source: Caselaw Access Project

author: PICKETT, J. GREMILLION, Judge,

license: Public Domain

text:
    Gwendolyn ROCHESTER v. SOUTHWEST DEVELOPMENTAL CENTER.
    No. 09-1342.
    Court of Appeal of Louisiana, Third Circuit.
    April 21, 2010.
    Rehearing Denied June 2, 2010.
    Michael B. Miller, Miller & Miller, Crowley, LA, for Claimant/Appellant, Gwendolyn Rochester.
    Sylvia M. Fordice, Asst. Attorney General, Lafayette, LA, for Defendant/Appel-lee, Southwest Developmental Center.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PICKETT, J.

|2The claimant, Gwendolyn Rochester, appeals, as erroneously low, a ruling by a Workers’ Compensation Judge (WCJ) setting her temporary total disability weekly compensation rate at $199.19 and the award of only $4,000.00 in attorney’s fees. Additionally, the claimant seeks an award of attorney’s fees for prosecution of this appeal. We affirm the weekly compensation rate awarded, increase the award of attorney’s fees at the trial level to $7,000.00 and award the claimant $3,000.00 in attorney’s fees for prosecution of this appeal.

FACTS

There are no facts in dispute in this case. The parties agree that the claimant was injured in the course and scope of her employment at Southwest Development Center on March 6, 2006. They also agree that her average weekly wage (AWW) was $298.78. The only dispute is whether the statutes require that the claimant’s AWW be enhanced by the inclusion of the value of her fringe benefits. The other issue raised, the award of attorney’s fees, is discretionary.

LAW AND DISCUSSION

On appeal the first issue the claimant argues is that the WCJ erred in calculating her AWW by not including the weekly value of her fringe benefits (vacation and holiday pay, etc.) as “other wages” in that calculation. The appellant bases her argument on Transportation Insurance Co. v. Pool, 30,250, p. 6 (La.App. 2 Cir. 5/13/98), 714 So.2d 153, 157, writs denied, 98-1566 (La.9/25/98), 725 So.2d 486, 98-1616 (La.9/25/98), 725 So.2d 488, wherein the court held: “The value of fringe benefits will be included in the calculation of weekly wages for the purposes of determining the compensation rate provided the giving of such benefits was fairly | ^contemplated by the parties as they entered the contract of employment.” In Mr. Pool’s case there are two distinguishing facts: first, Mr. Pool was injured in 1983, long before subpart “f ’ was added to La. R.S. 23:1021(10), and second, Mr. Pool was working under a union contract which included Mr. Pool’s fringe benefits as part of his consideration of employment. The claimant also cites several other cases—Burns v. St. Frances Cabrini Hosp., 02-518 (La.App. 3 Cir. 10/30/02), 830 So.2d 572; Doucet v. Crowley Mfg., 96-1638 (La.App. 3 Cir. 4/30/97), 693 So.2d 328, vacated on other grounds, 97-1438 (La.9/19/97), 701 So.2d 143; and G.N.B., Inc. v. Jones, 29,779 (La.App. 2 Cir. 8/20/97), 699 So.2d 466. However, the injuries to the claimants in all of these cases predated the 1999 addition of subsection “f” to La. R.S. 23:1021(10).

Subsection (f) of this provision provides as follows (emphasis ours):

(f) Income tax. In the determination of “wages” and the average weekly wage at the time of the accident, no amount shall be included for any benefit or form of compensation which is not taxable to an employee for federal income tax purposes; however, any amount withheld by the employer to fund any nontaxable or tax-deferred benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage.

Prior to the enactment of this provision, the value of fringe benefits was generally factored into the calculation of the AWW. See the cases cited by the claimant, above. Following the amendment, this court considered its affect. In Bennett v. Rapides Parish School Brd., 05-803 (La.App. 3 Cir. 2/22/06), 923 So.2d 843, writ denied, 06-685(La.6/2/06), 1255, the court relied upon McClain v. Pinecrest Development Ctr., 00-1622 (La.App. 3 Cir. 2/28/01), 779 So.2d 1112, to decide if the amendment should be applied retroactively:

|4La. R.S. 23:1021(10)(f) was enacted after Ms. McClain’s injury. Therefore, we must determine whether it should be applied retroactively to her claim.
Finding the change to be substantive rather than procedural, the court found the WCJ was correct in refusing to apply the amendment retroactively and that the WCJ had been correct in including retirement contributions in calculating the claimant’s AWW. Thus the McClain court indicated that in the future “any benefit or form of compensation which is not taxable to an employee for federal income tax purposes” would be excluded from calculating a claimant’s AWW. See also Burns v. St. Frances Cabrini Hosp., 02-518 (La.App. 3 Cir. 10/30/02), 830 So.2d 572; Belaire v. Don Shetler Olds Buick Chevrolet, 02-1152 (La.App. 3 Cir. 6/4/03), 847 So.2d 723; and Epoch Wellsite Services v. Ortega, 03-547 (La.App. 3 Cir. 11/5/03), 858 So.2d 827, writ denied, 03-3348 (La.2/13/04), 867 So.2d 693.

Bennett, 923 So.2d at 847 (underlining ours).

Both the appellee and the WCJ in the case sub judice rely on this court’s ruling in Ivory v. Southwest Developmental Center, 07-1201 (La.App. 3 Cir. 3/5/08), 980 So.2d 108. In Ivory we reasoned as follows:

In Sterling v. Asplundh Tree Expert Co., 03-266, p. 9 (La.App. 3 Cir. 10/1/03), 856 So.2d 125, 130, writ denied, 03-3017 (La.1/30/04), 865 So.2d 79, this court stated that “[a]ny fringe benefit that an employer provides is taxable and must be included in the recipient’s pay unless that fringe benefit is specifically excluded by the law. EMPLOYER’S TAX GUIDE TO FRINGE BENEFITS PUB. 15-B (Dept, of the Treasury, Internal Rev. Serv., Jan. 2003).” Excluded benefits include items such as accident and death benefits, group-term life insurance coverage, meals, and moving expense reimbursements. Id. We held in Sterling that because “[p]aid holiday and vacation fringe benefits are not the type of fringe benefits excluded from income taxation [,]” the workers’ compensation judge did not err in including these benefits in the claimant’s average weekly wage.
Here, the record does not indicate that Ivory received any fringe benefits which were specifically excluded from income taxation. With regard to the sick leave, annual leave, and compensatory time, Tina Pousson (Pousson), Supervisor of Human Resources at Southwest, testified that when they are used, they are reflected on Ivory’s paycheck, and she pays taxes on them. Because these benefits are taxable when they are used, we find that they are included in Ivory’s pay and the calculation of her average weekly wage.
|fiWith regard to holidays, Pousson testified that “whenever [employees] have a set schedule they are mandated to work that particular schedule regardless if it’s a holiday or not.” She further testified that instead of getting paid overtime, the “employee receives compensatory time for working on a holiday.” This testimony indicates that Ivory would be paid for holidays, regardless if she worked on those days. Therefore, paid holidays are not included in the calculation of Ivory’s average weekly wage. See Anderson v. Eckerd Corp., 04-1053, p. 3 (La.App. 1 Cir. 5/6/05), 915 So.2d 901, 903 (wherein the first circuit held that “[w]here holiday and vacation pay are already figured in a claimant’s salary whether or not he works on those days, in the calculation of a claimant’s average weekly wage, addition of amount of holiday and vacation pay equates to adding those amounts into the calculation twice, which is clearly wrong.”)

Ivory, 980 So.2d at 114-15.

The claimant in this case offers the same argument as did the claimant in Ivory, i.e., that her “fringe benefits should be calculated separately as “other wages” under La. R.S. 23:1021(12)(d).”

This case involves a like claim, against the same defendant, brought before the same WCJ, with both parties being represented by the same attorneys who called the same witness (i.e., Tina Pousson) for the defendant.

We answer that argument in the same way we did in Ivory:

We find no merit in [Rochester’s] contention that fringe benefits should be computed under La. R.S. 23:1021(12)(d) insofar as this provision addresses “other wages,” which courts have determined to include gross earnings such as sales commissions and tips. See Stegall v. J & J Exterminating, 94-1279 (La.App. 3 Cir. 3/1/95), 651 So.2d 400 and Dupont v. Holiday Inn of Jennings, 96-684 (La.App. 3 Cir. 12/11/96), 685 So.2d 525. Given our finding that [Rochester] is an hourly employee, the fringe benefits used in the four full weeks preceding her accident on [March 6, 2006] are included in the relevant calculations. See La. R.S. 23:1021(a)(i).

Id. at 114.

ATTORNEY’S FEES

On appeal the claimant raises three issues dealing with attorney’s fees:

|fi(l) Should an attorney fee be reduced due to a technical violation of the statute?
(2) Should an attorney fee award be limited to attorney’s work done in addressing sanctionable behavior? [and]
(3) Should an additional attorney fee be awarded for work on appeal?

In McCarroll v. Airport Shuttle, Inc., 00-1123 pp. 9-10 (La.11/28/00), 773 So.2d 694, 700 (footnote omitted; emphasis ours), our supreme court stated:

In our determination of the respective rights of the employee and the attorney to the statutory attorney fees, a persuasive factor is the methodology used to calculate the amount of the statutory attorney fees. The only limitation on the amount is the reasonableness of the fee awarded by the judge. Cain, supra. The amount awarded rests within the discretion of the workers’ compensation judge, as long as that amount is supported by the record. Some of the factors taken into account by the judge in fixing the amount of the fee are the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the employee, and the amount of time the attorney devoted to the case. H. Alston Johnson, III, supra § 389. The amount awarded is intended to provide full recovery, without statutory limitation, for attorney’s services and expenses in connection with the litigation.

When the WCJ first considered the issue of attorney’s fees, she was inclined to award the claimant $7,000.00 for the work done by her attorney. The WCJ based this award on the affidavit of counsel showing 66 hours of work expended on the case and upon the skill and ability of counsel. The defense objected to the award, arguing that many of the issues in the case ended up being settled in a stipulation. After considering opposing counsel’s argument, the WCJ reduced the award of attorney’s fees to $4,000.00. We find this to be an abuse of the WCJ’s much discretion. Stipulations do not just happen. Before they agree to stipulate, the parties to a stipulation must be convinced that litigation of the items contained therein would be fruitless. To convince the opposing party that you are right takes time and a high degree of skill and ability. Attorney’s fees are based upon time, skill and ability. It |7is the employment of these factors which produced the stipulation that awarded the claimant $8,000.00 in penalties. This positive result should not result in a penalty, i.e., the award of a lower attorney fee.

Accordingly, we amend the judgment of the WCJ to award the claimant the $7,000.00 in attorney’s fees as first contemplated by the WCJ. Furthermore, we find $3,000.00 to be a reasonable award for work done pursuant to this appeal. The parties are to bear their own costs on appeal.

AFFIRMED AS AMENDED.

GREMILLION, J., dissents in part and assigns written reasons.

GREMILLION, Judge,

dissents in part.

Li concur in the majority’s ruling on the issue of the employee’s average weekly wage. I concur with the majority on the issue of attorney fees at the trial level. I dissent on the award of attorney fees on appeal.

The award of attorney fees at the appellate level has long been predicated on the notion that the party who was successful at the trial level and successfully defends that judgment should not bear the additional expense and burden when she succeeds on appeal. Even as far back as 1975, we stated (emphasis added):

This court has consistently recognized the fact that litigants successful at the trial level, must incur additional expenses to protect their rights upon appeal. Accordingly we have granted additional attorney’s fees in the amount of $500.00 in similar cases. Benoit v. Travelers Insurance Company, 251 So.2d 87 (La.App. 3rd Cir.1971); Thibodeaux v. Associated Distributing Company, 260 So.2d 46 (La.App. 3rd Cir.1972); Ryder v. Insurance Company of North America, 282 So.2d 771 (La.App. 3rd Cir. 1973); Payne v. Travelers Insurance Company, 299 So.2d 913 (La.App. 3rd Cir.1974); Delahoussaye v. Allen Action Agency, Inc., 300 So.2d 575 (La.App. 3rd Cir.1974).

Horn v. Vancouver Plywood Co. 322 So.2d 816, 820 (La.App. 3 Cir.1975). We recently affirmed this in Bourgeois v. Brown’s Deli & Market, Inc., 09-290 (La.App. 3 Cir. 10/14/09), 21 So.3d 1072. See also Rivers v. Bo Ezernack Hauling Contr., Inc., 09-991 (La.App. 3 Cir. 3/10/10) 32 So.3d 1091, and Agilus Health v. Accor Lodging North America, 09-1049 (La.App. 3 Cir. 3/10/10), 32 So.3d 1120. The appellant lost 12her demand on the calculation of her average weekly wage at the trial court and again before us; this on an issue her counsel had unsuccessfully litigated before the same trial court, against the same employer, and had unsuccessfully appealed to this court in Ivory v. Southwest Dev. Ctr., 07-1201 (La.App. 3 Cir. 3/5/08), 980 So.2d 108. She failed to receive the amount of attorney fees she sought at the trial level. The only portion of the WCJ’s ruling we disturbed on appeal was the amount of the attorney fees award. Because Rochester succeeded in being awarded an additional $3,000 in attorney fees does not entitle her to $3,000 in fees on appeal.

Additional fees for appeal are not warranted when a party loses at the trial level; but, even were one to accept the premise that fees can be awarded for a successful appeal, they are totally unwarranted when the only issue on which she succeeds is the attorney fee award. I respectfully dissent from the majority’s award of $3,000 in attorney fees for work performed on the appeal.


author: PAUL A. BONIN, Judge.

text:
    Gloria SCOTT and Deania M. Jackson, on Behalf of Themselves and All Other Persons Similarly Situated v. AMERICAN TOBACCO COMPANY, INC.; American Brands, Inc.; R.J. Reynolds Tobacco Company; RJR Nabisco, Inc.; Brown & Williamson Tobacco Corporation; Batus, Inc.; Batus Holdings, Inc.; Philip Morris, Inc.; Philiip Morris Companies, Inc.; et al.
    No. 2009-CA-0461.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 23, 2010.
    Rehearing Denied May 12, 2010.

      Stephen P. Bruno, David S. Scalia, Bruno & Bruno, Robert L. Redfearn, Robert L. Redfearn, Jr., Simon, Peragine, Smith & Redfearn, L.L.P., Raul R. Bencomo, Bencomo & Associates, Russ M. Herman, Stephen J. Herman, Herman, Herman, Katz & Cotlar, LLP, Deborah M. Sulzer, Stephen B. Murray, Stephen B. Murray, Jr., Murray Law Firm, Walter J. Leger, Jr. Leger & Mestayer, Meyer H. “Mike” Gertler, Louis L. Gertler, Gertler, Gertler, Vincent & Plotkin, L.L.P. New Orleans, LA, Kenneth M. Carter Kenneth M. Carter, PLC, St. Francisville, LA, Jack M. Bailey, Jr. W. James Singleton, Singleton Law Firm, Shreveport, LA, Daniel E. Bec-nel, Jr. Law Office of Daniel E. Becnel, Jr., Reserve, LA, Bruce C. Dean, Bruce C. Dean, LLC, Metairie, LA, Paul H. Due’, Due’, Price, Guidry, Piedrahita & Andrews Baton Rouge, LA, Michael X. St. Martin, St. Martin & Williams, Houma, LA, Calvin C. Fayard, Jr., Fayard & Honeycutt, Den-ham Springs, LA, for Plaintiffs/Appellees.
    Charles F. Gay, Jr., Ronald J. Sholes, Martin A. Stern, Jeffery E. Richardson, Adams and Reese LLP, New Orleans, LA, for Phillip Morris USA, Inc. and the Tobacco Institute, Inc.
    Steven W. Copley, Gordon, Arata, McCollam, Duplantis & Eagan, LLP, New Orleans, LA, Gary R. Long, Jennifer L. Brown, Shook, Hardy & Bacon, L.L.P., Kansas City, MO, for Lorillard Tobacco Company.
    Phillip A. Wittmann, Dorothy H. Wim-berly, Stone Pigman Walther Wittmann L.L.C., New Orleans, LA, Mark A. Belasic, Kevin D. Boyce, Jones Day, Cleveland, OH, For R.J. Reynolds Tobacco Company.
    Carmelite M. Bertaut Stone Pigman Walther Wittmann L.L.C., New Orleans, LA, Richard A. Schneider, King & Spald-ing LLP, Atlanta, GA, for Brown & Williamson Tobacco Corporation (Now Known as Brown & Williamson Holdings, Inc., individuALLY and as Successor by Merger to the American Tobacco Company).
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

h The “tobacco companies” suspensively appeal the Amended Judgment rendered on July 21, 2008 in this class action matter which ordered them to deposit into the court’s registry the full amount of $263,532,762 with legal interest from June 30, 2004, until paid, in order to fund a court supervised comprehensive smoking cessation program. Ms. Deania Jackson timely filed an answer to the appeal. La. C.C.P. art. 2133 A. For the reasons which follow, we amend the judgment and, as amended, affirm.

I

This court decided an earlier appeal brought by the tobacco companies in Scott v. American Tobacco Co., Inc., 04-2095 (La.App. 4 Cir. 2/7/07), 949 So.2d 1266, rehearing denied, writ denied, 07-0654, 973 So.2d 740 (La.1/7/08), writ denied, 07-0662 (La.1/7/08), 973 So.2d 740, cert. denied, - U.S. -, 128 S.Ct. 2908, 171 L.Ed.2d 842 (2008). We refer to that decision as Scott 7. The jury had tried the case in two phases, from June |218, 2001, through May 21, 2004, pursuant to former La. C.C.P. art. 593.1 and in accordance with Case Management Order #2, Trial Order No. 5, the Order of the Louisiana Supreme Court (Scott v. American Tobacco, 02-2449 (La.11/15/02), 830 So.2d 294), and Trial Order No. 10.

On the appeal of Scott I, after treating the tobacco companies’ eleven assignments of error, we remanded the matter to the trial court for further proceedings. After the finality of Scott I, the trial court rendered an amended judgment, which the trial court concluded was “in accord with the dictates of the Court of Appeal....” In that judgment, which is the subject of this appeal, the trial court mandated that the tobacco companies fully fund the four components of the smoking cessation program authorized in Scott I, which totaled $251,013,580 plus an additional five-percent administrative fee of $12,549,179. Also, the trial court ordered post-judgment interest on the entire amount from June 30, 2004, which was the date of its earlier judgment appealed from in Scott I.

The tobacco companies assign four errors. They complain that the amended judgment incorporates errors of its original judgment which were “left intact” by our decision in Scott I. We address this assignment in Part II. They also complain that their Due Process rights have been violated by the refusal of the trial court to empanel a new jury to determine the issues remanded to the trial court. We address this assignment in Part III. A third complaint is that the award is excessive because the trial court condemns them to pay for program components which we 13ruled in Scott I were not recoverable by the class. We address this assignment in Part IV. Their final complaint is that the trial court erred in awarding post-judgment interest and in the date selected from which interest is to be calculated. We address this assignment in Part VI.

Ms. Jackson, as the class representative, assigned five errors. She first contends that the trial court’s Amended Judgment is legally correct and should be affirmed. But, out of an abundance of caution, if the tobacco companies are to obtain relief on their assignment of error in which they urge us to revisit our decision in Scott I, then she too seeks to preserve her right to relief from our judgment in these particulars: (a) legal interest from the date of judicial demand should be awarded, (b) the comprehensive smoking-cessation program should include all twelve components proved at trial, (c) the tobacco companies should be ordered to deposit a sum of money for funding the court-supervised cessation program, (d) amendment should provide that the tobacco companies’ product was defective in design both prior to and after September 1, 1988, and provide that the “exclusivity” provisions of the Louisiana Products Liability Act (LPLA) do not insulate the tobacco companies from post-1988 conduct in this case, and (e) the judgment should provide that medical monitoring is reasonably necessary. We address all of her assignment in Part II.

II

The central jury holding of Scott I is that the tobacco companies

... individually and conspiring with each other, knowingly and deliberately conspired to commit, and did commit fraud that spanned five decades, directly causing injury to the class of Louisiana smokers ... [and that 14they] knowingly and deliberately addicted the population of Louisiana smokers to a product known to them to be both addictive and extremely toxic.

Scott I, supra, at p. 12, 949 So.2d at 1276.

Based upon that finding, we meticulously reviewed the jury’s findings and determinations and reached conclusions that some, but not all, of the jury’s findings were supportable. Despite the parties’ requests, we decline to revisit those issues settled by us in Scott I unless we have been shown to be in palpable error or our ruling was manifestly unjust. The doctrine or principle known as “the law of the case” guides us in determining whether to revisit issues which were decided by this court on the earlier appeal in this case.

The law of the case doctrine is discretionary. Lejano v. Bandak, 97-0388 (La.12/12/97), 705 So.2d 158. “The law of the case” doctrine or principle refers to

(a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate court rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case.

Bank One, N.A. v. Velten, 04-2001, pp. 5-6 (La.App. 4 Cir. 8/17/05), 917 So.2d 454, 458 (emphasis added), citing Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973). This doctrine “may bar redetermination of a question of law or a mixed question of law and fact during the course of a judicial proceeding.” 1 Frank L. Maraist and Harry T. Lem-mon, Louisiana Civil Law Treatise: Civil Procedure, § 6.7 (1999); Bank One, supra. The law of the 15case doctrine, rather than res judicata, is the proper legal principle for describing the relationship between prior judgments by trial and appellate courts rendered within the same case. Bank One, 04-2001 at p. 6, 917 So.2d at 458-59. See Reed v. St. Charles General Hospital, 08-0430, pp. 9-10 (La.App. 4 Cir. 5/6/09), 11 So.3d 1138, 1145-46.

The policy reasons behind this doctrine include avoidance of re-litigation of an issue, consistency of result in the same litigation, and promotion of efficiency and fairness to the parties “by affording a single opportunity for the argument and decision of the matter at issue.” Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 330, 256 So.2d 105, 107 (La.1971); Bank One, supra.

While the law of the case doctrine as a general rule precludes reconsideration of a court’s previous determination of an issue on a prior appeal, the doctrine is inapplicable in cases of palpable error or where manifest injustice would occur. Keaty v. Raspanti, 96-2839, p. 4 (La.App. 4 Cir. 5/28/97), 695 So.2d 1085, 1087 (citing Dodson v. Community Blood Center, 93-3158 (La.App. 1st Cir.1993), 633 So.2d 252, 255, and cases cited therein); Moore v. Kenilworth/Kailas Properties, 07-0346, p. 8 (La.App. 4 Cir. 2/13/08), 978 So.2d 475, 480; Jones v. McDonald’s Corp., 97-2287, pp. 4-5 (La.App. 1 Cir. 11/6/98), 723 So.2d 492, 494; Glenwood Hospital, Inc. v. Louisiana Hospital Service, Inc., 419 So.2d 1269, 1271 (La.App. 1st Cir.1982).

Although the parties have made plain their dissatisfaction and disappointment in some of our prior rulings, no party has pointed to any palpable |6error in Scott I; no party has shown any manifest injustice or demonstrated to us that our prior rulings have done anything other than lawfully guide the parties and the trial court in providing a just remedy for the Louisiana smokers who have been knowingly and willfully addicted to tobacco by the acts and omissions of the tobacco companies. We are satisfied that on the prior appeal we “fully and properly considered” the issues. See Hutchison v. Murphy Oil USA, Inc., 04-2648, p. 1 n. 2 (La.1/14/05), 892 So.2d 569, 570 (Calogero, C.J., concurring in the denial of certiorari). To the extent that the parties seek in their assignments of error for us to reverse our prior rulings in Scott I, we apply the doctrine of “the law of the case” and, being shown no palpable error or manifest injustice, we decline to revisit those issues.

Ill

In this part we address the tobacco companies’ specific Due Process claim about the failure of the trial court to empanel a new jury to make findings of fact with regard to the issues remanded by us to the trial court. The tobacco companies frame their complaint as arising from the trial court’s depriving them of a new trial by jury. This new jury, the companies argue, would hear facts which are now relevant because the decision in Scott I clarified and, more importantly in the companies’ argument, necessarily and materially reduced the number of beneficiaries eligible for the program. Moreover, the tobacco companies argue, because Scott I eliminated other program components which were designed to increase “utilization rates” of the surviving four approved components, the new jury must be permitted to determine anew evidence of expected or probable lower ^utilization rates for the reduced number of beneficiaries. The companies contend that the deprivation of such a new trial by jury deprives them of the constitutional protections afforded them under the federal Due Process clauses and Louisiana’s parallel protections. The Due Process clause of the Fifth Amendment provides that no person shall be “deprived of life, liberty, or property, without due process of law.” The protections of that clause apply to the states under the Fourteenth Amendment, which states: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1.

In evaluating the tobacco companies’ claim that the denial of another jury trial in this state civil proceeding violates their Due Process rights, we initially observe that the protection afforded by the Seventh Amendment to civil trial by jury in the courts of the United States is not one of the rights applied to the states under the Due Process provisions of the Fourteenth Amendment. Melancon v. McKeithen, 345 F.Supp. 1025, 1027, 1035-45 (E.D.La.), aff'd sub nom. Mayes v. Ellis, 409 U.S. 943, 93 S.Ct. 289, 34 L.Ed.2d 214 (1972), and Hill v. McKeithen, 409 U.S. 943, 93 S.Ct. 290, 34 L.Ed.2d 214 (1972); Rudolph v. Massachusetts Bay Ins. Co., 472 So.2d 901, 904-05 (La.1985). Our Supreme Court in Brewton v. Underwriters Ins. Co., 02-2852, p. 4 (La.6/27/03), 848 So.2d 586, 588-89, explained: “The right to jury trials in civil cases is not so fundamental to the American system of justice as to be required of state courts by the due process clause of the Fourteenth Amendment.” Therefore, at the outset, we reject any implied contention by the tobacco companies that their federal due process rights have been violated because the trial court refused to empanel a new jury on remand.

Thus, we are left to consider whether the denial of a jury trial on remand violates La. Const, art. I, § 2, which provides the following protections: “No | ¿person shall be deprived of life, liberty, or property, except by due process of law.” Our consideration of the companies’ claim that denial of a new jury trial violates their state constitutional rights is limited to their precise claim raised at the trial court level. See Mosing v. Domas, 02-0012 (La.10/15/02), 830 So.2d 967; Vallo v. Gayle Oil Co., 94-1238 (La.11/30/94), 646 So.2d 859. We are not at liberty to consider claims of constitutional violations first raised, or later revised, in the appellate court. Council of City of New Orleans v. Washington, 09-1067, pp. 3-4 (La.5/29/09), 9 So.3d 854, 856-57 (citing inter alia Johnson v. State, 02-2382, p. 4 (La.5/20/03), 851 So.2d 918, 921; Geiger v. State ex rel. Department of Health and Hospital, 01-2206, p. 11 (La.4/12/02), 815 So.2d 80, 86).

Unlike our national constitution, our state constitution makes no express provision for a right to trial by jury in civil cases, except in expropriation proceedings. La. Const, art. V, § 10; see also Lee Har-grave, The Louisiana State Constitution: A Reference Guide 27 (Greenwood Press 1991). “Reflecting the state’s civil law background,” Professor Hargrave observes, “the constitution has no parallel to the federal Seventh Amendment, which guarantees jury trial in most civil cases.” Id.

Although the former Louisiana Constitution of 1921, art. VII, § 41, obliquely provided for civil jury trials, that provision was omitted from the current constitution. In contrast to the overall state constitutional silence about civil jury trials, the current Louisiana Constitution does explicitly provide for criminal jury trials. La. Const, art. I, § 17. However, even in criminal jury trials, ^Louisiana law does not afford great deference to the traditional common law jury trial right. Louisiana is in the notable minority in not requiring unanimous twelve-person juries in non-capital cases. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); see also La.C.Cr.P. art. 782 A and State v. Bertrand, 08-2215 (La.3/17/09), 6 So.3d 738; State v. Taylor, 09-0041, p. 8 (La.App. 4 Cir. 9/4/09), 21 So.3d 421, 426. Louisiana only required unanimous six-person juries when required by a ruling of the United States Supreme Court. See Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979);

Civil jury trials are addressed, however, in our Code of Civil Procedure. To the question, La. C.C.P. art. 1731 A provides that “Except as limited by Article 1732, the right of trial by jury is recognized.” (Emphasis added.) Louisiana case law and our legal scholars affirm the right as a secure structure in our state judicial system. The “right” to trial by jury in civil cases in Louisiana is “a basic right and should be protected in the absence of specific authority for its denial.” Brewton, supra, 02-2852 at p. 4, 848 So.2d at 589 (citing Champagne v. American S. Ins. Co., 295 So.2d 437 (La.1974)). See also Maraist and Lemmon, 1 Louisiana Civil Law Treatise, supra, at § 11:2 Jury Trials. “The right to a jury trial is favored in the law and any doubtful statutory provision should be liberally construed in favor of granting a jury trial.” Pugeau v. Hebert, 00-0875, p. 2 (La.5/12/00), 760 So.2d 325, 326. See also Parker v. Rowan Cos., 628 So.2d 1108, 1110 (La.1991) (stating that a jury trial right is “fundamental in character and courts should indulge in every presumption against a waiver, loss, or forfeiture of that right”).

| ^Nonetheless, in evaluating the tobacco companies’ contention about the deprivation of a Louisiana right to trial by jury, it is helpful to contrast the kind of right which is protected under the state’s protections with the protected federal right, which as we have already stated is not implicated in this matter. The federal right to trial by jury in a civil case pursuant to the Seventh Amendment is articulated and absolute. Under federal law, there is no appellate review of facts, thus enhancing the fact-finding authority or province of the jury. Mr. Justice Story stated in Parsons v. Bedford, Breedlove & Robeson, 28 U.S. 433, 438-39, 3 Pet. 433, 7 L.Ed. 732 (1830):

No fact, tried by a jury, shall be otherwise re-examinable, in any court of the United States, than according to the rules of the common law. This is a prohibition to the courts of the United States to re-examine any facts tried by a jury, in any other manner.

28 U.S. at 444-49, 3 Pet. 433 (1830). See Ellis v. Weasler Engineering, Inc., 258 F.3d 326, 332-33 (5th Cir.2001) (and numerous cases cited therein); Wright v. Paramount-Richards Theatres, 198 F.2d 303, 305-08 (5th Cir.1952) (quoting extensively from Mr. Justice Story, writing for the U.S. Supreme Court in Parsons, 28 U.S. at 438-39, 3 Pet. 433, and citing other cases acknowledging the authority of the jury as the proper tribunal to decide disputed questions of fact).

In contrast, a Louisiana civil jury’s fact-finding is subject to appellate review. La. Const, art. V, § 10(B) states:

Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts.

See Wright, supra, 198 F.2d at 306. While the jury’s factual findings are entitled to deference, they can be set aside on appeal for abuse of discretion or when they are manifestly erroneous or clearly wrong. Siverd v. Permanent General Ins. Co., 05-0973, p. 3 (La.2/22/06), 922 So.2d 497, 499 (citing Arceneaux v. Domingue, 365 So.2d 1330 (La.1978)). We contrast the right to a trial by jury under Louisiana law with the right to jury trial endowed by the Seventh Amendment under federal law to underscore that the Louisiana right is not so absolute in quality.

Of course, there was a trial by jury in this case. In fact, in Scott I we chided the trial judge for failing to accord the jury its proper place in the fact-finding process. Scott I, 04-2095 at p. 5, 949 So.2d at 1273. After the Phase II trial by jury, which yielded a special verdict assigning monetary damages for each year of the term of the award and for each component of the program, the trial judge issued a judgment based, according to the trial judge, not only on the jury’s findings but also on his own findings of fact, equitable considerations, and applicable principles of equity and law. Id. at p. 4, 949 So.2d at 1272. In deference to La. C.C.P. arts. 1812 (special verdict form) and 1916 A (“[ajfter a trial by jury, the court shall prepare and sign a judgment in accordance with the verdict of the jury”), our court denounced that approach and recognized the solemn role of the jury as fact-finder — noting that there is no provision in Louisiana law for a judge to render written reasons for judgment in a jury trial and that when the jury returns a special verdict, the judge is bound to render a judgment in conformity therewith. Id. at p. 5, 949 So.2d at 1273. We further explained that there is no provision allowing a jury’s verdict to be considered “advisory” and thereby allowing the trial judge to substitute his own findings of fact or render an interpretation of the jury’s verdict. Id.

| 12The tobacco companies on remand voluntarily limited themselves to an insistence on their demand for a new trial by jury. The tobacco companies had been litigating the inapplicability of the LPLA (La. R.S. 9:2800.51, et seq.) from the inception of the case and had a full opportunity to develop evidence at the jury trial as to the impact, if any, that the exclusion of persons addicted after its effective date in 1988 would influence the size of the class. They neither directly offered in the trial court nor proffered for our consideration evidence, pursuant to La. C.C.P. art. 1636, of their contentions concerning reduced class size or reduced utilization rates. Even after remand the tobacco companies did not submit evidence, as opposed to their own hypothetical arguments, of the effect that the exclusion of persons addicted after 1988 would have on the class size. They merely relied upon our characterization without quantification in Scott I that a “large number” of the original 505,949 estimated program beneficiaries would no longer be eligible, coupled with their own hypothesis that program utilization rates by the remaining beneficiaries would likely fall, or perhaps would plummet due to the passage of time and the effects of nature. In other words, the tobacco companies have simply failed to show that there is any new material evidence that was not previously offered to the jury or proferred to the court which is not already in the record for our own constitutionally authorized review.

The tobacco companies do not attribute any due process violation to the trial judge or the appellate court in these proceedings; their sole contention arises from the denial of another jury. “It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement of due process’ ” as articulated by the United States Supreme Court in Caperton v. Massey, — U.S. -, 129 S.Ct. 2252, 2259 and 2266, 173 L.Ed.2d 1208 (2009) (citing In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955)). The tobacco companies have 11 ahad that fair trial in a fair tribunal, and accordingly we conclude that they have not established that the trial court’s refusal to empanel a new jury to consider the issues on remand violated their right to due process. However, we do not minimize the tobacco companies’ expressed concern that the manner in which the trial court proceeded on remand to assess damages against them did not afford them the process which they were due.

Having concluded both that the tobacco companies’ due process rights were not violated, we do not mean that our approbation of the proceedings in the trial court on remand is to be inferred. We expected and thought our instructions were clear enough in Scott I that the trial judge would engage in a careful review of the available evidence and exercise that fact-finding function of a trial judge to determine whether the amounts assessed by the jury for the funding of the four approved components were still appropriate. In our instructions we did not contemplate a new jury trial and we definitely did not mandate a reduction in the jury’s findings. Cf. Scott, 04-2095 at p. 39, 949 So.2d at 1291 (Cannizzaro, J., concurring).

Judge Gorbaty, writing on this point in Scott I for a unanimous five-judge panel, wisely remanded the case for further review in the first instance to the trial level rather than rendering a decision, even though this court was capable and authorized by law to perform that function. In an ideal world we might prefer to insist upon the trial court’s substantive compliance with our earlier directives. However, we now have before us considerations which impel us to forego that preferred procedure and to render judgment on the record before us.

114This lawsuit was filed on May 24,1996. Between 2000 and 2002, the trial court devised a trial plan to divide the trial into phases. Thereafter, a jury determined all issues of liability and all class-wide defenses in Phase I, which concluded on July 28, 2003. Phase II concluded with the jury’s verdict on May 21, 2004, and the court’s judgment on June 30, 2004. Scott I was decided by this court on February 7, 2007, and became final on June 9, 2008. Judge Ganucheau’s amended judgment was rendered on July 21, 2008i

The ten-year remedy fashioned by the jury, and later approved by this court, has not yet begun. Not a single habitual smoker has yet benefitted from the program. The beneficiaries are aging. Dr. Naseta, whom the tobacco companies called as an expert witness at the jury trial, testified that every smoker should stop smoking and every habitual smoker would benefit from the cessation program. Further delay in rendering judgment will unnecessarily and, more importantly, unfairly impair the possibilities of aging smokers to cease their habits and to surely improve their own lives, not to mention the lives of their family members and co-workers.

IV

At the outset of our discussion and review of the award, we acknowledge and emphasize the unique nature of the relief afforded in this case. See the description of this “complex class action” by Justice Kimball writing for the Supreme Court at a much earlier stage of these proceedings as “this unique and difficult case.” Scott v. American Tobacco Co., Inc., 02-2449, p. 4 (La.11/15/02), 830 So.2d 294, 297. The recipient of the award is not an individual or even group of individuals; it is a court-established and court-supervised smoking cessation program with a limited ten-year life. Nevertheless, the intended beneficiaries of l1fithe damage award are the multitude of individuals in Louisiana who began their smoking habit before September 1,1988.

Our task and responsibility in reviewing this unique award is to ensure insofar as is practicable that the limited program is adequately funded to accomplish the jury’s findings to the extent they were approved by this court in Scott I, and at the same time to guarantee that the tobacco companies are funding no more than they are liable for on account of their acts and omissions which injured the intended beneficiaries of the program. That is, the tobacco companies’ obligation under the judgment cannot exceed the cost of repairing the harm caused by their fault. La. C.C. art. 2315.

Of course, absolute precision in any award is elusive. See Sahuque Realty Company v. Employers Commercial Union Ins. Co. of America, 327 So.2d 563, 566 (La.App. 4th Cir.1976) (emphasizing the discretion accorded the trier of fact in making awards when damages cannot be precisely determined or where there is considerable variance in estimated damages which renders calculation thereof difficult). But the sole objective under Louisiana civil law is to oblige the wrongdoers only to repair the full extent of damage done by them, and not ever to punish the wrongdoers, no matter how shameful or outrageous their conduct. La. C.C. art. 2315; K.E. Pittman v. Kaiser Aluminum and Chemical Corp., 559 So.2d 879, 883 (La.App. 4th Cir.1990) (stating that “Louisiana, however, has consistently rejected punitive damages in civil actions”); Post v. Rodrigue, 205 So.2d 67, 70 (La.App. 4th Cir.1967) (stating that “The settled law of Louisiana is that vindictive, punitive or exemplary damages are not allowed in civil cases unless specifically provided for; in the absence of such a specific provision only compensatory damages may be recovered”).

I^The trial court in its amended judgment on remand simply incorporated the jury’s determinations from the special interrogatories, which had been submitted to it in Phase II of the trial, on the four program components which were approved in Scott I and added the five-percent (5%) administrative fee also determined by the jury. The total of the four approved components with the third-party administrative fee is $263,532,762.

Ordinarily, we would be guided by the principle set out in Moore v. Kenilworth/Kailas Properties: “[a]n appellate court may not overturn an award for damages unless it is so out of proportion to the injury that it shocks the conscience.” Moore, 03-0738 at p. 9, 865 So.2d at 890. “The standard of review for damage awards requires a showing that the trier of fact abused the great discretion accorded in awarding damages. In effect, the award must be so high or so low in proportion to the injury that it ‘shocks the conscience.’ ” Harvey v. State, Dept. of Transp. and Dev., 00-1877, p. 11 (La.App. 4 Cir. 9/26/01), 799 So.2d 569, 577. The trier of fact has discretion in determining a special damages award. Kaiser v. Hardin, 06-2092, p. 11-12 (La.4/11/07), 953 So.2d 802, 810.

We, however, consider the failure of the trial court to re-assess the jury’s findings in light of our decision in Scott I to be akin to a legal error which interdicts the fact-finding process. The Louisiana Supreme Court in Evans v. Lungrin, 97-0541, p. 6 (La.2/6/98), 708 So.2d 731, 735 declared:

It is well-settled that a court of appeal may not set aside a trial court’s or jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, where one or more trial court legal errors interdict the fact-finding process, the manifest error |17standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own de novo review of the record and determine a preponderance of the evidence. Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95); 650 So. 742, 747, rev’d in part, on other grounds, 96-3028 (La.7/1/97); 696 So. 569, reh’g denied, 96-3028 (La.9/19/97); 698 So.2d 1388. A legal error occurs when the trial court applies incorrect principles of law and such errors are prejudicial. Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993). Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Lasha, 625 So.2d at 1006. When such a prejudicial error skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential facts de novo. Lasha, 625 So.2d at 1006. (emphasis added)

In order to avoid a due process violation in the context of this class action proceeding, the tobacco companies cannot be condemned to pay more into the limited ten-year program than the amount necessary to fund such program if every beneficiary participated. “If all members of a class come forward and individually prove their damages, the defendant’s liability would be the total of all its liabilities to individual members.” 3 Alba Conte & Herbert New-berg, Newberg on Class Actions § 10:2, (4th ed.2002), p. 477. “The ultimate aggregate liability of the defendant can be no larger than its liability if all class members individually asserted their claims.” Id. at § 10:24, p. 537. Conte and Newberg further explains that “aggregate proof of the defendant’s monetary liability is no more unfair than class treatment of other elements of liability.” Id. at § 10:2, p. 478.

11ROur constitutional and statutory authority allows us to make a de novo review of the entire record on both facts and law in order to render final judgment on the proper amount of the award to fund the ten-year program for components one through four for the remaining eligible beneficiaries. La. Const. art. V, § 10(B); La. C.C.P. art. 2164. See also Grefer v. Alpha Technical, 02-1237, p. 22 (La.App. 4 Cir. 8/8/07), 965 So.2d 511, 526.

From our review of the record, confirmed by the arguments of the parties in their briefs, no one disputes that the jury reasonably concluded at the time of the trial that the size of the eligible beneficiary class consisted of 505,949 smokers. With respect to the four approved components, and the estimates and calculations of Dr. David Burns, which were relied upon by the jury and the parties, the average cost of funding of the four-approved components would be $201 per eligible person per year and the median cost is $230 per person per year. The weighted average, based upon the smoker’s preference for one or more methods, is $153 per smoker per year. But in order to successfully quit smoking, a smoker often makes more than one attempt and sometimes several attempts; different smoking cessation methods are utilized by the same person. If a person utilized all available methods one time, the total cost per person would be $1,005. Finally, it is not disputed that the court-approved four-component smoking cessation program formulated by Dr. Burns is for a period of ten years, which program will be operated by a third-party administrator.

The evidence is clear that the beneficiary class consists of some people who began smoking even before they were thirteen years old, more than half began by hathe time they were twenty, and all but about 15% were smoking before they were twenty-four years old. This evidence must be understood in light of the application of one of the Bourgeois factors — increased risk of latent disease. Dr. Burns explained that ten years of pack-a-day smoking appears to increase disease risk, but it takes 20-pack years to show an increased disease risk; and it takes 25 to 30 years for those who smoked fewer than 10 cigarettes a day. Dr. W. Brooks Emory testified that it takes 25-30-packs per year for an increased risk of lung cancer or chronic obstructive pulmonary disease. Depending on how much one smoked, a person would have to have started 10-20 or more years earlier in order to have the risk of latent disease. Thus, for the most at risk group of smokers who would not have been ineligible on account of the effective date of the LPLA, the initial date of smoking would be 1978 or earlier. It is unlikely, although still possible, that someone born as late as 1974 could still be an eligible beneficiary.

The evidence is also clear that the incidence of smoking has been in continual decline since the mid-1960s, and that lower percentages of individuals in the years since then have begun smoking than in the years before then. In other words, the vast majority of the original 505,949 eligible beneficiaries were clearly addicted before September 1, 1988, the effective date of the LPLA. And of those, most were forty-five years or older at the time of the trial. When cross-examined, Dr. Burns agreed that about half of Louisiana’s population is younger than this |2ngroup. Because of the diminishing incidence of tobacco use over the last five decades, and setting aside on that account that persons over fifty years old would be overrepresented in the 505,949 eligible beneficiaries, there is no doubt that at least 250,000 Louisiana residents were eligible for the court-approved smoking-cessation program approved by this court in Scott I. But we must also consider the effect of the passage of time upon the determination of the amount appropriate to fund the program. The evidence is clear that, even in the absence of a smoking-cessation program (or perhaps because of its absence), the number of class members would decline over the years. Six years after the trial the estimated eligible beneficiaries, including those not yet excluded by operation of the LPLA, has diminished to 420,-339. Of this group, there can be no doubt that at least 210,000 are members of the class approved by Scott I.

Utilizing Dr. Burns’ “Budget for a Comprehensive Statewide Cessation Program for Louisiana,” we calculate mutatis mu-tandis the amount due by the tobacco companies to fund the court-approved smoking-cessation program in an amount which does not exceed the reasonable cost if all eligible beneficiaries chose to participate, applying the annual cost per eligible class member of $153, the median cost of service for cessation methods:

Year No. No. of daily smokers No. of class members Cessation Service
1 210,000 210,000 $ 32,130,000
2 198,870 194,229 $ 29,717,037
3 191,810 179,565 $ 27,473,445
I2l4 184,847 165,738 $ 25,357,914
177,971 152,810 $ 23,379,930
171,226 140,891 $ 21,556,323
164,600 129,817 $ 19,862,001
158,115 119,523 $ 18,287,019
9 151,727 109,937 $ 16,820,361
10 145,294 101,010 $ 15,454,530
Total costs $230,038,560

Accordingly, we determine that the amount necessary to fund the Scott I-approved smoking-cessation program for the remaining eligible beneficiaries to be $230,038,560 plus the stipulated five (5%) administrative fee of $11,501,928 for a total award of $241,540,488, and amend the trial court’s judgment accordingly. The tobacco companies shall deposit this sum with accrued judicial interest in the registry of the district court on the date of the finality of this judgment. See La. C.C.P. arts. 2166-2167.

V

We recognize that the trial court, as it proceeds to implement the program, needs “[fjlexibility rather than rigidity” in making “adjustment and reconciliation between the public interest and private needs as well as between competing private claims.” Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754 (1944).

Because the amount ordered to be paid is not for the use of particular individuals but in order to fund a court-supervised program, which is in the nature of a trust fund, its oversight is a fiduciary obligation of the court. See La. R.S. 39:1211. Accordingly, within ninety days of its deposit into the registry of the Civil District Court for the Parish of Orleans, and after deduction for the first [¡.¡.year’s operating expenses of the program, the balance of the funds are to be transferred by the court to a federally insured depository institution organized under the laws of this state or of the United States, which depository shall be required to furnish security for the deposit in the same manner and amount as security required by La. R.S. 39:1221-1226.

The funds transferred shall be deposited in an interest-bearing account. See La. R.S. 39:1231 B. This procedure will maximize the interest earned on the funds, which will inure either to the benefit of the smoking-cessation program or, if there are surplus funds at the conclusion of the program, to the tobacco companies.

We also, by this judgment, specially reserve unto the tobacco companies at the termination of the ten-year smoking cessation program the right to assert its claims to any unspent or surplus funds. See, e.g., La. R.S. 13:4232.

VI

La. R.S. 13:4203, which provides that “[ljegal interest shall attach from date of judicial demand, on all judgments, sounding in damages, ‘ex delicto,’ which may be rendered by any of the courts.” The purpose of awarding pre-judgment interest was to compensate a plaintiff for his or her loss of the use of money to which he or she is entitled, and which the defendants had during the progress of the litigation. Trentecosta v. Beck, 95-0096, p. 2 (La.App. 4 Cir. 2/25/98), 714 So.2d 721, 726. We reversed the award of pre-judgment interest, noting that the creation of a smoking cessation program in which no money was awarded to individual plaintiffs did not fit the definition of “damages” pursuant to Bourgeois, supra, and |2Spre-judgment interest would not “serve the intended purpose of La. R.S. 13:4203.” Scott I, 04-2095 at p. 38, 949 So.2d at 1290.

The trial court on remand awarded post-judgment interest from the date of its first judgment, which was substantially reduced in Scott I. Because of that substantial reduction and because Scott I did not make any award, it is inappropriate to award interest from the date of the trial court’s first judgment. See also, e.g., Kaiser Aluminum & Chemical Corp. v. Bonjomo, 494 U.S. 827, 835-836, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990). Therefore, the proper date from which post-judgment interest should be calculated is July 21, 2008, the date of the amended judgment. We, therefore, amend the trial court judgment to award judicial interest from the date of this judgment.

DECREE

Accordingly, Phillip Morris USA Inc., The Tobacco Institute, Inc., R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, and Brown & Williamson Tobacco Company (now known as Brown & Williamson Holdings, Inc., individually and as successor by merger to The American Tobacco Company), in solido, shall deposit into the registry of Civil District Court for the Parish of Orleans the full sum of $241,540,488, with judicial interest from July 21, 2008, until paid.

AMENDED AND, AS AMENDED, AFFIRMED.

      . The reference is to the appellants: Phillip Morris USA Inc., The Tobacco Institute, Inc., R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, and Brown & Williamson Tobacco Company (now known as Brown & Williamson Holdings, Inc., individually and as successor by merger to The American Tobacco Company).

      . See Scott v. American Tobacco Co., Inc., 08-1140 (La.App. 4 Cir. 11/17/08) (unpublished).

      . Ms. Jackson is the class representative who filed the answer to the appeal individually and as representative of the certified class.

      . We are cognizant of the use of the term "Scott I” in the Louisiana Supreme Court’s decision on a writ in Scott v. American Tobacco Co., 02-0770, p. 1 (La.3/28/02), 814 So.2d 544, 545. In that decision, the court’s reference to "Scott I” was to another writ that had been previously decided by the Louisiana Supreme Court in the case, Scott v. American Tobacco Co., 01-2498 (La.9/25/01), 795 So.2d 1176. Our present reference to “Scott I” is meant only to refer to our prior decision in Scott v. American Tobacco Co., Inc., 04-2095 (La.App. 4 Cir. 2/7/07), 949 So.2d 1266, rehearing denied, writ denied, 07-0654, 973 So.2d 740 (1/7/08), writ denied, 07-0662 (La.1/7/08), 973 So.2d 740, cert. denied, - U.S. -, 128 S.Ct. 2908, 171 L.Ed.2d 842 (2008).

      . Reasons for Judgment, page 1, July 21, 2008.

      . The four components are (1) reimbursement of smoking — cessation related medication, (2) telephone quit lines, (3) health intervention systems, and (4) intensive cessation programs.

      . That date is May 24, 1996.

      . Reed v. St. Charles General Hasp., 08-0430, pp. 9-10 (La.App. 4 Cir. 5/6/09), 11 So.3d 1138, 1145, refers to it as both a "doctrine” and a "principle''; Bank One, supra, refers to it as a “doctrine,” 04-2001 at p. 5, 917 So.2d at 458; Jones v. McDonald's Corp., 97-2287, p. 4 (La.App. 1 Cir. 11/6/98), 723 So.2d 492, 494, calls it a "principle”; Keaty v. Raspanti, 96-2839 (La.App. 4 Cir. 5/28/97), 695 So.2d 1085, 1087, calls it a "doctrine"; Moore v. Kenilworth/Kailas Properties, 07-0346, p. 8 (La.App. 4 Cir. 2/13/08), 978 So.2d 475, 480, calls it a "doctrine,” and a "principle,” 07-0346 at p. 8, 978 So.2d at 480.

      . Earlier in this case, the U.S. Supreme Court denied writs taken from the Louisiana First Circuit, - U.S. -, 128 S.Ct. 2908, 171 L.Ed.2d 842 (2008), sub nom. Philip Moiris U.S.A., Inc. v. Jackson. Therefore we note First Circuit cases defining the law of the case principle: Louisiana Land and Exploration Co. v. Verdin, 95-2579, pp. 3-4 (La.App. 1 Cir. 9/27/96), 681 So.2d 63, 65; Brumfield v. Dyson, 418 So.2d 21, 23 (La.App. 1 Cir.1982).

      . See, for instance, application of that provision in Peterson v. Continental Can Co, 194 So.2d 171, 172 (La.App. 2nd Cir.1967). Art. VII, § 41 of the 1921 Louisiana Constitution stated in pertinent part: "The Legislature shall provide for the election and drawing of competent and intelligent jurors for the trial of civil and criminal cases." That section more famously excluded women from the general venire pool, and the section was removed in its entirety from the 1974 Louisiana Constitution. See also Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, Vol. 14B, pp. 959-62.

      . For an historical discussion of the constitutionality of Louisiana's treatment of non-unanimous jury verdicts, see State v. Barbour, 2010 WL 1136505, 09-1258 (La.App. 4 Cir. 3/24/10), 35 So.3d 1142 (Belsome, L, concurring), and State v. Williams, 09-602 (La.App. 4 Cir. 1/27/10), 26 So.3d 321 (unpublished) (Belsome, J., concurring).

      . None of the expressed exceptions in La. C.C.P. art. 1732 are pertinent to this discussion.

      . See also Peoples Bank & Trust Co. of Mountain Home v. Globe International, Inc., 786 F.Supp. 791, 801 (W.D.Ark.1992); Mattison v. Dallas Carrier Corp., 947 F.2d 95, 107-08 (4th Cir.1991) (reiterating the principle that the Seventh Amendment provides for jury fact-finding, but addressing the issue of trial court procedures, e.g., directed verdict, demurrer, motion for new trial); Sanders v. New York City Human Resources Administration, 361 F.3d 749, 753 (2d Cir.2004) (and authorities cited therein); Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657, 55 S.Ct. 890, 79 L.Ed. 1636 (1935).

      . By Order dated June 24, 2009, we granted the parties' joint motion to supplement the proceedings with the entire record from the appeal in Scott I.

      . The 5% administrative fee assessed is not at issue. The tobacco companies agree that the percentage assessed is a reasonable cost.

      . It should be noted that Newberg on Class Actions has been cited approvingly by the Louisiana Supreme Court as well as this court. See, e.g., Ford v. Murphy Oil, U.S.A., Inc., 96-2913 (La.9/9/97), 703 So.2d 542, 544; McCastle v. Rollins Environmental Services, 456 So.2d 612, 620 (La.1984); Doerr v. Mobil Oil Corp., 04-1789, p. 4 (La.App. 4 Cir. 6/14/06), 935 So.2d 231, 234-35; Davis v. American Home Products Corp., 02-0942, p. 21 (La.App. 4 Cir. 3/26/03), 844 So.2d 242, 259.

      . According to Dr. Bums, more than half of the smokers utilizing the program will select the least expensive option of health systems intervention at a cost of $100 whereas only ten percent would select the intensive cessation program.

      . The Louisiana Supreme Court in Bourgeois v. A.P. Green Industries, Inc., 97-3188, pp. 9-11 (La.7/8/98), 716 So.2d 355, 360-61, lists seven criteria on which a court can base an award of the reasonable cost of medical monitoring as an item of damage under La. C.C. art. 2315:(1) significant exposure to a proven hazardous substance; (2) as a proximate result of this exposure, plaintiff suffers a significantly increased risk of contracting a serious latent disease; (3) plaintiff's risk of contracting a serious latent disease is greater than (a) the risk of contracting the same disease had he or she not been exposed and (b) the chances of members of the public at large of developing the disease; (4) a monitoring procedure exists that makes the early detection of the disease possible; (5) the monitoring procedure has been prescribed by a qualified physician and is reasonably necessary according to contemporary scientific principles; (6) the prescribed monitoring regime is different from that normally recommended in the absence of exposure; and (7) there is some demonstrated clinical value in the early detection and diagnosis of the disease.

      . The reduction in this column is based upon Dr. Burns' 40% utilization rate, which the tobacco companies found objectionable. However, in this context, the highest utilization rate is favorable to the tobacco companies as it more quickly reduces the estimated number of class members in future years.

      . We are aware of the provisions of La. R.S. 13:1305 D(l) which provides for the deposit of funds into the Registry of the Court, which deposit will bear interest. However, the Registry only provides the "ultimate recipient” with 50% of the interest earned.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Robert Allen SNELLING.
    No. 09-1313.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 2010.

      Bennett R. LaPoint, Assistant District Attorney, Jennings, LA, for Appellee: State of Louisiana.
    G. Paul Marx, Attorney at Law, Lafayette, LA, for Defendant/Appellant: Robert Allen Snelling.
    Michael Cade Cassidy, District Attorney-31st Judicial District Court, Jennings, LA, for Plaintiff/Appellee: State of Louisiana.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| defendant, Robert Allen Snelling, was driving east on Interstate 10, towing a boat between Houston, Texas, and Chattanooga, Tennessee. He was stopped for a traffic violation in Jefferson Davis Parish by Steven Vincent, a trooper with the Louisiana State Police, Troop D. After receiving consent to search Defendant’s vehicle, the trooper located several pounds of marijuana hidden in the engine compartment of the boat.

Defendant was charged by bill of information with one count of possession of a controlled dangerous substance with intent to distribute, a violation of La. R.S. 40:966(A)(1). Defendant filed a motion to suppress evidence which was denied by the trial court. Defendant pled guilty as charged, while reserving his right to appeal the trial court’s denial of his motion to suppress the evidence. Defendant was sentenced to five years at hard labor, with all but two years suspended, and three years supervised probation upon release from custody.

Defendant now alleges that the trial court’s denial of his motion to suppress the evidence was in error. We find that Trooper Vincent articulated sufficiently objective facts to support his suspicions that Defendant was involved in continuing criminal activity and the detention was of a reasonable duration in which to resolve his suspicions. Moreover, Defendant consented to a search and his consent resolves any issue of whether there was an illegal detention.

As a condition of probation, the trial court ordered Defendant to pay a $2,000 fine, $50 to the Drug Education and Treatment Fund, $250 to the “Southwest Crime Lab,” and court costs. However, the trial court failed to establish a payment plan for the payment of the fine, fees, and costs. When the fine, fees, and court costs are | ¿imposed as conditions of probation, but the trial court is silent as to the mode of payment, this court requires a specific payment plan be established. See State v. Wagner, 07-127 (La.App. 3 Cir. 11/5/08), 996 So.2d 1203 and 07-128 (La.App. 3 Cir. 11/5/08), 996 So.2d 1208. Therefore, we remand this case to the trial court for establishment of a payment plan for the fine, fees, and court costs. We note that the plan may either be determined by the trial court or by Probation and Parole, with approval by the trial court. See State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597.

ASSIGNMENT OF ERROR

Defendant asserts in his lone assignment of error that the trial court erred when it denied his motion to suppress the evidence. Defendant argues that the trooper’s traffic stop was a pretext to search for drugs, that once the traffic stop was resolved the trooper did not have additional reasonable suspicion of continuing criminal activity such that allowed further detention, and that there was no valid consent to search the boat. Therefore, for these reasons, the search of the boat was illegal, and the evidence should have been suppressed.

The state bears the burden of proof when a defendant files a motion to suppress evidence obtained without a warrant. La. C. Cr. P. art. 703(D). The entire record is reviewable for determining the correctness of a ruling on a motion to suppress. A trial court’s denial of a motion to suppress is afforded great weight and will not be set aside unless a preponderance of the evidence clearly favors suppression. State v. Pena, 43,321 (La.App.2d Cir.7/30/08), 988 So.2d 841.
The authority and limits of the Fourth Amendment apply to investigative stops of vehicles. The stopping of a vehicle and the detention of its occupants is a seizure within the meaning of the Fourth Amendment. State v. Pena, supra. The standard for evaluating a challenge to a routine warrantless stop for violating traffic laws is the two-step formula articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Pena, supra. The court must determine whether the officer’s action was justified at its inception, and whether |sit was reasonably related in scope to the circumstances which justified the interference in the first place. Terry v. Ohio, supra; State v. Pena, supra.
For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred or is about to occur, before stopping the vehicle. State v. Pena, supra. When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer. The determination of reasonable suspicion for an investigatory stop, or probable cause for an arrest, does not rest on the officers’ subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of the challenged action. State v. Pena, supra.

State v. Sera, 43,704, pp. 5-6 (La.App. 2 Cir. 10/29/08), 997 So.2d 707, 710-11.

At the suppression hearing, Trooper Vincent testified as follows: On the night of May 11, 2008, a few minutes before midnight, he was patrolling Interstate 10 in Jefferson Davis Parish, traveling east, when he observed a Chevrolet Tahoe pulling a trailer and boat also traveling east. He noticed that the trailer did not have a license plate. As he watched the vehicle, he saw the vehicle drift right of the fog line for about ten feet.

Trooper Vincent activated his lights and the vehicle immediately pulled over. Trooper Vincent testified that as soon as he activated the signal, the on-board camera turned on automatically. He said Defendant provided him with a valid Tennessee driver’s license. Trooper Vincent advised Defendant he was being stopped because he had no license plate on his trailer and because of the “lane usage violation.” Defendant told Trooper Vincent the trailer was registered in Tennessee and that a plate was not required there, which, according to Trooper Vincent, was correct. Defendant told Trooper Vincent that he was on his way to Tennessee to visit his mother for Mother’s Day. He said that he owned a trucking business in Houston. | ¿When Trooper Vincent asked him for his Houston address, “he got nervous, and he said, ‘huh, I don’t know, off some interstate highway. I paid cash for it.’ ” Trooper Vincent said Defendant told him that he owned two houses, one in Houston and one in Tennessee, and his driver’s license had his Tennessee address.

Trooper Vincent testified that Defendant was acting very nervous. “His carotid artery was pulsating. His — he kept grooming his hair, rubbing his hair, scratching his head, moving around.” Moreover, according to Trooper Vincent, Defendant would not maintain eye contact. Trooper Vincent said he ran a quick check on Defendant’s driver’s license and found that he had a domestic abuse charge several years ago, but there was no drug activity on his record. However, he decided he was going to ask for consent to search and while he was sitting in his vehicle he filled out a consent form for Defendant to sign. Trooper Vincent stated he made this decision based on the fact Defendant was so nervous that “[h]is hands were shaking.” Trooper Vincent further thought it was suspicious that Defendant was traveling from Houston to Chattanooga, towing a boat, to see his mother when he would arrive the day after Mother’s Day.

Trooper Vincent stated that, as he was filling out the consent form, two troopers arrived as back-up. When Trooper Vincent presented the consent form to Defendant, “[h]e waived his hands in the air and said T have no problem with that,’ ” and signed the form. Trooper Vincent and another trooper searched the vehicle first, then moved to the boat. Once inside the boat, they could smell a strong odor of marijuana from two vents in the engine compartment. Subsequently, they located several pounds of marijuana.

| sAfter hearing the trooper’s testimony and reviewing the video, the trial court rendered its decision. Denying the motion to suppress the evidence, the trial court stated:

All right. The Court, as I stated previously, has looked at the video in — in detail. The Court finds that the video was not of very good quality. I tried to turn it up as loud as I could and I was not able to hear much of the audio on that video.
Now, let’s talk about was there probable cause for the stop. There’s probable cause for the stop. He had the-no license tag, so the officer had the right to stop him. The Court finds that — I’m not going to follow Vaughn in this matter. I’m going to follow the Third Circuit that affirmed the case here and find that there is probable cause for the improper lane usage. The motion to suppress is not to decide whether or not he’s guilty of improper lane usage. It’s only whether or not there’s probable cause.
The next thing that we had to do is was he unreasonably detained? The officer was doing his job asking the right questions over the length of time. Now, it all gets back to the officer’s testimony. I’m going to state for the record that I found Officer Vincent to be very credible. There was a lot of conversations with the defendant that were not on the videotape that the officer referred to, and I’m going to rely on the officer’s impression and find that there was reasonable suspicion for him to detain the defendant as he did. The defendant was presented a consent to search, which the officer testified to that he went over the rights that the individual had to sign or not sign the consent to search. It was not contradicted, and it was filed into the record, and, therefore, the Court’s going to find that the consent to search was knowingly and intelligently done, and that based on that, the Court is going to deny the motion to suppress.

TRAFFIC STOP

Defendant asserts in brief that the traffic stop was in fact a random stop solely for the purpose of looking for contraband. He argues that “[tjhere is nothing in touching the fog line a single time which provides a basis for any suspicion of drug possession, and authorizing this kind of stop means that any motorist may be stopped at any time for no reason.” At the hearing, Trooper Vincent testified that the right |fiside tires crossed over the fog line for about a distance of ten feet, one time. He testified that, in his opinion, this was sufficient to establish a traffic violation.

In support of his argument that the stop was a pretext for looking for drugs, Defendant cites State v. Vaughn, 448 So.2d 915 (La.App. 3 Cir.1984), wherein this court reversed the trial court’s denial of the defendant’s motion to suppress the evidence based on a very similar factual scenario as the present case. This court stated:

It is the opinion of this Court that the defendant’s actions crossing six inches over the center line and traveling thus for approximately ten feet, even when coupled with the observation of a vehicle swaying within its own lane, does not per se present sufficient facts to establish the requisite reasonable cause which is necessary before a police officer may legally stop a motorist; particularly so, when the police officer followed the defendant for only one and one-half blocks, and further, when defendant’s driving presented no evidence of danger to himself or to others.

Id. at 916.

However, in State v. Waters, 00-356 (La.3/12/01), 780 So.2d 1053, the Louisiana Supreme Court discussed a first circuit case wherein the court reversed the trial court’s denial of a motion to suppress the evidence. The contraband was discovered during a traffic stop initiated after the police officer observed defendant’s vehicle veering to the right and making a single contact with the fog line on the side of the road. See State v. Waters, 99-407 (La. App. 1 Cir. 11/5/99), 751 So.2d 290, which relied on this court’s holding in Vaughn, 448 So.2d 915. The supreme court, after discussing the United States Supreme Court’s discussion and holding in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), stated; “Although they may serve, and may often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an | objective basis for lawfully detaining the vehicle and its occupants.” Waters, 780 So.2d at 1056. The supreme court went on to state:

In Whren, the Supreme Court expressly addressed concerns that its objective standard for determining the reasonableness of vehicular stops based on traffic infractions would throw open wide the door to the use of myriad traffic regulations by the police “to single out almost whomever they wish for a stop.” Whren, 517 U.S. at 818, 116 S.Ct. at 1777. “[W]e know of no principle,” the Court observed, “that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement.” Id. We therefore find the violation in the present case no more hypothetical or tenuous than the offense for which the police stopped a second vehicle in United States v. Smith after observing an air freshener hanging from the vehicle’s rear view mirror in apparent violation of state law prohibiting material obstructions between the driver and the windshield, [I]d., 80 F.3d at 219, or the violations in United States v. Williams, 106 F.3d 1362, 1364 (7th Cir.1997), in which the police officer observed the defendant’s vehicle signal a left turn 30 feet from an intersection instead of the 100 feet required by law, and then stop slightly forward of the stop sign at the intersection, again in violation of state law which required a stop at a point “nearest the intersecting roadway....” Federal and state jurisprudence in this area makes plain that the objective standard of Whren “is indifferent to the relatively minor nature of the traffic offense.” Williams, 106 F.3d at 1365.
Moreover, even if this Court were inclined under other circumstances to adopt a threshold approach to Whren below which an observed traffic violation appears too slight or technical to afford a reasonable basis for interfering with a vehicle’s freedom of movement, we agree with the trial court in this case that, giving due deference to Corporal Magee’s experience in the field, the sudden and inexplicable veering of the Toyota to the fog line at that hour of the morning provided the officer with a “ ‘minimal level of objective justification ....’” required for an investigatory stop. State v. Huntley, 97-0965, p. 3 (La.3/13/98), 708 So.2d 1048, 1049 (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)). A vehicle need not leave its lane to provide reasonable suspicion by reason of its erratic movements that the driver may be impaired or intoxicated. See State v. Moran, 667 P.2d 734, 735 (Ak.App.1983) (observation of defendant’s vehicle as it touched the center line of a divided highway and then drifted over to the right hand fog line three times within ⅜ mile provided reasonable suspicion driver was impaired or intoxicated).

Id. at 1057.

| sConsidering the above jurisprudence, in the current ease, Trooper Vincent articulated a valid and objective basis for lawfully pulling over Defendant’s vehicle, however minor the infraction may have been. See also, State v. Lewis, 07-1183 (La.App. 3 Cir. 4/2/08), 980 So.2d 251.

DETENTION

Defendant next argues that once the issue of the lack of a license plate on the trailer was resolved and Defendant was found not to have a criminal history other than a domestic abuse conviction in 2000, Defendant should have been cited for improper lane usage and allowed to continue on his way.

Louisiana Code of Criminal Procedure Article 215.1(D), in pertinent part, provides:

During detention of an alleged violator of any provision of the motor vehicle laws of this state, an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity.

This court discussed “reasonable suspicion” developed during a traffic stop in State v. Morris, 03-269, p. 10 (La.App. 3 Cir. 9/10/03), 854 So.2d 989, 996, writ denied, 03-2853 (La.10/15/03), 855 So.2d 743, as follows:

The reasonable suspicion referenced in La.Code Crim.P. art. 215.1(A) is something less than probable cause and something more than a hunch. State v. Flowers, 441 So.2d 707 (La.1983), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984). To determine the existence of reasonable suspicion, the totality of the circumstances faced by the law enforcement officers must be considered and the officers must be able to articulate facts that in conjunction with their inferences and the officers’ experience give rise to reasonable suspicion. Id.

Trooper Vincent testified that Defendant’s nervous behavior and the fact that he was towing a boat to Tennessee to see his mother for Mother’s Day, which was minutes from being over, made him suspect that Defendant may be involved in |9additional criminal activity. He stated that Defendant kept running his hands through his hair, scratching his head, moving around, would not maintain eye contact, and his carotid artery was pulsating. He further testified that when he asked Defendant for his address in Houston, Defendant could not tell him, stating only that he paid cash for his house and had a receipt.

Defendant argues that a review of the video tape of the stop contradicts the trooper’s testimony that he exhibited nervous behavior. The video began recording at approximately 11:31 p.m. At approximately 11:82, Trooper Vincent called out for Defendant to exit his vehicle. The two stood in front of the trooper’s unit for a minute or two and talked. While the audio was bad, the visual was good enough to see that Defendant spoke directly to Trooper Vincent and did not appear to avoid eye contact. Trooper Vincent walked around the boat to check the license plate on Defendant’s vehicle and at this time, Defendant scratched his head. Trooper Vincent returned and talked to Defendant again for a minute or two, during which time Defendant scratched his head. Approximately five or six minutes into the video tape, both men walked back to Defendant’s car and then returned to stand in front of Trooper Vincent’s unit. Trooper Vincent was holding some papers. Trooper Vincent was heard mentioning drugs. Defendant scratched his head again after Trooper Vincent walked back to Defendant’s car again for an unknown reason. Trooper Vincent saw him scratch his head only once. Defendant never ran his hands through his hair. As Trooper Vincent sat in his unit checking Defendant’s license plate and driver’s license, Defendant once rubbed his neck. He did however rub his nose five times during the course of the stop prior to signing the consent form for the search. Otherwise, Defendant stood patiently in front of the trooper’s unit for several 110minutes, watching either Trooper Vincent or traffic as Trooper Vincent filled out paperwork and communicated with dispatch. When the second trooper arrived, Defendant talked with him, smiling and laughing as Trooper Vincent sat in his unit. Defendant did become visibly nervous as Trooper Vincent asked him if he had drugs in the vehicle after the trooper showed him the consent form.

As noted, the audio on the video tape was bad. Most of the conversation was incomprehensible. What Defendant said when asked for his address was inaudible. The only conversation that was discernible to some degree was regarding whether Defendant had drugs at the beginning of the tape and then just before he signed the consent form, and about Defendant visiting his mother the day after Mother’s Day. Trooper Vincent presented Defendant with the consent to search form at approximately 11:48 p.m., sixteen minutes after the initial stop.

While discussing whether an investigatory traffic stop became an illegal restraint of a person’s liberty, the Louisiana Supreme Court stated:

“[C]ourts have been unable to develop a bright-line test to determine when police-citizen encounters exceed the bounds of mere Terry stops.” United States v. Ienco, 182 F.3d 517, 524-25 (7th Cir.1999). Because “[t]here is no scientifically precise formula that enables courts to distinguish between valid investigatory stops ... and other detentions that the law deems sufficiently coercive to require probable cause,” United States v. Zapata, 18 F.3d 971, 975 (1st Cir.1994), a court inquiring into the nature of a forcible detention must examine “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985) (citations omitted). A court making this assessment “should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.” Id.

State v. Miller, 00-1657, p. 3 (La.10/26/01), 798 So.2d 947, 949.

| ii In Miller, because the nervous driver did not consent to a search of the vehicle, the officer held her for fifty-four minutes awaiting a drug sniffing dog. The supreme court did not find the wait imposed in Miller as being excessive, noting:

The trooper immediately reported his deepening suspicions and Officer Thig-pen, at home when he received his dispatcher’s call, responded promptly, arriving with his dog on the scene 34 minutes later. The stop was approaching an hour at this point but its duration reasonably correlated with the escalating level of suspicion as the officers pursued a means of investigation likely to confirm or dispel the trooper’s suspicions without unnecessary delay.

Id. at 950.

In the current case, the video does not suggest that Defendant was nervous. Even if he was nervous, in State v. Alexander, 450 So.2d 61 (La.App. 3 Cir.1984), this court stated that nervousness, by itself, was not sufficient to justify a continuing investigation once the reason for the initial stop was resolved, but was a factor adding to a developing reasonable suspicion. During cross-examination, Trooper Vincent admitted that he did not find it unusual for someone to not be able to visit their mother for Mother’s Day actually on Mother’s Day. Nothing more suspicious occurred. Defendant’s license plate and driver’s license and the trailer registration were all in order and validated through dispatch. Defendant had a reasonable explanation of where he was from and where he was going. The only criminal matter on Defendant’s record was a domestic abuse offense in 2000.

However, most of the questions and answers could not be heard on the video, nor the tone of Defendant’s voice. Only Trooper Vincent could see directly into Defendant’s eyes, and see whether Defendant’s carotid artery was pulsating. Further, it was only sixteen minutes from the initial stop until Defendant signed a consent form, allowing the troopers to search. More problematic to Defendant’s case is the fact that 112he freely consented to the search. An investigating officer does not need any degree of reasonable suspicion to ask for and receive permission to search. State v. Strange, 04-273 (La.5/14/04), 876 So.2d 39.

CONSENT TO SEARCH

Defendant does not contest the validity of the consent to search itself. The only issue Defendant raises concerning the consent is whether he consented to the search of the boat when he consented to the search of the vehicle. The consent to search form specifically listed only the 1999 Chevrolet Tahoe. Defendant asserts that he “never consented to the search of the boat and the form cannot support any claim that he did so.”

It is well settled that a warrantless search conducted pursuant to a valid consent is permitted by the Louisiana and United States constitutions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Bodley, 394 So.2d 584 (La.1981); State v. Murphy, 465 So.2d 811 (La.App. 2d Cir.1985). A consent is valid when it is freely and voluntarily given by a person with common authority or other sufficient relationship to the premises or effects sought to be inspected. Bodley, supra; State v. Owens, 480 So.2d 826 (La.App. 2d Cir.1985), writ denied, 486 So.2d 748, cert. denied, 479 U.S. 840, 107 S.Ct. 145, 93 L.Ed.2d 87 (1986). While a valid consent search is a recognized exception to the warrant requirement, the burden is on the state to prove the consent was freely and voluntarily given. Voluntariness is a question for the trier of fact to be determined by the totality of the circumstances. The trial court’s finding is to be given great weight upon appellate review. State v. Edwards, 434 So.2d 395 (La.1983); State v. Brown, 478 So.2d 600 (La.App. 2d Cir.1985).

State v. Bostic, 26,000, p. 6 (La.App. 2 Cir. 5/4/94), 637 So.2d 591, 595-96, writ denied, 94-1476 (La.10/14/94), 643 So.2d 159. Moreover,

[W]hen officers rely upon consent to justify a warrantless search, they have no more authority than they have been given by the consent. Therefore, any search beyond the permitted intrusion invalidates the voluntariness of the consent given to the extent that the search exceeds the parameters for which the permission was granted.

State v. Malone, 39,996, p. 6 (La.App. 2 Cir. 9/23/05), 912 So.2d 394, 398.

| iaIn brief, the State argues that Defendant’s assertion that he did not consent to the search of the boat was not supported by “any specific authority” and that “once consent to search is granted to the police, it is generally given a broad interpretation in scope.” The State cites Sera, 997 So.2d 707, in support of its assertion, stating that in Sera, “[t]he Court found that consent to search included all containers found in the truck and trailer, (emphasis added).” In Sera, the defendant was riding with his cousin, who was driving an eighteen-wheeler. The rig was stopped for a traffic violation and after being given consent to search the tractor, or cab, by the driver, the police found the defendant’s bag in the sleeper compartment of the tractor which contained three kilos of cocaine. The issue was whether consent to search the tractor extended to the luggage of a passenger located in the tractor. After analysis of the facts of the case, the second circuit stated only that the driver of the rig had the authority to consent to a search, which “included all containers in the truck [tractor] and trailer.” Id. at 717.

However, the State further supports the “broad interpretation” of a consent in the current case by comparison to consent given to the search of a residence, wherein the “residence also encompasses related structures such as a playhouse in the yard. See State v. Wagster, 361 So.2d 849 (La.1978).” In Wagster, the issue was whether the father and owner of the residence could consent to the search of his son’s van, which was parked in the backyard. The father testified that, when asked, he gave consent to search his van in the backyard, but not his son’s van. The officer testified that he obtained consent to search the son’s van when he talked to the father. The supreme court held, “[C]onsent to search a residence should, under ordinary circumstances, apply to structure appurtenant thereto used in connection with the main l^building, such as a van without wheels resting on blocks, and used as a playhouse as in the case at bar.” Id. at 855.

In a more recent case, State v. Irby, 93-2220 (La.App. 4 Cir. 2/4/94), 632 So.2d 801, 804, writ denied, 94-580 (La.4/29/94), 637 So.2d 461, the fourth circuit discussed whether the language, “ray residence or other real estate,” contained in a consent to search form included a shed outside the house, as follows:

In support, it [the State] cites State v. Roach, 322 So.2d 222 (La.1975), and State v. Brouillette, 465 So.2d 124 (La.App. 4th Cir.1985), where both courts held that the term “premises” used in a search warrant affidavit could be reasonably construed to include the house, the garage, and “other outbuildings which one normally associates with and includes in the word ‘premises’ ”, Brouil-lette, at 126, or “any other outbuildings within close proximity of the house proper that one normally associates with and includes within the word ‘house’ or ‘premises’ ”, Roach, at 226. In United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987), the Supreme Court set forth four factors to be used to determine the “curtilage” of a house: “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.”
Taking the Dunn factors, it appears that the shed would fall within the “cur-tilage” of the residence. If the only thing this court had to consider was the consent form, the search of the shed would probably have been authorized by the form. Likewise, if the officers had gotten a search warrant for the “premises”, the shed probably would have been included within its scope.

In the current case, the consent form Defendant signed stated that he “hereby voluntarily authorize TPR Steven Vincent of the Louisiana Office of State Police to search 1999 Chevrolet Tahoe 400 Tan TN Titan 9970 and its contents, which are owned or controlled by me.... ” The boat, secured to the trailer attached to the truck, would qualify as “curtilage” in the same sense as an outbuilding “within close |! ¾proximity of the house proper that one normally associates with and includes within the word ‘house’ or ‘premises.’ ” State v. Roach, 322 So.2d at 226.

In State v. Pigford, 05-477 (La.2/22/06), 922 So.2d 517, the supreme court addressed an issue of whether the driver of an eighteen-wheeler rig had dominion and control over the drugs found in the trailer such that allowed him to be convicted of the offense of possession with intent to distribute the drugs. In this case, the issue was not whether the defendant’s consent to search the tractor extended to the trailer compartment — the defendant had refused the police consent to search the trailer — but whether the drugs could be imputed to him by virtue of the fact he operated the tractor. Noting that private vehicle case law regarding constructive possession of drugs cannot necessarily be applied to drugs found on commercial transport, the supreme court nonetheless stated:

Defendant’s dominion and control over the trailer and access to its contents did not alone establish his guilty knowledge of the marijuana bundle placed on top of the grape pallets. See State v. Major, 03-3522 at 8-9 (La.12/1/04), 888 So.2d 798, 803. Nevertheless, guilty knowledge, an essential component of any showing that a defendant has constructive possession of contraband, ie., dominion and control over it although the contraband is not in his actual possession, State v. Bell, 566 So.2d 959, 960 (La.1990); State v. Sweeney, 443 So.2d 522, 528 (La.1983), may be inferred from the circumstances of the transaction. Major, 03-3522 at 8-9, 888 So.2d at 803; State v. Goiner, 410 So.2d 1085, 1087 (La.1982).

Id. at 521.

In the current case, the trooper testified Defendant’s behavior gave him reasonable suspicion that he was involved in continuing criminal activity. Interstate 10 is a well-known drug route east, the direction Defendant was traveling. When asked, Defendant told the trooper that he was the owner of the trailer and the boat; therefore, he had dominion and control. We find that Trooper Vincent would have |16been remiss to have not searched the boat, which Defendant admitted he had dominion and control over by virtue of ownership.

Finally, there was no evidence that Defendant attempted to restrict the search, or objected when the troopers approached and then searched the boat. Consent can be limited and revoked at any time, even after a search has commenced. Malone, 912 So.2d 394. See also, State v. Rawls, 552 So.2d 764 (La.App. 1 Cir.1989), wherein the first circuit noted that because neither the driver nor the defendant, who was the passenger, objected to the search of the passenger’s luggage in the truck, the trial court was correct in denying the defendant’s motion to suppress the evidence that was located in his luggage.

When Defendant gave consent to search the vehicle, the consent extended to the boat, which was attached to the vehicle. As in a shed, which is “curtilage” because of its proximity to a house and under the dominion and control of the owner of the residence, consent to search the boat firmly attached to the vehicle and under the dominion and control of Defendant, was within the scope of the consent to search the vehicle.

CONCLUSION

Ultimately, this matter turns on the simple fact that Defendant gave consent to search the vehicle. Considering Defendant’s consent to search, we affirm Defendant’s conviction. However, this case is remanded to the trial court for establishment of payment plans for the fine, fees, and court costs, noting that the plans may either be determined by the trial court or by Probation and Parole, with approval by the trial court.

hvCONVICTION AFFIRMED; REMANDED FOR ESTABLISHMENT OF PAYMENT PLAN.

GENOVESE, J., concurs in the result.