSA-R.S. 22:658, thereby necessitating the imposition of penalties and attorneys’ fees against RSUI in favor of Willwoods. The trial court questioned RSUI’s payment prior to Mr. Halpern’s award if RSUI truly felt that such payment was not due until Mr. Halpern’s report was prepared. The trial court further found that RSUI failed to provide a good faith defense or ^reason why it failed to follow the report of Mr. Reilly, the appraiser that it had appointed as part of the appraisal process.

In its reasons for judgment, the trial court further found that, on the issue of judicial interest, La. C.C. art. 2000 does not require that a judgment be taken before imposition of judicial interest, noting that the payments made by RSUI to Will-woods were unconditional tenders, rather than payments made pursuant to a settlement or compromise agreement between the parties. The trial court further found that La. C.C. art. 2000 provides that interest be paid when an insurer delays payment owed pursuant to the insurance contract between the parties.

Also on April 20, 2009, the trial court rendered an additional judgment reaffirming its March 27, 2009 judgment, except with respect to the imposition of “damages” pursuant to La. C.C. art. 2000. The trial court found that RSUI was placed in default by the filing of the lawsuit against it by Willwoods, and that damages for delay in performance in the form of legal interest under La. C.C. art. 2000 in the amount of $1,430,377.70 was owed by RSUI to Willwoods, calculated from the date of filing by Willwoods of its petition for damages against RSUI until the dates the three unconditional tender payments were respectively made by RSUI to Will-woods.

On May 13, 2009, the trial court issued an order designating the March 27 and April 20, 2009 judgments as final under C.C.P. art. 1915(B)(1).

On May 22, 2009, Willwoods filed a Motion for Devolutive Appeal from the March 27 and April 20, 2009 judgments.

Additionally, pursuant to RSUI’s motion, the trial court issued a judgment on June 4, 2009 explaining how the penalties, attorneys’ fees and interest in its previous judgments were calculated, to-wit:

_Jjl. Penalties under LSA-R.S. 22:658 were calculated to be $2,354,432.50, being fifty (50%) per cent of the payment of $4,708,865.00 tendered by RSUI to Willwoods on January 29, 2008.
2. Attorneys’ fees under LSA-R.S. 22:658 were calculated to be $1,177,216.20, being twenty-five (25%) per cent of the payment of $4,708,865.00 tendered by RSUI to Willwoods on January 29, 2008.
3. Damages for delay in performance in the form of legal interest under La. C.C. art. 2000 was calculated to be $1,430,377.78, broken down as follows:
a. Legal interest of $45,341.70 on the payment of the $602,574.94 tendered by RSUI to Willwoods on July 2, 2007, due from the date of judicial demand on August 28, 2006 until paid on July 2, 2007.
b. Legal interest of $609,098.33 due on the payment of the $4,708,865.00 tendered by RSUI to Willwoods on January 29, 2008, due from the date of judicial demand on August 28, 2006 until paid on January 29, 2008.
c. Legal interest of $775,937.75 due on the payment of the $4,552,076.74 tendered by RSUI to Willwoods on July 21, 2008, due from the date of judicial demand on August 28, 2006 until paid on July 21, 2008.

Finally, on June 9, 2009, RSUI filed a Motion for Suspensive Appeal from the March 27 and April 20, 2009 judgments.

PENALTIES UNDER LSA-R.S. 22:658 Review of denial of penalties on RSUI’s July 21, 2008 tender

On appeal, in its only assignment of error, Willwoods argues that the trial court erred in awarding penalties only upon the $4,708,865.00 payment made by RSUI on January 29, 2008, rather than also on the additional $4,552,076.74 payment made by RSUI on July 21, 2008. Willwoods claims that LSA-R.S. 22:658 mandates that penalties be calculated on both of these payments. Willwoods argues that because RSUI did not engage in any further appraisals or inspections during the interim period between the January 29, 2008 and the July 21, 2008 payments, penalties are mandated on both payments.

[SA thorough review of the reeord leads us to the conclusion, however, that Will-woods’ position on its assignment of error is without merit. In the memorandum filed in support of its Motion for Partial Summary Judgment, Willwoods only argued for penalties for RSUI’s delay in making the January 29, 2008 payment. Willwoods argued that because RSUI unquestionably had proof of Willwoods’ loss by November 26, 2007 (the date of Mr. Reilly’s report) and nevertheless waited 63 days (until January 29, 2008) to tender that unconditional payment to Willwoods, RSUI was liable for penalties under the mandatory provisions of LSA-R.S. 22:658. The record further reflects that at the April 23, 2009 hearing on the motion to strike RSUI’s appeal, counsel for Will-woods stated that they never filed anything addressing “the 606,000 and the 4.5 million as far as substantive issues as to why they were late,” explaining that was the reason they moved for 'partial summary judgment. At that same hearing, the trial judge stated this motion “started with one thing and ended with something different and that’s why I ruled the way I ruled the first time because I wasn’t of the opinion that this case was over.” Moreover, in its May 13, 2009 judgment, the trial court states that “this Court retains jurisdiction over the remaining pending bad faith claims.” In said judgment, the trial court continued the trial that previously had been set, and stated that a new trial date would be scheduled on a later date. Furthermore, both parties acknowledged in their memoranda submitted in connection with RSUI’s Motion for Order of Stay the proceedings pending the outcome of this appeal that the trial court had only ruled on Willwoods’ bad faith claim concerning RSUI’s January 28, 2008 tender to Willwoods and not on RSUI’s two other tenders. |nThus, it is clear from the record that the trial court was never asked to rule and in fact never did rule on the issue of whether penalties pursuant to LSA-R.S. 22:658 should be assessed against RSUI on its July 21, 2008 tender to Willwoods. Accordingly, we find no merit to Willwoods’ assertion that the trial judge erred in not awarding penalties on the final payment of $4,552,076.74 made by RSUI on July 21, 2008. Rather, we find the trial court has not ruled on this issue and as such that issue is not properly before this Court in the instant appeal.

Review of a ward of penalties on RSUI’s January 28, 2008 tender

In its response to Willwoods’ appeal and in its cross-appeal, RSUI addressed the merits of the award by the trial court to Willwoods of penalties on RSUI’s January 28, 2008 tender to Will-woods. RSUI argues that the trial court erred in awarding penalties and attorneys’ fees on this payment because there is no evidence that the delay in this payment was arbitrary, capricious or without probable cause. RSUI contends it did not have the burden of offering an explanation or justification for the late payment; rather, it was Willwoods’ burden to establish that the alleged late payment was arbitrary. RSUI bases its argument on the fact that the policy in question called for an appraisal process to evaluate the loss if the insured and RSUI could not agree on the amount of Willwoods’ losses. RSUI contends that Willwoods invoked this process. RSUI argues that Willwoods’ claim rests upon the November 26, 2007 “preliminary” report from Mr. Reilly, the appraiser selected by RSUI. RSUI contends that since the estimate of damages contained in Mr. Reilly’s report did not agree with the estimate of damages contained in Mr. Conn’s report, Mr. Reilly’s estimate of damages cannot be considered an undisputed amount. As such, RSUI contends that submission of Mr. Reilly’s report was merely a step in the appraisal process, and that it would 110have been within its rights to wait until the results of the pending appraisal process were final before making any additional payments to Willwoods. RSUI claims, accordingly, that it should not be punished for choosing to tender a substantial portion of the claim to Will-woods five months before the appraisal process was completed. RSUI concludes that it was error for the trial court to conclude that RSUI’s conduct was arbitrary, capricious and without probable cause.

Willwoods, in its response to RSUI’s appeal, contends that there is no existing jurisprudence to hold or suggest that imposition of the appraisal process stays the application of LSA-R.S. 22:658. Will-woods contends that to adopt the position suggested by RSUI would in effect preempt this statute. Willwoods repeats its argument that since the $4,708,865.00 payment was paid more than two months after Mr. Reilly’s November 26, 2007 report, it was not timely paid, and accordingly, the trial court properly awarded the penalty on said payment under LSA-R.S. 22:658.

All insurers shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest. LSA-R.S. 22:658 A(l). Insurers are liable for penalties when the failure to make such payment within thirty days after receipt of satisfactory written proofs and demand therefor is found to be arbitrary, capricious, or without probable cause. LSA-R.S. 22:658 33(1). This statutory provision is penal in nature and, as such, must be strictly construed. Urology Clinic of New Orleans, Inc. APMC v. United Fire and Cas. Co., 08-0444, p. 3 (La.App. 4 Cir. 9/10/08), 993 So.2d 803, 807.

The Louisiana Supreme Court recently reviewed the elements necessary for prevailing on a cause of action for penalties under LSA-R.S. 22:658. Louisiana Bag Company v. Audubon Indemnity Co., 2008-0453 (La.12/2/08), 999 So.2d 1104. In order to prevail on a cause of action for penalties under this statute, the plaintiff is required to make a showing “that (1) an insurer has received satisfactory proof of loss, (2) the insurer fails to tender payment within thirty days of receipt thereof, and (3) the insurer’s failure to pay is arbitrary, capricious or without probable cause.” Id., at p. 6, 999 So.2d at 1109.

Our review of the record indicates that RSUI was in possession of substantial, detailed documentation describing the repair estimates for Willwoods’ properties at the time the instant suit was filed. Thereafter, since an agreement could not be reached, the appraisal process provided for in the insurance policy was implemented. According to his November 26, 2007 appraisal report, Mr. Reilly, the “competent and impartial” appraiser chosen by RSUI for the appraisal review process, reviewed extensive documents from the other adjusters, contractors, analysts and engineers who rendered reports as to the amount of Willwoods’ damages, including “a volume of photos of the exterior and interior of all the structures which were provided by the adjusters and experts.” Mr. Reilly “also made a personal inspection of all of the buildings at the properties involved in the appraisal process over a three day period in October of 2007.” In his detailed appraisal report, as supplemented, Mr. Reilly appraised Willwoods’ remaining damages at $11,256,059.00. Based on Mr. Reilly’s appraisal report, after subtracting the prior payments and applicable deductibles, the amount owed at that point by RSUI to Willwoods was $4,735,183.00. This was over and above the $10,000,000.00 that had previously been paid to Willwoods by its primary and first excess insurers and the initial payments of $602,574.00 made by RSUI to Willwoods on July 2, 2007. On January 29, 2008, RSUI made an additional “unconditional tender” of $4,708,865.00 to Will-woods, which, as noted above, is $26,318.00 less than the appraised value of Willwoods’ remaining damages as [,.¿found in Mr. Reilly’s report, as adjusted for prior payments and applicable deductibles. It should also be noted that in his supplemental letter to Mr. Halpern dated November 29, 2007, Mr. Reilly stated that “Anticipating your agreement with our assessment which is supported by the overwhelming weight of evidence as per the various engineering expert reports previously forwarded to you, we are attaching our signed appraisal award to formalize the process.” (Emphasis added.)

RSUI argues that it was not obligated to pay this amount ($4,708,865.00) at that point because the appraisal process was still ongoing. We disagree. RSUI knew at that time that the damage amounts contained in Mr. Conn’s report, as well as the damage amounts submitted by Will-woods much earlier in this claim process, including prior to Willwoods’ filing of its Petition for Damages in this case, were substantially more than the damage amounts stated in Mr. Reilly’s report. Furthermore, the record indicates that RSUI’s unconditional tender on January 29, 2008 was based at least partly on Mr. Reilly’s “suggested appraisal award.” Thus, the evidence submitted in support of Willwoods’ Partial Motion for Summary Judgment and in opposition to RSUI’s Motion for Summary Judgment confirms that RSUI had undisputed written proof that Willwoods suffered damages of at least an additional $4,708,865.00 upon its receipt of Mr. Reilly’s report, yet it failed to pay this additional amount within thirty days of receipt of such proof, as mandated by LSA-R.S. 22:658.

Having found that RSUI did not pay Willwoods the amount set forth in Mr. Reilly’s report within the thirty-day period mandated by LSA-R.S. 22:658, the question now becomes whether RSUI’s delay in paying this loss within said thirty-|dayis period was “arbitrary, capricious, or without probable cause.” The phrase “arbitrary, capricious, or without probable cause” is synonymous with the word “vexatious.” In Louisiana law, both terms describe an insurer whose willful refusal to pay a claim is not based on a good faith defense. Louisiana Maintenance Services, Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250, 1253 (La.1993). An insurer’s refusal to pay a claim is not arbitrary, capricious, or without probable cause where serious issues regarding the appellant’s right to recovery are raised. B. Bennett Mfg. Co., Inc. v. S. Carolina Ins. Co., 96-731 (La.App. 5 Cir. 3/25/97), 692 So.2d 1258. When there is a reasonable and legitimate question as to the extent and causation of a claim, bad faith should not be inferred from an insurer’s failure to pay within the statutory time limits when such reasonable doubts exist. Reed v. State Farm Mut. Auto. Ins. Co., 2003-0107 (La.10/21/03), 857 So.2d 1012, 1020. Whether or not a refusal to pay is arbitrary, capricious, or without probable cause depends on the facts known to the insurer at the time of its action. Id.

In the present case, we find that the trial court correctly questioned RSUI’s payment prior to Mr. Halpern’s award if RSUI truly felt that such payment was not due until Mr. Halpern’s report was prepared. Also, we agree with the trial court’s finding that RSUI failed to provide a good faith defense or reason why it failed to follow the report of Mr. Reilly, the “competent and impartial” appraiser that it had appointed as part of the appraisal process.

The documents submitted in support of Willwoods’ Partial Motion for Summary Judgment indicate that, at the very latest, on November 29, 2007, the date of Mr. Reilly’s report, as supplemented, RSUI was on notice that the losses sustained by Willwoods were significantly greater than RSUI’s initial tender of $602,574.00. It is clear from the record that at least as of November 29, 2007, 114RSUI knew that it would have to pay Willwoods at least an additional $4,708,865.00 on Willwoods’ damages claim. As such, because RSUI was in possession of satisfactory written proofs of Willwoods’ losses and because RSUI’s willful refusal to pay Willwoods’ claim was not based on a good faith defense, RSUI’s failure to pay at least an additional $4,708,865.00 on Willwoods’ damages claim within thirty days of November 29, 2007 was clearly arbitrary, capricious, or without probable cause, thereby subjecting RSUI to the 50% penalty called for in LSA-R.S. 22:658. Louisiana Bag Company v. Audubon Indemnity Co., supra.

For the reasons set forth above, we agree with the trial court’s finding that RSUI’s failure to pay to Willwoods the additional $4,708,865.00 on Willwoods’ damages claim within thirty days of November 29, 2007 was arbitrary, capricious, or without probable cause, and in violation of LSA-R.S. 22:658, thereby necessitating the imposition of penalties and attorneys’ fees against RSUI in favor of Willwoods. As such, the trial court did not err in awarding penalties to Willwoods under LSA-R.S. 22:658 in the amount of $2,354,432.50 on the January 29, 2008 tender made by RSUI to Willwoods.

ATTORNEYS’ FEES UNDER LSA-R.S. 22:658

The trial court awarded attorneys’ fees to Willwoods under LSA-R.S. 22:658 in the amount of $1,177,216.20, being 25% of the payment of $4,708,865.00 tendered by RSUI to Willwoods on January 29, 2008. Attorneys’ fees under LSA-R.S. 22:658 B(l) are mandatory, rather than discretionary, where a breach of LSA-R.S. 22:658 B(l) has occurred. Calogero v. Safeway Ins. Co. of Louisiana, 1999-1625 (La.1/19/00), 753 So.2d 170, 174. Thus, we agree with the trial court that RSUI’s failure to tender $4,708,865.00 within thirty days of Mr. |,fiReilly’s report, as supplemented, also subjected RSUI to payment of attorneys’ fees under LSA-R.S. 22:658.

When attorneys’ fees are awarded pursuant to statute, the trial court must determine the reasonableness of the attorneys’ fee to be awarded. Rivet v. State, Dept. of Transp. and Dev., 96-0145 (La.9/5/96), 680 So.2d 1154, 1161. Factors to be taken into consideration in determining the reasonableness of the attorneys’ fees to be awarded include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances involved; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge. Id.

While it is obvious from the record that Willwoods’ attorneys have expended a significant amount of time and effort in representation of their client in this matter, our thorough review of the record before us does not indicate that the trial court considered the above-listed factors in determining the amount of attorneys’ fees Will-woods is entitled to recover from RSUI in this case. Because the record does not adequately support the basis for the amount of the attorneys’ fees awarded by the trial court' to Willwoods, the portion of the trial court’s March 27, 2009 judgment awarding $1,177,216.20 in attorneys’ fees to Willwoods is hereby vacated. This matter is remanded to the trial court for an evidentiary hearing to determine a reasonable amount of attorneys’ fees to be awarded to Willwoods in this case in accordance with the factors listed above and other applicable law.

| INTEREST PURSUANT TO LA C.C. ART. 2000

RSUI argues on appeal that the trial court was without authority to award interest in the April 20, 2009 judgment because the prior judgment of March 27, 2008 was a final judgment not subject to modification in the absence of a motion for new trial being filed by Willwoods. We disagree.

Louisiana Code Civil Procedure articles 1841 and 1915(B)(2) allow the trial court to modify a prior interlocutory judgment at any time prior to rendition of a final judgment on the merits. LeBlanc v. Aysenne, 2005-0297 (La.1/19/06), 921 So.2d 85, 88. The March 27, 2008 judgment was not declared a final judgment when it was rendered and was thus an interlocutory judgment. As such, the trial judge had the authority to modify that judgment. Further, the April 20, 2009 judgment states “At the status conference held on April 8, 2009 with all parties, all parties agreed that the imposition of damages pursuant to La. C.C. art. 2000 present [sic] a purely legal question and the calculation should be determined by the Court.” We thus find no merit to RSUI’s argument that the trial court was bound by its March 27, 2008 judgment and was thus without authority to award interest in its April 20, 2009 judgment.

RSUI further argues that Will-woods cannot recover both damages for delay in performance under La. C.C. art. 2000 and penalties and attorneys’ fees under LSA-R.S. 22:658. RSUI argues that a clear reading of the article 2000 supports its position. Article 2000 states, in pertinent part, that “damages for delay in performance are measured by the interest on that sum from the time it is due” and that the “obligee may recover these damages without having to prove any loss, and whatever loss he may have suffered he can recover no more.” (Emphasis added.) RSUI argues that this emphasized portion of article 2000 allows for recovery of damages for delay in performance under La. C.C. art. 2000 or penalties and | ^attorneys’ fees under LSA-R.S. 22:658, if proven, but not both. We find this interpretation by RSUI to be without merit. In our view, this emphasized portion of article 2000 simply confirms that the obligee to the contract (Willwoods) does not have to prove its damages for delay in performance under the contract. Rather, under this statute, the obligee will be entitled to recover the amount of damages for delay in performance “at the rate agreed by the parties” in the contract, or “in the absence of agreement,” the prevailing “rate of legal interest as fixed by R.S. 9:3500,” no more or no less.

Furthermore, the enactment of special statutes such as LSA-R.S. 22:658 to award penalties and attorneys’ fees in excess of damages for delay in performance recognizes that the insurer can be liable for penalties and attorneys fees in addition to legal interest. See, Litvinoff, 6 Louisiana Civil Law Treatise: The Law of Obligations, § 9.5 (2d ed.). The penalties and attorneys’ fees allowed under LSA-R.S. 22:658 are statutorily imposed as a result of RSUI’s failure to timely pay properly documented claims under the contract of insurance it issued to Willwoods. The damages for delay in performance, in the form of legal interest, payable pursuant to La. C.C. art. 2000, arise from RSUI’s contract of insurance with Willwoods and would be payable whether or not penalties under LSA-R.S. 22:658 were imposable. Thus, even an insurer who delays payment in good faith can be subject to an award of damages for delay in performance under La. C.C. art. 2000. Because the penalties and attorneys’ fees imposed pursuant to LSA-R.S. 22:658 are separate and distinct from the damages for delay in performance allowed under La. C.C. art. 2000, Willwoods can recover from RSUI penalties and 118attorneys’ fees under LSA-R.S. 22:658 and damages for delay in performance in the form of legal interest under La. C.C. art. 2000.

RSUI argues that Willwoods is not entitled to an award of interest under La. C.C. art. 2000 because a judgment has never been rendered against it on the damage claims made by Willwoods. As the trial court correctly found, however, La. C.C. art. 2000 does not require that a judgment be rendered before judicial interest can be awarded. Willwoods’ petition for damages specifically included a request for “legal interest” in addition to penalties and attorneys’ fees. We agree with the trial court’s finding that the payments made by RSUI to Willwoods were unconditional tenders, rather than payments made pursuant to a settlement or compromise agreement between the parties. As such, the trial court did not err in its April 20, 2009 judgment awarding legal interest to Willwoods on the three tender payments made from RSUI to Willwoods.

Since the contract of insurance that was issued by RSUI to Willwoods is void of any agreement between the parties as to a rate of interest to be imposed on RSUI in case of RSUI’s failure to timely perform (pay) under the contract of insurance it issued to Willwoods, in accordance with La. C.C. art. 2000, Willwoods is entitled to interest at the rate of legal interest as fixed by R.S. 9:3500 on all sums due from RSUI “from the time it is due” until paid.

In making a determination as to when the payments in question were “due” from RSUI to Willwoods, we note that the insurance policy issued by RSUI to Will-woods specifically provides that “liability attaches to the Company [RSUI] only after the primary and underlying excess insurer(s) have paid or have admitted liability for the full amount of their respective ultimate net loss liability”. At the time Willwoods filed suit against RSUI on August 28, 2006, the policy limits of | ,9the primary insurer, Landmark, had been exhausted. Essex, the first underlying excess insurer, was included in the suit because its policy limits had not yet been exhausted. As noted above, the Essex policy limits were exhausted on November 30, 2006 and Essex was thereafter dismissed from this suit on March 7, 2007. Although Willwoods alleges in its petition that it is entitled to legal interest “from date of judicial demand until paid”, the policy itself clearly states that the liability of RSUI to Willwoods attaches only after the primary and underlying excess insurers have paid or have admitted liability for the full amount of their respective ultimate net loss liability.

The trial court calculated the legal interest awarded to Willwoods to run from the date of judicial demand until the three unconditional tenders were respectively made. We find this to be in error because RSUI is not obligated under the policy in question to pay Willwoods’ losses until all of the underlying insurance coverage has been exhausted. Because the Essex policy limits were exhausted on November 30, 2006, we find that, for purposes of Will-woods’ claims made pursuant to La. C.C. art. 2000, the payments from RSUI to Willwoods became “due” on November 30, 2006. For this reason, the portion of the trial court judgment awarding legal interest in the amount of $1,430,377.70 is hereby vacated. On remand, the trial court is instructed to recalculate the legal interest award from November 30, 2006, rather than from the date of judicial demand, until the date each tender was respectively paid.

CONCLUSION

For the foregoing reasons, the trial court’s judgment of March 27, 2009 awarding penalties in the amount of $2,354,432.50 to Willwoods is hereby affirmed. The trial court’s judgment of April 20, 2009 awarding judicial interest to l2oWillwoods is hereby vacated and this matter is remanded for a calculation of legal interest to run from November 30, 2006 until the date each tender was respectively made. The trial court’s judgment of March 27, 2009 awarding attorneys’ fees in the amount of $1,177,216.20 to Willwoods is hereby vacated. On remand, the trial court is ordered to hold an eviden-tiary hearing for a determination of a reasonable amount of attorneys’ fees due Will-woods from RSUI in accordance with this opinion.

AFFIRMED IN PART; VACATED IN PART; REMANDED.

      . This statute has been renumbered as LSA-R.S. 22:1892 but will be referred to in this opinion under the prior number 22:658, as the prior number was used in all of the briefs and judgments of the trial court.

      . RSUI claims that Essex made final payments on July 2, 2007; however, there is no proof of this in the record and this is inconsistent with the dismissal of Essex from the suit on March 7, 2007.

      . Willwoods’ claim for penalties and damages under LSA-R.S. 22:1220 was denied in the trial court's judgment rendered on March 27, 2009. Willwoods has not assigned this denial as an error on appeal. Accordingly, the trial court’s denial of Willwoods' claim under LSA-R.S. 22:1220 is not addressed in this appeal.

      . In its Memorandum in Support of its Motion for Order of Stay, RSUI asserts: "Therefore, while the issue of bad faith regarding the January 2008 tender and judicial interest regarding all three (3) tenders is now before the appellate court, the issue of bad faith on the July 2007 and July 2008 tenders remains before this Court.”
      Likewise, in its Memorandum in Opposition to RSUI's Motion for Order of Stay, Will-woods acknowledges that "The Court further ordered that it would retain jurisdiction over the remaining claims for bad faith penalties on the Defendant's tenders of July 2, 2007 and July 21, 2008, as these claims had yet to be litigated.” Willwoods goes on to argue against the stay order because the trial court had retained jurisdiction over these remaining bad faith claims.

      . RSUI claims in its memorandum attached to its Cross-motion for Summary Judgment on the issue of bad faith penalties and attorneys' fees that that the unconditional tender of $4,708,865.00 made on January 29, 2008 was "a good faith effort to resolve the claim and move forward with the appraisal process[.]”

      . In a letter to Willwoods’ counsel dated March 25, 2008, in an effort to explain the basis for the January 29, 2008 tender by RSUI to Willwoods, RSUI’s counsel stated that notwithstanding a reservation of rights, "RSUI made a good faith tender based on Ed Reilly's suggested appraisal award taking into consideration all previous payments and the applicable deductibles.”

      . See, Sanders v. Wysocki, 94-2062 (La.App. 4 Cir. 5/16/95), 655 So.2d 713; Porche v. Waldrip, 597 So.2d 536 (La.App. 1 Cir. 1992).