author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Robbie Lee GUILLEARD, Appellant.
    No. 44,482-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.
    Rehearing Denied Jan. 21, 2010.

      Louisiana Appellate Project by Carey J. Ellis, III, Robbie Lee Guilleard, for Appellant.
    Charles Rex Scott, II, District Attorney, Catherine Marion Estopinal, John Ford McWilliams, Jr., Geya D. Williams Prud-homme, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   DREW, J.

11 Robbie Lee Guilleard was convicted at bench trial of armed robbery while armed with a firearm, violations of La. R.S. 14:64 and 14:64.3. After adjudication as a second felony offender, the court sentenced Guil-leard to 49½ years at hard labor, the first 15 years without benefit of probation, parole, or suspension of sentence, and the balance without the benefit of probation or suspension of sentence. The defendant now appeals his conviction and sentence. We affirm the conviction. We amend the sentence, and, as amended, affirm.

FACTS

Letitia Casey testified that:

• she worked at a Shreveport “payday loan” business called Easy Money;
• on the day of the robbery, a red-haired woman came in to ask about a loan;
• the red-haired woman left, then returned 30 or 40 minutes later, followed by another woman and a man (tall, slim, with scarf and big eyes), who said, “Bitch, this is a robbery”;
• the woman with red hair began taping her with gray duct tape;
• she (Casey) identified the robber from a photo lineup, and she identified him in court as the robber, who was armed with a gun;
• she heard one woman say, “Luke, what else you want us to do?,” to which he responded, “Take the bitch rings and stuff,” which they did, along with her purse, as well as money from the business;
• after they left, she was able to push a “panic button” to summon police;
• she also identified the woman with red hair from a photographic lineup, though she did not recall seeing the woman in court during the trial; and
• she admitted that she had seen Guil-leard for only a few seconds.

^Officer Joshua Pettigrew of the Shreveport Police Department testified that:

• he responded to the robbery and found Casey bound by gray duct tape;
• Casey said a red-haired female had come in with another female and a male;
• Casey told him that the male came behind the counter, pointed a handgun at her, and told her it was a robbery, then taped her eyes, hands, and feet; and
• Casey told the officer that the robbers took envelopes and her purse.
Elyse Rock testified that:
• she was Guilleard’s girlfriend;
• she had been allowed to plead guilty to simple robbery relative to this crime;
• she participated in the robbery at Easy Money, along with Guilleard (whom she identified in court) and “D” (she did not know D’s full name);
• D went in first, Rock second, and Guil-leard last, showing a gun;
• D came around the desk, with Rock following her;
• D taped Casey while Rock looked through some drawers;
• Guilleard just held the gun, while D got the money, purse, and rings;
• Guilleard’s cousin, Carla Bell, suggested the robbery to him, saying, “I know a place you could rob,” to which he responded, “Well, I ain’t really into that”;
• before the robbery Rock and Guilleard took Ecstacy, making his eyes “bugged”;
• Rock’s hair on the day of the robbery was black on top and burgundy at the ends;
• D’s hair on the day of the robbery was “reddish”;
• D went in initially to “scope things out”;
|.⅛* she later was picked up by Detective Demery, advised of her rights, but was “forced” to make a statement by the detective “just insisting and insisting, and he told me I was going home if I tell”;
• she told him the truth, but not the whole truth;
• she had asked for a lawyer “way before all this even much got started. ' I even asked him could I call my mama, and he was like, ‘I’m going to call her, I’m going to call’ and all that”;
• she acknowledged that Guilleard was called Luke;
• she had previously pled guilty to misdemeanor theft;
• when shown a photo of the woman (Rock) that Casey had identified as the person who had robbed her, she insisted she wasn’t the first one in the store;
• she had a minor role in the robbery,
• her purpose in going into Easy Money was to see what was going on;
• she denied knowing how much money was taken, though she heard herself say on the recording in court that she got $375; but
• she denied, on the stand, that she got any money.
Detective Rod Demery testified that:
• he arrested Guilleard and Rock;
• he took the recorded statement from Rock, who initially denied involvement, but later said she was involved, but denied taping Casey;
• Rock said that the other female did the taping and that Guilleard had the gun;
• Rock admitted going behind the counter and rifling through some drawers;
• Rock’s statement was free and voluntary, made after waiving her Miranda rights;
• he interviewed Guilleard after his waiver of his rights per Miranda, sti-pra;
1he played the tape in court, without objection, wherein Guilleard denied committing the robbery, although he admitted to being with Rock that day;
• he identified Guilleard in court;
• when Guilleard was stopped, Casey’s driver’s license and credit cards were found in the car, but no money or gun was ever recovered; and
• Carla Bell had rented the car driven by Guilleard when he was arrested.

DISCUSSION

Sufficiency

The defendant argues through counsel that:

• Letitia Casey was not a reliable witness because during the robbery she saw the defendant only briefly and her description of him was without much detail;
• although admitting that she did pick the defendant out of a lineup, her identification was made on the basis of “big eyes”; and
• Elyse Rock was not a credible witness because she received an offer and pled guilty to a reduced charge, and because her testimony was questionable and inconsistent not only with her own prior statements given to Detective Demery, but also with the victim’s testimony.
The state counters that:
• Casey not only identified Guilleard in a photo lineup, but also identified him in open court as the man who was armed;
• the robbers took the store’s money bag, which is confirmed by Rock’s testimony that a green bag and a purse were taken;
• when Guilleard was apprehended, Casey’s driver’s license and a couple of her credit cards were in the car with him.

The provisions of La. R.S. 14:64(A) state,

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

fiThe provisions of La. R.S. 14:64.3(A) state,

When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:27 and 64.

Our law on review for sufficiency of the evidence is well settled.

The evidence adduced is clearly sufficient to support the conviction for armed robbery (with a firearm). Even discounting the testimony of bjRock, Casey was positive in her identification of the defendant, and her credit cards were found in the vehicle he was driving when he was caught.

Waiver of Jury Trial

The defendant argued, through counsel, that there was no indication that the defendant had validly waived his right to a jury trial. Counsel requested supplementation of the record with transcripts of the jury trial waiver and reserved the right to address the issue after supplementation was complete. We ordered the record be supplemented with the transcript of the proceedings held on August 24, 2007, prior to the bench trial, wherein the defendant waived his right to trial by jury. The transcript plainly establishes a knowing and intelligent waiver by defendant of his jury trial right.

Pro Se Assignments of Error

Guilleard, pro se, filed the following 15 assignments of error, none with merit.

(1) Failure to Read the Bill of Information

The defendant cites no law to support this claim and none exists.

(2) Ineffective Counsel

Defendant argues that:

• the trial court chastised defendant’s trial counsel for presenting nothing in mitigation of the defendant’s sentence;
• he had several alibi witnesses who were not called;
• he never wanted to waive a jury trial, but counsel insisted on a bench trial, “guaranteeing an acquittal in such proceeding”;
• trial counsel had numerous police reports with inconsistent statements made by Rock and Carey but “flatly refused” to use them at trial for impeachment;
17* trial counsel had no DNA analysis done on the red tennis shoes, which he alleges would have shown that he had not worn them, in refutation of Casey’s testimony that the male robber wore red tennis shoes.

Our law on ineffective assistance of counsel is well settled.

This record is sufficient to reject defendant’s claims of ineffective assistance of counsel. The defendant did not identify any alibi witnesses, did not state what the inconsistent statements in the police reports were, did vindicate on the record that he wanted to waive his right to trial by jury, and admitted being with Rock that day. Further, Casey never testified that the male robber wore red shoes (although she apparently had told Detective Demery that), and even if she had, the absence of his DNA evidence on the shoes would not prove that he was innocent of the crime. This record contains ample evidence by which to sustain a conviction, notwithstanding any of the alleged claims of ineffectiveness.

(3) Admission of Hearsay

Bell’s alleged conversation with the defendant, as testified to by Rock, included defendant’s statement, and therefore was not hearsay because it was his own statement offered against him. La. C.E. art. 801(D)(2)(a). Of course, defendant’s alleged statement, “Well, I ain’t really into that,” isn’t particularly inculpa-tory. To the extent the conversation included Bell’s alleged statement that she knew a place defendant could rob, it might be admissible under La. C.E. art. 801(D)(3)(b) as a statement made by a declarant while participating in a conspiracy to commit a crime and in furtherance of the objective of the conspiracy, provided that a prima facie case of conspiracy is established. More fundamentally, there was no objection by defendant’s trial counsel to Rock’s statements about the conversation. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Jones, 41,299 (La.App.2d Cir.11/9/06), 942 So.2d 1215.

| fl(4) Improper Impeachment of Rock

Although the state did play Rock’s recoi*ded statement, which was inconsistent on several points with her trial testimony, there was no objection by defendant’s trial counsel. Furthermore, La. C.E. art. 607 clearly allows a party to impeach his own witness. One purpose of allowing such impeachment is to prevent a party from being damaged by his or her own witness. State v. Qualls, 40,630 (La.App.2d Cir.1/27/06), 921 So.2d 226. The trial court heard it all, both live and on tape.

(5) Best Evidence

Absent a showing of prejudice, a conviction will not be reversed on the ground that the best evidence was not produced. State v. Bennett, 341 So.2d 847 (La.1976). No prejudice was shown when Rock testified and was cross-examined.

(6) Incomplete Statement

There was no objection by defendant’s trial counsel to the redacted tape played, apparently because the tape makes reference to other crimes of Guilleard.

(7) Inadmissible Confession of Codefen-dant

This assignment of error also lacks merit because there was no objection by trial counsel and because, in the absence of a showing of prejudice, a conviction will not be reversed on the ground that the best evidence was not produced. There was no prejudice where Rock testified and was cross-examined.

110(8) Multibill Irregularities

Once again, there was no objection by trial counsel. Actually, there was nothing on this point to which to object. The trial court’s granting of the defendant’s motion to quash cannot reasonably be read to quash both predicate offenses at issue. Instead, the trial court, in granting the defendant’s motion to quash, obviously quashed only one of the two predicate offenses, on grounds that both had been entered on the same day. In fact, the motion to quash alleged that the two pleas entered on the same day should be counted as one and asked that the state show cause why one of the predicates should not be quashed. This was the clear intent of the trial court. To argue otherwise is disingenuous.

(9) Excessive Sentence

Defendant argues that the trial court intended to sentence him to the minimum sentence, which is probably true. His argument is incorrect that the minimum sentence here would be 33 years.

Under La. R.S. 15:529.1(A)(l)(a), if the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence must be for a determinate term of not less than one-half the longest term and not more than twice the longest term for a first offense.

La. R.S. 14:64(B) provides a sentence of from 10 to 99 years at hard labor, all without benefit of parole, probation, and suspension of sentence. One-half of 99 years is 49½ years-the amount of time ordered by the trial [u court. Furthermore, the sentence in this case actually is illegally lenient, as is discussed hereinafter.

(10) Improper Boykinization in Prior Guilty Pleas

The answer to this assignment of error is found in the provisions of La. R.S. 15:529.1 concerning sentences for second and subsequent offenses. La. R.S. 15:529.1(D)(l)(b) states, in pertinent part, that the presumption of regularity of judgment is sufficient to meet the district attorney’s original burden of proof and that any challenge to a previous conviction which is not made before sentencing may not thereafter be raised to attack the sentence.

(11) Ineffective Appellate Counsel

The defendant lists 10 transcripts allegedly missing and without which he alleges appellate counsel could not know if errors existed. The same 10 items listed also were requested by defendant in a motion to supplement, which we denied.

Defendant has shown nothing in these transcripts that would allegedly help him. Indeed, one of the transcripts — the hearing at which he waived trial by jury— already had been provided. Defendant has not identified any specific acts or omissions to support his claim. This assignment of error lacks merit.

(12) Suggestive Photographic Lineup

Defendant argues that the officer conducting the photo lineup advised Casey that they had arrested a suspect, thus priming her to conclude that the suspect was among the six male photos in the lineup. He also asserts that he was the only person in the lineup with “bug-eyes,” and that the victim had [ ^already stated that the robber had bug-eyes. (He also incorrectly alleges that the other 12 photos were of females.)

Our law on analyzing the suggestiveness of lineups is well settled.

Although Casey indicated that she was shown a “book” of photos from which she picked out Guilleard, a discussion among the trial judge and counsel that occurred immediately after evidence was closed indicates that Guilleard is probably correct in stating that Casey was only shown photos of six male suspects. A perusal of those photos indicates that Guilleard does have eyes that are slightly wider open than the other suspects. Since Casey had told police, prior to the photo lineup, that the male robber had “bug-eyes,” it is arguable that the lineup was suggestive. There is no misidentification, however. Casey had the opportunity to view Guilleard 11sfrom a short distance away at the time of the crime, she had described him as tall and slim with a scarf tied on his head and as having eyes that were “real big,” and she demonstrated a high degree of certainty in her in-court identification of Guilleard. Furthermore, trial counsel did not object to the introduction of the photo lineup.

(13) Insufficiency (Again)

The sufficiency of the evidence has previously been addressed.

(14) Undisclosed “Bribery” of Codefen-dant

The defendant simply complains about the deal Rock got and asserts that “the full extent of the deal was never disclosed at trial.” However, the defendant offers nothing in support of that assertion, Rock testified at trial, and the wording of this assignment of error is essentially another attack upon the sufficiency of the evidence.

(15)Denial of Right to Produce a Defense

This assignment of error is just more argument about ineffective assistance of counsel in the trial court and on appeal. Those matters have been covered previously.

PATENT ERROR

The sentencing transcript shows that the trial court intended to impose “the minimum statutory sentence as a second felony habitual offender!.]” The trial court was illegally lenient in sentencing Guilleard to 49½ years at hard labor, with only the first 15 years to be served without the benefit of probation, parole, or suspension of sentence, and the balance to be served without the benefit of probation or suspension of sentence.

J^There are two problems with this sentence.

First, even if we only were dealing with a second felony offender who had only been convicted of armed robbery, the minimum sentence would have been 49½ years at hard labor, all to be served without benefit of parole, probation, or suspension of sentence. See La. R.S. 14:64 and La. R.S. 15:529.1(A)(l)(a). The court’s language differentiating between the first 15 years and the balance is in error.

Second, La. R.S. 14:64.3 requires, when a firearm is used in the robbery, an additional five years without benefit of probation, parole, or suspension of sentence, to be served consecutively with the base sentence.

We therefore correct the illegally lenient sentence to order that the defendant serve 49½ years at hard labor, all without benefit of probation, parole, and suspension of sentence, to be served consecutively with an additional five-year sentence, without hard labor, all without benefits.

We advise the defendant that he has two years from the finality of this conviction and sentence to apply for post-conviction relief, per La. C. Cr. P. art. 930.8.

DECREE

CONVICTION AFFIRMED; SENTENCE AMENDED, AND, AS AMENDED, AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, DREW and MOORE, JJ.

Rehearing denied.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold,
        603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.
      This Jackson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529. See also, State v. Bowie, 43,374 (La.App.2d Cir.9/24/08), 997 So.2d 36 (same deference applies to bench trial).
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,-032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir. 1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35. This includes the testimony of accomplices. An accomplice is a competent witness to testify against her co-perpetrator even if the prosecution offers her inducements to testify; these inducements weigh on the witness’s credibility. State v. Jetton, 32,893 (La.App.2d Cir.4/5/00), 756 So.2d 1206, writ denied, 00-1568 (La.3/16/01), 787 So.2d 299. The credibility of an accomplice's testimony is not within the province of the court of appeal to decide. Id. Rather, credibility evaluations are within the province of the trier of fact. Id. The fact finder is charged with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

      . As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief ("PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139, writ denied, 07-2190 (La.4/4/08), 978 So.2d 325. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673.
      The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. King, 06-1903 (La.10/16/07), 969 So.2d 1228; State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
      To establish that his attorney was ineffective, the defendant first must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the "counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel's perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel's judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Grant, 41,745 (La.App.2d Cir.4/4/07), 954 So.2d 823, writ denied, 07-1193 (La.12/7/07), 969 So.2d 629; State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991). See also, State v. Tilmon, 38,003 (La.App.2d Cir.4/14/04), 870 So.2d 607, writ denied, 04-2011 (La.12/17/04), 888 So.2d 866.
      Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive die defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123, writ denied, 02-1570 (La.5/30/03), 845 So.2d 1067.

      . A lineup is unduly suggestive if the procedure used focuses attention on the defendant. For example, distinguishing marks on the photos may single out the accused, or suggestiveness can arise if sufficient resemblance of physical characteristics and features does not reasonably test identification. State v. Tucker, 591 So.2d 1208 (La.App. 2d Cir.1991), writ denied, 594 So.2d 1317 (La.1992), citing State v. Robinson, 386 So.2d 1374 (La.1980).
      Photographs used in a lineup are suggestive if they display the defendant so singularly that the witness’s attention is unduly focused on the defendant. State v. Smith, 430 So.2d 31 (La.1983); State v. Tucker, supra. It is not required that each person whose photograph is used in the lineup have the exact physical characteristics as the defendant. What is required is sufficient resemblance to reasonably test identification. State v. Smith, supra; State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12.
      Even if suggestiveness is proven by the defendant, it is the likelihood of misidentification, and not the mere existence of suggestiveness, which violates due process. State v. Williams, 375 So.2d 364 (La.1979); State v. Davis, supra. The likelihood of misidentification violates due process when the totality of the circumstances indicates that misidentifi-cation probably occurred. State v. Brown, 40,769 (La.App.2d Cir.3/08/06), 923 So.2d 976, citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
      When assessing the reliability of an identification, the following factors must be considered: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of his or her prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the length of time between the crime and the confrontation. State v. Kemp, 39,358 (La.App.2d Cir.3/11/05), 896 So.2d 349, writ denied, 05-0937 (La.12/09/05), 916 So.2d 1052.

      . This crime occurred on April 26, 2006, at which time La. R.S. 14:64.3 carried no possibility of hard labor.


source: Caselaw Access Project

author: DECUIR, Judge.

license: Public Domain

text:
    Larry Davie MEAUX, et al. v. HILCORP ENERGY COMPANY, et al.
    No. 09-591.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    Rehearing Denied Jan. 27, 2010.

      Donald W. Price, Kirk A. Guidry, Dué, Price, Guidry, Piedrahita & Andrews, Baton Rouge, LA, for Plaintiffs/Appellants, Larry Davie Meaux, et al.
    J. Isaac Funderburk, Attorney at Law, Abbeville, LA, for Plaintiffs/Appellants, Larry Davie Meaux, et al.
    Kevin R. Rees, Attorney at Law, Abbe-ville, LA, for Plaintiffs/Appellants, Larry Davie Meaux, et al.
    Christopher Hebert, Rabalais, Hanna & Hebert, Lafayette, LA, for Plaintiffs/Appellants, Larry Davie Meaux, et al.
    Charles C. Garrison, Caffery, Oubre, Campbell & Garrison, L.L.P., New Iberia, LA, for Defendant/Appellee, LLOG Exploration Company, L.L.C.
    Loulan J. Pitre, Jr., Aimee W. Hebert, Christopher B. Bailey, Michelle C. Pur-chner, Gordon, Arata, McCollam, Duplan-tis & Eagan, L.L.P., New Orleans, LA, for Defendants/Appellees, Hilcorp Energy Company, Hilcorp Energy I L.P., Hilcorp Partners 1992, Ltd. Tiltex Partners, 97A, Ltd. Union Oil Company of California.
    Thomas R. Juneau, Joshua K. Trahan, Juneau Law Firm, Lafayette, LA, for Defendant/Appellee, Lexington Insurance Company.
    Noel Edward Warren, Jackson & Campbell, P.C., Washington, D.C., for Defendant/Appellee, Lexington Insurance Company.
    Richard Bryan, Jackson & Campbell, P.C., Washington, D.C., for Defendant/Ap-pellee, Lexington Insurance Company.
    George H. Robinson, Jason P. Bergeron, Liskow & Lewis, Lafayette, LA, for Defendant/Appellee, Forest Oil Corporation.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

hln 1944, Davie Meaux, Sr. and his co-owners granted a mineral lease to Union Oil Company of California (Unocal). Some of the lands covered by the lease are now owned by Meaux’s grandchildren (Appellants). Shortly after the lease was granted, Unocal began to develop what is known as Tigre Lagoon oil field. This development involved dredging canals necessary to access drilling sites. Unocal placed gaps in the canal banks to ensure the hydrological integrity of Meaux’s property. Between 1958 and 1963, someone closed these gaps. The landowners contend that Unocal is responsible. Unocal counters that for many years the landowners hunted and fished these canals without complaint. They built levees to keep out poachers and trespassers and to create a “duck pond.” In the duck pond they controlled water levels to create favorable hunting conditions. This active management of the water levels appears to have begun some time prior to 1968. Subsequently, Hurricane Rita damaged the drainage system created by the landowners, flooded a portion of the property known as “Central Impoundment,” “Tract A,” and the “duck pond,” revealing that over time the area had sunk below the level of the surrounding marsh.

In addition, Unocal constructed several unlined pits to hold oil field waste in another area belonging to the landowners. In 1960, Unocal also obtained a Canal Usage Agreement and Salt Water Disposal Agreement. In 1988, Unocal closed the pit in conformity with the Louisiana Department of Natural Resources standards for submerged wetlands as verified by a site inspection conducted by the Department. Due to Unocal’s site remediation, the pit area is approximately one foot higher than the surrounding area which is what brought it to the attention of Appellants. Shortly after completing the remediation, Unocal transferred the field to Hilcorp Energy Company.

[2In 1998, an area of the leased land known as the “fish pond” suffered an unexplained fish kill which Appellants attribute to a nearby pipeline leaking saltwater. Appellants asked Hilcorp to replace the fish and clean up the mess. Hilcorp declined, and this litigation ensued against Hilcorp, and its partners, assigns, and insurer (Forest Oil Corporation, LLOG Exploration Company, LLC., Tiltex Partners, 97A, Ltd., and Lexington Insurance Company). Appellants alleged breach of the Oil, Gas, and Mineral Lease as well as tort claims. Several years later Appellants amended the suit seeking $25,000,000.00 in remediation damages for alleged contamination of the “duck pond” and “pit” areas.

After a trial on the merits, the jury found that there was no environmental damage to Appellants’ property attributable to the defendants. The trial judge accepted the jury’s verdict and signed a judgment dismissing all of Appellants’ claims with prejudice. Appellants lodged this appeal.

2006 LA. ACT 312 STANDARD OF REVIEW

Appellants rely on Louisiana Revised Statutes 30:29 C(6)(b), which is part of 2006 La. Act 312, to support their contention that this matter should be reviewed de novo. This reliance is misplaced.

La. R.S. 30:29 G provides:

G. The provisions of this Section are intended to ensure evaluation or remediation of environmental damage. If the court finds that no environmental damage exists, the court may dismiss the department or attorney general from the litigation without prejudice.

Thus, it is clear from the statute that absent a finding of environmental damage, Act 312 does not apply. Act 312 does not address the standard by which the determination of the finder of fact is reviewed. Whether environmental damage exists in a particular case is a question of fact. Questions of fact are reviewed by the ^appellate court under the manifest error standard of review. Bellard v. American Cent. Ins. Co., 07-1335 (La.4/18/08), 980 So.2d 654.

The provision cited by Appellants is found in the part of Act 812 addressing the environmental remediation plan developed after a “finder of fact determines that environmental damage exists.” La. R.S. 30:29 C(l).

La. R.S. 30:29 C(6) provides in pertinent part:

(a) Any judgment adopting a plan of evaluation or remediation pursuant to this Section and ordering the party or parties admitting responsibility or the party or parties found legally responsible by the court to deposit funds for the implementation thereof into the registry of the court pursuant to this Section shall be considered a final judgment pursuant to the Code of Civil Procedure Article 2081 et seq., for purposes of appeal.
(b) Any appeal under this Section shall be a de novo review and shall be heard with preference and on an expedited basis.

If the finder of fact finds no environmental damage exists, the Act 312 remediation procedure is not triggered. See M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La.7/1/08), 998 So.2d 16. Only judgments under Act 312 are subject to de novo review.

Accordingly, the jury’s finding that there was no environmental damage must be reviewed under the more deferential manifest error standard.

ENVIRONMENTAL DAMAGE

The jury in this matter found that no “environmental damage” exists on the property. What constitutes “environmental damage” under Act 312 is a res nova issue. Act 312 provides:

A. The legislature hereby finds and declares that Article IX, Section 1 of the Constitution of Louisiana mandates that the natural resources and the environment of the state, including ground water, are to be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people and further mandates that the legislature enact laws to implement this policy. It is the duty of the legislature to set forth procedures to ensure that damage 14to the environment is remediated to a standard that protects the public interest.

La. R.S. 30:29 1(1).

“Environmental damage” is defined by the Act as:

... any actual or potential impact, damage, or injury to environmental media caused by contamination resulting from activities associated with oilfield sites or exploration and production sites. Environmental media shall include but not be limited to soil, surface water, ground water, or sediment.

Id.

Accordingly, to fall within Act 312, “environmental damage” must pose some risk to the health, safety, or welfare of the people of the state or be damaging to the public interest.

In this case, the jury found that there was no environmental damage to Appellants’ property. Defendants’ experts testified that there was nothing unreasonable or excessive about how the pit was used in this case and that the pit area was a submerged wetland. The experts also testified that Unocal’s pit closure was reasonable and consistent with the DNR’s regulations and the DNR approved the pit closure.

The only evidence submitted by Appellants relating to the fish pond is that there was a fish kill and that there was a nearby pipeline that was leaking salt water. Appellants’ own witness testified that there was an earlier fish kill at that same site resulting from natural causes. Appellants’ witness further conceded that the pipeline was repaired and has since been removed.

Appellants had no evidence tending to show that the “duck pond” suffered “environmental damage.” Appellants presented no evidence that any contaminants threaten the health, safety or welfare of the public. Rather, the focus of their | ^evidence was on the damage to the marsh caused by the constriction of tidal influx and the impoundment of water which, according to Appellants’ experts, allegedly damaged the marsh. The defendants presented an alternative view of the status of the “duck pond,” which apparently was accepted by the jury. The defendants offered expert testimony comparing the property with neighboring property with similar drainage but with healthy marsh. The only real factor separating Appellants’ property from that of its neighbors was the water control program implemented by Appellants themselves.

In light of the foregoing, we find no manifest error in the jury’s determination that there was no environmental damage to Appellants’ property.

INCONSISTENT VERDICT

By these assignments, Appellants contend the trial court erred in entering judgment based on the jury’s allegedly inconsistent verdict and in failing to grant their motion for Judgment Notwithstanding the Verdict or Motion for New Trial.

Reviewing a JNOV on appeal is a two-step process. Martin v. Heritage Manor S., 00-1023 (La.4/3/01), 784 So.2d 627. First, the appellate court must determine whether the trial court’s grant or denial of a JNOV was proper using the same criteria as the trial judge in ruling on the motion. Id. A motion for JNOV should only have been granted if the facts and inferences from the case point so strongly and overwhelmingly in favor of the moving party that no reasonable person could arrive at the jury’s verdict. Egle v. Egle, 06-1550 (La.App. 3 Cir. 6/27/07), 963 So.2d 454, writ denied, 07-1596 (La.10/26/07), 966 So.2d 579. After determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard. Martin, 784 |fiSo.2d at 627. The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion. Id. at 632.

Appellants also contend that there are inconsistencies in the jury verdict requiring that it be set aside and the case reviewed de novo. “[A] reviewing court must exercise great restraint before disregarding a jury verdict and turning to de novo review,” Adams v. Rhodia, Inc., 07-2110 (La.5/21/08), 983 So.2d 798, 805.

The jury verdict form was divided into sections dealing with the various causes of action. The first section dealt with Act 312 issues and the jury clearly found that there was no environmental damage. There is no inconsistency in the jury’s verdict with respect to that issue and we have found that there was no manifest error in the jury’s determination. Likewise, we find no error or abuse of discretion in the trial court’s denial of Appellants’ motions for JNOV and New Trial.

The jury form next addresses the contract claims asserted by Appellants. The jury found that no defendant exercised its rights under the “Oil, Gas, and Mineral Lease” in an unreasonable or excessive way causing damage to Appellants’ property. Again, there is no inconsistency in the jury’s response. We find no error or abuse of discretion in the trial court’s denial of Appellants’ motions for JNOV and New Trial.

The jury form next addresses the tort claims asserted by Appellants. Here the jury found that the defendants acted negligently but that their negligence was not the legal cause of Appellants’ alleged damages. Appellants argue that this is inconsistent with the jury’s response to the next sections of the jury form allocating fault and making findings regarding “the amount of money necessary” to bring Appellants’ property back to its original condition. We disagree.

|7In support of their position Appellants cite Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742. Ferrell is distinguishable.

The Femll verdict resulted in a situation where a negligent defendant was not assessed any percentage of fault, while another party who was determined to have been negligent, but not a proximate or legal cause of the accident, was apportioned with thirty percent of the fault. This is the inconsistency that interdicted the fact finding process in Ferrell.

It is clearly a different issue in this case. Here, the jury concluded repeatedly with respect to Act 312, tort, and contract claims that none of the defendants were the legal cause of any defect in Appellants’ property. The jury also concluded that Appellants had knowledge of possible damage to their property at a date that would preclude recovery. The jury then completed the jury form filling in allocations of fault and damages. These sections of the form instructed the jury to complete the section if they had answered yes to “any” of a series of numbered sets of two questions. The jury answered yes to one of the questions in the set of questions on negligence but no to the legal cause question. Thus, the jury was not required to answer the questions on allocation of fault and damages because they found that the defendants were not the legal cause of Appellants’ alleged damages. By answering these questions, the jury created no inconsistency with its determination that the defendants were not the legal cause of the alleged damage to the property. It is apparent from reviewing the form that it was confusing and led the jury to complete portions of the form that their other answers did not require. The additional answers were not required, but did not undermine the validity of the judgment. The answer of the jury that the Defendants were not the legal cause of Appellants’ damages | ^required that judgment be entered in favor of the defendants. There is no inconsistency in the jury’s answers on the verdict form-La.Code Civ.P. art. 1812(C)(1) recognizes that “fault” may exist even if such fault was not the legal cause of damages. Accordingly, the trial court did riot err in entering judgment, or denying the motions for JNOV and New Trial.

As noted by Appellants, this issue is dispositive and our finding renders the remaining assignments of error moot.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to Appellants.

AFFIRMED.


author: WILLIAMS, J.

text:
    AMETHYST CONSTRUCTION, INC., Plaintiff-Appellant, v. J.S. RUGG CONSTRUCTION, INC. and Ohio Casualty Insurance Company, Defendant-Appellee.
    No. 44,850-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.

      G. Larry Arbour, for Appellant.
    Thomas M. Hayes, III, Monroe, for Ap-pellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   WILLIAMS, J.

liThe plaintiff, Amethyst Construction, Inc., appeals a judgment in favor of the defendants, J.S. Rugg Construction, Inc. and Ohio Casualty Insurance Company. The trial court found that defendants were entitled to deduct from the final payment the increased cost of hiring another company to complete the job after plaintiff had left the job site. For the following reasons, we reverse and render.

FACTS

In March 2007, the general contractor for a church construction project, J.S. Rugg Construction, Inc. (“Rugg”), accepted the bid of Amethyst Construction, Inc. (“Amethyst”) for installation of an asphalt parking lot. Initially, Rugg presented a “Project Work Schedule” providing that Amethyst would install the soil cement base on July 23-25, 2007 and pei’form asphalt paving on August 9-10, 2007. However, construction was delayed over time and Rugg was not ready for Amethyst to begin work according to the original schedule.

At the end of October 2007, Rugg contacted Amethyst and said that the parking lot was ready for the soil cement. Prior to starting work, Amethyst’s asphalt superintendent, Ben Holdman, visited the job site and determined that the grading work, which had been done by another company, did not provide proper drainage and that additional work was needed. Holdman did not immediately inform Rugg about this problem. On November 12, 2007, Rugg sent a “schedule update” stating its understanding that Amethyst was to have begun work on November 1, 2007. Holdman then informed Rugg about the problem with the grade of |2the lot and the parties agreed that Amethyst would correct the grade.

On November 20, 2007, when the grading work began, Amethyst workers found chunks of cement and other debris under the soil that needed to be removed before applying the soil cement. Following removal of the debris, Amethyst completed the application of soil cement on Tuesday, December 11, 2007. Because soil cement must cure for at least 72 hours before applying asphalt, the first business day on which asphalt could have been poured was Monday, December 17, 2007. However, Amethyst had committed to start another asphalt job on that date and did not go to the church site. Rugg’s principal, Steve Rugg, contacted Holdman, who said that Amethyst would not be able to do the work that week and would be closed the next two weeks for the holidays. Holdman stated that the church parking lot would be Amethyst’s first job after the new year began.

On Wednesday morning, January 2, 2008, Steve Rugg did not see an Amethyst crew at the job site and had not heard from Holdman. Steve Rugg then faxed a note to Amethyst stating:

Please consider this letter as your notice of cancellation of our agreement on the above project effective at 3:00 p.m., Friday, January 4, 2008. If you have not completed all work by this time, I will make arrangements with another asphalt company to come in and complete this project.
You were notified back in October that we were ready for you to start this project. You ignored me for two weeks and when you finally did get on site, you have been playing with the project and most recently have not shown up for the last three weeks. When I called you on the phone a week ago, you said there is no way that you would come back to work until after the 1st of the year, but when you did, I am the first on your list. Well, that day is today and there is no sign of you or anyone else that works for you. Hope you have had fun deer hunting for the last month.

|3After receiving the fax, William Hold-man checked the weather forecast and saw that the temperatures would be too cold to pour asphalt on January 2 and 3, 2008. Under DOTD specifications, the ambient temperature must be at least 50 degrees Fahrenheit (F) for pouring an asphalt surface. Since the church parking lot was a two-day job, Ben Holdman told Rugg that Anethyst would not be able to meet the deadline. Amethyst later removed its equipment from the job site.

Anethyst sent Rugg an invoice in the amount of $69,249.75 for the work which had been performed. Rugg paid Amethyst $56,945.25 after deducting $10,804.50, the additional amount paid to another contractor to complete the job, and the amount of $1,500 for the repair of a column and sidewalk allegedly damaged by Amethyst employees. Amethyst then filed a lien in the amount of $12,304.50, for which Rugg obtained a bond through Ohio Casualty Insurance Company (“Ohio Casualty”). The plaintiff, Amethyst, filed a petition for damages against defendants, Rugg and its insurer, Ohio Casualty, seeking to collect the full amount of the invoice.

After a trial, the court issued oral reasons for judgment, finding that because Rugg had attempted to make arrangements for completion of the job after faxing the notice, the plaintiffs interpretation of Rugg’s letter as a cancellation of the contract was not reasonable. The court rendered judgment awarding Amethyst $150, but dismissed all other claims against Rugg. Plaintiff appeals the judgment.

DISCUSSION

The plaintiff contends the trial court erred in finding that Amethyst |.(Unreasonably terminated the contract. Plaintiff argues that Anethyst was entitled to full payment because Rugg cancelled the contract by failing to allow a reasonable time for performance under the circumstances.

When the obligor fails to perform, the obligee has a right to the judicial dissolution of the contract, or according to the circumstances, to regard the contract as dissolved. In either case, the obligee may recover damages. LSA-C.C. art. 2013. Upon a party’s failure to perform, the other may serve a notice to perform, with a warning that unless performance is completed within a certain period of time, the contract shall be deemed dissolved. The time allowed for performance must be reasonable under the circumstances. LSA-C.C. art. 2015.

The trial court’s findings of fact are subject to the manifest error standard of review. The appellate court must determine whether the trial court’s conclusion is reasonable based upon the record as a whole. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566.

In the present case, James Steven Rugg testified that he was a principal of Rugg Construction, Inc. and had worked as a general contractor for 30 years. Rugg stated that although he had originally scheduled plaintiff to apply the soil cement in July 2007 and pour asphalt in August 2007, the job was approximately three months behind schedule and the site was not ready for plaintiff at that time. Rugg testified that in late October 2007, he told Ben Holdman that the site was ready for soil cement. Rugg stated that he was later informed by Holdman of the problems concerning the grade of the parking lot and the debris under the soil. Rugg testified that on [.¿December 17, 2007, he called Holdman to ask about the job and was told that Amethyst would not be able to work at the church site that week and would be closed the last two weeks of the year for employee vacation. However, Holdman said that the church site would be the first job done after the start of the new year. Rugg testified that when he did not see the Amethyst crew at the site on January 2, 2008, he faxed the notice of cancellation to Holdman. Rugg stated that he was aware that there needed to be a minimum air temperature when pouring asphalt, but that he had not checked the weather forecast for the projected high temperature for that day or the next before sending the notice to Amethyst. Rugg acknowledged that he would not want asphalt poured with a high temperature of 40 degrees (F).

Benjamin Holdman, a civil engineer, testified that he was the asphalt superintendent for Amethyst, which was originally scheduled to pour soil cement and asphalt in July and August 2007, but the site was not ready. Holdman stated that after delays caused by the improper grade of the lot and the presence of debris under the soil, Amethyst finished the soil cement work on December 11, 2007. He testified that Amethyst was ready to begin pouring asphalt on January 2, 2008, but the forecast high temperature of 40 degrees (F) was too cold. Holdman explained that the DOTD standards provided that asphalt shall not be applied when the ambient temperature is below 50 degrees (F) for a wearing course, which is the surface of the asphalt. Holdman testified that when Amethyst received Rugg’s fax dated January 2, 2008, stating that the contract was can-celled unless the asphalt work was completed by January 4, 2008, the forecast high temperature of 37 ^degrees (F) for January 3, 2008 was also too cold and would prevent pouring asphalt. Holdman stated that because Amethyst would not be able to complete the two-day job by the imposed deadline, he advised Steve Rugg to get another company to finish the project.

William Holdman, a civil engineer and president of Amethyst, testified that the architect’s plans for the church lot referenced the use of DOTD specifications for the job. Holdman stated that the DOTD standard for pouring an asphalt wearing course was 50 degrees (F) and rising. He testified that during the week of December 17, 2007, Amethyst did asphalt jobs in West Monroe and Ruston because of previous commitments to those projects, which were on schedule. In addition, Holdman explained that those locations were closer to the Amethyst plant and because of the cold temperatures, he needed to consider not only the pouring of the asphalt, but also the ability to maintain the temperature of the asphalt mix given the required hauling time to the site. Holdman testified that if the asphalt temperature was too low when it arrived at the site, then the density would be wrong and the product would be inferior. Holdman stated that after receipt of the fax dated January 2, 2008, he saw that the forecast high temperature was 37 degrees for January 3, 2008, thus, leaving only one day in which to finish a two-day job. Holdman testified that Rugg’s January 4, 2008 deadline was impossible to meet considering the weather conditions.

Pursuant to Article 2015, a party’s notice to perform within a certain time must allow the other party a reasonable time for such performance according to the circumstances. The record shows that the original project 17work schedule provided a period of two days for plaintiff to perform the asphalt paving job. In his testimony, Steve Rugg acknowledged that although he was aware of the temperature restrictions in pouring asphalt, he did not check the forecast temperatures for January 2-3, 2008 before faxing to Amethyst the notice of cancellation imposing the January 4th deadline for completion of work. Such a disregard for the circumstances is a factor in weighing the reasonableness of Rugg’s notice.

In its appellate brief, Rugg asserts that plaintiff was at fault for leaving the job without waiting to see if the weather forecast would prove to be accurate. Contrary to Rugg’s assertion, the testimony indicated that the plaintiff could not reasonably be expected to haul asphalt to the church site with temperatures in the 30’s and then wait for a number of hours, hoping that the temperature might rise to 50 degrees and the asphalt would not cool so as to be unusable. The plaintiff necessarily responded to Rugg’s fax on the basis of the weather information which was available at the time.

Based upon our review of the record and the applicable law, we must conclude that the trial court erred in focusing on plaintiffs interpretation of the cancellation notice and in failing to address the actual issue of whether Rugg’s notice allowed plaintiff a reasonable time in which to perform under the existing circumstances. The evidence presented demonstrates that the high temperatures forecast for January 2-3, 2008 were too cold for plaintiff to begin its performance of the asphalt paving work on those days. Thus, Rugg’s notice of cancellation, requiring completion of work by 3:00 p.m. on January 4, 2008, gave the plaintiff only one day to finish the asphalt paving |¿job, which both parties agreed would have required two days to complete. Consequently, the restrictive deadline imposed by Rugg cannot be considered to have provided a reasonable time for plaintiffs performance according to the circumstances that existed.

Therefore, Rugg’s notice faded to comply with the statute and the plaintiff is not liable for the additional cost to Rugg in completing the parking lot. Accordingly, we shall reverse the trial court’s judgment dismissing the plaintiffs claim for full payment for the work performed.

The plaintiff also contends the trial court erred in awarding Rugg $1,000 for repair work that had not yet been performed. At trial, John Rugg testified that he observed Amethyst equipment ride over a sidewalk and cause the damage shown in photographs introduced into evi dence. Steve Rugg estimated that the materials and labor required to repair the sidewalk would cost $1,000. Plaintiff did not present evidence to contradict Rugg’s cost estimate. Based on this record, we cannot say the trial court erred in finding that the sidewalk repair would cost $1,000. Thus, we shall render judgment in favor of plaintiff for the balance due of $12,304.50, with a deduction of $1,350 for repair costs.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is reversed and the parties shall bear' their own costs in the district court. Judgment is hereby rendered in favor of the plaintiff, Amethyst Construction, Inc., in the amount of $10,954.50, with legal interest from the date of judicial demand until paid. Costs of this appeal are assessed to the defendants, J.S. Rugg 1 ^Construction, Inc. and Ohio Casualty Insurance Company.

REVERSED AND RENDERED.


author: PAINTER, Judge.

text:
    CUNARD LINE LIMITED CO. v. DATREX, INC., et al.
    No. 09-656.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.

      James E. Moore, Jr., Baton Rouge, LA, for Third Party Defendants-Appellants, Twin City Fire Insurance Company and The Hartford.
    Davis B. Allgood, Christopher D. Martin, Baton Rouge, LA, for Defendant-Third Party Plaintiff-Appellee, Datrex, Inc.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| [Third-Party Defendants, Twin City Fire Insurance Company and The Hartford (the insurers), appeal the judgment of the trial court which found that they had a duty to defend their insured, Datrex, Inc. (Datrex), against a claim by Cunard Line Limited Co. (Cunard) and assessing defense costs, attorney’s fees and penalties.

FACTS

The underlying facts of the case are not in dispute.

Cunard bought a Low Level Lighting System from Datrex which was received and installed in 1997. In March 2002, Cunard sued Datrex alleging that the system did not perform up to Coast Guard standards. Datrex presented the insurers with the petition and a demand for coverage in April 2002. The insurers denied coverage. Datrex filed a third party demand against the insurers. In October 2003, the trial court entered a partial summary judgment finding that the insurers had a duty to defend Datrex against Cunard’s suit. Cunard’s claims against Da-trex were dismissed in December 2004 on an exception of prescription. A motion for summary judgment filed by the insurers concerning the defense costs was heard and denied on the same date. In October 2006, the insurers issued a check to Datrex for $76,019.36, for defense costs.

In March 2009, the trial court issued a final judgment finding the insurers liable for the cost of defending the suit, penalties, and attorney’s fees. The insurers appeal.

DISCUSSION

Duty to Defend

The insurers assert several assignments of error with regard to the trial court’s finding that they owed a duty to defend.

|aThe law regarding an insurer’s duty to defend is well settled.

The insurer’s duty to defend suits brought against its insured is determined by the allegations of the plaintiffs petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Meloy v. Conoco, Inc., 504 So.2d 833, 838 (La.1987); American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969); Leon Lowe & Sons, Inc. v. Great American Surplus Lines Ins. Co., 572 So.2d 206 (La.App. 1st Cir.1990); Benoit v. Fuselier, 195 So.2d 679 (La.App. 3d Cir.1967). Accordingly, the insurer’s obligation to defend suits against its insured is generally broader than its obligation to provide coverage for damage claims. Czarniecki, supra 230 So.2d at 259. Thus, if, assuming all of the allegations of the petition to be true, there would be both coverage under the policy and liability of the insured to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Id. An [insurer’s] duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. Meloy, supra.

Steptore v. Masco Constr. Co., 93-2064, pp. 8-9 (La.8/18/94), 643 So.2d 1213, 1218.

The insurers assert that their policy clearly excludes coverage of the claims made by Cunard. They point to the following policy provisions:

2. Exclusions
This policy does not apply to:
j. (6) That particular part of any property that must be restored, repaired, or replaced because “your work” was incorrectly performed on it.

Paragraph (6) of this exclusion does not apply to “property damage” included in the “products-completed operations hazard.”

k. Damage to Your Product “Property damage” to ‘Tom* product” arising out of it or any part of it.
l. Damage to Your Work
| (¡“Property damage” to “your work” arising out of it or any part of it and included in the “products-completed operations hazard.”
This exclusion does not apply if the damaged work of the work out of which the damage arises was performed on your behalf by a sub-contractor.
m. Loss of Use of Property Not Physically Injured
Loss of use of tangible property which has not been physically injured or destroyed, resulting from:
(1) A delay in or lack of performance by you or on your behalf of any contract or agreement;
(2) The failure of “your product” or “your work” to meet the level of performance, quality, fitness or durability warranted or represented by you or on your behalf.
This exclusion does not apply to loss of use of other tangible property resulting from the sudden and accidental physical injury to or destruction of: (1) “Your product,” or
(2) “Your work;”
after such product or work has been put to its intended use.

The trial court, in oral reasons for judgment given in connection -with its October 1, 2003 ruling that the insurers had a duty to defend Datrex, correctly summarized the provisions of the insurance policy and the allegations of Cunard’s petition:

Louisiana Courts have recognized that general liability insurance policies containing work product exclusion clauses do not insure any obligation of the policy holder to repair or replace his own defective work or product. In other words, liability policies are not performance bonds. In this case, we’re dealing with the Commercial Liability Policy, Section One which entitled Coverages states that we will pay on behalf of the insured all sums that the insured shall become legally obligated to pay as damages because of property damage to which this policy applies. We’ll have the right needed to defend any claim or suit seeking |4those damages. I carefully looked at Section Two which contains the exclusions. The Court carefully read Exclusion J, damage to properties specifically Five and Six; Section K which is damage to your product; Section L which is damage to your work; Section M specifically Two and where the exclusion does not apply; Section N, withdrawal or recall of the product, work or property. I also looked at definitions of occurrence, product completed operations hazard, specifically C and sub-Section C-Three under C Twenty-three which is property damage and Twenty-eight which defines your work. It’s undisputed that the insurance provided commercial liability coverage to Datrex during the period in which Cunard is claiming injury. The insurance policies cover property damage. The Court must first decide if there was property damage to Cunard. Property damage is defined in the policy as physical injury to tangible property including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it or loss of use of tangible property that it is not physically injured. All such loss of use shall be deemed to occur at the time of the occurrence that caused it. Based upon the definition and the allegations in the petition, the Court finds that if Cunard meets its evidentiary burden there would be property damage. The next inquiry by the Court is whether or not any of the exclusions apply to the property damage allowed — alleged to have been suffered by Cunard. The Court agrees with Datrex in that exclusion J Five does not apply. The Court agrees that real property referred to in the exclusion is land and its improvements[,] and Cunard is not claiming to claim any damage for land or buildings as a result of the work or product of Datrex or it’s subcontractors. Likewise, J Six doesn’t apply because it specifically excepts liability from products completed operations hazard. Cunard does allege ongoing damages[,] and even without that exclusion Cunard is alleging other consequential and incidental damages caused not only by defective work by also by defective product. And even though you have interrogatories there they still have not been answered to specify what those might be. Exclusion M Two, which I think is the meat of the matter[,] as argued orally today doesn’t apply to the consequential or incidental damages claimed by Cunard, some of which they say are ongoing. The product was installed and in use according to Cunard’s petition when Cunard began experiencing problems in the system. Accordingly the product or work had been put to it’s intended use. Had it not they couldn’t have said, oh we’ve got problems with it. After put to its intended use the failure of the product must also be sudden and accidental physical injury to or destruction of your product or your work to avoid the M Two exclusion. In Webster’s II New College Dictionary the general meaning of the word accident is an unexpected and undesirable event or something that occurs unexpectedly or unintentionally. The Court accepts this definition as the prevailing meaning of the word. So based upon the petition, the Court believes that the problems on the ships were unexpected and undesirable and did cause a loss of use of the ships after the product was put to its intended Luse. The word accident is also found in the definition of occurrence. The Court finds that the property damage caused by the defective work and/or defective products is an occurrence or accident which triggers coverage under the terms of the insurance policies. Additionally, Cunard alleges consequential and incidental damages. If these damages include physical injury to the ships and the repair and/or replacement of the LLL systems then the exclusion found in paragraph M Two would not be applicable to them. The policies also contain the works products exclusion, that’s in K and L. The policy does not cover defective work or defective products. However, the policy does include separate coverage for products, completed operations hazard with aggregate limits of two million dollars. Aside from this definition in Section 5 of the policy, there’s little reference to the coverage in the exclusion section except under paragraphs J Six and L, damage to work. The exclusion contained in paragraph L excludes property damage to (inaudible) work if it arises out of your work and is included in the products completed operations hazard section. However, the clause goes on to say that the exclusion does not apply to damage work or the work out of which the damage arises performed on your behalf by a subcontractor. Based on the affidavits in this case all the work as well as the manufacture of the products that was performed by subcontractors for Datrex. Furthermore, if there was damage to the ship itself resulting from the repair of the defective product or work even though the damage to the product might be excluded under the work product exclusion the damage to the ship would not since it is not part of the product. Other than it’s definition and paragraphs J six and L, there’s no unambiguous provision addressing what the products operation completed operations coverage as found in the declarations page encompasses. So the Court finds that Datrex has met its burden in showing that taken as a whole the policy does not unambiguously exclude coverage in light of the allegations contained in the pleadings. So the undisputed facts there exists reasonable interpretations of the policy under which coverage for Cunard’s claims may be found so the Motion for Partial Summary Judgment by Twin City and Hartford is denied. Now turning to the Motion to defend it’s suit brought against the insured the duty to defend is determined by the allegations contained in plaintiffs petition. The insurer is obligated to provide a defense unless the petition is unambiguously excluded — excludes coverage. The insurer contractually agreed to provide a legal defense for liability claims against the insured within the scope of the policy. In the case at hand the Court finds coverage. Consequently, insurers have a duty to provide a defense.

After reviewing the petition and the policy, we agree that the policy does not unambiguously exclude coverage for the damages alleged in the petition. liiAccordingly, we find no error in the trial court’s conclusion that the insurers owed Datrex a defense.

The insurers further assert that after the original demand by Cunard against Datrex was dismissed, its motion for summary judgment heard the same day, December 1, 2004, should have been granted, retroactively relieving them of the duty to defend. The insurers’ duty to defend had already been established in October 2003. Additionally:

“The only evidence that can be considered in a duty to defend claim is the petition and the policy.” Richard v. Metro Bingo of Lafayette, Inc., 05-293, p. 8 (La.App. 3 Cir. 3/29/06), 926 So.2d 83, 88 (citing American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969)).

Tabor v. Anco Insulations, Inc., 08-694, p. 5 (La.App. 3 Cir. 12/10/08), 999 So.2d 258, 262, writs denied, 09-82 and 09-145 (La.4/3/09), 6 So.3d 769, 770. The insurers seek a result which would relieve them of the duty to defend depending on the outcome of the case. However, it is well settled that: “the insurer must defend the insured regardless of the outcome of the suit.” Id. at 262-63. Accordingly, the insurers’ motion for summary judgment heard December 1, 2004, was properly denied.

Amount of Defense Costs

The insurer’s dispute the amount of the award of defense costs, asserting that the bills were unreasonable, duplicative, and that much of the expense could have been avoided by an earlier assertion of the exception of prescription which ultimately resulted in dismissal of Cunard’s claim against Datrex. The insurers further argue that the trial court erred in denying them discovery of matters which could have shown that the fees were unreasonable/unwarranted.

17The insurers sought to discover matters concerning specific items on the bill, apparently in an attempt to show that the charges were unreasonable and that Da-trex’s attorneys had the knowledge to terminate the matter on the grounds of prescription at a much earlier date than was done. Datrex moved for a protective order arguing that the material sought was work product and/or subject to the attorney-client privilege. The trial court granted the motion for a protective order. The insurers argued that, since the matter was terminated }when the heai'ing was held, February 6, 2008, the work-product privilege was no longer a bar to discovery. However, they have not pursued this argument on appeal.

Further, they fail to cite any jurisprudence or statutory law which would allow them to discover another party’s work product, and we have found no such authority. Accordingly, we find no merit in this assignment of error.

As to the amount of the costs of defense, this court has found:

An appellate court cannot overturn or reverse a trial court’s setting of attorney fees unless the appellate court finds that the trial court abused the discretion afforded by the RPC, the Louisiana Constitution, and Louisiana jurisprudence. See RPC 1.5; Leenerts Farms, Inc.,[ v. Rogers, 82-0070 (La.10/18/82)] 421 So.2d 216, and Chittenden[ v. State Farm Mut. Auto. Ins. Co., 00-0414 (La.5/15/01)], 788 So.2d 1140. “The amount of reasonable attorney fees to be allowed is at the discretion of the trial court. Teche Bank and Trust Co. v. Willis, 93-732 (La.App. 3 Cir. 2/2/94); 631 So.2d 644.” Albert K. Newlin, Inc. v. Morris, 00-1564, pp. 6-7 (La.App. 3 Cir. 2/28/01), 782 So.2d 1116, 1120, writ denied, 01-875 (La.5/25/01), 793 So.2d 164.

Gold, Weems, Bruser, Sues & Rundell v. Granger, 06-859, pp. 6-7 (La.App. 3 Cir. 12/29/06), 947 So.2d 835, 841, writ denied, 07-421 (La.4/27/07), 955 So.2d 687.

With regard to the attorneys fees, the trial court, after finding that the insurers had a duty defend, stated:

Since the insurers denied Datrex that defense a conflict was created and it was necessary for Datrex to employ it’s own independent counsel. The insurers are liable for attorney fees incurred by Da-trex in the defense of [Kthe suit. However, Datrex is not given carte blanche. The insurers are only liable for reasonable costs of defense. If there is a conflict as to what those costs — which costs are reasonable, the Court will make it’s determination on an issue by issue basis after contradictory hearing. Billings to the insurers should be itemized as far as possible. So Datrex[’s] Motion for Summary Judgment is granted and Datrex is entitled to control its own defense through counsel of its choice and receive reimbursement from Twin City and Hartford for the reasonable costs of defending the lawsuit including reasonable attorney fees.

The insurers attempted to have a cap set on the hourly fee charged by the attorneys defending Datrex. The trial court refused to do so but stated that it would be willing to hold contradictory hearings to review the bills submitted to consider whether particular items charged on the bill were excessive. However, the insurers did not ask for a hearing on the amount of the bills as they were submitted but continued to ask, via motion for summary judgment, for a cap on the hourly rate.

After reviewing the record herein in its entirety, we find no abuse of discretion in the trial court’s determination that the amounts charged for defense of the claim against Datrex were reasonable or in the amount of the defense costs for which the insurers were cast in judgment.

Interest on Defense Costs

The insurers further assert that the trial court erred in awarding interest from date of demand on the award of defense costs. The insurers argue that these are attorney’s fees and, as such, interest must run from date of judgment. However, the award of defense costs is in the nature of damages. Lestelle v. Asbestos Claims Mgmt. Corp., 07-1010 (La.App. 4 Cir. 10/22/08), 998 So.2d 149, writ denied, 08-2775 (La.1/30/09), 999 So.2d 764; Wainwright v. Moreno’s, Inc., 602 So.2d 734, (La.App. 3 Cir.1992). As a result, the trial court correctly awarded interest from date of demand.

13Penalties and Attorney’s Fees

Finally, the insurers assert that the trial court erred in finding that they arbitrarily and capriciously failed to pay the costs of Datrex’s defense and in awarding penalties and attorney’s fees on that basis.

The trial court made the following findings with regard to the insurers’ failure to pay defense costs after being ordered to do so:

On March 6, 2003, Datrex amended its third party demand to pray for penalties and attorney’s fees and costs associated with arbitrarily and capriciously refusing to provide a defense against the Cunard suit. The insurers’ answer to the amended claim included this statement, “Respondents do not admit that Datrex is legally entitled to a defense under the circumstances of this case.” They did state in that answer that they had timely offered to underwrite Da-trex’s defense by counsel of its own choosing subject to limitations of hourly rate and firm representations. That was in their answer. On May 2, 2002, as the correspondence verifies, and Mr. All-good pointed out, from the insurers to Datrex’s attorneys, the insurers denied coverage, defense and indemnification under their policies. On June 26, 2003, the insurers filed a motion for partial summary judgment wanting to be dismissed with prejudice on the basis of no coverage. After filing their motion, Mr. Moore, in correspondence to Mr. All-good, indicated that he had recommended to the insurers that they provide an “unconditional defense pending a determination by the Court of its obligations.” However, the Court does not find that they did so. On September 9, 2003, Datrex filed a motion for partial summary judgment on the duty to defend. The Court on October 1, denied the insurers’ motion but granted Da-trex’s motion stating not only did the insurers have a duty to defend but that Datrex was in control of its defense and could hire independent counsel because of the inherent conflict of denial of coverage under the insurance policy yet still having that duty to defend. At this point, all of the fact finding and law concerning duty to defend and penalties for failure to do so should have been collected and researched by Datrex. An invoice of billing was sent to insurers on November 21, 2003[,] by Datrex, with a demand for unconditional payment within thirty day under 22:658 of the amounts not in dispute. No payment of any kind was made. A second amendment to the third party demand was filed on August 30, 2007[,] again alleging that insurers were arbitrary and capricious in failing to pay defense costs. A second formal request for payment of attorney fees with updated invoices was sent by Datrex to insurers on September 8, 2006. Finally on October 18, 2006, three years following the Court’s October 1, 2003 ruling, the insurers sent a check to Datrex in the amount of $79,019.36. 11(During this three year period the insurers continued to file motions concerning coverage and hourly fee caps for defense counsel, all of which were denied. Even after the Court stated that it would not set an hourly cap on fees, the insurers still questioned reasonableness of the work performed and duplication of fees by the two firms representing Datrex. The Court issued a protective order to Datrex of its work product which may have in someway hamstrung insurers to some extent in their determination of what portions of the invoice they believed were not reasonable. However, even with that the Court finds that the tender of $79,019.36 was both conditional and unreasonable under the circumstances. And, in fact, on August 27, 2008, the Court awarded attorney fees to Datrex for the defense costs against Cunard’s claims in the amount of $219,580.74. The Court finds that the acts of the insurers were arbitrary and capricious in that they failed to remit payment of attorney fees without probable cause and therefore fall under the provisions of 22:658. The Court has taken into consideration that this statute as well as 22:1220, is punitive in nature and is to be strictly construed. 22:658 has been found applicable by the courts for failures of insurers to defend their insured and the Court finds it applicable here. The insurers initially refused to provide a defense for Datrex and so stated in their May 2, 2002 letter to Datrex. In July, 2002, insurers changed their mind and offered a conditional agreement to provide a defense with a reservation to contest coverage, which they had a right to do. In September, 2002, Datrex was advised by insurers that they could hire their own counsel but the insurers would only pay $160.00 per hour for said counsel. In March, 2003, insurers suggested paying an agreeable amount of attorney fees to Datrex as long as Datrex agreed to fore-go any past or future claim for penalties or attorney fees resulting from bad faith. Even after the Court ruled on duty to defend in October, 2003, no unconditional tenders of payment were made by insurers to Datrex ever. A conditional payment was made three years after the ruling; yet it was only a small portion of the amount in the invoices and, as the Court stated earlier, an unreasonable amount. The protracted litigation concerning attorney fees for the defense of the main claim by Cunard against Datrex has gone on way too long in the Court’s opinion as a result of litigation and re-litigation of the same issues filed by the insurers with no movement towards payment of the attorney fees by insurers for over three years from the Court’s ruling on duty to defend, and over four years from the filing of the lawsuit by Cunard and notice by Datrex to the insurers.

The insurers do not dispute the trial court’s recitation of their actions, they argue merely that those actions were reasonable under the circumstances. Further, they argue that the court never found that they breached then* duty to defend. |n However, it is clear from the above cited reasons that the trial court did find that they had breached their duty to defend and were arbitrary and capricious in so doing.

Whether an action or failure to act is arbitrary and capricious is a question of fact subject to the manifest error standard of review. See Broussard v. Total Tower Services, Inc., 08-815 (La.App. 3 Cir. 12/10/08), 999 So.2d 324; Parrish v. Van-Tel Communications, 07-454 (La.App. 3 Cir. 10/10/07), 967 So.2d 592. After reviewing the record herein, we cannot say the trial court erred manifestly in finding the insurers acted arbitrarily and capriciously in failing to pay Datrex’s costs of defending Cunard’s claims.

Additional Attorney’s Fees on Appeal

It is well established that:

“An increase in attorney’s fees for services rendei’ed on appeal is usually awarded when the defendant appeals and obtains no relief on appeal, and when the plaintiff requests it in accordance with proper appellate procedure.” Riche v. Krestview Mobile Homes, Inc., 375 So.2d 133, 138 (La.App. 3 Cir.1979). (Emphasis added.) “Because attorney fees were correctly awarded below, to not award increased attorney fees for the additional work required for this appeal would be inconsistent with that judgment.” Acadian Servs., Inc. v. Durand, 01-1554, p. 4 (La.App. 3 Cir. 4/3/02), 813 So.2d 1142, 1144.

Vander v. Safeway Ins. Co. of LA., 08-888, p. 11 (La.App. 3 Cir. 2/25/09), 5 So.3d 968, 975.

Accordingly, we will award additional attorney’s fees on appeal in the amount of $10,000.00.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. The Third-Party Defendants-Appellants are ordered to pay Datrex the amount of $10,000.00 in additional attorney’s fees on appeal. Additionally, Third-party Defendants-Appellants,12 Twin City Fire Insurance Company and The Hartford, are assessed with the costs of this appeal.

AFFIRMED.


author: GENOVESE, Judge.

text:
    Anthony LAVALAIS v. STATE of Louisiana, through [the] DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 09-662.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.

      Cory P. Roy, Beau R. Layfield, Law Offices of Cory P. Roy, Marksville, LA, for Plaintiff/Appellee: Anthony Lavalais.

      James D. “Buddy” Caldwell, Attorney General, Paula E. Miles, Assistant Attorney General, Louisiana Department of Justice, Division of Risk Litigation, Alexandria, LA, for Defendant/Appellant: State of Louisiana, through the Department of Transportation and Development.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|,In this personal injury action arising out of a motor vehicle accident, Defendant, the State of Louisiana, through the Department of Transportation and Development (the DOTD), appeals the trial court’s judgment assessing it with fifty percent fault in causing the accident and casting it in judgment for $25,000.00 in damages in accordance therewith. For the following reasons, we reverse the trial court’s judgment.

FACTS

At approximately 7:40 p.m. on January 14, 2005, Plaintiff, Anthony Lavalais, was traveling northbound on Louisiana Highway 1 in Avoyelles Parish, Louisiana. As he approached the intersection of Louisiana Highway 1 and Louisiana Highway 1194, Mr. Lavalais collided with a truck that was stopped at the intersection due to a prior accident. Mr. Lavalais instituted suit against the DOTD alleging that “[d]ue to the defective design and conditions in the highway, [he] was unable to visually observe the traffic congestion and collided into other vehicles.”

The matter proceeded to bench trial on the sole issue of liability. At the conclusion of the trial, the trial court gave the following oral reasons for judgment:

Time and space of course after an accident with or without a concussion can escape you but a lot hinges on what I draw as an- inescapable conclusion from [Mr. Lavalais’] testimony that he [sic] obviously these lights and sirens are not there when the [P]laintiff comes to the scene. If they were there, I don’t think we would have had this accident.

Based upon the jurisprudence referenced in its oral reasons for judgment, and the “un-controverted” testimony of Mr. Lava-lais, the trial court assessed fifty percent of the fault for the accident to Mr. Lava-lais and fifty percent of the fault for the accident |2to the DOTD. The trial court then awarded damages of $25,000.00 pursuant to the stipulation of the parties. A judgment in accordance therewith was signed by the trial court on March 23, 2009. It is from said judgment that the DOTD appeals.

ASSIGNMENTS OF ERROR

The DOTD asserts that the trial court erred in allocating fifty percent fault to it since there was no evidence that the DOTD had a “duty to provide lights and sirens” or that the DOTD “had knowledge of the accidents.” Additionally, the DOTD contends that the trial court erred in finding it at fault due to the absence of “evidence to show that the highway was defective” and that the DOTD “had notice of any defects.”

STANDARD OF REVIEW

An appellate court is to apply the manifest error standard of review to a factfin-der’s allocation of fault. Cheairs v. State, Dep’t of Transp. and Dev., 03-680 (La.12/3/03), 861 So.2d 536. As this court recently stated:

A two-tiered test must be applied in order to reverse the findings of the trial court:
1). [t]he appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2). [t]he appellate court must further determine that the record establishes that the finding is not clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120, 1127 (La.1987) (quoting Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979)).

Cole v. Brookshire Grocery Co., 08-1093, p. 2 (La.App. 3 Cir. 3/4/09), 5 So.3d 1010, 1012, writ denied, 09-728 (La.5/15/09), 8 So.3d 589.

LAW AND DISCUSSION

The DOTD asserts in brief that Mr. Lavalais failed to prove that it “had a duty to provide lights and sirens following the original accident at the intersection at issue in this case.” On this issue, the DOTD presents the following arguments:

1) The DOTD would point out first, that it is the sole defendant in this case, and there has been no evidence to show that lights and/or sirens at the accident scene were within [the] DOTD’s control. Nor has there been any evidence introduced to establish that the DOTD had any reason to know of the preceding accident, such that lights and sirens should be provided to warn subsequent motorist of the first accident at the scene.
2) Second, the [P]laintiff never alleged in his petition that the lighting conditions at the scene were defective or played any role in causing the accident. This failure placed the DOTD in the position of being ambushed at trial with this allegation, with no reasonable opportunity to defend against it.
3) Third, notwithstanding the fact that the [PJlaintiff failed to establish a duty on the part of the DOTD to provide lights and sirens at the scene of this accident, and having failed to introduce any evidence that the DOTD was even aware of the preceding accident, the [P]laintiff has utterly failed to provide sufficient evidence offered to prove that the lighting at the scene of the accident played any causative role whatsoever.

We agree. Mr. Lavalais failed to establish that the DOTD had a duty to provide lights and sirens at the accident scene. We find that the record is void of any evidence whatsoever tending to establish such a duty on the part of the DOTD. Additionally, we find the jurisprudence relied upon by the trial court to be distinguishable.

Based upon the evidence presented, the trial court concluded that such a duty on the part of the DOTD existed, citing Nunez, 774 So.2d 208. However, not only are the facts of Nunez readily distinguishable from the case at bai*, the defendant in Nunez to which fault was assessed was the Department of Public Safety and Corrections, not |4the DOTD. These are two different departments of the State of Louisiana with separate and distinct legal authority and responsibility. Mr. Lavalais failed to establish any facts evidencing a duty on the part of the DOTD relative to lights and/or sirens in this case. For these reasons, we do not find Nunez to be relevant authority for the trial court’s conclusion that the DOTD had a duty in the instant case relative to lights and/or sirens at the accident scene.

The only two witnesses to testify at the trial of this matter were Mr. Lavalais and Sheriff Doug Anderson of the Avo-yelles Parish Sheriffs Office. Neither Mr. Lavalais nor Sheriff Anderson were qualified as experts, and neither were employees of the DOTD; therefore, neither of these witnesses testified, nor were they capable of testifying, that the DOTD had custody or control of the intersection. Neither of these witnesses testified, nor were they capable of testifying, that the DOTD had custody or control over lighting and/or sirens at the intersection. And, neither of these witnesses testified, nor were they capable of testifying, that the DOTD had knowledge of the preceding accident.

The DOTD also argues to this court that the trial court erred in granting Mr. Lava-lais relief due to the absence of “evidence to show that the highway was defective” and/or that the DOTD “had notice of any defects.” We agree.

Paragraph “V.” of Mr. Lavalais’ Petition for Damages alleges that the subject accident “was caused by the gross negligence” of the DOTD. Our Louisiana Supreme Court, in Lockett v. State, Department of Transportation and Development, 03-1767, pp. 10-11 (La.2/25/04), 869 So.2d 87, 95, set forth the law relative to the DOTD’s liability for highway-related accidents as follows:

|,-A plaintiff may proceed against the State through DOTD under either a theory of negligence or a theory of strict liability. Netecke v. State ex rel. DOTD, 98-1182, p. 7 (La.10/19/99), 747 So.2d 489, 494. In order for DOTD to be held liable, the burden of proof is the same under either theory, and the plaintiff bears the burden of showing that:
(1) DOTD had custody of the thing that caused the plaintiffs injuries or damages;
(2) the thing was defective because it had a condition that created an unreasonable risk of harm;
(3) DOTD had actual or constructive knowledge of the defect and failed to take corrective measures within a reasonable time; and
(4) the defect in the thing was a cause-in-fact of the plaintiffs injuries.

Id.

[3] In addition to failing to establish the requisite element of custody or control, our review of the record confirms that Mr. Lavalais presented absolutely no evidence to show that the roadway was defective in either design or construction. Moreover, the Plaintiff himself denied that the slope of the roadway, as it approached the intersection, caused him any difficulty in seeing the preceding accident. Additionally, Mr. Lavalais failed to establish that the DOTD had actual or constructive knowledge of any alleged defect.

On the issue of defect, Mr. Lava-lais, in brief, references the testimony of Sheriff Anderson wherein he stated that the slope of the roadway “could” cause visibility problems. However, we note that Sheriff Anderson was not qualified as an expert in any field and, therefore, was not competent to render an expert opinion on an alleged defective condition of the roadway. Additionally, such speculation on the part of Sheriff Anderson is insufficient to establish the presence of a defect as asserted by Mr. Lavalais.

16Sheriff Anderson’s testimony that other accidents had occurred in this area also fails to establish the requisite element of notice on the part of the DOTD as argued by Mr. Lavalais. Of particular note is Sheriff Anderson’s testimony that these prior accidents were “not similar accidents.” We agree with the DOTD that “[t]his testimony offers no support to [Mr. Lavalais’] contention that the [DOTD] had notice of an alleged defective road condition.”

For the foregoing reasons, we find that there is no reasonable factual basis for the trial court’s assessment of fifty percent of the fault for the subject accident to the DOTD. Therefore, we find that the trial court’s decision in this case was manifestly erroneous and clearly wrong.

DECREE

For the foregoing reasons, the judgment of the trial court allocating fifty percent of the fault for the subject accident to the State of Louisiana, through the Department of Transportation and Development, and casting it in judgment in the amount of $25,000.00 is reversed. Costs of this appeal are assessed to Anthony Lavalais.

REVERSED.

      . In its oral reasons for judgment, the trial court discussed Nunez v. Commercial Union Insurance Co., 00-106 (La.App. 3 Cir. 8/23/00), 774 So.2d 208, reversed in part on other grounds, 00-3062 (La.2/26/01), 780 So.2d 348, which, in its opinion, "was similar.”

      . The parties stipulated that the damages did not exceed $50,000.00, exclusive of interest and costs. Thus, the trial court awarded damages as limited by the stipulation of $50,000.00 and granted judgment in favor of Mr. Lavalais against the DOTD for the sum of $25,000.00, which represents fifty percent of the $50,000.00 stipulated cap on damages.

      . On January 14, 2005, Sheriff Anderson, then employed by the Louisiana State Police, was called upon to investigate the subject accident.