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DOMENGEAUX, Judge. Dorothy Smith King (King) commenced these proceedings to recover damages for the injuries she sustained as the result of an automobile accident. King named as defendants: (1) Vickie D. Louviere Greig (Greig), the driver of the vehicle which struck her car; (2) Waters Oil Tool & Supply, Inc. (Waters Oil Tool), Greig’s employer and the owner of the vehicle which struck the plaintiff; (3) State Farm Mutual Automobile Insurance Company (State Farm), Waters Oil Tool’s automobile liability insurer; and (4) Roger Allen Waters (Waters), the sole incorporator and owner of ninety-five percent of the Waters Oil Tool stock. Intervening in these proceedings was American Motorist Insurance Company (American Motorist). American Motorist was the worker’s compensation insurer of Avon Products, Inc. (Avon), King’s employer. The Trial Court rendered judgment in favor of King and American Motorist. The judgment in favor of King was rendered against Greig, State Farm and Waters Oil Tool, in solido. King was awarded $419,-252.15 with interest at the legal rate accruing from May 4, 1984. King’s award was itemized as follows: General damages $100,000.00 Past medical 3,409.58 Future lost income 270,480.00 Past lost income 45,362.57 Total $419,252.15 State Farm’s liability was limited to $100,-000.00, the extent of its policy, plus interest. The defendants were cast in judgment for all costs. American Motorist was adjudged subro-gated to the rights of King against the defendants for medical payments and weekly worker’s compensation. Judgment in favor of the intervenor amounted to $3,075.27 in medical payments and $16,-800.00 in weekly compensation. Waters, prior to trial on the merits, moved for and was granted summary judgment. Waters premised his argument in support of his motion on the grounds that he was not the owner of the automobile Greig was driving at the time of the accident. The defendant’s affidavit which accompanied his motion attested to the fact that the automobile was owned by Waters Oil Tool. On December 1,1983, shortly after noontime, King, in the course and scope of her employment with Avon, was driving her 1983 Plymouth automobile in an easterly direction on U.B. Landry Road in Lafayette Parish, Louisiana. Greig, at the same time, was driving her employer’s 1981 Oldsmobile in a westerly direction on the same highway. The drivers approached each other at what was described by Lafayette City Police Officer Randy Menard as a very sharp, ninety degree curve. According to Officer Menard’s testimony, the road was posted as a fifty mile per hour zone with a yellow warning sign indicating a curve and suggesting a speed of fifteen miles per hour to negotiate the curve safely. The Officer further indicated that the weather was “misty” and that the surface of the road was wet. Greig testified that as she approached the curve, which would have required that she turn to the right and the plaintiff turn to the left, she was traveling approximately thirty to thirty-five miles per hour, believing the highway was posted forty miles per hour. She stated that the curve was very sharp and that when she attempted to slow her car, three or four car lengths before the curve, she discovered that her brakes did not work. Greig told the Court that she pumped them, but that effort produced no results and she drove “clean across” the highway into the oncoming lane of traffic. The defendant testified that upon entering the oncoming lane the plaintiff was also attempting to negotiate the curve and that she struck King’s automobile on the driver’s side in the rear. King testified that as she was attempting to negotiate the curve she saw the defendant’s car “coming fast.” She stated that Greig’s vehicle crossed the center line striking her vehicle on the rear door and fender, causing the rear tire to blowout. She then testified that her car spun almost completely around and that she struck her head against the side window. King’s car eventually came to rest almost entirely off the highway. Greig, State Farm and Waters Oil Tool sought this appeal. The appellants contend that the Trial Court erred in four respects: (1) The Trial Court erred in finding Greig negligent, failing to conclude that sudden brake failure, unanticipated by the driver of a nonowned automobile is a defense to the liability of the driver; (2) The Trial Court erred in rendering an excessive general damage award of $100,000.00; (3) The Trial Court erred in awarding King $270,480.00 in lost future income; and (4) The Trial Court erred in awarding King $45,362.57 in lost past income. American Motorist, the intervenor, raised two additional issues for review. American Motorist suggests that the Trial Court erred in failing to award it interest on its judgment and that it should additonally be awarded all worker’s compensation benefits paid to or on behalf of King since the judgment of the District Court. The initial issue on appeal addresses the negligence attributed to the defendant Greig. The Trial Court, in oral reasons, concluded that the issue of liability could be resolved “summarily” and held that "the proximate cause of this accident was due to the sole negligence of the defendant.” Greig now appeals contending that as the driver of a nonowned automobile which experienced sudden, unanticipated brake failure she is free from fault and, therefore, liability. Subsequent to our review of the statutory and jurisprudential authority, we are unable to agree with the defendant. We believe the decision of the Trial Judge on this issue should be affirmed, however, we believe the reasoning to be erroneous and, therefore, assign other grounds. Our law currently provides that both the nonowner-driver and the owner of a vehicle which experiences sudden, unanticipated brake failure are strictly liable for the resulting damage, absent proof that the harm resulted from the fault of the victim, the fault of a third person or an irresistible force. The basis of this liability is La.Civ. Code art. 2317 (1870) which provides: We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications. The benchmark decision addressing article 2317 is, of course, Loescher v. Parr, 324 So.2d 441 (La.1975). The Loescher Court held that when harm results from a vice in a thing which creates an unreasonable risk of harm, the custodian of the thing is strictly liable for the damage occasioned. Our review of the jurisprudence has revealed that both the nonowner-driver and the owner of a vehicle which experiences sudden, unexpected brake failure are both custodians. The Louisiana Supreme Court in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), commonly cited as authority for the manifest error standard of appellate review, held that both the nonowner-driver and the owner of a vehicle which experiences sudden brake failure are both custodians of the vehicle for the purposes of article 2317 and, therefore, are strictly responsible for any damage which may result. See also, Sikes v. McLean Trucking Co., 383 So.2d 111 (La.App. 3rd Cir.1980); But see, Smith v. Crown Zellerbach Corp., 385 So.2d 307 (La.App. 1st Cir.1980) (owner liable; nonowner-driver not a party). Although this result may appear to be a harsh imposition of liability on an unwary nonowner-driver, the nonowner-driver, although less culpable than the owner, is more culpable than the innocent plaintiff. Absent such a conclusion, the risk that an owner may not have properly maintained his or her automobile is borne by the injured plaintiff, who unlike the nonowner-driver, was in absolutely no position to evaluate the condition of the vehicle or the maintenance performed by the owner. The second issue on appeal addresses the Trial Court’s general damage award of $100,000.00. The appellants contend that the award is excessive and not supported by the evidence. We have reviewed the evidence and the jurisprudence addressing quantum, and we fail to agree. Our responsibility on appeal is to review the lower court’s determination and refrain from disturbing the judgment absent finding manifest error. La.Civ.Code art. 1934(3) (1870) (in effect on December 1, 1983); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). The integrity of a lower court award must not be violated without a finding by the reviewing court that the decision is clearly wrong. The primary considerations in assessing quantum are the severity and duration of the injured party’s pain and suffering. Article 1934(3), supra; Head v. St. Paul Fire & Marine Insurance Co., 408 So.2d 1174 (La.App. 3rd Cir.1982), writ denied, 412 So.2d 99 (La.1982); Anthony v. Hospital Service District No. 1, 477 So.2d 1180 (La.App. 1st Cir.1985), writ denied, 480 So.2d 743 (La.1986). We believe the evidence clearly establishes that King has and will continue to endure considerable pain and suffering, and that the judgment of the District Court should not be disturbed. King, at the time of the accident, was a fifty-year-old woman who was leading a very active and successful life. She had worked for Avon for approximately fifteen years, had progressed within the company and had been the recipient of the company’s highest honor, the Candle Circle Of Excellence Award. Subsequent to the accident, she has had to discontinue working, endure neck pain, bouts of depression, lack of energy, anxiety and the inability to sleep well. King’s initial medical attention came from her family doctor, an internist, Dr. Kenneth Edward McCarron. Doctor McCarron saw King on the date of the accident and on approximately fourteen other occasions from December 1, 1983 to the time of trial, October 29, 1986. Doctor McCarron prescribed a cervical collar, exercises and different medications, including cortisone injections. He described King’s condition as “chronic” indicating that, although it might not be permanent, it would be one of long duration with very slow progress. Shortly after King’s initial visit to Doctor McCarron, the doctor recommended that she see Peggy Taylor Hebert, a physical therapist. King saw Hebert on seven occasions over a two week period in mid-December, 1983. King, apparently at Doctor McCarron’s suggestion, did not return to the therapist after seeing Doctor McCarron for a two-week checkup. King’s neck, cervical and upper back pain had not been relieved. In early January, 1984, also at the suggestion of Doctor McCarron, King saw Dr. Stewart Phillips, an orthopedic surgeon. Doctor Phillips diagnosed King’s condition as cervical disc disease. He explained that King, who had previously had discs in her neck fused, had aggravated her former condition as a result of the accident. Doctor Phillips stated that he explained to King that her options were to either attempt additional fusion or to learn to limit her activities and accept her discomfort. The doctor stated that King chose to forgo any additional surgery and that he supported her decision. He explained that subsequent fusion operations rarely provide the profound relief experienced after the first procedure and that there exists a greater liklihood of complications as a result of a second fusion. King also saw, at the recommendation of her Ob-Gyn, Doctor Chesson, Sharon Ann Felder, a psychiatric or clinical social worker. Doctor Chesson suggested that King see Felder because she was experiencing depression, anxiety, a lack of energy, the inability to sleep well, and a decreased interest in sexual relations. King saw Felder on five or six different occasions. Felder concluded that the source of King’s problems was her inability to return to work. Felder arrived at this conclusion subsequent to considerable discussions with King regarding her time with Avon and the enjoyment she received from her job. King’s own testimony further revealed the extent of her discomfort and the dramatic change her life had undergone since the accident. She explained that unless she carefully limits her activity, in particular, the extent of her driving and any lifting or bending, she experiences pain which often requires a visit to Doctor McCarron’s office for a cortisone injection. King told the Court of her efforts to remain with Avon, including changing positions and attempting to alter her business activities, but that in the end she was both frustrated and depressed that her injuries had forced her to leave the job she so much enjoyed and at which she was so successful. It is for the above stated reasons that we decline to alter the lower court award of $100,000.00 in general damages. We do not believe the District Court was manifestly erroneous. The appellant’s third issue on appeal questions the correctness of the Trial Court’s decision awarding King $270,480.00 in lost future income. The Trial Judge based her decision primarily on the fact that at the time of the accident King was only fifty-years-old and was likely to work another fifteen years, until she was sixty-five. This decision rested on the fact that Avon had a retirement plan which commenced payments at age sixty-five and on the fact that King had testified that she did not anticipate, prior to the accident, retiring before age sixty-five. The Court then concluded, based on King’s prior earnings, that she would have earned, at the very least, $25,000.00 per year. The Judge multiplied $25,000.00 by fifteen years and arrived at a gross earnings figure of $375,-000.00. The Court then determined that because the plaintiff had intermittent periods in which she was pain free, she could obtain employment which would pay her minimum wage. Subtracting $104,520.00, fifteen years of minimum wage, from $375,000.00, the Court arrived at its lost future income award of $270,480.00. We are advised by the jurisprudence that calculations of lost future earnings are at best speculative and cannot be made with absolute certainty. Robinson v. Graves, 343 So.2d 147 (La.1977). In rendering a lost income determination, trial courts generally take into consideration the following factors: (1) age; (2) life expectancy; (3) work life expectancy; (4) any discount rate or inflation factor; (5) annual wage rate increases; and (6) probable future earning capacity. Freeman v. Harold Dickey Transport, Inc., 467 So.2d 194 (La.App. 3rd Cir.1985); Rivers v. Schlumberger Well Surveying Corp., 389 So.2d 807 (La.App. 3rd Cir.1980). Our obligation on appeal is to review the decision of the lower court and refrain from adjusting the award absent concluding that the trial court had abused its broad discretion and was manifestly erroneous. Unbehagen v. Bollinger Workover, Inc., 411 So.2d 507 (La.App. 1st Cir.1982). Subsequent to our review of the record, we do not believe the decision of the Trial Judge is manifestly erroneous. The plaintiff’s economic expert, Donald Woodward Cornwell provided the Trial Court with three sets of figures representing lost future income. Each of the figures represented a different period of time for which the plaintiff might have continued to work. Cornwell’s initial present value of future work life expectancy was $189,121.46 and was based on a work life of 7.08 years. This time frame was the average for a worker with King’s education, she had completed the 11th grade, and King’s age. The second estimation, $216,281.43, projected, using United States Department of Labor statistics, that King would be a member of the labor force for another 11.24 years. This conclusion rested on her age at the time of the accident. The economist’s final calculation projected King’s lost future wages to age sixty-five, the age at which she would have been eligible for Avon’s retirement benefits. This calculation resulted in an estimated lost future income of $283,123.07. Although the Trial Judge did not rely on the calculations of the expert, particularly excluding discounts for future earnings, consideration of sick leave, employer contributions to savings and other similar considerations, we do not believe that the judgment rendered by the lower court is erroneous. The Trial Judge’s award of $270,-480.00 is quite close to the third calculation of the economist, $283,123.07. We believe, because of the speculative nature of the calculation involved, that the Trial Court did not abuse its broad discretion. The appellants’ fourth issue on appeal addresses the Trial Court’s award of $45,-362.57 in lost past income. The appellants contend that this award is excessive because it includes $3,783.00 in domestic household help which was never established at trial. Subsequent to our review of the record, we believe that the appellants are correct and reduce the lower court award for lost past income by $3,783.00 to $41,579.57. The $3,783.00 in domestic help was a figure used by the economist, Cornwell, anticipating King’s inability to undertake household tasks herself. We have been unable to find any evidence that King employed any domestic help and, therefore, must amend the judgment accordingly. The final issues on appeal were raised by American Motorist. American Motorist was awarded $19,875.27 by the lower court. This award consisted of $16,-800.00 in weekly worker’s compensation benefits and $3,075.27 in medical benefits paid to King or on her behalf up to the time of trial. The intervenor maintains that because Greig, Waters Oil Tool and State Farm suspensively appealed the lower court judgment it has continued to pay King worker’s compensation benefits and that it is now entitled to be reimbursed for those payments. American Motorist suggests that it is entitled to the original judgment of $19,-875.27, plus judgment in the amount of ail benefits it has paid pending the resolution of this appeal. We believe that American Motorist’s subrogation rights entitle it to the judgment it seeks and we will, therefore, amend the lower court decision to reflect the increase. La.R.S. 23:1021, et seq. American Motorist also maintains that it, similar to King, should receive interest at the legal rate on all amounts it has paid in compensation benefits both pri- or to trial and pending final judgment. We believe the intervenor is correct and is entitled to the interest it seeks. Interest is, therefore, awarded to American Motorist on all sums paid prior to the intervention from the date of the intervention and on all sums paid subsequently, from the date those sums were paid. Lachney v. Motor Parts and Bearing Supply, Inc., 357 So.2d 1277 (La.App. 3rd Cir.1978); Willis v. Stauffer Chemical Co., 349 So.2d 1390 (La.App. 3rd Cir.1977), writ denied, 352 So.2d 1047 (La.1977). For the above and foregoing reasons, the judgment of the District Court in favor of Dorothy Smith King, the plaintiff, and American Motorist Insurance Company, the intervenor, and against Vickie D. Louviere Greig, Waters Oil Tool & Supply, Inc. and State Farm Mutual Automobile Insurance Company, the defendants, is amended in the following respects: (1) The judgment of the District Court awarding King $45,362.57 in lost past income is reduced to $41,579.57; (2) The judgment of the District Court awarding American Motorist $19,875.27 is increased to include all worker’s compensation benefits paid to or on behalf of King during the pendency of this appeal and all benefits it may pay up to the receipt of judgment by King; and (3) American Motorist is entitled to interest at the legal rate on all sums paid prior to its intervention, from the date of its intervention, and on all sums paid subse quent to its intervention, from the date those sums were paid. The judgment in all other respects is affirmed. All costs of this appeal are assessed: ninety percent to Greig, Waters Oil Tool and State Farm, and ten percent to King. AMENDED AND AFFIRMED. . In Coco, this Court at 330 So.2d 649 (La.App. 3rd Cir.1976) reduced the Trial Court’s award for general damages in which instance Domen-geaux, C. J., dissented, concluding that the award should be affirmed. On writs, the Louisiana Supreme Court adopted the rationale of the dissenting opinion and reinstated the Trial Court award. 341 So.2d 332, (La.1976).

In re Massachusetts Indem./Life; Steve Modica and Assoc.; Bill Whittle & Assoc. Inc.; applying for writ of certiorari and/or review; to the Court of Appeal, Fifth Circuit, No. 87-CA-0531; Parish of Jefferson, 24th Judicial District Court, Div. “L”, No. 305-446. Prior report: La.App., 520 So.2d 451. Denied. MARCUS and LEMMON, JJ., would grant the writ.

SCHOTT, Judge. We granted certiorari in order to consider the validity of a judgment of the trial court granting a motion for new trial in favor of respondent, Trunkline Gas Company, and setting aside two previous judgment in favor of relators, Cooper Brothers Welding Service, Inc. and First Insurance Company. The suit began with a claim by the plaintiff against Trunkline for injuries he sustained while working on Trunkline’s fixed platform on the Outer Continental Shelf off the Louisiana coast. Trunkline filed a third party demand against Cooper alleging that pursuant to a contract between Trunk-line and Cooper the latter was required to indemnify Trunkline and to have Trunkline insured under First’s policy. Trunkline also filed a third party demand against First claiming to be an insured under the policy First issued to Cooper. Cooper and First filed motions for summary judgment against Trunkline contending that the contract’s indemnity provisions were null and void by virtue of the anti-indemnity provisions of LSA-R.S. 9:2780. On June 26, 1987 the trial court granted Cooper’s motion but held that the anti-indemnity statute did not apply to an insurer and denied First’s motion. First applied to this court for supervisory writs claiming that the anti-indemnity statute applied to it as well as its insured, Cooper. On November 24 this court took the following action on First’s application: Writ Granted The trial court erred in denying relator’s Motion for Summary Judgment. LSA-R.S. 9:2780(A)(G). Respondent’s argument based upon Clarko Contractors, Inc. v. Texas Eastern Gas Pipeline, Co., 615 F.Supp. 775 (M.D.La.1985) is a new argument that was not addressed at the trial court level and, therefore, should not be addressed by this court. United States Fidelity & Guaranty Co. v. Victory Land, Inc., 410 So.2d 359 (La.App. 4th Cir.1982). In a December 8,1987 judgment the trial court acknowledged the foregoing decision of this court and dismissed Trunkline’s third party demand against First. However, on January 11, 1988 the trial court granted Trunkline’s timely motion for new trial with respect to the December judgment with the following decree: IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion for a New Trial filed by Trunkline Gas Company be, and it is hereby, grant ed, and that the Judgments heretofore granted in this matter in favor of Cooper Bros. Welding Service, Inc., and First Horizon Insurance Company be, and are hereby annulled, vacated and recalled. Cooper contends that the trial court erroneously recalled its judgment of June 26, 1987 because that judgment was final. This contention is correct. The dismissal of Trunkline’s demand against Cooper became a “thing adjudged” or res judicata when the time for taking an appeal from the judgment elapsed. LSA-C.C. art. 3556(31). Consequently the judgment of the trial court with respect to Cooper’s June judgment will be reversed and set aside. With respect to First’s application, Trunkline contends that the anti-indemnity statute is inapplicable to the contract between Trunkline and Cooper because Trunkline’s platform was not a drilling platform but was a valving platform servicing pipelines transporting gas to the mainland. This contention based originally on Clarko Contractors v. Texas Eastern Gas Pipeline, 615 F.Supp. 775 (M.D.La.1985) was found to be correct by this court in Griffin v. Tenneco Oil Company, 519 So.2d 1194 (La.App. 4th Cir., 1988), writs refused 521 So.2d 1154 (La.1988). Thus, it appears that Trunkline’s third party demand was erroneously dismissed in December and that the trial court properly grant ed Trunkline’s motion for new trial and recalled the December judgment. First’s principal contention is that the “law of the case” doctrine precludes Trunkline from prevailing on the principle recognized in the Griffin case because of the writ action taken by this court on November 24. First argues that when this court refused to consider Trunkline’s Clar-ko argument because it had not been theretofore made in the trial court but was made for the first time in this court in opposition to the earlier application for writs this court precluded further consideration of the argument in the trial court. A review of the precise action taken by this court in November and quoted above does not support First’s position. The court merely declared that the trial court had erred in denying First’s motion for summary judgment on the basis of what was before it at the time, i.e., without benefit of Trunkline’s Clarko argument. This court also stated that it would not consider this argument because it had not been addressed to the trial court. But this court did not grant First’s motion or order the trial court to do so. It did not prohibit the trial court from considering the new argument. Thus, the trial court erred in its December judgment when it declined to consider the argument, it properly granted Trunkline’s motion for new trial as to First, and properly set aside the December judgment as to First. Accordingly, the January 11, 1988 judgment of the trial court granting a new trial with respect to the June judgment in favor of Cooper Brothers Welding Services, Inc. and recalling this judgment is reversed and set aside; the judgment with respect to First Horizon Insurance Company is affirmed. REVERSED IN PART; AFFIRMED IN PART.

LeBLANC, Judge. Kevin J. Deville was charged by bill of information with distribution of cocaine, a violation of La.R.S. 40:967 A(l). Defendant pled not guilty. Following trial by jury, he was convicted as charged. The trial court sentenced defendant to a five year term of imprisonment at hard labor. Defendant brings this appeal, urging five assignments of error: 1. The trial court erred by accepting Mary Sue Trull as an expert in the analysis and identification of controlled dangerous substances. 2. The trial court erred by allowing the state to question Officer Louis Hyatt about conversations with defendant concerning other drug transactions. 3. The trial court erred by admitting State Exhibit I, the certificate of analysis, into evidence. 4. The trial court erred by denying defendant’s motion for a new trial. 5. The instant verdict is contrary to the law and to the evidence. FACTS The record reflects that defendant was arrested after selling one-eighth ounce of cocaine to undercover officer Louis Hyatt of the Louisiana State Police on September 17, 1986. Officer Hyatt testified that he learned from an informant that defendant would be willing to sell cocaine. Through the informant, Hyatt met defendant during the early morning hours of September 13. Defendant agreed to sell Hyatt one-fourth ounce of cocaine, but he was unable to complete the deal that night. During the initial contact, defendant indicated that he could sell two ounces of cocaine for $1800 per ounce. Hyatt next spoke with defendant by telephone on September 16. Hyatt testified that he telephoned defendant at the Soul Castle Lounge, inquiring if the two ounces of cocaine were still available. Defendant returned Hyatt’s call about fifteen minutes later, indicating that the man holding the two ounces of cocaine had returned to New Orleans. However, defendant did offer to sell Hyatt one-eighth ounce of cocaine. Hyatt accepted the offer. The next day Hyatt met defendant and gave him three hundred dollars in exchange for the cocaine. In furtherance of the sale of a larger quantity of cocaine, defendant met Hyatt later than evening. However, when defendant requested $1,000 in advance of delivery, Hyatt placed defendant under arrest. ASSIGNMENT OF ERROR NUMBER ONE: Defendant contends that the trial court erred when it accepted Mary Sue Trull, over his objection, as an expert in the identification of controlled dangerous substances. He argues that she lacked the necessary educational background to understand the testing procedures utilized herein. The record reveals that Ms. Trull, who conducted the substance analysis tests on the suspected cocaine, had worked as a drug analyst for the Louisiana State Police Crime Laboratory for about eight years. She held a B.S. degree in zoology and had taken six college chemistry courses, including organic chemistry and quantitative and qualitative analysis. She had also qualified in court as an expert in drug analysis more than fifty times. A proposed expert witness must satisfy the trial court as to his knowledge and competency in the field about which he is called upon to express an opinion. The competence of an expert witness is a question of fact to be determined within the sound discretion of the trial court. Its ruling on the qualification of an expert witness will not be disturbed in the absence of manifest error. State v. Myles, 432 So.2d 1018 (La.App. 1st Cir.1983). We find no manifest error in the trial court’s ruling in this instance. Ms. Trull’s educational background combined with her vast experience supported her qualification as an expert. This assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER THREE: Defendant contends that the trial court erred by admitting State Exhibit I, the certificate of analysis, into evidence over his objection. He argues that it was not demonstrated that Ms. Trull had the expertise to conduct these tests or that the equipment utilized was properly maintained. In assignment of error number one, we addressed defendant’s argument that Ms. Trull was not qualified as an expert in the identification of controlled dangerous substances and rejected it. At trial, Ms. Trull gave a detailed explanation of the screening tests utilized in identifying cocaine. Defendant than had the opportunity to challenge the accuracy and reliability of the test results. During his cross-examination, defense counsel questioned Ms. Trull extensively concerning the conditions under which the tests were conducted and the safeguards taken to assure their validity. Ms. Trull testified that the apparatus employed were “state of the art” and in such a condition as to allow for accurate experimentation. There is nothing of record to indicate that the accuracy of these test results was not safeguarded. Defendant argues that the state should be required to comply with detailed state promulgated regulations, as with the handling of blood-alcohol testing. However, the legislature has not mandated such regulation by the state for the testing of cocaine but, rather, has left that responsibility with those who prepare forensic science handbooks. The general rule is that results of scientific tests and expert opinions based thereon are admissible if the scientific principle is generally considered reliable and accurate by the scientific community when conducted by a competent individual. See State v. Boyer, 406 So.2d 143, 147 (La.1981). It is apparent that Ms. Trull was extremely competent in this area. Accordingly, this assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER TWO: Defendant argues that the state imper-missibly elicited references to other crimes evidence when it questioned Officer Louis Hyatt about his conversations with defendant directed toward the purchase of two ounces of cocaine. Initially, we note that defendant did not object to the first reference by Officer Hyatt to the intended purchase. When de-. fendant did finally object, it was only on! the basis of relevance. A new ground for-objection cannot be urged for the first time on appeal. See State v. Hookfin, 476 So.2d 481, 492 (La.App. 1st Cir.1985). Moreover, even had defendant urged this ground, it would have been mer-itless. The general rule is that the prosecution may not introduce evidence of other criminal acts of defendant. An exception is made if the evidence is substantially relevant to some purpose other than to show defendant is a bad person, therefore more likely to have committed the charged offense. The prohibition does not bar admission of criminal acts that form part of the res gestae. See La.R.S. 15:447; 15:448; State v. Belgard, 410 So.2d 720 (La.1982). In addition, State v. Prieur, 277 So.2d 126, 130 (La.1973), does not require the state to provide notice to defendant of crimes that fall within the res gestae exception. State v. Belgard, supra. In the instant case, discussion of the intended purchase of two ounces of cocaine occurred both before and after defendant had sold Officer Hyatt cocaine. Thus, it was part of the continuous transaction of drug distribution between defendant and the officer. Moreover, defendant invoked the defense of entrapment. When entrapment is a defense, the prosecution may introduce evidence of other criminal activity to show a defendant’s predisposition to commit the crime. See State v. Batiste, 363 So.2d 639 (La.1978), on rehearing. Although the actual purchase of two ounces of cocaine involved a future criminal act, the discussion was material to defendant’s predisposition to distribute cocaine. For the foregoing reasons, this assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER FIVE: By this assignment of error, defendant argues that the trial court erred in failing to find the defendant not guilty on the basis of his affirmative defense of entrapment. He argues that he had no prior disposition to commit the instant offense and that the offense was instead designed and initiated by the undercover officer and his informant. An entrapment is perpetrated when a law enforcement official or a person acting in cooperation with such an official for the purpose of obtaining evidence of the commission of an offense solicits, encourages, or otherwise induces another person to engage in conduct constituting such offense when he is not otherwise so disposed. State v. Batiste, at 641. When entrapment is at issue, the focal point of the inquiry is on the predisposition of the defendant to commit the crime at issue as well as on the conduct of the police. Id. An entrapment defense will not lie if the officers or agents merely furnished a defendant who is predisposed to commit the crime the opportunity to do so. State v. Moody, 393 So.2d 1212, 1216 (La.1981). The relevant inquiry is whether the defendant adduced evidence of his entrapment such that any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could conclude that defendant had not proved by a preponderance of the evidence that he was entrapped. State v. Brand, 506 So.2d 702 (La.App. 1st Cir.1987), affirmed 520 So.2d 114 (La.1988). The trier of fact apparently determined that the undercover officer did not induce the crime but merely afforded defendant an opportunity to commit the offense. That conclusion is supported by the record. In defendant’s own testimony in regard to the drug sale, he admitted to already having possession of the cocaine prior to its distribution. In addition, he acknowledged that he was stringing along Hyatt hoping to make more money by finding a larger supply of cocaine. We find, therefore, that any rational trier of fact could have concluded that defendant failed to establish the defense of entrapment by a preponderance of the evidence. This assignment of error has no merit. ASSIGNMENT OF ERROR NUMBER FOUR: By this assignment, defendant contends that because of errors urged in the other assignments, he should have been granted a new trial. Having found no merit to defendant’s other assignments of error, this assignment of error lacks merit. AFFIRMED.

KNOLL, Judge. For the reasons stated in the companion case of Dugas v. W.R. Cason, 524 So.2d 1248 (La.App. 3rd Cir.1988), in which a separate decision is being rendered by us this day, the judgment of the trial court granting Dugas’ motion to strike is reversed and remanded. All costs of this appeal are assessed to the appellee, Ernest G. Dugas. REVERSED AND REMANDED.

YELVERTON, Judge. Plaintiff, Vinell Williams, filed suit against his former employer, Union Tank Car Company, through its Lithcote Company Division (Lithcote) to recover worker’s compensation benefits, penalties, and attorney’s fees as a result of a work related accident on May 28, 1985. From a judgment finding plaintiff temporarily totally disabled under La. R.S. 23:1221 (1) and entitled to training and rehabilitation under R.S. 28:1226, and further awarding penalties and attorney’s fees, the defendant has appealed. We affirm. Lithcote raises two issues on appeal. The first is whether the trial court erred in finding the plaintiff temporarily totally disabled within the odd lot doctrine under La. R.S. 23:1221(1). The second is whether the trial court erred in finding Lithcote arbitrary and capricious in failing to provide medical care and weekly compensation, entitling plaintiff to penalties and attorney’s fees. DISABILITY As this court stated in Valley v. Ameri-can Insurance Co., 510 So.2d 449 (La.App. 3rd Cir.1987): [2-4] A trial court’s factual findings concerning work related disability should not be disturbed on appeal unless the evidence does not furnish a reasonable basis for the findings or the findings are clearly wrong. Notto v. Morton-Norwich Products, Inc., 498 So.2d 1158 (La.App. 3rd Cir.1986). A finding by the trial court that pain prevents a claimant from working is a question of fact. Newell v. United States Fidelity & Guaranty Company, 368 So.2d 1158 (La.App. 3rd Cir.1979). Great weight is afforded a trial court’s findings on the credibility of a claimant in a worker’s compensation case. Dominick v. CNA Insurance Company, 497 So.2d 758 (La.App. 3rd Cir.1986), writ denied, 501 So.2d 231 (La.1987). In the present case the trial judge wrote excellent reasons for judgment carefully explaining his findings of fact. His reasons for judgment are as follows: “From the evidence, the court finds as a fact proven that plaintiff, Vinell Williams, was employed by defendant on May 28, 1985; that on that date he suffered an accident, during the course and scope of his employment; then attempted to return to work about August 10, 1985, at which time he worked for about one and one-half hours, being unable to continue due to his inability to perform the work assigned him because of the very severe and constant pain he experienced while attempting to do so. The work he was told to perform consisted of carrying one and a quarter inch pipes about twenty feet long a distance of about thirty feet, and heating the ends of it with a torch in order to flatten them with a big hammer. “A great deal of the information regarding plaintiff’s employment, salary, and other pertinent information, was obtained from the testimony of Peggy Las-trapes, clerk at Lithcote, who was in charge of the company records of the defendant. The Court understood that the last check plaintiff received was dated August 13, 1985. “Plaintiff testified that he is a married man 32 years old and has two children, a girl ten years old, and a boy five years old. He is a high school graduate, and attended a trade school at Yidrine while in high school, studying welding and auto mechanics. He also attended the Ville Platte Vo-Tech school for a very short period of time, about one week. A few years ago he did some mechanic work at Pitre Ford Company. He was employed at Lithcote for about 8 years at the time of the accident. His work record consists almost entirely of heavy manual labor. He suffered one or two minor accidents during his employment at Lithcote, but returned to work after only a few days off, and the court understands that he made no claims or filed any suit against his employer. “On the day of the accident he was inside a tank car and had an air machine belt around his waist, and was operating a big air powered grinder machine. A transformer very near to the tank car blew up and caused a loud noise, and much electrical activity inside and around the tank car. Plaintiff climbed out of the car, and as he says ‘panicked’, and jumped from atop the car onto the concrete nearby and injured himself. Workers all about him were scurring (sic) away from the frightening electrical phenomenon, trying to get out of harms way, not really understanding at the time what had happened. “Plaintiff complained of having been injured to a supervisor who told plaintiff to go to the front office. He went there and was given a cold drink, and told to rest a while. He remained there about forty-five minutes to an hour. Although it appears that plaintiff was not categorically denied medical attention, he was certainly discouraged to say the least, from going to the doctor to see about the injuries he claimed to have suffered from the accident, a rather unusual attitude for the employer to take toward an employee who exhibited symptoms of having been just injured in an unusual accident. R.S. 23:1122. “After a while, he went home, but two days later [he was] still suffering severe pain. He complained to his employer, and on May 30, 1985, plaintiff was sent by defendant to their physician, Dr. Barney Fusilier, who examined and treated plaintiff, and whose diagnosis was an acute lumbo-sacral strain. “Later, Dr. Fusilier became ill and could no longer treat plaintiff. Dr. Fusilier testified that he saw about 70% of all employees of defendant when they required medical attention as a result of injuries received on the job so he was, in effect, the defendant’s company doctor. Dr. Fusilier treated plaintiff but for a very short time, and therefore, in the Court’s opinion could not adequately evaluate his long-term condition, and consequently his opinion is of limited probative value. “As Dr. Fusilier was no longer able to attend to plaintiff he decided to consult another physician. This physician was Dr. A. John Tassin of Ville Platte, La. Dr. Tassin examined and treated plaintiff, and indeed continues to do so. “Dr. Tassin, being of the opinion that plaintiff needed an orthopaedic examination referred him to Dr. Frank Anders, an orthopaedic surgeon, who examined and treated him, and recommended among other things, a lumbosacral corset, which plaintiff wore. “The whole tenor of Dr. Ander’s (sic) deposition is that plaintiff is suffering from a serious injury which may or may not improve, and which precludes him from engaging in heavy manual labor at this time, but is able to engage in light work. “Dr. Tassin requested that plaintiff undergo a C T Scan. The scan showed profusion (sic) of the disc at L-4 and L-5 level, a sign of a possibly very serious condition with grave consequences. According to Dr. Tassin’s deposition he is still disabled, and under his medical care and treatment. Pages 25 and 32 of Dr. Tassin’s deposition. “Defendants then had plaintiff examined by Dr. William Louis Meuleman, an orthopaedic surgeon of Lafayette, Louisiana. His report is in evidence. While the report recites a fair history, and his examination seems quite adequate, his opinion appears to the court to be somewhat ambigous (sic) and inconclusive. Because of this, the court does not give too much weight to his conclusions. “Plaintiff’s wife also testified that he complains a lot of pain. He can no longer perform chores around the house, such as cutting grass, etc., and uses a cane most of the time. He drives very little, and usually for short distances, although he has driven to Lafayette, La. “Plaintiff attempted, on the advice of his physicians, to return to light duty work. He was given regular duties as Lithcote has no provision for light duty work for its injured employees. John H. Lavergne, production superintendent at Lithcote, and Carroll Fontenot, a supervisor there, so testified. He worked about one and one-half hours and had to quit due to excessive pain. He never returned to work, and according to him, he is unable to do so now, or in the foreseeable future, as he continues to suffer severe back pain and numbness in both legs. “A thorough and systematic review and evaluation of the medical testimony in this case convinces the court that Dr. Fusilier, due to circumstances beyond his control, was not able to form a full and factual opinion of the plaintiff’s condition, and to provide a comprehensive prognosis. “Dr. Meuleman’s report has already been commented upon by the court. Dr. Razza’s report is more complete than Dr. Meuleman’s, and therefore, the court gives greater weight to it. The depositions of Dr. Anders and Dr. Tassin are to the effect that plaintiff cannot engage in heavy physical labor at the present time, but possibly could do light duty. Their prognoses, however, are guarded. “During all this time, Lithcote knew that plaintiff was still suffering from his injuries. They had medical reports which so indicated, and yet refused to pay for his medical expenses, and stopped his compensation payments. “There are two issues for determination by the court: 1. Disability; and 2. Penalties and attorney fees. “The court has carefully reviewed all the evidence in this case and the law and jurisprudence governing, and finds as a fact proven that plaintiff is temporarily totally disabled, and falls within the ‘odd lot’ doctrine under Section 1221 (1) of the 1983 worker’s compensation act; and is entitled to supplemental earnings benefits under Section 1221 (3) of the act should he secure any employment; and further, plaintiff is entitled to training and rehabilitation under Section 1226 of said act. The court further finds that plaintiff has proven his case as required by law. “The court is of the opinion that plaintiff can, with proper medical treatment and rehabilitation, re-enter the labor pool and become once again a self-supporting and productive member of society. This is, after all, one of the purposes of the Louisiana Worker’s Compensation Law as the court interprets it. “For the foregoing reasons the court finds that plaintiff is entitled to recover from defendant weekly compensation benefits of $248.00 from May 28,1985, to date, (credit to be given for sums previously paid) and to continue receiving this amount until a further determination by this court, with compensation payments brought up to date, and with interest on all past due payments; and further, plaintiff is entitled to recover all medical and other recoverable expenses incurred in connection with the injury suffered which have not been paid, reserving to plaintiff to receive and recover those future medical and other necessary expenses resulting from the injuries he received in the accident. Thomas v. Elder Pallet & Lumber Sales, Inc., 493 So.2d 1267 (La.App. 3rd Cir.1986).” After a careful review of the record we find that we agree with the trial court. Plaintiff proved by a preponderance of the evidence that he suffered from a disability which continued through the trial, and that his condition will most likely improve within a foreseeable time. Accordingly, we cannot say that the trial court was clearly wrong in its finding of temporary total disability. Cf. Thomas v. Elder Pallet & Lumber Sales, Inc., 493 So.2d 1267 (La.App. 3rd Cir.1986), writ denied 497 So.2d 312 (La.1986). Lithcote emphasizes in its brief that plaintiff should not have been found temporarily totally disabled because his doctors testified that he could perform light duty work, and that plaintiff was offered light duty work but he refused it. However, the evidence reveals that plaintiff attempted to perform the light duties assigned to him and he had to leave due to severe pain. The evidence also reveals that the plaintiff had worked mostly at heavy manual labor and that his lack of education and training, and his disability made it unlikely that he could secure suitable employment. Accordingly, the trial court did not err in applying the odd lot doctrine, in finding plaintiff classified as an odd lot claimant, and in ordering rehabilitation. See Thomas v. Elder Pallet & Lumber Sales, Inc., supra. The trial court also awarded the plaintiff attorney’s fees in the amount of $5,000 and penalties. Lithcote argues this award was in error. We disagree. The trial court’s determination that an award of penalties and attorney’s fees is warranted is based on a finding of fact and his decision should not be disturbed unless it is clearly wrong. Valley v. American Insurance Co., supra. The defendant herein was fully aware of the medical reports which reflected that plaintiff had suffered an injury to his back which severely restricted his activities. The reports suggested that plaintiff could return to light duty, however he was not supposed to bend, stoop, lift objects weighing more than 25 pounds, or stay in one spot for longer than 30 minutes. Lithcote ordered the plaintiff to return to “light duty” work which, the trial court found and the record supports, was not light duty work at all, but required lifting heavy objects as well as bending and stooping. The plaintiff had to leave after an hour and a half due to severe pain. The defendant promptly terminated plaintiff’s workmen’s compensation benefits on that very date. Under these facts the record fully supports the trial court’s finding of defendant’s arbitrary and capricious termination of benefits. For these reasons the judgment of the lower court is affirmed at defendant’s costs. AFFIRMED.

KLEES, Judge. The defendant, Donald Newsome, was charged on February 18, 1987 by bill of information with aggravated arson, a violation of R.S. 14:51. Newsome pleaded not guilty at his arraignment on February 24, 1987. On March 27, 1987, Newsome was found guilty as charged by the jury. He was sentenced on April 30, 1987 to twenty years at hard labor, the first two years to be served without benefit of parole, probation or suspension of sentence. From his conviction and sentence he appeals. FACTS Defendant was the ex-boyfriend of Maxine Curry, whom he had dated briefly in November 1986. After Ms. Curry ended their relationship and became involved with someone else, the defendant continued to come by her apartment in the Desire Housing Project. On these occasions she called the police to make the defendant leave. On January 11, 1987 Ms. Curry and her new boyfriend, Ishmel Wallace, were sitting on the bed in her bedroom playing cards, when the defendant began to throw flaming oil cans through her window, causing the plastic window panes to melt and the curtains to catch on fire. Her five sons and her brother were also in the apartment. Wallace went to the door and told the defendant to leave. The defendant brandished a gun and threatened to kill everyone in the apartment. The fire and police departments were called while Wallace and others attempted to put out the fire. The fire was subsequently put out and the defendant apprehended. We have reviewed the record for errors patent and find none. ASSIGNMENT OF ERRORS In his sole assignment of error, the defendant argues that his sentence is excessive. The trial court imposed the maximum penalty for aggravated arson under R.S. 14:51; twenty years at hard labor, the first two years to be spent without benefit of parole, probation or suspension of sentence. A sentence is excessive if it is grossly out of proportion to the severity of the crime and is nothing more than the purposeless and needless imposition of pain and suffering. State v. Brogdon, 457 So.2d 616 (La.1984), cert. denied, Brogdon v. Louisiana, 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862, reh. denied, Brogdon v. Louisiana, 473 U.S. 921, 105 S.Ct. 3547, 87 L.Ed.2d 670 (1985). In determining if a sentence is excessive, the appellate court must first review whether the trial judge follows the sentencing guidlines, the sentence must not be set aside unless the trial judge has abused his wide sentencing discretion. State v. Quebedeaux, 424 So.2d 1009 (La.1982), appeal after remand, 446 So.2d 1210 (La.1984). In this case, the trial judge followed the C.Cr.P. 894.1 guidelines. The judge noted that the defendant was a twenty-two year old, single construction worker whose criminal history included arrests for battery, resisting arrest, aggravated assault, disturbing the peace and battery upon a police officer. He further commented on the serious nature of the crime evidenced by defendant’s threats to kill everyone in the apartment, including Ms. Curry’s five sons, while armed with a gun. He also commented on defendant’s lack of remorse and hostile, uncooperative attitude. He further found that a lesser sentence would deprecate the seriousness of the crime, the “enormity of which boggles the mind” since the defendant “made a serious attempt to burn to death five young children and several adults”. Few decisions are reported that address the appropriateness of sentences imposed for aggravated arson. None were found in which the trial judge imposed the maximum twenty year sentence. However, in State v. Simmons, 443 So.2d 512 (La.1983), a fifteen year sentence was imposed for this crime where defendant set fire to a bingo hall containing approximately 100-150 individuals. Other courts have imposed the following sentences for aggravated arson: ten years in State v. Washington, 421 So.2d 887 (La. 1982) where defendant was a third offender and set fire to the jail where he was incarcerated; nine and one half years in State v. Smith, 448 So.2d 778 (La.App. 2nd Cir.1984) where drunk defendant set fire to the house where his wife lived; six years in State v. Williams, 457 So.2d 610 (La.1984) where defendant set fire to the hotel at which his ex-girlfriend worked; seven years in State v. Barnes, 495 So.2d 310 (La.App. 4th Cir.1986) where defendant set fire to ex-girlfriend’s house. Notwithstanding the absence of decisions in which the trial court imposed a maximum penalty for aggravated arson, given the facts of this case we conclude that it was not an abuse of the trial court’s discretion in imposing this sentence. The defendant indicated his intention to set fire to his ex-girlfriend’s apartment and to kill her, her boyfriend, her brother and her five children. He stayed outside the apartment waving a gun so that the occupants of the house, even though the apartment was on fire, were afraid to leave the apartment for fear of being shot. Under these facts the imposition of the maximum penalty was warranted. The sentence is not disproportionate to the crime. Nor does the imprisonment result in “purposeless and needless imposition of pain and suffering” since the trial court correctly concluded that the defendant’s incarceration was necessary to protect the public. Accordingly, for the reasons discussed the conviction and sentence are affirmed. AFFIRMED. PLOTKIN, J., dissents with reasons.

In re Hall, John; applying for writ of certiorari and/or review, and supervisory Writs; to the Court of Appeal, Second Circuit, No. 19312-KA; Parish of Ouachita, 4th Judicial District Court, Div. “G”, No. 43721. Prior report: La.App., 519 So.2d 391. Denied.

GOTHARD, Judge. A summary judgment below dismissed in part this indemnification action by a general contractor and its worker’s compensation insurer against the subcontractor’s general liability insurer for worker’s compensation benefits paid to Edward Taylor, who was injured on the job. Appellants are the general contractor, Oliver & Wool Construction Company, Inc. (Oliver & Wool), and its worker’s compensation insurer, Northern Insurance Company of New York. Appellee is the general comprehensive liability insurer, United States Fidelity and Guarantee Company (USF & G), for the subcontractor, Metropolitan Erection Company, Inc. (Metropolitan). Appellants ask us to determine the correctness of the trial court’s rulings on the summary judgment, and present for our consideration these issues: (1) whether the subcontract executed by Oliver & Wool and Metropolitan provides for contractual indemnification for benefits paid pursuant to the Worker’s Compensation Act; and, if so, (2) whether the comprehensive general liability policy issued by USF & G to Metropolitan provides coverage for payments made pursuant to the Worker’s Compensation Act. Resolution of these two issues requires construction or interpretation of the subcontract and the insurance policy. However, because we find, as did the trial court, that USF & G did not provide coverage for any claims arising out of or pertaining to worker’s compensation, we discuss only the second issue pertaining to the USF & G policy. In their petition filed with the trial court, appellants alleged they were entitled to indemnity from Metropolitan pursuant to the provisions of the Louisiana Worker’s Compensation Act, and pursuant to indemnification provisions of the subcontract executed by Metropolitan and Oliver & Wool. Appellants also claimed indemnity from USF & G. Appellants alleged that the policy issued by USF & G to Metropolitan provides coverage for the payment of the worker’s compensation benefits to Edward Taylor under its provisions providing coverage for its insured’s incidental contracts. USF & G denied coverage under an exclusion in the policy as to worker’s compensation. Cross motions for summary judgment were filed in the trial court by the appellants and USF & G each asserting their respective positions. After hearing argument of counsel and reviewing the documents submitted, the trial court in judgment rendered on December 16, 1986 denied the appellants’ motion for summary judgment, but partially granted the motion for summary judgment filed by USF & G, ruling that the USF & G policy did not “provide coverage for any claims arising out of or pertaining to workmen’s compensation.” It is from the judgment on these motions that this matter is now before the appellate court. INTERPRETATION OF INSURANCE POLICY The comprehensive general liability policy issued by USF & G to Metropolitan provided basic coverage for bodily injury and property damage and an endorsement (no. 6) which provided limited coverage for contractual liability. Worker’s compensation benefits are specifically excluded from coverage as are claims of bodily injury to any employee of the insured arising out of his employment except as to liability assumed by the insured under an incidental contract. “1 COVERAGE A — BODILY INJURY LIABILITY COVERAGE B — PROPERTY DAMAGE LIABILITY Exclusions This insurance does not apply: ... (i) to any obligations for which the insured or any carrier as his insurer may be held liable under any workmen’s compensation, unemployment compensation or under any similar law; (j) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured or to any obligation of the Insured to indemnify another because of damages arising out of such injury; but this exclusion does not apply to liability assumed by the insured under an incidental contract;” Under the general definitions section of the policy, incidental contract is defined as: “Definitions When used in this policy (including endorsements forming a part hereof): “incidental contract” means any written (1) lease of premises, (2) easement agreement, except in connection with construction or demolition operations on or adjacent to a railroad, (3) undertaking to indemnify a municipality required by municipal ordinance, except in connection with work for the municipality, (4) sidetrack agreement, or (5) elevator maintenance agreement;” Endorsement no. 6. provides: “1. CONTRACTUAL LIABILITY COVERAGE (A) The definition of incidental contract is extended to include any oral or written contract or agreement relating to the conduct of the named insured’s business. (C) The following exclusions applicable to Coverages A (Bodily Injury) and B (Property Damage) do not apply to this Contractual Liability Coverage: (b), (c)(2), (d) and (e)” We immediately observe, as urged by USF & G, that endorsement no. 6 specifically provides that certain exclusions contained in the basic policy are not applicable to the endorsement; however, that those exclusions (i) and (j) as to worker’s compensation and employee injuries are not among those stated to be inapplicable. . Consequently, USF & G provides coverage for a contract of liability assumed by its insured relating to its business, though it excludes coverage as to worker’s compensation and employee injuries arising out of his employment. Nevertheless appellants alternatively contend, that the terms of the policy are ambiguous. They refer to certain articles of the Louisiana Civil Code and various cases in the jurisprudence which would require this court to resolve the ambiguity in the sense which is most favorable to the insured or the person claiming coverage. Paret v. Louisiana Health Serv. & Indem., 366 So.2d 634 (La. 3rd Cir.1978) writs denied 369 So.2d 139. See also, Westerfield v. LaFleur, 493 So.2d 600 (La.1986). We find no merit in appellants’ argument that the policy provides coverage for the claim in question, or alternatively, that the policy terms are ambiguous and should therefore be construed to provide coverage. The basic coverage provision excludes any liability for claims for worker’s compensation benefits or for bodily injury to the insured’s employee arising out of his employment, except as the insured assumes under an incidental contract. Incidental contract is narrowly defined in the basic policy and includes only written agreements of lease, easement, indemnification of municipalities, sidetrack and elevator maintenance. The policy endorsement for contractual liability coverage states that it “forms a part of the policy to which attached” and “modifies such insurance.” Although this endorsement extends the definition of an incidental contract to include any agreement relating to the conduct of the insured’s business, the same exclusions in the basic policy are applicable except those specifically made inapplicable. The exclusions from liability for worker’s compensation and bodily injury to the insured’s employee arising from his employment are not stated to be inapplicable; accordingly, they are applied to limit the coverage provided by the endorsement. We are in complete agreement with appellant’s argument that in a suit to recover benefits under a policy, the insurer has the burden of proving facts which limit its liability; and also that any ambiguity in an insurance contract or policy must be construed in favor of the insured or the person claiming coverage and against the insurer. Our law is well settled to that effect. Paret v. Louisiana Health Serv. Indem., supra. Because of this, summary judgment may not be rendered declaring lack of coverage unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. LSA-C. C.P. art. 966; Westerfield v. LaFleur, supra. However, we have applied this standard, and we find no ambiguity, vagueness or inconsistency in the policy before us. Our careful consideration of the terms of the USF & G policy convinces us beyond doubt that it excludes worker’s compensation payments. Based on this conclusion, we need not consider the issue of whether the subcontract executed by Oliver & Wool and Metropolitan provides for contractual indemnification for benefits paid pursuant to the Worker’s Compensation Act. LSA-C. C.P. art. 966 states that if there are no genuine issues of material fact, and mover is entitled to judgment as a matter of law, summary judgment should be granted. The pleadings and documents attached demonstrate as a matter of law, that USF & G is entitled to the partial summary judgment; appellants are not. There are no questions of fact to be resolved, and the insurance contract does not afford coverage of the appellants’ indemnification claims against the insured arising out of or pertaining to worker’s compensation. Therefore, we find correct the trial judge’s conclusion that partial summary judgment in favor of USF & G and against appellants was warranted. For the foregoing reasons, the rulings of the trial court are affirmed. AFFIRMED. . See Taylor v. Metropolitan Erection Co., 496 So.2d 1184 (La.App. 5th Cir.1986) writs denied 497 So.2d 1388, for Taylor’s personal injury suit against his employers and contractor. . Metropolitan identified its status before this Court as defendant appellant and adopts appellants’ brief by reference verbatim in extenso. However, Metropolitan was not a party to the motions for summary judgment, and is therefore not a party to this proceeding on appeal. . A general contractor, who pays compensation benefits to an employee of one of the subcontractors, is statutorily entitled to indemnification from that subcontractor. LSA-R.S. 23:1061-1063.

DOMENGEAUX, Judge. The plaintiff-appellant, Cathryn Gibbs, filed suit against defendant-appellee, the State of Louisiana, Through the Department of Public Safety, for injuries she sustained when she exited a moving police vehicle after she had been arrested for Driving While Intoxicated. Plaintiff argued that the arresting State Trooper had been negligent in transporting her and, as such, was liable for her injuries. The Trial Court, after reviewing all of the evidence, found that the officer had not been negligent in any way concerning the treatment, arrest, and transportation of the plaintiff. The plaintiffs demands were dismissed at her costs, and this appeal has followed. The plaintiff argues that the Trial Court erred in (1) not applying the proper standard of care due intoxicated persons in the custody of law enforcement officials, and (2) in failing to find the State negligent, considering the State Trooper’s conduct. FACTS Around 4 p.m. on July 24, 1985, Ms. Gibbs started drinking beer at her home in Pineville, Louisiana. While at home, she drank four beers and then drove herself to Pop’s Lounge, a bar in Alexandria. The plaintiff drank beer at Pop’s Lounge from 6 p.m. until midnight. By her own testimony, she was quite drunk. She then left Pop’s in her own vehicle intending to go to the bar at the Sheraton Hotel. State Trooper Phillip Waites observed her car weaving back and forth across the center line and into the shoulder of the road. Ms. Gibbs pulled off the road into the Sheraton Hotel parking lot, and Officer Waites followed behind her. At this point, Ms. Gibbs’ memory became faint. Officer Waites testified that he arrested Ms. Gibbs for driving while intoxicated and she became quite upset, exhibiting rude and hostile behavior. Officer Waites handcuffed Ms. Gibbs by placing her arms behind her back and then, tightened the handcuffs enough to restrain, but not enough to injure or squeeze her wrists. She was then placed in the back seat of the officer’s vehicle on the passenger side, and the seat belt was fitted snuggly around her and the doors were locked. Officer Waites then proceeded to drive the plaintiff to the station house for booking. Approximately 200 to 300 feet from the scene of arrest, the officer heard a click similar to a seatbelt unbuckling and then heard the plaintiff say, “I’m getting out of here!” At that point, Officer Waites looked over his shoulder into the back seat and saw Ms. Gibbs, with her right hand free, open the door and exit the vehicle while it was still moving. After exiting the vehicle, the plaintiff fell onto the roadside gravel and sustained a laceration to her knee and a small hemato-ma above her right eye. Officer Waites observed that the left handcuff was attached to Ms. Gibbs’ left hand while her right hand was free. The plaintiff was taken to Huey P. Long Hospital but refused all medical treatment. After only allowing the hospital physicians to cover the wound on her knee, the plaintiff was transported to the Rapides Parish jail. At the trial, Officer Allen E. McBride of the Alexandria City Police testified that he had arrested the plaintiff one month earlier on June 13, 1985, in Alexandria for driving while intoxicated. Officer McBride testified that during this arrest the plaintiff twice successfully removed the handcuffs he had placed on her. THE STANDARD OF CARE The plaintiff first argues that the Trial Court did not apply the standard of care as enunciated in Barlow v. City of New Orleans, 257 La. 91, 241 So.2d 501 (1970) to the case sub judice. In Barlow, an intoxicated person seated in a bar was arrested for public drunkeness. The police officers placed the man in the back seat of a police vehicle, then locked the doors to prevent his escape. Neither the windows nor the doors could be opened from the inside. The officers left the vehicle and returned to the bar to search for other vagrants. A fire of unknown origin suddenly started in the police vehicle and injured the plaintiff. The Court stated that: While it is true, as a general rule, that voluntary intoxication does not relieve one from negligent conduct or serve to relax the requirement which is imposed upon a person to exercise due care for his own safety, (see 38 Am.Jur.NegIi-gence, Sec. 203, page 883, and 65A C.J.S. Negligence Sec. 143, page 174), this rule is subject to the exception that, where the person is in such a helpless state of intoxication that he is unable to take care of himself and is, as in this case, confined under arrest, recovery for the injuries he has received emanating from a danger to which he is exposed, which is attributable partially to his unconscious act, but against which the defendant should have protected him, is not barred by contributory negligence. Barlow, 241 So.2d at 505. The Court also stated “The duty of care owed one under arrest and in custody [is] to keep him safe and protect him within reasonable limits from injury not attributable to his own willful acts.” 241 So.2d at 504. The Court in Barlow held that, in the absence of an emergency, the officers were negligent in leaving the vehicle unattended. Cases subsequent to Barlow, supra, also have held that a police officer owes a duty to save his prisoner from harm. However, this standard has been further defined to mean that an officer must do only what is reasonable under the circumstances and that he is not an insurer of the safety of the prisoner merely because the prisoner is intoxicated. Griffis v. Travelers Insurance Co., 273 So.2d 523 (La.1973); Garrison v. City of Berwick, 417 So.2d 48 (La.App. 1st Cir.1982). Thus, we must determine whether or not Officer Waites breached a duty to the plaintiff by acting unreasonably under the circumstances. In Barlow, according to our Supreme Court, the police breached their duty to the intoxicated plaintiff when they locked him into a police car and left it unattended. In this case, Officer Waites used standard procedures to place the handcuffs on Ms. Gibbs and subsequently secured her in the police vehicle with a safety belt. The doors were locked. Ms. Gibbs’ willful act of stepping or jumping from the moving vehicle is not an act for which Officer Waites may be held accountable. First, the duty to protect an intoxicated person from his or her own acts does not encompass willful acts. Secondly, the Officer took all available precautions and properly followed all procedures in securing Ms. Gibbs in the vehicle. It was shown that the plaintiff, on a prior occasion, had easily discarded handcuffs that were locked around her wrists. Officer Waites was not the officer involved in this prior incident, therefore, he could not have forseen such conduct. As found by the Trial Court, after escaping the handcuffs, she easily unlocked the seatbelt and exited the moving vehicle. Considering the precautions taken by Officer Waites in securing Ms. Gibbs in his vehicle, Officer Waites acted in a reasonable manner to protect Ms. Gibbs from the dangers to which she was exposed and the standard of care required by Barlow, supra, was satisfied. Hence, the Trial Court correctly applied the standard of care of Barlow to the case sub judice. The appellant erroneously seeks to have police officers, in effect, held strictly liable for any injury that might befall a person taken into custody, despite the person’s own deliberate actions. There is no legal authority or basis for this assertion. The above discussion also sufficiently addresses the second assignment of error, whether or not Officer Waites acted negligently. As aptly stated by the Trial Court, in its oral reasons for judgment: There’s no evidence of negligence on the part of the arresting officer or evidence that any of the equipment used by the officer, the handcuffs or the vehicle or the seatbelt were improperly [used, or] that the use was negligence [sic]. The factual findings of the Trial Court will not be disturbed on appeal absent a finding by the Appellate Court that the findings are manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The Trial Court’s finding of no neg ligence on the part of the State of Louisiana is not manifestly erroneous, and in fact is manifestly correct. For the reasons assigned, the judgment of the Trial Court is affirmed. Costs on appeal are to be borne by the plaintiff. AFFIRMED.

WARD, Judge. Gary Poche pleaded not guilty to a charge of second degree murder, a violation of La.R.S. 14:30.1. During trial a witness referred to a previously undisclosed statement, allegedly made by Poche at the time he turned himself in for the crime, and after a defense motion, the Court declared a mistrial. The Court held a hearing on Poche’s motion to suppress the statement and denied it. Poche was tried again and found guilty as charged by a jury. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Poche appeals, assigning error to the Trial Court’s denial of his motion to suppress. The evening after the victim, Louis Brown, was murdered, Poche went to the New Orleans police headquarters and told the front desk officer at the Detective Bureau that he was turning himself in for a shooting. Officer Donald Delay asked Poche his name, birthdate and social security number in order to verify the information through the computer. The computer revealed an outstanding arrest warrant for Poche for the shooting of Brown. In the meantime, Poche told Officer Delay that he had killed Brown. Officer Delay advised Poche not to make any statements to him because he was not handling the case. Before Detective Lionel Adams, who was in charge of the case, arrived at the front desk, Officer Delay took Poche into his office to get him out of the lobby and to search him for weapons. Although Delay had told Poche not to make any statements, Poche gave more details of the shooting. When Detective Adams arrived, he introduced himself to Poche and asked Poche if he could help him. Poche told Adams that he was turning himself in for the shooting of Louis Brown. Adams arrested Poche, advised him of his Miranda rights and asked Poche if he wanted to make a statement. Poche refused to make a statement without an attorney present and refused to sign the waiver of rights form. At the hearing on the motion to suppress, the Trial Judge analyzed Poche’s incriminating statements in three parts: (1) the statement that he killed Brown made to Officer Delay during the computer verification; (2) the statements concerning more circumstances of the crime made to Delay while Delay searched him; and (3) the statement made to Detective Adams. At the hearing on the motion to suppress, Poche argued that anything he said from the time he was placed in Delay’s office and searched is inadmissible because he was in custody at this point and should have been advised of his Miranda rights. The State responded that Miranda rights are required only in an interrogation situation, and Delay did not interrogate, nor intend to interrogate, Poche. The Trial Judge, considering only the second category of incriminating statements to be at issue, denied the motion to suppress on the basis that all of Poche’s statements were made voluntarily, and that there was no evidence of bad faith by the police. We find no error in the denial of Poche’s motion to suppress. At Poche’s trial, however, Delay did not testify to the statement Poche made during the physical search. Thus, even if the denial of the motion to suppress was error, it was harmless because the statements actually complained of at the hearing were not offered at trial. We therefore consider only whether the Trial Court erred in not suppressing the statement made to Officer Delay in which he said he killed Brown. Miranda rights are triggered by a custodial arrest and custodial interrogation. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). An officer’s intent to stop a defendant if he tries to leave does not constitute custody for Miranda purposes, unless that intent is communicated to the defendant, or the defendant is otherwise placed under restraint. State v. Davis, 448 So.2d 645 (La.1984). Thus Officer Delay’s testimony that he would not have let Poche leave after he turned himself in, does not mean there was custodial interrogation because Delay did not tell Poche that he was not free to go or otherwise restrain him. Furthermore, Poche’s statement was not made in response to an interrogation. Interrogation refers to the direct questioning of a defendant regarding the crime or to the initiation of a conversation with the defendant that is reasonably likely to elicit an incriminating response. Innis. Poche was not subject to a custodial interrogation by Officer Delay. Delay merely asked Poche for identification information for computer verification. Any statements Poche made to Delay were voluntary and were completely unforeseeable responses to Officer Delay’s words and actions. Although Poche’s statement to Adams has not been challenged in this appeal, since it is somewhat related, we have considered whether it should have been suppressed. This statement was the cause of the mistrial and triggered the hearing on the motion to suppress. Poche’s statement that he was turning himself in for the shooting of Brown was unsolicited and unforeseeable. Because Poche was never placed in custody by Officer Delay, Poche’s voluntary statement to Detective Adams before his arrest is admissible. Accordingly, all of Poche’s statements arguably at issue in this appeal are admissible. Poche also requests this Court to review the record for errors patent. Having reviewed the record and finding no errors patent and rejecting Poche’s assigned error, we affirm Poche’s conviction. AFFIRMED.

KLEES, Judge. Plaintiffs appeal the district court’s summary judgment dismissing their claim against defendant Boston Old Colony Insurance Company. We affirm. This case arises from a family’s dissatisfaction with the burial benefits afforded a deceased family member, Alfred Brooks. At the time of his death on September 26, 1985, Mr. Brooks was the owner of a funeral insurance policy issued by the Du-plain W. Rhodes Funeral Home. According to plaintiffs’ petition, the policy provided for a casket, two limousines, a shroud, embalming, the use of a funeral parlor and services of a funeral director, hearse service, and recording of all certificates of burial. When the policy was presented, the funeral home representative showed plaintiffs a casket which they allege was not large enough to enclose the body without the lid pressing upon the deceased’s face. Plaintiffs rejected this casket, which was of the type provided for in the policy, and agreed to purchase an alternative one. Plaintiffs allege that after selecting another casket, they were presented with an itemized bill for the funeral services total-ling $2,878.76, which included fees for embalming, two limousines and a hearse, and the services of the funeral director and staff. Plaintiffs paid this bill subject to a $125.00 credit representing the benefit value of the policy. Plaintiffs sued Duplain Rhodes alleging breach of contract and violation of R.S. 51:1401 et seq., the Louisiana Unfair Trade Practices and Consumer Protection Law. Damages sought included restitution of the amount paid for the funeral as well as compensation for mental anguish, stress, and worry. In a supplemental and amending petition, plaintiffs added Boston Old Colony Insurance Company, the liability insurer of Duplain Rhodes, as a defendant under the direct action statute. Boston Old Colony moved for summary judgment on the grounds that the liability policy, as a matter of law, does not provide coverage for the damages sought by plaintiffs. After a hearing, the district judge granted defendant’s motion and dismissed the case against Boston Old Colony. The sole issue on appeal is whether the policy issued by Boston Old Colony provides coverage to Duplain Rhodes under the undisputed facts of this case. After reviewing the record, we agree with the trial court that it does not. The operative language of the policy is as follows: The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury or B. property damage to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage.... Exclusions This insurance does not apply: (a) to liability assumed by the insured under any contract or agreement except an incidental contract.... (Emphasis in the original.) The policy further defines “occurrence” as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” (Emphasis in the original). Plaintiffs argue that the conduct of Du-plain Rhodes fits this definition of “occurrence.” We disagree. Plaintiffs’ petition alleges only breach of contract and violation of the Unfair Trade Practices and Consumer Protection Law, which prohibits fraudulent or deceptive conduct. There are no allegations relating to accidental injury or damage neither expected nor intended by the insured. Although it is true, as plaintiffs have pointed out in their brief, that a breach of contract does not necessarily have to be intentional, the fact is that their petition alleges only intentional acts. For instance, plaintiffs allege that Duplain Rhodes’ representatives “displayed to plaintiffs a totally unsuitable casket, knowing well that plaintiffs would find this casket unsuitable,” (Original petition, paragraph 23) and that “[defendants took advantage of the grievous occasion of Alfred Brooks’ death to confuse, mislead, and deceive plaintiffs into thinking they had no coverage under the [burial] policy....” (Petition, paragraph 24). We cannot accept plaintiffs’ argument that these same actions alleged in the petition, which clearly reflect deliberate, intentional behavior, should nevertheless be considered “an accident ... which results in bodily injury or property damage neither expected nor intended” by Duplain Rhodes. We recognize that our courts in certain instances have broadly interpreted the term “occurrence” in such a way that it is not limited to strictly accidental events. For example, it has been held that reckless behavior which results in injury can qualify as an occurrence under a liability policy. See, e.g.: Pique v. Saia, 450 So.2d 654 (La.1984). In addition, the courts have expanded the term “occurrence” by focusing on its definition as a “continuous or repeated exposure to [injurious] conditions.” See American Automobile Association, Inc. v. Globe Indemnity Company, 362 So.2d 1206 (La.App. 4th Cir.1978). Plaintiffs rely heavily on the American Automobile Association decision, in which we held that this injurious exposure to conditions included allegations by dissatisfied customers of a travel agency that they were subjected to an exhausting flight with no leisure time, were not served meals on some flights, and were placed in hotels in inconvenient and unsafe areas of cities. 362 So.2d at 1211-1212. We find American Automobile Association to be distinguishable from the instant case, however. In that case, the petition contained allegations of both negligence (in overbooking the tour) and breach of contract, and we noted that the damages sought clearly sounded in tort rather than in contract. Id. at 1209. In the instant case, there are no allegations of negligence. Moreover, the only damages plaintiffs seek are for mental anguish, stress and worry under Civil Code article 1998 (non-pecuniary loss caused by breach of contract) and under R.S. 51:1401 et seq., for unfair and deceptive trade practices. Therefore, we conclude that the trial court correctly granted summary judgment to Boston Old Colony because there is no “occurrence” alleged in the petition that would trigger coverage under the liability policy. Plaintiffs also argue that the policy applies because the funeral policy is an “incidental” contract which does not fall under the exclusionary clause of the liability policy. We do not reach this issue because the liability policy only provides coverage when there is an occurrence that causes injury or damage for which the insured has assumed liability under an incidental contract. As we have found no such occurrence, we decline to address the question of whether the burial policy is an incidental contract. For the same reason, we do not address the issue of whether the mental distress alleged by plaintiffs constitutes “bodily injury” within the terms of the liability policy. Accordingly, for the reasons stated, we find that as a matter of law, the liability policy issued by Boston Old Colony Insurance Company to Duplain W. Rhodes Funeral Home does not provide coverage to Duplain Rhodes for any liability that may result from the allegations of plaintiffs herein. Therefore, we affirm the district court’s summary judgment dismissing plaintiffs’ action against Boston Old Colony Insurance Company. AFFIRMED.

KING, Judge. The issue presented by this appeal is whether the trial court committed error in sustaining the defendants’ exceptions of prescription as to plaintiff’s claims for collation, reduction, and damages arising from the Succession of O’Neil L. Pollingue, Sr. O’Neil L. Pollingue, Sr. died on October 10, 1960, leaving four children, O’Neil Pol-lingue, Jr., Karl Pollingue, Eugene Pol-lingue, and Hazel Pollingue Manion, the plaintiff in this litigation (hereinafter plaintiff). He died testate and left one-sixth of his estate to plaintiff, one-sixth to O’Neil Pollingue, Jr., with the remainder to be equally divided between his other two sons, Karl Pollingue and Eugene Pollingue. O’Neil Pollingue, Jr. was named as Executor in the will and, after administration of his father’s succession, a Judgment of Possession was rendered and signed on October 30, 1962. A copy of the Judgment of Possession was mailed to the plaintiff. The property which plaintiff seeks to have returned to the Succession of O’Neil Pollingue, Sr. was partially acquired by plaintiff’s mother on February 1, 1927, when plaintiff’s mother, Mrs. Zula Richard Pollingue (hereinafter Mrs. Zula Pollingue), received one-fourth of her father’s estate as a forced heir. O’Neil Pollingue, Sr. and Mrs. Zula Pollingue acquired the other several thousand acres of property with community funds as property of their community of acquets and gains. Between 1946 and 1956, O’Neil Pol-lingue, Sr. executed several acts of sale of immovable property to two of his sons. Mrs. Zula Pollingue did not sign any of the documents transferring the ownership of this immovable property to their sons, but she did later execute a quitclaim deed on March 23,1961, which conveyed any and all interest in her separate and community property to her three sons and their wives. These quitclaim deeds by Mrs. Zula Pol-lingue were recorded on January 16, 1963. On February 15, 1985, plaintiff brought this action for collation and reduction against her brothers relative to the properties previously sold to them and also sought damages from O’Neil Pollingue, Jr., as the Administrator of her father’s estate, and the attorney for the estate, William E. Logan, Jr., (hereinafter all referred to as defendants) for negligently handling the succession of her father and for conspiring with the other defendants to deprive her of her legitime. In response to plaintiff’s action, the defendants filed exceptions of prescription and no cause of action. The district court sustained the exceptions of prescription and held that the claims for reduction, collation and damages arising out of the estate of O’Neil Pollingue, Sr., had all prescribed. From this judgment, plaintiff timely filed a devolutive appeal. Defendants answered the appeal seeking damages for a frivolous appeal. We affirm the ruling of the trial court and reject defendants’ claim for damages for a frivolous appeal. FACTS This litigation stems from a complex succession proceeding terminating on October 30, 1962, when a Judgment of Possession was rendered and signed resulting in the final distribution of O’Neil Pollingue, Sr.’s estate. In order to determine whether all of O’Neil Pollignue, Sr.’s property was properly distributed in his succession proceeding we must review the acquisition of the property by O’Neil Pollingue, Sr. and Mrs. Zula Pollingue and examine the various transactions whereby this property was transferred by them. Prior to the various transfers of immovable property, Mr. and Mrs. O’Neil Pol-lingue, Sr. were owners of farm property with grain storage and rice drying facilities. Part of this property was inherited by Mrs. Zula Pollingue on February 1, 1927, when her father, Dr. Richard, died. Mrs. Zula Pollingue’s undivided interest of her father's estate totaled $9,886.50. The Richard farm property, which was located in Port Barre, Louisiana, less the one-fourth forced interest inherited by Mrs. Zula Pollingue, was sold to O’Neil Pol-lingue, Sr. and became a part of the Pol-lingue community. At a later date, O’Neil Pollingue, Sr. purchased another 233 acres on September 21, 1933, with community funds. On November 23,1940, the community purchased another 2,401 acres which was financed by a $50,000.00 loan, secured by special mortgage obtained from the Federal Land Bank. This loan was paid off in 1957. On June 22, 1946, Mr. and Mrs. O’Neil Pollingue, Sr. sold 1,245 acres to their son, Eugene Pollingue. On June 29, 1946, several other transactions took place relative to this property: (1) Eugene Pollingue sold a one-third interest in the same 1,245 acres back to the Pollingue community, however, Mrs. Zula Pollingue did not sign the act of sale; (2) There was a credit sale from Eugene Pollingue to Karl Pollingue of a one-third interest in the same 1,245 acres for $16,350.00. On June 29, 1946, there was a credit sale by O’Neil Pollingue, Sr. to Karl Pollingue of a one-third interest in another tract of property consisting of 1,421 acres for $30,-775.00, however, Mrs. Zula Pollingue did not sign this act of sale. On June 29, 1946, O’Neil Pollingue, Sr. also sold another one-third interest in the same 1,421 acres to Eugene Pollingue on credit for $30,775.00, and Mrs. Zula Pol-lingue also did not sign this act of sale. Shortly thereafter, on August 29, 1946, the partnership of O’Neil L. Pollingue and Sons was created. The partnership’s assets included approximately 2,666 acres of community and separate property belonging to Mr. and Mrs. O’Neil Pollingue, Sr. and property owned by Eugene and Karl Pollingue. O’Neil Pollingue, Sr. and his sons, Eugene and Karl, were partners with each having a one-third ownership interest in this farm property. In an affidavit filed by plaintiff on July 11, 1985, she stated that at the time of these transfers, she was attending college and had no knowledge of the farm activities. In her affidavit, plaintiff summarized her recollections of events at this point in time and stated that: (1) She knew her mother had inherited a farm from her father, Dr. Richard; (2) She knew that her parents had purchased some land during their marriage; (3) She was aware that her brother, Eugene, was in charge of farming operations; and (4) To the best of her recollection, O.L. Pollingue and Sons was a partnership for a rice mill that her brother, Karl Pol-lingue, had built and operated. On November 16, 1955, the plaintiff, Hazel Pollingue, married W.J. Manion. Her father strongly opposed this marriage and as a result there was friction between plaintiff and her family which gradually became worse. At the hearing on the exception of prescription, there was testimony by the various defendants that between 1957 and February 1974, plaintiff had not visited her parents except to attend the funeral of her father, O’Neil Pollingue, Sr., in 1960. On December 3, 1956, O’Neil Pollingue, Sr. sold his one-third interest in the farm property in the partnership to his three sons, O’Neil Pollingue, Jr., Karl Pollingue, and Eugene Pollingue. In exchange, he received $75,000.00 cash and retained a usufruct over the property. This usufruct was later relinquished on September 19, 1957. Mrs. Zula Pollingue did not sign this act of sale. Shortly thereafter, on June 13, 1957, O’Neil Pollingue, Jr. decided to withdraw from the partnership and sold his one-third interest in the farm property to his brothers, Karl and Eugene. O’Neil Pollingue, Sr. died testate on October 10, 1960. Several months later plaintiff consulted Mr. Henican, an attorney in New Orleans, where she was living at the time, and requested that he represent her interest in her father's succession proceedings. Mr. Henican consulted with a Mr. Boagni, who was an attorney in Opelousas where her father’s succession proceeding was pending. At the hearing on the exceptions of prescription, plaintiff explained that after several discussions with Mr. Boagni, Mr. Henican reported that he was satisfied the succession was being properly handled, and therefore she made no further investigations on her own. On March 23, 1961, Mrs. Zula Pollingue quitclaimed any and all interests in her separate and community property in favor of her three sons and their wives. The quitclaim deed was executed March 23, 1961, but was not filed until January 16, 1963. A Judgment of Possession transferring legacies to O’Neil Pollingue, Sr.’s heirs was rendered and signed on October 30, 1962, and a copy was mailed to plaintiff. The judgment recognized Mrs. Zula Pol-lingue as owner of one-half of certain community property and in addition, she was given legal usufruct over O’Neil Pollingue, Sr.’s one-half interest in the community property inherited by his children. O’Neil Pollingue, Jr. and the plaintiff were limited to an undivided one-sixth interest each of decedent’s estate, payable in money, and subject to the usufruct of their mother. The other sons, Karl and Eugene, each received an undivided one-third interest of the decedent’s estate subject to the usu-fruct of their mother. The community property listed in the judgment of possession included property in the City of Opel-ousas and a substantial number of shares of stocks and bonds. None of the farm property was listed in the judgment of possession as property of the estate of O’Neil Pollingue, Sr. Plaintiff testified at the hearing on the exception of prescription that she never received a copy of the quitclaim deed executed by her mother, nor did she have any knowledge of whether Mr. Boagni or Mr. Henican received a copy. Plaintiff did admit that, even if she had known of the quitclaim deed, it would not have made any difference since both of the wills of her mother and father contained a provision that she would not receive any land at all. On May 21, 1974, Karl and Eugene Pol-lingue partitioned the total farm acreage which consisted of approximately 2,666 acres. Later, Karl Pollingue sold 600 acres that he acquired in the partition to his son, William, for $840,000.00. Mrs. Zula Pollingue died testate on November 26, 1984. A few months later, on March 1, 1985, a Judgment of Possession was signed distributing the property in her succession. It is at this point in time that plaintiff claims she became aware of the various transfers of the farm property by her parents to her brothers. At the hearing on the exceptions, she testified that she had never seen any of the documents relative to the sale of the farm property until her mother’s death. The provisions in Mrs. Zula Pollingue’s will were similar to those contained in the will executed by O’Neil Pollingue, Sr. and limited O’Neil Pollingue, Jr. and the plaintiff to a one-sixth interest, payable in money, in their mother’s estate while the other sons, Eugene and Karl, each received an undivided one-third interest in her estate. Plaintiff’s legacy included a one-sixth share in money market accounts, certificates of deposits and $42,-924.77, all of which she deposited in the registry of the court pending final litigation of this matter. On February 15, 1985, plaintiff filed an action for collation and reduction seeking to have the Succession of O’Neil L. Pol-lingue, Sr. reopened. Plaintiff claims that her legitime was impinged and seeks reduction and/or collation of the farm property sold to her brothers. In addition, she is seeking damages from the executor and attorney for the estate, for not notifying her of the various transfers and for not including the farm property in her father’s estate. In response, the defendants pleaded prescription of one year under LSA-C.C. Article 3492 as to the damage claim. In defense of the claims for reduction and/or collation, the defendants pleaded prescription of five years under LSA-C.C. Article 3497 and of ten years under LSA-C.C. Article 3499. The district court heard evidence as to the exceptions of prescription on June 6, 1985. After reviewing the evidence the trial court ruled that the claims for reduction, collation, and damages had all prescribed. Plaintiff thereafter filed a timely devolutive appeal alleging the following assignments of error: (1) The District Judge erred in failing to find that the O.L. Pollingue and Sons partnership had not been liquidated and in not including the farm acreage as an asset of O’Neil Pollingue, Sr.’s estate; (2) The District Judge erred in not decreeing that the Judgment of Possession of O'Neil Pollingue, Sr. was obtained by fraud and ill practices; (3) The District Judge erred in not decreeing that there was a breach of fiduciary duty by Dr. O’Neil Pollingue, Jr., the executor, and William E. Logan, attorney for the Succession of O’Neil Pollingue, Sr.; (4) The District Judge erred in failing to decree that O’Neil Pollingue, Sr.’s estate was undervalued due to the illegal ratification of farm property transfers after the death of O’Neil Pollingue, Sr. thereby impinging on her legitime; (5) The District Judge erred in not finding that the farm property sold to the three Pollingue brothers had never left the community of O’Neil Pollingue, Sr. and Mrs. Zula Pollingue; (6) The District Judge erred in not finding that the plaintiff never had real or constructive notice of the various deeds of her father and the quitclaim deed of her mother. As we feel it is dispositive of the various alleged assignments of error, we will first address the effects of prescription on plaintiff’s claim for reduction, collation, and her action for damages against the executor and attorney for the Succession of O’Neil Pollingue, Sr. PRESCRIPTION Collation is the fictional or real return of property to a succession made by an heir who has received, in advance, a share of his inheritance in order that such property may be divided among all the heirs together with the other effects of the succession. LSA-C.C. Art. 1227. Collation is the means by which the law seeks to assure the equal distribution of the ancestor’s property among the direct descendents. Succession of Webre, 247 La. 461, 172 So.2d 285 (1965). Anything given to children or the descendants by their ascendants, is not subject to collation if the donor formally expressed in his will that what he had given was an advantage or an extra part, unless the value of the objects given exceed the disposable portion, in which case the excess is subject to collation. LSA-C.C. Art. 1231. The obligation of collating is confined to children or descendants succeeding to their fathers’ and mothers’ or other ascendants’ successions. LSA-C.C. Art. 1235. The obligation to collate is presumed by law and may be made either in kind or by taking less. LSA-C.C. Arts. 1229, 1230, 1251. An heir may demand collation of property sold by his mother or father to another child for no consideration or for a price less than one-fourth its value. LSA-C.C. Art. 2444; Russell v. Culpepper, 337 So.2d 226 (La.App. 3 Cir.1976), rehearing granted, 340 So.2d 315 (La.1976), aff’d, 344 So.2d 1372 (La.1977). An action for collation is classified as a personal action under LSA-C.C. Art. 3499 (formerly Art. 3544) for purposes of prescription. Succession of Webre, supra; Milano v. Milano, 243 So.2d 876 (La.App. 1 Cir 1971). Article 3499 provides: “Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.” In Webre, supra, certain children and grandchildren of decedents sought to annul as simulations separate conveyances of land by the decedents to two other children. Alternatively, the plaintiffs prayed for collation of the property. The plaintiffs asserted that prescription as to their collation claim accrued only from the date they acquired knowledge of the conveyance, which is the same argument that is being asserted by plaintiff in the present case. There the court ruled that under Article 3544 (now Article 3499), “The action for collation prescribes in ten years from the death of the person to whose estate collation is sought.” O’Neil Pollingue, Sr. died on October 10, 1960, and the plaintiff filed this action for collation and reduction on February 15,1985, 25 years after the death of O’Neil Pollingue, Sr. The trial court correctly held that the claim for collation was clearly prescribed. LSA-C.C. Art. 1502 provides, in pertinent part: “Any disposal of property, whether inter vivos or mortis causa, exceeding the quantum of which a person may legally dispose to the prejudice of the forced heirs, is not null, but only reducible to that quantum.” The applicable prescriptive period for reduction of an excessive donation is set out in LSA-C.C. Art. 3497 (formerly 3542) which provides: “The following actions are subject to a liberative prescription of five years: ... An action for a reduction of an excessive donation; ...” Prescription begins to run against an action to reduce an excessive donation on the date that the testament is filed for probate. Draper v. Van Leer, 197 La. 259, 1 So.2d 513 (1941); Succession of Dancie, 191 La. 518, 186 So. 14 (1939); West v. Gajdzik, 425 So.2d 263 (La.App. 3 Cir. 1982); Perrodin v. Clement, 254 So.2d 704 (La.App. 3 Cir.1971), writ den., 260 La. 604, 256 So.2d 642 (1972). O’Neil Pollingue, Sr. died testate in 1960; his will was filed and probated and a Judgment of Possession was rendered and signed in his succession on October 30, 1962. Plaintiff’s suit for reduction was filed in 1985, 23 years after this prescriptive period had accrued. Plaintiff was clearly aware of her father’s will and its probate in his succession. The trial court correctly held that plaintiffs claim for reduction had prescribed. After reviewing the plaintiff’s original petition and her appellate brief, it is unclear whether she is alleging that the various transfers of farm property were simulations or donations in disguise. Plaintiff states in her petition that there was a sale of real property to her brothers, Karl and Eugene, which impinged on her legitime and she asserts this to be a simulation requiring collation and reduction of O’Neil Pollingue, Sr.’s legacy. Plaintiff states in her brief that O’Neil Pollingue, Sr. executed simulated sales of community property without Mrs. Zula Pollingue’s approval; and, this approval was not secured prior to, but some six months after, O’Neil Pol-lingue, Sr.’s death when Mrs. Zula Pol-lingue executed a quitclaim, and after plaintiff was vested by seizin with her interest in her. father’s estate. It is plaintiff’s contention that under these conditions, the Pollingue farm property never left the community of the decedent, O’Neil Pollingue, Sr., and thus, it remains in her father’s estate to be transferred to the forced heirs. Plaintiff alleges in further support of this argument that a note given by Karl Pollingue to O’Neil Pollingue, Sr. on June 29, 1946, as partial payment for the acreage he had acquired, was never paid off. Plaintiff further alleges that a note given by Eugene Pollingue to O’Neil Pollingue, Sr. on June 29,1946, for his one-third share of the acreage he acquired was also not paid off. The Supreme Court in Owen v. Owen, 336 So.2d 782 (La.1976), explained the difference between a simulated sale and a donation in disguise as follows: “In our law, a simulation is a transfer of property which is not what it seems. Simulations are of two types: pure simulations, and disguised transfers. In a pure simulation, sometimes called a non-transfer, the parties only pretend to transfer the property from one to the other, but in fact both transferor and transferee intend that the transferor retain ownership of the property. When this type of simulation is successfully attacked, the true intent of the parties is revealed, which was that no transfer had in fact taken place. In a contest between a vendor and vendee in this situation the true intent of the parties is effectuated and the courts hold that no transfer took place because the simulated sale is an absolute nullity. Successions of Webre, 247 La. 461, 172 So.2d 286 (1965); Schalaida v. Gonzales, 174 La. 907, 142 So. 123 (1932); Milano v. Milano, 243 So.2d 876 (La.App. 1st Cir.1971). The other type of simulation is a disguised transfer which seems on its face to be a valid sale, but which is intended by the parties to be a gift rather than a sale. When this sort of simulation is attacked successfully, as it has been here under Article 2444, the true intent of the parties is likewise effectuated by the law. A valid transfer has taken place, but its form is a donation rather than a sale and the Code articles on donations apply to the transfer. Stevens v. Stevens, 227 La. 761, 80 So.2d 399 (1955); Carter v. Bolden, 13 La.App. 48, 127 So. 111 (La.App. 2nd Cir.1930); 35 La.L.Rev. 192 (1974); 25 La.L.Rev. 313 (1965).” (Footnote omitted.) See also, Bordelon v. Bordelon, 499 So.2d 1050 (La.App. 3 Cir.1986). In her appellate brief, plaintiff cites Johnston v. Spears, 459 So.2d 197 (La.App. 3 Cir.1984), in which we stated that under LSA-C.C. Article 2239 (now C.C. Arts. 2028, 2021, 2035): “Forced heirs shall have the same right to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit, they shall not be restricted to the legitime.” Under this article, the effect is not to return conveyed or donated property to a succession, but to declare that such property, in reality, never left the patrimony of the decedent. This article and its effect should not be confused with Civil Code article 2444, under which a sale of immovable property by parents to children for less than one-fourth of the property’s fair market value at the time of sale may be attacked by forced heirs. Under article 2444, the transfer from decedent’s patrimony is admitted, but the sale is attacked as, in reality, a donation of property subject to collation. Similarly, Civil Code article 1248 provides that a sale to a child at a low price may be attacked by forced heirs. Again, there is no denial of an actual transference of property, but the advantage bestowed by a sale at a low price is treated as a donation subject to collation.” If the plaintiff can show that any of the transactions involving the farm property were simulated sales, the Succession of O’Neil Pollingue, Sr. can be reopened and the property in question can be distributed to the forced heirs since an action in simulation is imprescribable. Webre, supra, 172 So.2d at page 289; Milano, supra, at page 879. But, if any consideration whatsoever was paid, the transactions may not be set aside as a simulation, and as such, plaintiff’s only action will be one for collation or reduction which clearly have prescribed. After a thorough review of the record, we find no evidence which indicates that any of the sales or transactions were simulations. Assuming, arguendo, that personal notes given to O’Neil Pollingue, Sr. were never paid off, there is sufficient evidence to show that O’Neil Pollingue, Sr. received a substantial portion of the purchase price. The 1946 sales of farm property to Karl and Eugene Pollingue were partly financed by assumption of loans from the Federal Land Bank which have been paid off. Given these facts the plaintiff’s only action is one for collation or reduction which we have found to be prescribed. After having addressed the prescriptive period applicable to actions for collation and reduction, we must examine whether plaintiff’s claim for damages against the executor and attorney for the estate have prescribed. Unless otherwise provided by legislation, personal action is subject to a liberative prescription of ten years. LSA-C.C. Art. 3499. The Legislature has provided a shorter prescriptive period for delic-tual actions. LSA-C.C. Art. 3492 provides: “Delictual actions are subject to a li-berative prescription of one year. This prescription commences to run from the day injury or damage is sustained.” Any tort claim against Mr. Logan or O’Neil Pollingue, Jr. for breach of fiduciary duty would be classified as a delictual action and as such would have prescribed October 30, 1963, one year after the judgment of possession was signed. Given the fact that an action for collation could not prescribe until October 10, 1970, the latest possible date that the plaintiff could have filed an action for damages would have been October 10, 1971. In either case, plaintiff’s action for damages filed on February 15, 1985, against Mr. Logan and Dr. O’Neil Pollingue, Jr. has clearly prescribed. The prescriptive period for actions against a succession representative is set out in LSA-R.S. 9:5621 which provides: “Actions against any person who has served as a curator of a vacant succession or as administrator, testamentary executor, or dative testamentary executor of a succession in this state, or against the surety on his bond, arising out of any act the succession representative, as such, may have done or failed to so, are prescribed by two years, reckoning from the day of the judgment homol-ogating the final account.” As the Judgment of Possession in the estate of Mr. O’Neil L. Pollingue, Sr. was rendered and signed on October 30, 1962, any claims against the testamentary executor, O’Neil Pollingue, Jr., or the attorney, Mr. Logan, for damages arising out of the settlement of the estate also have prescribed. INTERRUPTION OF PRESCRIPTION Having found that plaintiff’s claim for reduction, collation, and damages have prescribed, we must determine whether any facts exist which will interrupt that prescription. Plaintiff contends that prescription has not run because of the doctrine of contra non valentem. Plaintiff argues that contra non valentem should be applied to interrupt prescription because (1) she did not sustain any damage and (2) there was no cause of action when she received notice of the Judgment of Possession. In support of her later claim she argues that she did not get a copy of her mother’s quitclaim deed nor did she receive notice when the quitclaim deed was executed and recorded. LSA-C.C. Article 3467 provides that prescription runs against all persons unless they are included under some exception provided by law. Despite this express statutory provision, Louisiana courts have applied the doctrine of contra non valentem to very limited circumstances to prevent the running of liberative prescription “where in fact and for good cause, a plaintiff is unable to exercise his cause of action when it accrues.” Corsey v. State Dept. of Corrections, 375 So.2d 1319, 1321 (La.1979). Prescription does not run against a party who is ignorant of the existence of facts that would entitle him to bring this suit, where such ignorance is not willful and does not result from negligence. Rayne State Bank & Trust v. National Union Fire Ins. Co., 483 So.2d 987 (La.1986); Cartwright v. Chrysler Corporation, 255 La. 597, 232 So.2d 285 (1970); Walter v. Caffall, 192 La. 447, 188 So. 137 (1939). The prescriptive period begins to run on the date that the injured party discovered or should have discovered the existence of facts that will entitle him to bring the suit. The Louisiana Supreme Court stated in Cartwright v. Chrysler Corporation, supra: “It is not necessary that the party have actual knowledge of the conditions as long as there is constructive notice. Whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of everything to which inquiry may lead and such information or knowledge as ought to put the plaintiff on inquiry is sufficient to start the running of prescription.” The Louisiana Supreme Court in Corsey, supra, listed four categories of situations where Louisiana courts have applied the doctrine of contra non valentem to prevent the accrual of liberative prescription: (1) Where there is some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevent the creditor from suing or acting; (3) where the debtor himself has done some act to effectively prevent the creditor from availing himself of this cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff even though his ignorance is not caused by the defendant. Plaintiff claims that the third and fourth exceptions are applicable in this case. She alleges that she was not aware that she had a cause of action because she did not receive notice of the quitclaim deed which prevented her from discovering the prior transfers of property until the succession of Mrs. Zula Pollingue was opened. She also argues that contra non valentem should be applied because defendants allegedly committed acts, including concealment, fraud, misrepresentation, or other ill practices which prevented her from asserting her cause of action. After reviewing the entire record, we find that there is no evidence to show that any of the defendants engaged in any conduct which might have prevented plaintiff from asserting her right or that plaintiffs cause of action could not be ascertained or was not reasonably ascertainable by the plaintiff at the time of rendition of the Judgment of Possession in her father’s succession. At the hearing on the exception of prescription, plaintiff admitted receiving a copy of the Judgment of Possession. When asked what attorneys had been contacted relative to her father’s succession, she stated that a Mr. Boagni in Opelousas and a Mr. Henican from New Orleans had been contacted. After a thorough investigation of the succession proceedings by both attorneys she was assured that nothing was improper. In addition, the plaintiff was aware of her father’s death; she attended his funeral and admitted in her peti tion that she received a copy of the Judgment of Possession placing all his forced heirs into possession of the property in his estate. After a review of the jurisprudence, we find that there is no legal justification for holding that prescription should be suspended in the case at bar because plaintiff failed to receive notice of the quitclaim deed executed by her mother in regard to her interest in her separate or community property sold to plaintiff’s brothers. As pointed out by the defendants in their appellate brief, the quitclaim deed, executed by Mrs. Zula Pollingue after the death of her husband and recorded January 16, 1963, is a document which could not affect an action for reduction or collation in O’Neil Pollingue, Sr.’s estate; and even assuming it had some effect, the document was publicly recorded twenty years before plaintiff finally initiated her suit in this matter. According to the Louisiana Public Records Doctrine, third persons need only look to the public records to determine adverse claims. La.C.C. Art. 3342; 3347; Bordelon v. Bordelon, supra; McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909). We find no merit in plaintiff’s claim that prescription should be interrupted because she had no notice of the fact that all of the various sale documents and the quitclaim deed were publicly recorded. In plaintiff’s affidavit filed on July 11, 1985, she states she knew that her parents had purchased some property during their marriage. The descriptive list of property in the Judgment of Possession included several pieces of immovable property in the City of Opelou-sas, but did not include the several thousand acres of farm property owned and acquired by Mr. and Mrs. O’Neil Pollingue, Sr. during their marriage. This knowledge was sufficient to put plaintiff on notice that there had been prior transactions involving the farm property of her mother and father. After having taken no action for twenty-five years plaintiff cannot now bring an action and defeat prescription by claiming she did not have notice of the transactions involving the farm property. Plaintiff was put on notice by the Judgment of Possession in her father’s succession sufficient to excite her attention and call for further inquiry relative to the farm property. In another attempt to defeat prescription plaintiff claims that a partnership agreement entered into by the decedent, O’Neil Pollingue, Sr., in 1946, which partnership she further claims acquired the farm property and was never liquidated, now allows her to make a claim for reduction, collation, or damages. Even if plaintiff was correct that this partnership was never liquidated, the partnership agreement was a publicly recorded document, of which she is assumed to have constructive knowledge. Any claim of the partnership to ownership of any of its property would be a right of the partnership, not the succession of O’Neil Pollingue, Sr., and even if there was a partnership claim, it would have prescribed by 1985 and such a claim could not be asserted through a claim for reduction or collation in a partner’s succession. An appellate court may not disturb a trial court’s evaluations of credibility and factual determinations unless the record reveals that the trial court’s decision is manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). After reviewing the record, we cannot say that the trial court erred in sustaining the defendant’s exceptions of prescription. FRIVOLOUS APPEAL Defendants have answered this appeal seeking damages for a frivolous appeal under C.C.P. Article 2164. The standard to be applied in making this determination was set out in Bellard v. Safeway Insurance Company, 442 So.2d 1314 (La.App. 3 Cir.1983): “Appeals are favored in our law. We are reluctant to impose the penal provisions of LSA-C.C.P. Article 2164 which provides for the award of damages for frivolous appeal. Such damages will be awarded only when it manifestly appears that the appeal was taken solely for the purpose of delay or that appealing coun sel does not seriously believe in the position he advocates, even though the appeal lacks serious merit. Goad v. May, 376 So.2d 340 (La.App. 3 Cir.1979).” In the case at bar, we do not find this appeal to be frivolous. For this reason, defendants’ claim for damages is denied. For the reasons assigned, the judgment of the trial court maintaining defendants’ pleas of prescription are affirmed. All costs of this appeal are taxed to plaintiff-appellant. AFFIRMED.

KNOLL, Judge. We are consolidating the actions against Worldsurance, Inc. (hereafter Worldsu-rance) by Ivory Williams and Levi Patton in this appeal since the issues involved are identical. A separate opinion based upon the reasons stated herein is rendered this day in Patton v. Timber Company, 524 So.2d 887 (La.App. 3rd Cir.1988). Ivory Williams (hereafter Williams) sued Palmer Jones Timber Company (hereafter Palmer Timber) alleging a claim for worker’s compensation benefits for an injury he received on March 7,1980. Palmer Timber answered Williams’ petition and filed a third-party demand against Worldsurance, alleging that Worldsurance was its worker’s compensation insurer. Worldsurance answered Palmer Timber’s third-party demand, denying all allegations and asserting that the actual insurer was Mentor Insurance, Ltd. (hereafter Mentor). Worldsu-rance filed a motion for summary judgment seeking dismissal of Palmer Timber’s third-party demand. There is no pleading of record filed by Williams against Worldsu-rance. The same procedural history applies to Patton’s claim with the exception that Patton filed an amended petition against Worldsurance after judgment was signed in Worldsurance’s motion for summary judgment. The result of both motions for summary judgment was that the demands of Williams, Patton and Palmer Timber against Worldsurance were dismissed. We reverse but do not reach the assertions by Williams and Patton that there was a genuine issue of material fact which precluded summary judgment. LSA-C.C.P. Art. 966 provides, in part, that “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” (Emphasis added.) We conclude that the trial court erred when it ruled in favor of third-party defendant, Worldsurance, against Williams and Patton. Worldsurance’s motions for summary judgment only sought dismissal of the demands of third-party plaintiff, Palmer Timber. Worldsurance did not move for summary judgment as to Williams and Patton; at the time of World-suranee’s motion and the hearing on that motion the record is void of any claim by Williams and Patton against Worldsurance. Therefore as a matter of law Worldsurance could not have sought judgment in its favor against Williams and Patton because Williams and Patton had not asserted a claim against it. In accord see Stell v. Louisiana Dept. of Public Safety, 499 So.2d 1211 (La.App. 5th Cir.1986) and Abshire v. Hartford Accident & Indem. Ins. Co., 289 So.2d 545 (La.App. 3rd Cir.1974), writ denied, 293 So.2d 170 (La.1974). We distinguish Strickland v. Bd. of Sup’rs of La. St. Univ., 432 So.2d 964 (La.App. 4th Cir.1983), and cases cited therein. In those cases it was clear that the opposing parties had been included in the moving party’s motion for summary judgment and that the opposing parties had justiciable claims against the mover at the time of the motion. For the foregoing reasons, the judgments dismissing Williams and Patton are reversed and set aside as they pertain to those plaintiffs. These matters are remanded for further proceedings consistent with the views expressed herein. Costs of these appeals are assessed to Worldsu-rance. REVERSED AND REMANDED.

LOTTINGER, Judge. Plaintiff, Linda Maloney Bolden, filed suit in September, 1981, for the partition of the community existing between herself and her husband, defendant, Marshall Lee Bolden. From the judgment granting the partition, plaintiff appeals. FACTS Plaintiff and defendant were married in August, 1978. A petition for separation was filed in November, 1980, and a judgment was signed in June, 1981. In September, 1981, plaintiff filed suit seeking the partition of the former community property regime. Both parties consented to a partition by licitation of the marital home and lot. However, the sheriff’s sale was postponed at the plaintiff’s request. Later, in January, 1986, plaintiff filed an amended petition for partition of the community property, as provided in La.R.S. 9:2801. TRIAL COURT After a trial on the merits, the trial court awarded plaintiff ownership of the marital home and lot as well as $3,620.87 from the defendant. In determining the amounts due between the spouses, the trial court permitted an offset or credit for the occupancy of the home by each spouse during the pendency of the partition, citing Patin v. Patin, 462 So.2d 1356 (La.App. 3rd Cir.1985), writ denied 466 So.2d 470 (La.1985). ASSIGNMENTS OF ERROR In appealing, plaintiff contends the trial court erred in holding that defendant was entitled to an offset for the fair rental value of the community home while the plaintiff occupied it. Plaintiff contends that the trial court’s decision to offset is statutorily prohibited. Plaintiff also asserts and properly filed a peremptory exception of prescription under La.Civ.Code art. 2369. The trial court awarded the offset between the parties for their mutual occupancy of the marital home. Defendant occupied the home from January to August, 1981. Plaintiff occupied the home from August, 1981 through May, 1986. The trial court noted, in its oral reasons for judgment, that the offset was due both parties “if the court is correct in its interpretation of Patín v. Patín” I In Patín, after the alimony hearing, the wife was awarded the use of the family domicile up to and until the partition of the community. No mention of rental was made in the alimony judgment. In the subsequent partition judgment, the husband was awarded an offset for the wife's use and occupancy of the marital home from the date of legal separation until the partition of the community property. The appellate court determined that, based on La.Civ.Code arts. 2364 and 2369, the separate property of the wife was enhanced by her use of the marital home. As stated by that court, “[t]he funds that she [the wife] would have been forced to pay as rent have remained in her control for investment purposes.” Patín, 462 So.2d at 1358. Thus, the wife’s separate property benefitted from the alleviation of her having to pay rent. A thorough review of existing case law in this circuit fails to show that Patín is controlling. As recent as Williams v. Williams, 509 So.2d 77, 79 (La.App. 1st Cir.1987), in a case where the trial court found the husband indebted to the wife for one-half of the rental value of the family home, this court in reversing that portion of the judgment said: Upon termination of the community between a husband and wife, the two parties become owners in indivisión of the immovable property which had belonged to the community. Each owner in indivi-sión is entitled to possess or use the common property without the obligation to pay rent therefor, provided that such possession or use is not to the exclusion of his co-owner, (citations omitted). Also in Michel v. Michel, 484 So.2d 829, 830 (La.App. 1st Cir.1986), this court determined that rental payments may not be used as an offset for reimbursement at the accounting when the community regime is terminated. This court stated that: “LSA-C.C. Article 155 provides that the Judgment of Separation carries with it the dissolution of the community of ac-quets and gains and thereafter the parties occupy the status of co-owners of the property. The general rule of law is to the effect that a co-owner has the right to use the common property without the payment of rent.” (citation omitted). Although the co-owner was denied use and occupancy of the marital home, the court found that the co-owner’s remedy was to seek a partition by licitation of the property in dispute. The court concluded that “the law is well settled a co-owner can not be charged rent.” Michel, 484 So.2d at 831. The judgment for separation from bed and board creates the dissolution of the community of acquets and gains and the parties thereafter occupied the status of co-owners of the property. The parties be came owners in indivisión of the marital home in November, 1980. As co-owners in indivisión, each is entitled to the use, enjoyment, and disposition of the property within the limits established by law. La.Civ. Code arts. 477 and 480. A corollary right permits the use and occupancy of the property by the co-owner without the payment of rent. Defendant contends that La.Civ.Code arts. 2364 and 2366 permit reimbursements when the community property regime is terminated. Defendant argues that plaintiff’s separate estate benefitted from her use of the marital home. As stated in defendant’s brief, “Mrs. Bolden’s use of the community home has benefited her separate estate in that it was not necessary to expend funds from her separate estate.” Defendant’s contention lacks merit. As stated earlier, the indivisión ownership of the community home entitles both plaintiff and defendant to the use and occupancy of the home. At the point the community regime terminated, November, 1980, plaintiff retained indivisión ownership with defendant over the marital home. The home, thus, became an immovable owned by the two separate estates, with full rights and entitlements to the home’s use and occupancy. Thus, a co-owner is not required to pay rent to the other co-owner for the use and occupancy of the undivided property. This court also notes that the Patín rule has been subsequently repudiated by the Louisiana Legislature by its enactment of La.R.S. 9:308(B) (Act 732 of the 1985 Regular Session). La.R.S. 9:308(B) provides: B. A spouse awarded the use and occupancy of the family residence pending the partition of the community property in accordance with the provisions of R.S. 9:308(A) shall not be liable to the other spouse for rental for the use and occupancy, unless otherwise agreed by the spouses or ordered by the court. We are of the opinion that the Louisiana Legislature intended that a spouse who is awarded the use and occupancy of the marital home by the trial court pending the judicial partition shall not be liable to the other spouse for rental payments on the home unless ordered to pay by the trial court at the time of the award of use and occupancy. Any other interpretation of the statute such as an after-the-fact award of payment would be an affirmation of the Patín rule and would render the statute meaningless. If the legislature had concurred with the holding of Patín, then there would have been no need to enact Act 732 of the 1985 Regular Session. Therefore, the trial court was incorrect in requiring both parties to reimburse each other for their use and occupancy of the marital home. Thus, those credits granted by the trial court are alleviated. Thus, because of our alleviation of the offset rental payments by the trial court, the judgment in favor of the plaintiff as against the defendant is amended. As stipulated or agreed by both parties, plaintiff is entitled to $26,428.26 in reimbursements from defendant for payment of certain debts owed on the immovable property as well as a credit for movables. II Plaintiff also filed a motion asserting the peremptory exception raising the objection of prescription, La.Civ.Code art. 2369. Article 2369 provides that the obligation to account between spouses for community property prescribes in three years from the date of the community regime’s termination. However, because of our determination as to the rental payments, we pretermit any discussion of the application of Art. 2369 to an accounting for such payments. THEREFORE, for the above and foregoing reasons, the judgment of the trial court is amended and recast as follows: IT IS ORDERED, ADJUDGED, AND DECREED that there be a partition of the community of acquets and gains formerly existing between Plaintiff Linda Maloney Bolden and Defendant Marshall Lee Bol-den. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Plaintiff Linda Maloney Bolden is declared the owner of Lot 58, Old Jefferson First Filing, Parish of East Baton Rouge, State of Louisiana. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant Marshall Lee Bolden is the owner of the movable property in his possession that formerly belonged to the community of ac-quets and gains existing between Marshall Lee Bolden and Linda Maloney Bolden and that Linda Maloney Bolden is the owner of the movable property in her possession that formerly belonged to the community of ac-quets and gains existing between Linda Maloney Bolden and Marshall Lee Bolden. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there is judgment in favor of Plaintiff Linda Malo-ney Bolden and against Defendant Marshall Lee Bolden in the sum of Twenty-six Thousand Four Hundred Twenty-eight and 26/ioo ($26,428.26) Dollars. Defendant-appellee is assessed all costs of this proceeding. AMENDED AND AFFIRMED. EDWARDS, J., dissents in part and assigns reasons. . The judgment appealed was rendered on June 23, 1986. Thus, La.R.S. 9:308(B) as amended by Act 732 of 1985 is controlling, rather than R.S. 9:308(B) as amended by Act 678 of 1986.

WARD, Judge. Robert DeLoach sued his employer, Burglary Emergency Alarm Response Service, Inc., and its compensation carrier, Commercial Union Insurance Company, for worker’s compensation benefits. DeLoach appeals the Trial Court judgment sustaining the defendants’ peremptory exceptions. We reverse and remand. On March 6, 1987, DeLoach submitted a claim to the Office of Worker’s Compensation Administration (OWCA) for compensation benefits after he allegedly was injured at his employer’s business on October 6, 1986. OWCA issued a recommendation to deny benefits because, based on the information submitted, DeLoach’s claim was not work-related. In accordance with La. R.S. 23:1310.1(A), this recommendation was sent to DeLoach by certified mail, return receipt requested, at the address DeLoach gave to OWCA. DeLoach never claimed the certified letter. On June 2,1987 his attorney wrote to OWCA requesting information on the status of DeLoach’s claim. OWCA responded by issuing a certificate on June 9, 1987 indicating that because no party timely re jected its recommendation, all parties were conclusively presumed to have accepted the recommendation as provided by La. R.S. 23:1310.1(A). The certificate did not indicate a date of receipt of the recommendation for DeLoach as it did for the other parties; instead, the certificate noted that DeLoach’s copy of the recommendation was sent “certified mail returned unclaimed.” After receiving the certificate, DeLoach filed suit on June 22, 1987. Burglary Emergency Alarm Response Service, Inc. and its compensation carrier urged an exception of prematurity or, alternatively, peremptory exceptions of res judicata, no cause of action and no right of action. The Trial Judge sustained the peremptory exceptions, dismissing DeLoach’s suit with prejudice. DeLoach argues on appeal that his compensation claim should not have been dismissed because he never received the OWCA recommendation and thus, he could not be conclusively presumed to have accepted it. We agree. La. R.S. 23:1310.1 provides in part: A_ Within thirty days after the receipt of the claim, the office shall issue its recommendation for resolution and provide the parties with a copy of the recommendation by certified mail, return receipt requested.... Within thirty days of receipt of the recommendation of the office, each party shall notify the office on a form to be provided by the director of the acceptance or rejection of the recommendation. A party failing to so notify the office shall be conclusively presumed to have accepted the recommendation of the office. Should any party notify the office that it rejects the recommendation, the office shall issue to each party a certificate that the claim was submitted to the office, that the parties attempted to informally resolve the claim, but that the office's recommendation was rejected. Such certificate shall not set forth either the recommendation of the office or the name of the rejecting party or parties. OWCA concedes DeLoach did not actually receive its recommendation, but argues that it has done all that is required by law, and, as a consequence, when DeLoach did not reject the recommendation within thirty days, he must be presumed to have accepted it. We reject this argument. Under a literal reading of the statute DeLoach could only be presumed to have accepted the recommendation if he received it. Although under the statute, OWCA’s only duty is to comply with the certified mail notification, simply because OWCA has fulfilled its duty by sending the recommendation by certified mail a presumption is not created that DeLoach has received the recommendation. The presumption created by the statute is applicable only when the recommendation is received. We do not believe that the legislature ever intended to allow parties to ignore the OWCA recommendation in order to delay its enforcement or to prevent access to the courts. If, as defendants claim, this result follows from our decision in this case, the fault lies in the statute. Any deficiency in the statute is a matter properly addressed by the legislature and not by this Court. Having determined that DeLoach did not receive the recommendation and cannot be presumed to have accepted it, it is unnecessary for us to review the various peremptory exceptions granted by the Trial Judge because each of the exceptions is premised upon DeLoach’s presumed acceptance of the recommendation. Nor do we believe it is necessary to remand to OWCA for issuance of another certificate that would indicate DeLoach rejected OWCA’s recommendation. Such action is unnecessary because when DeLoach finally was apprised of the recommendation, he attempted to reject it, but OWCA would not “allow” him to do so because the thirty day period had expired. Requiring OWCA to issue another recommendation and requiring DeLoach to reject it merely to comply with La. R.S. 23:1311(C) would be unwarranted when the evidence before us clearly shows that DeLoach has attempted to reject the OWCA recommendation which denied his compensation claim after he finally received that recommenda tion. In the interests of judicial economy, therefore, we reverse and remand to the Trial Court for trial on DeLoach’s worker’s compensation claim. REVERSED AND REMANDED.

In re Nelson, Elton G.; applying for supervisory and remedial writs; to the Court of Appeal, Fifth Circuit, No. 88-CM-0194; Parish of Jefferson, 24th Judicial District Court, Div. “K”, No. 298-096. Denied.

In re McGee, Ernest; applying for supervisory and/or remedial writs; Parish of Orleans, Criminal District Court, Div. “A”, No. 281-981. The relator represents that the district court has failed to act timely on a motion he has filed for production of documents. If relator’s representation is correct, the district court is ordered to consider and act on the motion.

G. WILLIAM SWIFT, Jr., Judge Pro Tem. The sole issue presented by this appeal is whether or not the sentence imposed on defendant is excessive. The defendant, Vance Alton Vogel, was charged by a bill of information with one count of simple burglary, a violation of La.R.S. 14:62, and one count of theft, a violation of La.R.S. 14:67. Pursuant to a plea bargain, defendant pled guilty to unauthorized entry of a place of business, prohibited by La.R.S. 14:62.4. The trial court accepted defendant’s guilty plea and ordered a pre-sentence investigation and report. After receiving this report and holding a sentencing hearing, the trial court sentenced defendant to the custody of the Louisiana Department of Corrections to serve three years at hard labor under La.R.S. 14:62.4. Defendant appeals his sentence alleging that the sentence is excessive. We affirm. On October 81, 1986, the Leesville City Police Department received a call of a silent alarm at Culotta-McKee Hardware in Leesville, Louisiana. As the officers approached the side of the hardware store they noticed a wall panel had been torn away above the air conditioner. Upon entry into the building, the officers found a hunting knife and a buck knife in the hallway of the store. They further noted that the glass case containing guns and knives had been forced open. As the officers further searched the building they discovered the defendant hiding in the rear of the store underneath a pipe shelf. He was then arrested and charged with burglary and theft by the Leesville City Police Department. Defendant pled not guilty to both of these charges, but later withdrew this plea and tendered a plea of unauthorized entry of a place of business, which the State accepted. The second count of theft was nolle prossed. The trial judge sentenced the defendant to three years at hard labor, stating the grounds which he considered required by LSA-C.Cr.P. Art. 894.1. Defendant argues that the sentence of three years at hard labor is excessive and constitutes cruel and unusual punishment. He points out that this is his first felony offense, he was drinking alcohol at the time of this offense and that he is a prime candidate for less restrictive rehabilitation. La.R.S. 14:62.4 provides for a penalty of a fine of not more than $1,000.00 or imprisonment with or without hard labor for not more than six years or both. The defendant thus could have received a maximum sentence of six years and a $1,000.00 fine, but was sentenced to only three years. In State v. Morgan, 428 So.2d 1215, at page 1216 (La.App. 3 Cir.1983), writ den., 433 So.2d 166 (La.1983), this Court stated the appellate standard of determining whether a sentence is unconstitutionally excessive as follows: “[A] sentence is excessive if it is grossly disproportionate to the severity of the offense. State v. Bonanno, 384 So.2d 355, 358 (La.1980). In determining whether the penalty is grossly disproportionate, the court must consider ‘the punishment and the crime in light of the harm to society caused by its commission, and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.’ Id. In reviewing a claim of excessive sentencing, the trial judge is to be afforded wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Abercrumbia, 412 So.2d 1027 (La.1982).” See also, State v. Marcantel, 502 So.2d 127 (La.App. 3 Cir.1987); State v. Lemelle, 502 So.2d 130 (La.App. 3 Cir.1987); and State v. Miller, 495 So.2d 422 (La.App. 3 Cir.1986). La.C.Cr.P. Art. 894.1 sets forth the grounds that the trial judge should consider in imposing a sentence. In following these grounds, the trial judge in the instant case noted the economic loss of the victim due to damages to his property, the possibility at the time of the crime of personal harm to the proprietor of the hardware store, the lack of provocation for the crime, the fact that the victim had not been compensated for his financial loss, the defendant’s juvenile record of two convictions of simple burglary, a conviction of possession of stolen property, a conviction of unauthorized use of a movable which belonged to the victim of the instant case, that in the past the defendant was a poor probation performer according to his probation officer, the defendant’s use of alcohol and propensities toward illegal drugs and a general bad attitude. Under the sentencing guidelines set forth in La.C.Cr.P. Art. 894.1, a sentence must be individualized to the defendant. State v. Day, 414 So.2d 349 (La.1982). When the guidelines of La.C.Cr.P. Art. 894.1 are followed, a sentence should not be set aside as excessive in the absence of an abuse of the trial court’s wide sentencing discretion. State v. Dennard, 482 So.2d 1067 (La.App. 3 Cir.1986); State v. Williams, 446 So.2d 565 (La.App. 3 Cir.1984). The record reflects that the trial judge considered La.C.Cr.P. Art. 894.1, including the mitigating factors urged by the defendant in this case. The sentence is not so grossly disproportionate to the severity of the offense as to shock our sense of justice. There appears to be no abuse of discretion on the part of the sentencing judge. We therefore conclude that defendant’s assignment of error is without merit and the sentence is affirmed. AFFIRMED.

KNOLL, Judge. The administratrix for the Succession of Elijah Thomas, Jr., appeals the dismissal of her claim for certain accrued worker’s compensation benefits allegedly owed to the deceased by his employer, General Fabrication & Service Company. The trial court ruled that General Fabrication fully compensated the deceased and thus, owed his succession nothing. The Succession of Elijah Thomas, Jr., relies on two specifications of error: 1) the trial court erred in failing to award plaintiff the amount accrued and payable as a scheduled loss to Elijah Thomas, Jr.; and 2) the trial court erred in allowing General Fabrication to take a “credit” against wrongfully withheld interim payments. We affirm. FACTS The issues raised on appeal were thoroughly covered by the learned trial judge in his excellent written reasons for judgment. After carefully reviewing the record, we find the trial court’s determinations and the jurisprudence it relied upon are well supported by the record. Therefore, we adopt the trial court’s reasons for judgment as our opinion which is set forth herein: “In this matter the deceased was injured about his shoulder and back in an employment-related accident on July 8, 1981. Pursuant to this injury the deceased received worker’s compensation through the defendant’s insurer until sometime in November, 1981, the total payments amounting to $2,771.00. The insurer made medical payments for the deceased in the amount of $5,960.00 In November of 1981, the deceased was released by the treating physician, Dr. Louis Blanda, who also concluded that the injury of the deceased’s shoulder caused a ten (10%) percent permanent partial disability. The death of the deceased occurred on May 22, 1982, in a separate and unrelated automobile accident. The Administratrix of the Succession of the deceased brought this action to recover worker’s compensation allegedly due the deceased under the provisions of LSA-R.S. 23:1021, et seq. Upon trial of the merits the primary issue that emerged for court determination was whether the defendant insurer remained responsible for compensation payments to the deceased under the schedule loss provisions (R.S. 23:1221[4]) beyond November of 1981, or whether any such payments due were subject to a credit based upon the temporary total disability payments already made, such that the applicable credit was greater than the amount due the deceased. No doubt the deceased was injured in a work-related accident on July 8, 1981, and received worker’s compensation in the amount of One Hundred Sixty-three ($163.00) Dollars per week through November 4, 1981, the total thereof coming to $2,771.00. Too, no question appears as to the fact that Dr. Blanda released the deceased in early November, 1981 with a determination of 10% partial permanent disability, regarding his shoulder, and that thereafter the defendant insurer terminated the payments. The resolution of the issue before the Court lies in an in pari materiae analysis of the provisions of LSA-R.S. 23:1202, 1221 and 1223, and the jurisprudential authorities applicable. Paragraph 4 of Section 1221 of the mentioned title establishes a compensation schedule solely for the anatomical loss of use or amputation of certain bodily members. Since we are concerned with a shoulder in the instant case, the Court turns attention to Sub-paragraph (f) thereof which provides that for the loss of an arm the injured is due to be paid 66%% of his wages during 200 weeks. However, given the fact that the permanent loss was assigned by the physician at ten (10%) per cent, the Court must turn to Subparagraph (o) of the same paragraph and section, which provides in pertinent part that where the permanent anatomical loss is only partial, the compensation must be in proportion based upon the percentage of loss or impairment assigned and the rate payable for the total loss of the member. Thus, the award in the case before this Court is properly the proportionate disability to the plaintiff's arm (10% permanent impairment of the shoulder), multiplied by 66%% of his wages during 200 weeks. See Deleon v. Home Indemnity Co., 444 So.2d 685 (La.App. 5th Cir.1984). However, the parties stipulated at trial that the calculation would yield the plaintiff less than the statutory minimum and to the fact that the applicable statutory minimum under R.S. 23:1202 is $49.00. The total compensable amount then comes to $9,800.00 during 200 weeks. However, two factors must now be considered by this Court with respect to this compensable amount of $9,800.00. First, the decedent died on May 22, 1982, in an unrelated accident. Calculations reveal then that some 45 weeks transpired between July 8, 1981 and May 22, 1982. Turning to jurisprudential authority then, it is clear that although the right of an employee to enforce the obligation of an employer to pay disability benefits is a heritable property right, this right applies only to accrued benefits, with benefits which would have been paid but for the death not considered accrued. Guillot v. Weave [Weaver] Brothers, 31 So.2d 278 (La.App. 2nd Cir.1947); Turner v. Southern Wheel and Rim Service, Inc., 332 So.2d 770 (La.1976); Chapman v. Home Indemnity Company, 442 So.2d 1388 (La.App. 3rd Cir.1983), writ denied 445 So.2d 437 (La.1984). The same rule applies as to schedule loss disability benefits. Jacks v. Bannister [Banister] Pipe Line America, 418 So.2d 524 (La.1982). Thus the fact that the decedent lived for only 45 weeks after the accident, coupled with the provisions of R.S. 23:1201(D) which provides that partial total disability payments are due on the thirtieth day after medical notice (including all such compensation then due), leads to a conclusion that the decedent was due compensation for 45 weeks. The other factor that must be considered involves the trial stipulation that until November 1981 (during the 45 week period) the decedent was paid worker’s compensation benefits totalling $2,771.00 for temporary total disability. R.S. 23:1223 provides that when compensation has been paid under R.S. 23:1221(1), (2) or (3), the amount of such payments shall be deducted from any compensation allowed under R.S. 23:1221(4). It is now clear that this credit is determined on a dollar for dollar basis. See Deleon, supra and Jacks, supra. Thus, the temporary total disability benefits received by the decedent were terminated on November 4, 1981, after the release by Dr. Blanda with the 10% permanent disability. From this date, then, the decedent was due 200 weeks of compensation at $49.00 per week or such number of weeks as he remained alive. The decedent lived nearly 29 weeks after November 4, which calculated amounts to a due figure of $1,421.00. However, the compensation paid between July 8, and November 4, amounted to $2,771.00. Therefore, considering the right of the defendants to the dollar for dollar credit mentioned above, no compensation is now due the plaintiffs estate. Too, the claim for penalties and attorney’s fees must fail for there is no compensation due.” For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to appellant, the Succession of Elijah Thomas, Jr. AFFIRMED. . Note that this analysis of the law involves the version of R.S. 23:1221 prior to the amendments passed during the 1983 Extraordinary Session of the Legislature. Apparently under the amended statute, the proportion determined by the percentage of loss assigned would affect the number of comparable weeks rather than the rate of compensation. In the case at bar the cause clearly arose under the pre-1983 version of the law.

FORET, Judge. Plaintiff, CONOCO, INC. (Conoco) filed suit against TENNECO, INC. (Tenneco) for recovery of money allegedly due in connection with a Gas Purchase and Sales Agreement entered into by said parties. The trial court rendered judgment in favor of Tenneco and Conoco has perfected this appeal. On August 28,1979, Conoco and Tenneco entered into a Gas Purchase and Sales Agreement pursuant to which Conoco sold to Tenneco one-half of the natural gas reserves attributable to Conoco’s interest in certain offshore acreage designated as Eugene Island Block 257. Section 8(c) of the contract states that the price for gas sold and delivered by Conoco shall be adjusted in accordance with any ceiling prices subsequently approved by the Federal Energy Regulatory Commission (FERC) effective as of the date such price is made effective by FERC. After the contract was entered into, Co-noco filed an application for a certificate of public convenience and necessity with FERC, requesting permission to collect, in connection with the aforesaid contract, the NGPA Section 109 price. FERC issued a temporary certificate on October 18, 1979, authorizing the sale of natural gas from Conoco to Tenneco but limiting the price to the lower NGPA Section 104 price. The certificate was made effective as of the effective date of initial deliveries under the contract, i.e., January 1, 1980. Thereafter, on January 81,1980, FERC issued a permanent certificate, establishing the same price limitation and effective date as the temporary certificate previously issued. The FERC approved Sec. 104 price became the contract price pursuant to Sec. 8(c) of the contract, and Conoco billed Tenneco at such rate for all gas sold and delivered from January 1, 1980 onward. The Sec. 104 price remained in effect until FERC amended its certificate on January 19, 1984, increasing the ceiling price to the maximum lawful price prescribed by NPGA Sec. 109(b). The certificate further provided that such increase was effective as of the effective date of the original certificate, i.e., January 1, 1980. Accordingly, commencing with the invoice of March 19, 1984, Cities Service Oil Company (Cities Service), Conoco’s representative under the terms of the subject contract, began billing Tenneco for current deliveries of gas at the higher Section 109 price, and these bills were paid by Tenneco in accordance with the contract. On July 10, 1984, Cities Service invoiced Tenneco, on behalf of Conoco, for $17,884,163.56, representing the difference between the Sec. 104 price and the Sec. 109 price from the date of initial deliveries under the contract to March 19, 1984. On August 13, 1984, Tenneco forwarded to Cities Service a check in the amount of $3,867,335.88, representing the price difference between the NGPA Sec. 104 price and the Sec. 109 price for gas delivered to Ten-neco from July 13, 1982 to January 31, 1984, being the twenty-four-month period immediately preceding Tenneco’s receipt of the aforesaid invoice for arrearages due. Thereafter, by letter dated October 18, 1984, Conoco made demand on Tenneco for payment of the remaining principal balance of $14,016,827.68, being the difference between the Sec. 104 price and the Sec. 109 price for the period beginning January 1, 1980 and ending July 12, 1982. By letter dated January 4, 1984, Tenneco reaffirmed its earlier position, refusing to pay the remaining balance claimed by Conoco, and this litigation ensued. Tenneco bases its refusal to pay on a provision contained under Section III-A (hereinafter sometimes referred to as the Billings and Payments Section) of the subject contract and does not dispute the correctness of the principal amount claimed by Conoco. The pertinent provisions of the subject contract appear at Section 8(c) and Section III-A(1)(2) and (3). “(c) Should Congress, the President or other executive authorities, the Federal Energy Regulatory Commission, or any other governmental authority, administrative agency or otherwise, having jurisdiction, prescribe or permit, by any action of government, whether by statute, order, settlement, rulemaking proceeding, policy statement, regulation, or otherwise, a price applicable to the sale of all or part of the gas delivered hereunder, or a price generally applicable to other gas in the same area, which is higher than the price otherwise provided herein, then the price to be paid by Buyer to Seller for such portion of the gas delivered hereunder which would otherwise qualify for such higher price shall be increased, effective as of the effective date of such higher price, to equal such higher rate including permitted adjustments. SECTION III-A BILLINGS AND PAYMENTS 1. On or before the 15th day of each month after deliveries of gas are commenced, Seller shall render Buyer a statement for the preceding month showing the volume of gas delivered hereunder, or the volume Buyer was obligated to take or pay for hereunder, the amount due therefor and information sufficient to explain and support any adjustment in volumes made by Seller in determining the amount billed. 2. Buyer will pay Seller on or before the 25th day of each month, or as to invoices rendered after the 15th day of each month, within ten (10) days after receipt of such invoices, for gas delivered during the preceding month, according to the measurements, computations, and prices herein provided. If the correct amount is not paid when due, interest on any unpaid amount shall accrue at the rate of nine percent (9%) per annum. If such default continues sixty (60) days after written notice from Seller to Buyer, Seller may suspend gas deliveries hereunder without prejudice to other remedies. 3.If any overcharge or undercharge in any form whatsoever shall at any time be found and the bill therefor has been paid, Seller shall refund the amount of any overcharge received by Seller, and Buyer shall pay the amount of any undercharge within thirty (30) days after final determination thereof; provided, however, no retroactive adjustment will be made for any overcharge or undercharge beyond a period of twenty-four (2j) months from the date the discrepancy occurred.” (Emphasis ours.) The issue presented for our consideration on appeal is whether or not the trial court erred in finding that Conoco was not entitled to recover, pursuant to the contract in question, the difference between the NGPA Sec. 104 price and the Sec. 109 price for the period beginning January 1, 1980 and ending July 12, 1982. Section IX-A(3) of the contract states that it is to be construed in accordance with the law of the State of Texas. Where the parties have stipulated upon the state law governing their contract, such law will be applied by the courts of our State unless it is shown that to do so would violate strong public policy considerations. Fine v. Property Damage Appraisers, Inc., 393 F.Supp. 1304 (E.D.La.1975); Davis v. Humble Oil & Refining Co., 283 So.2d 783 (La.App. 1 Cir.1973). However, our courts shall presume that the law of such other state is the same as the law of our State unless we are provided with statutory and jurisprudential authority to the contrary. Johnson v. Nationwide Life Insurance Co., 388 So.2d 464 (La.App. 2 Cir. 1980). In the instant case, both parties have provided this Court with ample statutory and jurisprudential law from the State of Texas, and accordingly, we are bound to apply the law of the State of Texas in this case as there is no showing that doing so would violate any strong public policy considerations in Louisiana. As the trial court correctly noted, the applicable Texas law on contracts is substantially similar to that of Louisiana. In Texas, the contract is the law between the parties. Pratt v. Story, 530 S.W.2d 325 (Tex.Civ.App.1975). A contract should be interpreted in such a way as to effectuate the intent of the parties. Ogden v. Dickinson State Bank, 662 S.W.2d 330 (Tex.1984). A contract is to be read and interpreted in its entirety and its provisions are to be considered together and in light of one another. Southland Royalty Co. v. Pan American Petroleum Corp., 378 S.W.2d 50 (Tex.1964). Also, when a contract admits of two constructions, it will be strictly construed against the party who drafted the agreement. Republic National Bank v. Northwest National Bank, 578 S.W.2d 109 (Tex.1978). Texas has adopted the uniform commercial code on contracts. Of particular importance here is Sec. 2.202 of the Texas Business and Commerce Code which states as follows: “§ 2.202. Final Written Expression: Parol or Extrinsic Evidence Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented (1) by course of dealing or usage of trade (Section 1.205) or by course of performance (Section 2.208); and (2) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.” Tenneco contends, and the trial court so found, that Section III-A(3) of the contract is applicable to the facts of this case and that this provision limits Conoco’s right to adjust undercharges to the twenty-four-month period immediately preceding Tenneco’s receipt of Conoco’s invoice setting forth the full amount of arrearages due. Tenneco correctly states that the amended FERC certificate dated January 19, 1984 increased the ceiling price for gas sold by Conoco to the NGPA Sec. 109 price and that such increase was made effective as of the effective date of the original certificate. Thus, according to Tenneco, the Sec. 109 price must be deemed to have been the price authorized by the contract from January 1, 1980 onward, the same as if the original FERC certificate had provided for the NGPA Sec. 109 price. Tenneco contends that it necessarily follows that all monthly charges based on the lower Sec. 104 price were “undercharges” that occurred as of the date of each such invoice or charge. In other words, Tenneco maintains that the FERC order of January 19, 1984, retroactively converted each invoice previously sent on behalf of Conoco to an “undercharge”, even though these invoices were correct at the time of billing. Thus, once it is determined that the invoices did, in fact, contain undercharges, Sec. III-A(3) of the contract becomes applicable, and Co-noco is therefore prohibited from adjusting any undercharges “beyond a period of twenty-four (24) months from the date the discrepancy occurred.” Tenneco asserts that the discrepancies must have occurred at the time of the undercharge, which, according to Tenneco, is the date of each such charge or invoice. Tenneco then concludes by saying that, according to Section III— A(3), Conoco can only adjust those undercharges or discrepancies occurring within twenty-four months of the date on which Tenneco received Conoco’s bill for arrear-ages due. Tenneco states that by its own terms, Sec. III-A(3) applies to undercharges “in any form whatsoever” and that this necessarily includes adjustments created by subsequent FERC certificates. While Tenneco’s argument is ingenious and worthy of thoughtful consideration, we reject it for the reasons that follow. OVERALL PURPOSE AND FUNCTION OF CONTRACTUAL PROVISIONS AT ISSUE As noted earlier, in interpreting a provision in a contract, the court should consider the contract as a whole. Steeger v. Beard Drilling, Inc., 371 S.W.2d 684 (Tex.1963), Southland Royalty Co. v. Pan American Petroleum Corp., supra. When one considers the subject contract in its entirety, it becomes abundantly clear that the Billings and Payments Section of the contract, of which Sec. III-A(3) is a part, is a secondary provision which derives information regarding price from other portions of the contract and, in particular, the pricing provisions contained under Sec. 8. Sub-paragraphs (1), (2), (3) and (4) of the Billings and Payments Section must be read in pari materiae. When one does so, the scope and meaning of each of these subsections is easily discerned. Subsections (1), (2) and (3) are accounting provisions intended to provide the proper procedure for billing and for dealing with incorrect or erroneous bills. As such, these provisions focus on contemporary or month-to-month invoices and the correctness thereof. Stated another way, these provision concern themselves with the accuracy of monthly billings as of the time such bills are issued. The purpose of Sec. III-A(3) is to allow for the adjustment of invoices which were incorrect, or in error, at the time such invoices were sent. Where, as in our case, the invoices were accurate at the time they were sent out, the Billings and Payments Section of the contract is completely inapplicable. On the other hand, Sec. 8(c) of the contract clearly states, without limitation, that the price for gas sold shall be increased in accordance with subsequent FERC certificates and it provides that such increase shall be effective, “as of the effective date of such higher price.” Accordingly, this clause, contained under the pricing section of the agreement, is an express authorization for the collection of the NGPA Sec. 109 price from whatever date such price is made effective by FERC, without any limitation whatsoever. Thus, in summation, we find that Sec. 8 of the contract establishes the price and the effective date of such price while the Billings and Payment Section is in the nature of an accounting provision and, as such, is de-siged to insure proper billing and accounting procedures with limited opportunity for adjustment of erroneous invoices. Stated another way, Section 8 of the contract establishes the price, and the Billings and Payments Section, including Subsection 3 thereof, provides the procedure for the billing and collection of such price. To interpret this agreement in any other way would clearly subvert the underlying purpose and meaning thereof. INVOICES IN QUESTION DO NOT CONSTITUTE “UNDERCHARGES” In holding that Sec. III-A(3) of the contract is not applicable in this case, we specifically reject Tenneco’s contention that the FERC order of January 19, 1984 somehow converted prior invoices, which were correct when sent out, to undercharges. As Conoco correctly points out in its brief, each monthly invoice submitted by Conoco during the time period in dispute, correctly set forth the highest price that Conoco was allowed to charge according to the contract and its current FERC certificate. Because each invoice was correct at the time it was sent out, there was no “undercharge” and thus Section III-A(3) of the contract is wholly inapplicable. The fact that FERC subsequently amended its certificate to provide for a higher price does not alter the fact that the invoices in question were correct at the time they were sent to Tenneco and were therefore not undercharges. The determination as to whether or not an invoice constitutes an undercharge or overcharge can only be made at the time the invoice is sent out. What was not an error at the time of billing cannot be converted to an erroneous billing by subsequent FERC certificates which, as the record will reflect, do nothing more than increase or decrease the maximum allowable price and stipulate the effective date thereof. Clearly, if, on the date Conoco mailed out the invoices in question, it could only charge the NGPA Sec. 104 price, such invoices, which reflect such price, cannot be considered as undercharges. Accordingly, if there existed no undercharges at the time the invoices in question were sent out, Section III-A(3) of the contract will not apply. Tenneco’s argument, that the FERC order of January 19, 1984 retroac tively converted the invoices to undercharges, fails to consider the fact that there is indeed a difference between being effective as of a certain date and being in effect on that date. This distinction lies at the very heart of this case. The fact that the January 19, 1984 FERC order made the NGPA Sec. 109 price effective as of January 1, 1980, does not mean that such price was, in fact, in effect on such date. The fact is, it was not. From January 1, 1980 through July 12, 1982, the period in dispute, the NGPA Sec. 104 price was the maximum lawful price allowed by FERC and the contract and as such, all invoices which were based on such price were not undercharges. A billing is not an “undercharge” if it was correct at the time it was made. Ten-neco does not dispute that the billings made prior to 1984 were correct as of the date of the billings. TENNECO’S INTERPRETATION — CONFLICT BETWEEN PROVISIONS OF CONTRACT Tenneco’s interpretation of the subject agreement inevitably causes the pertinent contractual provisions to conflict in two significant respects. Firstly, Tenneco’s interpretation of Sec. III-A(3) results in a direct conflict between this provision and Sec. 8(c) of the contract. Specifically, the interpretation advanced by Tenneco would have Sec. III-A(3) prohibit what the pricing section of the contract and in particular Sec. 8(c), expressly permits — adjustments in price in accordance with FERC certificates, effective as of the effective date of such certificates. Secondly, Tenneco’s appreciation of the scope and meaning of Sec. III-A(3) negates a primary purpose and function of Subsections (1) and (2) contained in the Billings and Payments Section of the contract. In fact, the interpretation placed on Sec. III-A(3) by Tenneco effectively penalizes Conoco for having complied with Subsection (1) of the Billings and Payments Section which was clearly drafted to ensure accurate and proper billing procedure. In this case, Conoco did bill Tenneco for the correct amount during the period in question. In other words, these invoices were correct at the time they were sent out. However, because Conoco did so and thereby complied with Subsection (1) of the Billings and Payments Section, they would be prohibited from adjusting such charges under Tenneco’s interpretation of the pertinent contractual provisions. Furthermore, had Conoco erroneously billed Tenneco at the higher NGPA Sec. 109 price during the period in question, Conoco would now be allowed to collect the entire amount in dispute if one adopts Tenneco’s interpretation of these provisions. Conoco would be permitted to do so, even though the invoices were incorrect and in violation of III-A(1), because there would have been no undercharge and thus the twenty-four-month time limitation set forth under Sec. III-A(3) would not be applicable. Thus, Tenneco’s interpretation of Sec. III-A(3) results in a second direct conflict in two or more provisions of the contract. This conflict results from the fact that, in some instances, Cono-co would be penalized under Sec. III-A(3) for having complied with Subsection (1) contained under the Billings and Payments Section and in other instances be rewarded for having failed to do so. Thus, Tenneco’s interpretation of the subject contract, which will inevitably lead to unjust and unreasonable results, is rejected. DATE DISCREPANCY AROSE Even if Sec. III-A(3) of the contract were applicable to the facts of this case, it is clear that Tenneco’s claim for adjustment does fall within the twenty-four-month time limitation set forth therein. Section III-A(3) states that the twenty-four-month period commences “from the date the discrepancy occurred.” Because Conoco could not collect the NGPA Sec. 109 price until the FERC order of January 19, 1984, no discrepancy could have occurred until the date of such order, at the earliest. As noted in our earlier discussion, the invoices sent out during the period in dispute were not undercharges and thus, no discrepancy could have occurred on the dates these invoices were prepared and sent out. Conoco therefore had twenty-four months from January 19, 1984, to adjust these discrepancies and Conoco has clearly done so. Tenneco contends that the discrepancies must be deemed to have occurred on the dates of the invoices or charges. This would mean that the discrepancies would have occurred prior to the date of the event which caused the discrepancies, i.e., the FERC order of January 19, 1984. Moreover, such an interpretation would have the effect of retroactively creating discrepancies which are instantly too old to correct. We do not find merit to Tenneco’s contention in this regard. MANIFEST ERROR RULE DOES NOT APPLY Tenneco contends that the trial court’s holding cannot be overturned unless manifest error is shown. As authority for its position, Tenneco cites G/O Enterprises, Inc. v. Mid Louisiana Gas Company, 444 So.2d 1279 (La.App. 4 Cir.1984), writ denied, 446 So.2d 318 (La.1984), and Ayers v. Kent, 438 So.2d 691 (La.App. 2 Cir.1983). These cases are clearly distinguishable from the instant case and Tenne-co’s argument as to the applicability of the manifest error rule is without merit. In each of the above cited cases, the appellate court held that where factual findings are pertinent to the interpretation of a contract, these factual findings are not to be disturbed unless manifest error is shown. We agree. However, our interpretation of the contract in question is not premised upon any factual findings made at the trial level but is, instead, based upon our review and examination of the contract itself. Surely, the trial court is in no better position than this Court to review and interpret a contract and, for this reason, the manifest error rule does not apply. RECOVERY OF INTEREST AND ATTORNEY’S FEES Section III-A(2) of the contract states that interest shall accrue on any past due amounts at the rate of 9% per annum. Neither party has briefed this Court as to the legality of such rate of interest in the State of Texas, and we shall therefore assume that Texas law is no different from Louisiana law insofar as this issue is concerned. See Johnson v. Nationwide Life Ins. Co., supra. For contracts of this nature, 9% is a legal rate of interest in the State of Louisiana. See La.C.C. art. 2924. Section III-A(2) of the subject contract stipulates that payment shall be due on or before the 25th day of the month provided such invoice is rendered on or before the 15th day of the month. The invoice in question was received by Tenneco on July 13, 1984 and therefore payment was due on or before July 25, 1984. Accordingly, interest shall accrue at the rate of 9% per annum from July 26, 1984, which is the date the invoice in question became past due. As for the issue of attorney’s fees, Conoco is not entitled to recover same. We shall also apply Louisiana law with regard to this issue in view of the fact that neither party has briefed this Court as to the applicable Texas law. In Louisiana, attorney’s fees are only recoverable when authorized by statute or contract. Morvant v. Arnoult, 490 So.2d 549 (La.App. 4 Cir.1986). The contract in question does not provide for attorney’s fees and there is no statutory authority in Louisiana for recovery of attorney fees in this case. Accordingly, Conoco’s claim for attorney’s fees is denied. CONCLUSION In summation, we find that the Billings and Payments Section of the contract does not apply to a price adjustment resulting from FERC approved rate increases. Simply stated, the pricing provisions of the contract contained under Section 8 and, in particular Subsection (c) thereof, control. We do not feel that an accounting provision such as Section III-A(3) of the subject contract can be applied in such a way as to defeat Conoco’s right to collect gas prices specifically authorized by Section 8 of the contract. Considering the above, the judgment of the trial court in favor of Tenneco, Inc. is reversed and, IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, CONOCO, INC. and against defendant, TENNECO, INC. in the sum of FOURTEEN MILLION, SIXTEEN THOUSAND, EIGHT HUNDRED TWENTY-SEVEN AND 68/100 ($14,016,827.68) DOLLARS, together with interest thereon at the rate of 9% per annum from July 26, 1984. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs, both at the trial level and on appeal, are assessed to defendant-appellee, TENNE-CO, INC. REVERSED AND RENDERED. . It appears that Section 8(a) of the subject contract is also applicable to the facts of this case. . The Federal Energy Regulatory Commission is a federal administrative body. The FERC establishes the maximum allowable price for the sale of natural gas and is also charged with the administration and enforcement of certain federal statutes such as the Natural Gas Act and the Natural Gas Policy Act (NGPA). . Section IX-A(3) of the subject contract states that, “this Agreement shall be construed according to the law of the State of Texas." The contract does not make any provision for attorney’s fees, and therefore the issue of attorney’s fees does not involve a construction of the contract. It is not known whether or not the law of the State of Texas would otherwise be applicable according to established conflicts of laws principles adopted in the State of Louisiana. In any event, this Court has not been provided with authority from any of our sister states with regard to the issue of attorney’s fees and we shall therefore apply the laws of the State of Louisiana as noted above.

GARRISON, Judge. The defendant, Emmett Messick, was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1. After a jury found the defendant guilty as charged, he was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant now appeals his conviction and sentence. On June 1,1986, nineteen year old Kelvin Thompson was shot and killed while riding a bicycle along Chef Menteur Highway in New Orleans. At that time, the defendant and Harold Allen were driving on Chef Menteur Highway. According to Allen, the defendant pulled out his gun, shot at Thompson and said, “I like to wing them f — ing niggers.” Allen then grabbed the defendant’s gun and kept it in his possession until the two men arrived at Allen’s home. At that point, the two men went their separate ways. When Allen later read about a young black man being shot to death while bicycling on Chef Menteur Highway, he feared that the victim was shot by the defendant, so he contacted the police. When the defendant and Allen separated on the day of the shooting, the defendant went to his sister’s home and told her that he had shot a boy who was riding a bicycle. His sister, Patricia Frey, contacted the police two days later. After leaving his sister’s home, the defendant then proceeded to the LaPlace home of his brother-in-law where he was soon arrested for illegally discharging a weapon, disturbing the peace and driving with a suspended driver’s license. After Patricia Frey made her statement to the police, they obtained the gun seized from the defendant in the LaPlace arrest, found that it was the same type of gun used in the Thompson murder, and obtained a warrant for the defendant’s arrest. By this time, the defendant had fled to Alabama but he returned several days later and turned himself in to the authorities where he was arrested for the murder of Kelvin Thompson. The defendant claims that he did not kill Thompson; rather, he claims that his friend Harold Allen was the perpetrator of that crime. In the first assignment of error, the defendant claims that the evidence presented at trial was insufficient to support the conviction for second degree murder. In an appellate review of sufficiency of evidence, the court must determine whether a rational trier of fact, when viewing the evidence in the light most favorable to the prosecution, could have found that the elements of the crime charged were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Second degree murder is the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm. LSA-R.S. 14:30.1. Evidence at trial established the facts that: 1) the defendant fired a shot at a young black man riding a bicycle along Chef Menteur Highway on June 1, 1986; 2) the victim, Kelvin Thompson, was shot and killed by a .22 caliber pistol with similar barrel characteristics to the pistol seized from the defendant in La-Place; 3) the murder occurred on Chef Menteur Highway at the approximate time and place that the defendant fired at a young black man on Chef Menteur Highway; 4) the defendant confessed to his sister that he had shot a black man on a bicycle; and 5) the slug that killed the victim was the same type of ammunition confiscated from the defendant. Clearly, the evidence presented in this case was sufficient to support the defendant’s conviction for second degree murder. This assignment of error is without merit. In the second assignment of error, the defendant claims that the trial court erred in allowing into evidence certain testimony from a pathologist which was not furnished to the defense pursuant to its pre-trial discovery request. The defendant also claims that the trial court erred in allowing into evidence the testimony of an F.B.I. firearms expert who conducted ballistics tests in this case three days prior to trial. The discovery rules of the Louisiana Code of Criminal Procedure, including LSA-C.Cr.P. arts. 718 and 719 which deal with the discoverability of documents and of results of tests and examinations, were enacted to eliminate unwarranted prejudice to a defendant which could occur from surprise testimony. State v. Jackson, 454 So. 2d 398 (La.App. 4th Cir.1984). The objectionable testimony of Dr. Paul McGarry, which dealt with certain measurement tests conducted on the defendant’s car on the day before trial, was clearly outside of the doctor’s expertise and should not have been allowed due to the fact that the defense was not provided with the results of these tests as requested in its pre-trial discovery motion. However, because the extensive cross-examination of Dr. McGarry discredited the conclusions that the doctor attempted to draw from his measurement tests, the defendant was not so prejudiced by this testimony so as to warrant a reversal of his conviction. Furthermore, the allowance of the testimony of the F.B.I. firearms expert concerning ballistics tests concluded three days before trial may also have violated article 719 but no prejudice was incurred by the defendant because the results of this witness’ tests were inconclusive on the issue of whether or not the defendant’s gun was the murder weapon. Therefore, because this testimony neither helped nor harmed the defendant, its admission was harmless error. In the third assignment of error, the defendant argues that the trial court erred in allowing the State to introduce evidence of prior and subsequent offenses allegedly committed by the defendant. Evidence of other crimes or bad conduct committed by the defendant is generally inadmissible. However, an exception to that rule exists when such evidence is substantially relevant and tends to show intent, knowledge or system. State v. Kakey, 436 So.2d 475 (La.1983). In this case, the trial judge allowed testimony concerning defendant’s arrest in LaPlace, on the day after the Thompson shooting, for illegally discharging a weapon. The LaPlace incident was not substantially related to the issue at trial and did not show intent, knowledge or system. Therefore, the trial court erred in allowing this testimony into evidence. However, in view of the overwhelming evidence of defendant’s guilt in this case, the allowance of testimony concerning the LaPlace incident was harmless error. In the final assignment of error, the defendant claims that the trial court erred in allowing the written statement of Patricia Frey into evidence. According to defendant, because Patricia Frey testified at trial, her testimony was the best evidence available and, therefore, her written statement should not have been allowed into evidence. However, because this statement was introduced without objection by the defense, the defendant waived his right to have this issue reviewed on appeal. For the reasons stated above, the defendant’s conviction and sentence are affirmed. AFFIRMED.

TATE, Justice. The defendant pleaded guilty to attempted simple burglary, La.R.S. 14:27, 62, and was sentenced to four years at hard labor. He appeals. His assignment of error admits that no objections were made at the time the plea was taken, but asks for appellate review of the conviction and sentence. The record further indicates that no appealable ruling is presented for review, such as the denial of a motion to withdraw a guilty plea, see La.C.Cr.P. art. 559. Under these circumstances, the appeal presents nothing for review except “patent” errors, i. e., those discoverable by an inspection of the pleadings and proceedings and without inspection of the evidence. La.C.Cr.P. arts. 841, 920. In reviewing appeals from pleas of guilty, our jurisprudence holds that the review is limited to jurisdictional defects which appear on the face of the pleadings and proceedings. State v. Knighten, 320 So.2d 184 (La.1975); State v. Coats, 260 La. 64, 255 So.2d 75 (1971). The defendant argues that this statutory and jurisprudential limit upon appellate review violates Article 1, Section 19, of the new Louisiana Constitution of 1974. This constitutional provision provides: “No person shall be subjected to imprisonment . without the right of judicial review based upon a complete record of all the evidence upon which the judgment is based. This right may be intelligently waived.” Our Code of Criminal Procedure assures every accused in a criminal proceeding of “the right’’ of judicial review based upon a complete record of all the evidence “upon which the judgment is based.” In felony cases, a complete record is made of all the proceedings, with similar recording being made in misdemeanor cases upon request of the accused. La.C.Cr.P. art. 843 (1974). Nevertheless, the accused’s right to have review of particular trial actions or evidentiary rulings may be waived by the failure of his counsel to object to them at the time made. La.C.Cr.P. art. 841. His right to have appellate review of other potential contentions may likewise be waived by the failure to file trial motions raising the issue (such as a motion to suppress evidence seized in alleged violation of constitutional right, La.C.Cr.P. art. 703; or such as a motion for directed verdict, La.C.Cr. P. art. 778, or for a new trial, La.C.Cr.P. art. 851, questioning the total lack of evidence to prove the essential elements of a trial; or such as a motion to quash the indictment or prosecution for many procedural defects, La.C.Cr.P. art. 535 D). We hold that, within the intention of the constitutional article, the failure of an accused’s counsel to make such objections or to file such motions will ordinarily constitute an intelligent waiver of the right to appellate review of such types of errors and the evidence upon which they are based. Likewise, a defendant’s plea of guilty constitutes an intelligent waiver of appellate review of the merits of the prosecution’s case against him. Accordingly, we find no merit in the defendant’s complaint that Article 1, Section 19 of the Louisiana Constitution is offended by the code articles and jurisprudential holdings which limit appellate review, under present circumstances, to jurisdictional defects which appear on the face of the pleadings and proceedings. We are thus unable to accede to the defendant’s plea that we review the entire record and all of the evidence in it. Accordingly, we affirm the conviction and sentence. Affirmed. SUMMERS, J., concurs and assigns reasons. . If we were permitted to review the record, it affirmatively shows that the defendant pleaded guilty to the offense, freely and voluntarily and with the assistance of counsel, only after the trial court fully explained to him the rights he was waiving by pleading guilty and only after the trial court had ascertained from him the factual basis for his plea (in this case, his admitted guilt) and only after the trial court fully informed him of the penitentiary sentence to which his plea subjected him.

In re: J. L. Jones and Pearl Freeman Jones applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 326 So.2d 565. ■ Writ denied. On the facts found, we find no error of law.

In re General Health System et al.; Gulf South Health Plans Inc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 428,- 055; to the Court of Appeal, First Circuit, No. 99 CW 2678 Denied. VICTORY, J., not on panel.

In re Johnson, Earl; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. C, Ño. 306,172; to the Court of Appeal, First Circuit, No. 98 KA 2790 Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. LEMMON, J., not on panel.

JjPER CURIAM: Granted in part; otherwise’denied. La. C.Cr.P. art. 905.3 provides that a trial judge “may decline to instruct the jury on any aggravating circumstance not supported by evidence.” The article serves the salutary purpose of “preventing] confusion by narrowing the jury’s list of aggravating circumstances to those actually urged by the prosecutor and arguably supported by the evidence.” State v. Summit, 454 So.2d 1100, 1107, n. 13 (La.1984). While a trial judge is not required to, and often cannot, restrict the state’s case in this manner in advance of trial, State v. Flowers, 441 So.2d 707, 717 (La.1983), the long history of this case since the commission of the crime in 1979 provides exceptional circumstances warranting the exercise of the trial court’s discretion before the forthcoming retrial of the penalty phase. Our observation in State v. Brooks, 505 So.2d 714, 720 (La.1987) (emphasis added), that “in this case, there may well have been insufficient proof that Brooks had the intent to condition [the victim’s] release on anyone’s giving up of anything of value” was not necessary to the ultimate disposition of the case and was therefore non binding dicta. Nevertheless, our experience with the record in this case leads us to conclude that, in fact, the defendant and his co-defendant took the victim | gto a remote location solely for purposes of killing him and not for purposes of continuing the sexual assault which had taken place at defendant’s home. The essential extortion element of aggravated kidnapping is therefore absent. See State v. English, 367 So.2d 815, 823 (La.1979); cf. State v. Arnold, 548 So.2d 920, 924 (La.1989). The state may therefore not rely on, nor may the court charge jurors with respect to, the offense of aggravating kidnapping as an aggravating circumstance sufficient to support the return of a capital sentencing verdict. In all other respects, the application is denied. TRAYLOR and KNOLL, JJ., would deny the writ. Johnson, J., not on panel. See La. S.Ct. Rule IV, Part II, § 3.

In re Doggett, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Richland, 5th Judicial District court Div. B, No. 31,117; to the Court of Appeal, Second Circuit, No. 33596-KW Denied. CALOGERO, C.J., not on panel.

JjBAGNERIS, Judge. FACTS AND PROCEDURAL HISTORY On June 10, 1993, Douglas McReynolds (“Mr. McReynolds”) was operating a 1993 Ford F-700 two-ton flatbed truck owned by his employer, Western Wireline (“Western”) in a southerly direction on Highway 23 in Plaquemines Parish. When his vehicle reached the area of mile pole marker 21, near the City of Empire, Mr. McRey-nolds’ truck entered a part of the highway, approximately 30 feet long, which was caved in. Mr. McReynolds was traveling at approximately 55 miles an hour at this time, and the jolt of the truck as it entered into the deepest part of the caved-in area caused his neck to violently jolt forward and back, striking his forehead on the steering wheel of his truck. There were two other passengers in the truck at the time of the incident, yet neither one experienced any debilitating injuries. Shortly thereafter, Mr. McReynolds stopped at a Shell station located on Highway 23, approximately 500 yards south of the accident site, operated by Larry Buras (“Mr. Buras”). He informed Mr. Buras of the incident, and purchased a pair. Lof gloves and various food items before continuing on to his destination. He returned to the Western office in Belle Chasse, Louisiana. Later that day, Mr. McReynolds consulted Dr. Charles Anastasio (“Dr. Anastasio”). Notably, on June 9, 1993, Mr. McRey-nolds suffered another work-related incident while manually loading eight (8) foot sections of pipe, weighing between 80 to 100 pounds each, on the back of the company truck. His suffered an injury to his neck and shoulder area as a result of this accident. On September 10, 1993, McRey-nolds underwent a cervical dissectomy at C5-C6 by Dr. Carl Culicehia (“Dr. Culicc-hia”). Some four years later on or about February 12, 1997, Mr. McReynolds re-aggravated his neck while driving down a different section of Highway 23 when he hit a bump in the road. Although, he did not report any symptoms as a result of this incident, he acknowledged that his neck had been gradually getting worse since Dr. Culicehia did the surgery. Mr. McRey-nolds ceased to work on February 18, 1997 because of headaches. On May 8,1997, Mr. McReynolds underwent a second surgery to fuse the C-5 disc and C-6 discs that had collapsed. Dr. Carlos Gorbitz, a neurosurgeon, performed a two-level anterior cervical dissectomy and fusion with a bone-bank bone and cervical plate. The surgery resulted in a good fusion of the spine, and Mr. McRey-nolds was discharged, basically asymptomatic on October 16, 1997. He returned to work at Western on or about August 26, 1997. Mr. McReynolds eventually filed suit against the State of Louisiana, through DOTD (“DOTD”) for failing to properly maintain the roadway in question, and specifically because (1) the caved-in portion of Highway 23 was unreasonably dangerous to the motoring public, (2) that the State knew or should have known of 13the condition, (3) they failed to correct the condition or warn oncoming traffic and, therefore are liable to the him for damages. On February 6 and 11, 1998, this matter was tried and was taken under advisement at the conclusion of the trial. On October 30, 1998, the trial judge entered judgment in favor of Mr. McReynolds and against the DOTD. The trial judge awarded Mr. McReynolds one hundred ninety thousand seven hundred forty-one and 6%oo ($190,-741.53) with the Court determining the general and special damages in the following manner: $40,000.00 — past physical pain and suffering $30,000.00 — past mental pain and suffering $40,000.00 — future pain and suffering $50,000.00 ■— future mental pain and suffering $34,864.10 — medical expenses On November 12, 1998, Mr. McReynolds filed a Motion To Amend Judgment to correct a typographical or calculation error in the October 30, 1998 Judgment. On November 13, 1998, the trial judge signed an order amending the original judgment to provide that Mr. McReynolds was to be awarded total damages in the amount of $194,864.10. In addition, the trial judge awarded, Lisa McReynolds, Mr. McRey-nolds’ wife, ten thousand and no/100 dollars ($10,000.00). The trial judge also entered a judgment in favor of the Louisiana Workers’ Compensation Corporation recognizing its compensation lien in the amount of thirty-four thousand eight hundred sixty-four and -%o dollars ($34,864.10). On November 16, 1998, the DOTD filed a Request for Written Reasons. |4On July 26, 1999, a Consent Judgment was signed by the parties fixing expert fees retained by Mr. McReynolds as follows: Robert Lipp, Professional Engineer $840.00 Bobby Robert, Rehabilitation Expert $958.00 DISCUSSION Standard of Review La. C.C.P. art 1917 provides the following: In all appealable contested cases, other than those tried by a jury, the court when requested to do so by a party shall give in writing its findings of fact and reasons for judgment, provided the request is made not later than 10 days after signing the judgment. When the trial court’s reasons for judgment do not articulate the theory or the evidentiary facts upon which the conclusion is based, the reviewing court will be unable to give the finding the usual deference attributed to the trier of fact. Further, when one or more of the trial court’s errors interdicts its fact finding process, the manifest error standard is no longer applicable and, if the record is otherwise complete, the appellate court may make its own independent review of the record and decide the case. However in the absence of manifest error, a reviewing court should not disturb the factual determination of the trial court. In order to find manifest error, the record must support the conclusion that the factual determinations were clearly wrong. McCartney v. Columbia Heights Nursing Home, 25, 710 (La.App. 2 Cir. 3/30/94), 634 So.2d 927; Thompson v. PetroUnited Terminals, Inc., 536 So.2d 504 (La.App. 1 Cir.1988), writ denied, 537 So.2d 212, 213 (La.1989). When findings of fact are based upon decisions regarding the credibility of witnesses, respect should be given to those conclusions, for only the fact finder can be aware of the variations in demeanor and tone of voice which bears so heavily on | ¡¡understanding and believing what is said. The reviewing court is mandated not to substitute its own evaluations and inferences for those of the trier of fact. Bolton v. Louisiana State University Medical Center, 601 So.2d 677 (La.App. 2 Cir.1992); Pereira v. Louisiana Coca-Cola Bottling Co., 620 So.2d 315 (La.App. 4 Cir.1993). When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990). LAW AND DISCUSSION I. THE TRIAL COURT DID NOT ERR IN FINDING THE DOTD LIABLE FOR MR. McREYNOLDS’ DAMAGES, NOR DID THEY ERR IN NOT ALLOCATING SOME FAULT to mr. McReynolds. A plaintiff may proceed against the DOTD under theories of negligence or strict liability. Thus, the burden of proof is the same under either theory when DOTD is the defendant. The plaintiff must show: 1) the property which caused the damage was in the custody of the DOTD; 2) the property was defective because it had a condition that created an unreasonable risk of harm; 3) the DOTD had actual or constructive notice of the risk; and 4) the defect in the property was a cause-in-fact of the plaintiffs injuries. Bessard v. State, DOTD, 94-0589 (La.11/30/94), 645 So.2d 1134, 1136; Fortune v. City of New Orleans, 623 So.2d 701 (La.App. 4 Cir.1993), writ denied, 629 So.2d 1126 (La.1993). Under either negligence or strict liability theories, the state’s duty through DOTD is the same. This duty, is to keep the highways and its shoulder in a reasonably safe condition for motorists exercising ordinary care and reasonable prudence. Brown v. Louisiana Indemnity Co., 97- 1344 (La.3/4/98), 707 So.2d 1240. Whether the DOTD breaches its duty, that is, whether the roadway at the scene of the accident was in an unreasonably dangerous condition, will depend on the facts and circumstances of every case. Lee v. State, Through DOTD, 97-0350 (La.10/21/97), 701 So.2d 676; Hunter v. DOTD, 620 So.2d 1149 (La.1993); LeBlanc v. State, 419 So.2d 853 (La.1982). A. The property that caused the accident was in the custody of the DOTD. All parties have stipulated that the State of Louisiana had custody and control of the portion of the roadway, Highway 23, that is the subject of this litigation. B. The property was defective because it had a condition that created an unreasonable risk of harm to the traveling public and the DOTD had actual or constructive notice of the risk. The DOTD asserts that Harry Shapiro (“Mr. Shapiro”), as State adjuster and investigator, took numerous measurements and photographs of the depressed area by removing a hot-mix, asphalt patch exposing the previously depressed area in November of 1997 during the course of the DOTD’s accident reconstruction. DOTD contends that this is the standard practice used by DOTD for measuring dips or depressions such as the one made the subject of lawsuits. The DOTD concluded from their findings that the portion of the roadway that is the subject of this litigation had a depression that measured approximately three and one half (3 1/2) inches over a length of about forty (40) feet. Generally, the DOTD Maintenance Manual provides that the threshold level to consider in scheduling maintenance of a depression is met when the depressions are over one (1) inch deep in ten (10) or when water ponds one-half Qh) inch deep. |7These measurements and photos were then reviewed by Robert P. Roth (“Mr. Roth”), the DOTD Maintenance Engineer for District 02, who surmised that such a depression did not warrant immediate repair and was not considered by DOTD to be a hazardous condition. Moreover, he opined that upon review of the Hayden videos showing the condition of the roadway on April 16, 1993 and May 7, 1993, it was clearly evident that the road conditions did not depict a hazardous condition. Alternatively, Mr. McReynolds asserts first that the DOTD’s estimate of the size of the depression at the time of the accident in 1993 is mere speculation as the DOTD was unsuccessful in presenting any hard evidence confirming that the condition of the roadway in 1997 after the DOTD removed the patchwork was substantially the same as it was in 1993 at the time of the accident. Moreover, he proffers that the only two DOTD employees, Frank Oser and Rodney Poree, who could have had any knowledge of the condition of the roadway in 1993 both testified at trial that they had no recollection of this particular, depressed or caved-in portion of the roadway. Nevertheless, Mr. McReynolds insists that the only evidence that suggest any similarity between the 1993 and 1997 condition of the roadway is the uncorroborated testimony of Mr. Roth and Mr. Shapiro, both of whom are employees of DOTD, who in his opinion has no personal knowledge of the condition of the roadway in 1993. Secondly, Mr. McReynolds asserts that the DOTD’s tests in 1997 were conducted under vastly different conditions than that of the actual accident in 1993, therefore yielding unreliable results. Specifically, Mr. McReynolds states that the test vehicle carried a load of 6500 pounds, while the vehicle Mr. McReynolds was riding carried no load at all; the 1997 test subject was six foot, three (6’3”) inches | stall, while Mr. McReynolds is five foot, nine (5’9”) inches tall; although the truck was the same model, it was a different truck therefore, it could have very naturally had a different “natural frequency” than that of the actual truck in question; and finally, the test subject knew that he was about to travel over a depression in the road, and easily could have physically braced himself for such an impact, while for someone in Mr. McReynolds’ position, the impact was a spontaneous occurrence that he had very little control over, both physically or otherwise. Finally, Mr. McReynolds asserts that Mr. Buras and Russell Hayden (“Mr. Hayden”), long-time residents of the area with no prior connection to Mr. McReynolds, both testified that at the time of the accident, the depression appeared to be between eight (8) to fourteen (14) inches deep, and about thirty (30) to thirty-five (35) feet long. Moreover, they both testified that the deteriorating condition of the roadway had existed for some time. Thus, Mr. McReynolds contends that the depression met the threshold for priority work under the DOTD guidelines, and the DOTD had actual or constructive notice of the risk. Accordingly, he asserts that the trial court was justified in assessing minimal weight to the test results introduced into evidence by the DOTD refuting the hazardous condition of the roadway in June of 1993. We agree. We must address the issue of prescription regarding the DOTD’s Request for Written Reasons. As was stated previously, the DOTD had ten (10) days in which to file such a request. The trial judge handed down his judgment on Friday, October 30, 1998. Taking into account the observation of All Saints’ Day on Monday, November 3, 1998, a federal and state holiday in which the court/the Clerk of Court’s offices were both closed, the DOTD timely filed their Request for Written Reasons on Monday, November 16, 1998. 13Notwithstanding, this Court cannot so frivolously discard the holding of the trial judge who for two days listened to the testimony of Mr. Roth and Mr. Shapiro regarding the accident reconstruction and the testimony of Mr. Buras and Mr. Hayden regarding the conditions of the roadway at the time of the accident. The trial judge also reviewed numerous photos, measurements, and videotapes of the accident scene. Most • importantly, the trial judge was in the best position to accurately assess the demeanor of each witness and the credibility of their testimony during those two days. When there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate may feel that its own evaluations and inferences are as reasonable. This well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses, as compared with the appellate court’s access only to a cold record, but also upon the proper allocation of trial and appellate functions. Thus, where there are two permissible views of evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). For these reasons, we find no error with the decision of the trial court, and hold that the property was defective because it had a condition that created an unreasonable risk of harm to the traveling public and the DOTD had actual or constructive notice of the risk. C. The defect in property was a cause-in-fact of Mr. McReynolds’ injuries. The DOTD charges that a defendant’s conduct is a cause-in-fact of the harm only if it is a “substantial factor” in bringing about the harm. Graves v. Page, 96-Once the fact finder determines a plaintiff has failed to prove duty or cause-in-fact by a preponderance of the evidence, this inquiry ends, and he/she need not determine whether the other elements of the plaintiffs’ case have been met. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305, 1310; Spiller v. State, through DOTD, 668 So.2d 1318, 1323 (La.App. 1 Cir.1996), writ denied (La.4/26/96), 672 So.2d 910. Thus, [2201m (La.11/7/97), 703 So.2d 566, 570. the DOTD asserts that the depression depicted in the Mr. McReynolds’ video and in their photographs did not pose an unreasonable risk of harm to the traveling public and was not a cause-in-fact of Mr. McRey-nolds’ accident. The DOTD promulgates in support of their arguments the testimony of Dr. Alfred P. Bowels, II (“Dr. Bowels”), and a tendered expert in the area of bio mechanical engineering and accident causation, who testified that he did not believe that this incident caused Mr. McReynolds’ disc injury. Moreover, Dr. Bowels suggest that in his opinion it was scientifically impossible for Mr. McReynolds to have sustained the type of injury he complains of as a result of driving over the roadway depression made the subject of this lawsuit. Conversely, Mr. McReynolds introduced the testimony of Dr. Culicchia, the physician who performed his initial surgery, a cervical dissectomy at C5-C6, who contends that the injury was a direct cause-in-fact of the accident. Moreover, Mr. McReynolds asserts that his second surgery was the result of the failure of the first surgery to provide the intended relief, as pointed out by the DOTD. Secondly, the DOTD attempts to discount the reliability of both Mr. Buras and Mr. Hayden’s testimony. They assert that despite Mr. Buras’ testimony that there had been a couple of incidences where both boats and trailers had become disconnected from the towing vehicles in the vicinity of the subject incident, he |nhad not witnessed any of these incidents nor did he have any actual personal knowledge of the cause of the incidents. Moreover, they assert that Mr. Hayden was hired by Mr. McReynolds to provide videotape footage of the depressed area that would subsequently be used at trial. In addition, they asserted that Mr. Hayden neither personally witnessed the incidents involving the vehicles filmed, nor did he ever properly measure the length and depth of the depression at the time of incident. Both of these arguments lack merit. Moreover, we find that neither Mr. Bu-ras nor Mr. Hayden had any monetary stake in this case. Further the trial judge took Mr. Buras’ testimony for what it was, the testimony of a man who has spent his whole life traveling back and forth on Highway 23, and who is quite familiar with any significant depressions and bumps in the road. Also, despite the DOTD’s allegations regarding the validity of the videos made by Mr. Hayden, these videotapes were made some six weeks before the June 10, 1993 accident, and therefore any suggestion of impropriety on the part of Mr. Hayden by DOTD is unfounded. The DOTD has also offered the testimony of Jeanine McCannon (“Ms. McCan-non”), the DOTD lock master in Empire, who testified that she frequently traveled over the area made the subject of litigation, and in her opinion the depression was not significant enough at the time of the alleged incident to warrant reporting to her supervisor for the scheduling of immediate maintenance. Finally, the DOTD also requested that we consider past decisions by our esteemed colleagues of the First Circuit Court of Appeal and the Third Circuit Court of Appeal. We have reviewed each case carefully and thoughtfully in reaching our decision. Nevertheless, we find that the facts of this particular matter are clearly distinguishable from the facts of both cases, specifically due to what we 11?ppine to be a substantial roadway depression in both depth and length. Likewise, we find that a subjective and independent review of the facts and circumstances of this case by this Court will better serve the interest of justice. For these reasons, we respectfully decline to follow the articulated holdings of the First and Third Circuits. In the present case, we find after a review of the record that the trial judge was presented with two permissible yet different views as to whether Mr. McRey- nolds’ injury was a cause-in-fact of his injury. After hearing the law, the evidence, and the arguments of counsel, the trial judge ruled in favor of McReynolds, holding that the depression in the roadway that is the subject of this litigation was the cause in fact of his injury, and thus the DOTD failed to maintain the roadway in question. We agree with this holding. Moreover, we have not discovered any additional evidence with regard to witness credibility or inconsistent testimony that would lead us to second-guess the trial judge. Therefore, upon a thorough review of the record, we affirm the decision of the trial court. For these reasons, we hold that the defect in property was a cause-in-fact of Mr. McReynolds’ injuries. D. The trial court did not err in failing to allocate any fault to Mr. McReynolds The DOTD asserts that a motorist is required to maintain reasonable vigilance or to see that which he should have seen. In line with that, they argue that because Mr. McReynolds previously traveled over the subject areas of Highway 23, prior to his incident, he was aware of the condition of the highway and was able to traverse the roadway without incident. We disagree. | n 3Notwithstanding, we have not seen any evidence that suggests that Mr. McReynolds was speeding, daydreaming and/or sleeping, or otherwise handling his truck in a reckless manner on the morning in question. For these reasons, we hold that the trial court did not err in not allocating any fault to Mr. McRey-nolds. E. It was proper for the trial court not to compensate Mr. McReynolds for Loss of Earning Capacity or to award a reasonable amount of damages for past and future physical and mental pain and suffering. In Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976), the Louisiana Supreme Court held that when reviewing the allocation of fault on appeal, the ultimate determination by an appellate court as to whether- a given judge or jury abused their discretion as a matter of law is a judgment call. The court in Coco held that only after making the finding that the record supports the facts that the lower court abused its discretion can the appellate court disturb the award, and then only to the extent of lowering it, or raising it, to the highest or lowest point which is reasonably within the description afforded that court. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion simply to decide what it considers an appropriate award on the basis of the evidence. The rationale for this rule is that the trier of fact has more direct contact with the parties, the witnesses, and the evidence and thus can better evaluate the true extent of plaintiffs injury, whereas the court of appeal bases its decision solely on the written record, briefs, and oral argument. Ernest L. Nix, Jr., “Appellate Review of Damage Awards — An Affirmation of the Trial Court’s “Much Discretion”,” 38 La. L.Rev. 628, 629 (1978). Additionally, the Supreme Court has stated that since an award of damages for personal injuries is of necessity somewhat arbitrary and also must vary greatly with the facts and 114circumstance of each case, the trial court is entrusted with large discretion to make such awards, and that discretion should not be disturbed on appellate review. Id. We find that the trial judge properly witnessed and reviewed all of the testimony regarding Mr. McReynolds’ injuries, both past and future. Moreover, the trial judge was able to conduct a personal evaluation of Mr. McReynolds’ condition and likely determine the nature and extent of his injuries. Therefore, for these reasons, we affirm the decision of the trial court. II. THE TRIAL COURT DID NOT ERR IN PERMITTING THE EXPERT TESTIMONY OF ROBERT LIPP UNDER THE STANDARD SET FORTH IN DAUBERT. Article 702 of the Louisiana Code of Evidence provides the following: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. The DOTD states that Robert Lipp (“Mr. Lipp”) was retained by Mr. McReynolds to provide expert testimony in the field of Civil Engineering; however, Mr. McReynolds’ attorneys ultimately tendered him as an expert in roadway design, maintenance, mechanical engineering, and accident reconstruction. Therefore, the DOTD contends with regard to the question of DOTD’s negligence in maintaining Highway 23, Mr. Lipp did not have the professional experience to make these assessments. Alternatively, Mr. McRey-nolds maintains that all of Mr. Lipp’s testimony pertained to engineering principles, including measurements of distances and forces and other mathematical calculations that were within his professional opinion. We agree. We do not find any reasons for excluding the testimony of Mr. Lipp, given the limited nature of his testimony and the fact that he refrained from making any 1 ^conclusory statements as to the negligence of the DOTD in the design of the roadway. We find all of this information was helpful to the trial judge in reaching his decision. CONCLUSION For these reasons, we affirm the decision of the trial court. AFFIRMED.

In re Balfantz, William Clint; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. James, 23rd Judicial District Court Div. A, No. 27-99; to the Court of Appeal, Fifth Circuit, No. 99-KH-1402 Denied. LEMMON, J., not on panel.

| ^CLAIBORNE, Judge Pro Tempore. In this medical malpractice/products liability action, the plaintiffs, Dr. and Mrs. Robinson, appeal a judgment that adopted a jury verdict dismissing their claims for damages, finding that the death of plaintiffs’ unborn child was not caused by the administration of the anesthetic, Citanest Plain or Prilocaine, to Mrs. Robinson in conjunction with a root canal procedure performed during the second trimester of her pregnancy. On May 5, 1987, Mrs. Robinson went to see her dentist, defendant Dr. Wilkinson, complaining of tooth pain. Dr. Wilkinson diagnosed a small abscess on a tooth, and since Mrs. Robinson was pregnant at the time, he advised that she postpone treatment until after the baby was born since he preferred not to perform elective surgery involving local anesthetics on pregnant patients. However, Mrs. Robinson’s tooth pain continued and worsened and on May 20, 1987, she went to her obstetrician/gynecologist, defendant Dr. Evelyn Hayes, seeking advice on how to proceed regarding the tooth pain and abscess. Dr. Hayes gave her approval for a root canal. Mrs. Robinson returned to Dr. Wilkinson on May 27, 1987 stating that Dr. Hayes had approved her getting a root canal since she was in her second trimester of pregnancy. Dr. Wilkinson confirmed the approval by a phone call to Dr. Hayes’ nurse. Dr. Wilkinson then performed the root canal, first anesthetizing the area with an injection of 36 milligrams of Citanest Plain (Prilocaine). Mrs. Robinson tolerated the procedure well and showed no signs of adverse reaction. She returned for a follow-up visit on June 5, 1987 during which no problems were noted. However, on June 8, 1987, Mrs. Robinson began experiencing a brownish vaginal discharge and went to see Dr. Hayes. Dr. Hayes observed Uno fetal movements or heart activity, and a later sonogram confirmed fetal demise. Mrs. Robinson miscarried the next day. Plaintiffs contend the administration of the anesthesia caused the fetal demise. They brought this action for damages, alleging products liability against the manufacturer of the drug, Astra Pharmaceutical Products, Inc., (Astra), and medical malpractice against Drs. Hayes and Wilkinson. After a trial, the jury unanimously found the plaintiffs failed to prove by a preponderance of the evidence that the death of their unborn child was caused by Citanest Plain. Accordingly, the trial court rendered a judgment in favor of all of the defendants and dismissed plaintiffs’ claims. The trial court also denied plaintiffs’ subsequent motion for a JNOV and in the alternative for a new trial. The plaintiffs have appealed and assert eleven assignments of error. Dismissal of the Jury During the jury selection in this matter, the plaintiffs urged a Batson objection that was granted by the trial court. That action resulted in writs being filed in this court and the supreme court. The trial was stayed during the pendency of those writs. When the trial reconvened in April, approximately three months after the initial jury selection, the trial court informed the parties and their counsel that the eleven jury members that had been seated prior to the Batson objection had been dismissed on the court’s own motion. Plaintiffs assign error to the trial court’s dismissal of the eleven jury members who had already been chosen to sit at the trial of this matter. Apparently, the trial court decided that the jury members, some of whom were LSU students nearing final exams at the time the trial reconvened, would be aggrieved by the inevitable and lengthy delay caused by the writ actions. To prevent undue hardship to these jurors, the trial court dismissed the jury, and selection began anew when the trial reconvened in April. Plaintiffs now allege they were prejudiced by the trial court’s action that they claim was an abuse of its discretion. ^Interestingly, the remedy plaintiffs seek for this alleged error by the trial court is the very action of which they now complain, i.e., the selection of a new jury. Given that this is the remedy sought by plaintiffs, we do not find that they were prejudiced by the trial court’s action in dismissing-those jurors aggrieved by the delay in the proceedings. Furthermore, the trial court has great discretion in the conduct of the proceedings before it, and only upon a showing of a gross abuse of that discretion will appellate courts intervene. Pino v. Gauthier, 633 So.2d 638, 648 (La.App. 1 Cir.1993), units denied, 94-0243 (La.3/18/94); 634 So.2d 858 and 94-0260 (La.3/18/94); 634 So.2d 859. Given the length of the delay occasioned by the taking of writs during the jury selection, and the particular needs of the members selected that were made known to the trial judge, we do not find any abuse of the trial court’s discretion in dismissing them during the pendency of the writ actions. This assignment is without merit. Claim for Punitive Damages Plaintiffs’ action includes a claim for punitive damages pursuant to La. C.C. Art. 2315.3 , based on their assertion that the local anesthetic as used in this case was a “hazardous or toxic substance.” Plaintiffs’ assignments of error numbers 2 and 5 address the trial court’s refusal to allow the introduction of evidence regarding punitive damages so the jury, as trier of fact, could determine whether Citanest, as used in this case, was a hazardous or toxic substance. However, the issue of punitive damages is moot in the absence of a finding that the administration of Cita-nest caused the miscarriage. For reasons detailed herein, we find the jury’s rejection of causation amply supported by the rec ord; therefore, we do not reach the issue of punitive damages. 1 ^Expert Testimony of Dr. Francis Wiggins Dr. Francis Wiggins, an expert witness on behalf of the defendants, is a practicing dentist who also has a Ph.D. in pharmacology. Plaintiffs contend the trial court erred in allowing the expert testimony of Dr. Wiggins because “at the time of the trial, she had never testified before in any court of law as an expert' and at the time of the incident, had only been in practice for a short period of time.” Additionally, plaintiffs complain that the testimony of Dr. Wiggins was cumulative and repetitive and unduly prejudicial to plaintiffs. Interestingly, the record reveals that Dr. Wiggins was first employed by the plaintiffs to review the literature on Citanest and render an opinion. Plaintiffs chose not to retain Dr. Wiggins nor use her report. Yet now, plaintiffs complain that Dr. Wiggins should not have been accepted as an expert. The trial court has great discretion in determining whether to qualify a witness as an expert, and such discretion will not be disturbed on appeal in the absence of manifest error. Schwamb v. Delta Air Lines, Inc., 516 So.2d 452, 459 (La.App. 1 Cir.1987), writ denied, 520 So.2d 750 (1988). The record reveals Dr. Wiggins has the relevant qualifications, education and training to be an expert in this case. The fact that she has not testified before as an expert witness or that she has not been in practice very long does not diminish or discredit her qualifications. Additionally, the methodology she employed complies with the requirements of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Finally, there is no merit to plaintiffs’ claim that her testimony was cumulative and unduly prejudicial. Dr. Wiggins was the only expert to testify from both a dental and a pharmacological perspective. Given her extensive credentials as well as the uniqueness of her testimony, Dr. Wiggins’ expert testimony was relevant and admissible and the trial court did not err in allowing it. | (¡Evidence of Prior Infections Prior to trial, plaintiffs filed a motion in limine seeking to disallow any evidence “concerning the prior medical history of Diane Robinson and any infections she may have suffered.” The trial court denied the motion. Plaintiffs now argue such evidence was unduly prejudicial and did nothing other than to confuse the true issue, “whether the death of Michael Robinson was due to the administration of Priloeaine.” The heart of the issue regarding liability in this case is what caused Mrs. Robinson’s miscarriage; there is no evidence more relevant to this issue than that of Mrs. Robinson’s prior medical history as well as her physical condition at the time of the miscarriage, particularly regarding gynecological infections. The record contains expert testimony which establishes that evidence regarding prior infections would support alternative theories of possible causes of Mrs. Robinson’s miscarriage. Thus, the evidence sought to be excluded by the plaintiffs is highly relevant to the core issue in this case, and the plaintiffs have failed to show any undue prejudice resulting from its admission. Adverse Reaction Reports During the trial, the trial court refused to allow plaintiffs to introduce evidence of reported adverse reactions to the drug Citanest. Plaintiffs assign error to the exclusion of this “clearly relevant and helpful evidence” claiming that such reports are critical to “knowledge of the drug’s affect (sic) on individuals.” We find plaintiffs’ claim of relevance regarding these reports is overly broad. While adverse reaction reports can be relevant and helpful, in this case, the only relevant ones would be those where Citanest caused fetal demise in other individuals. The record reveals that the only reported case where Citanest allegedly had the adverse effect of fetal demise is that of the Robinson fetus. No other case of miscarriage following the administration of Citanest has been reported. Thus, any other adverse reaction reports ^pertaining to the use of Citanest are wholly irrelevant to this matter and were properly excluded. Expert Testimony of Dr. Wilkinson Plaintiffs assign error to the trial court’s allowing one of the defendants, Dr. Wilkinson, to be qualified as an expert because “[t]here is an inherent bias in allowing a defendant to be an expert in his own case.” However, plaintiffs cite no legal support for this proposition, nor do we know of any. In fact, the trial court cited authority for allowing Dr. Wilkinson’s expert testimony: “The fact that a witness is a party or an employee of a party does not preclude [the witness’s] qualification as an expert because the potential bias of the witness may be explored on cross-examination and argued to the jury.” Ealy v. Bill Allen Dodge, Inc., 466 So.2d 52, 56 (La. App. 2 Cir.1985). We find the trial court’s allowing Dr. Wilkinson to testify as an expert based on his qualifications was well within its broad discretion and this assignment of error is meritless. Finding of Informed Consent The plaintiffs also contend the jury erred in finding Mrs. Robinson gave “informed consent” to the administration of the drug Prilocaine. As with the issue of punitive damages, the issue of informed consent is moot in the absence of a finding of causation. Because the jury found no causal relationship between the administration of the Citanest and the demise of the Robinson fetus, the issue of informed consent is moot. Verdict Form Plaintiffs allege that one of the jurors expressed some confusion about the verdict form, and they assign error to the trial court’s refusal to explain the verdict form to this juror. At the outset, we note that the plaintiffs’ failure to make a contemporaneous objection to the verdict form or to the trial court’s response to the juror’s question serves as a waiver and they are precluded thereby from complaining about it now. In any event, we find no | Sbasis in fact for plaintiffs’ contention that one of the jurors was confused by the verdict form. After the jury instructions were read to the jury, one juror asked the trial judge a question regarding which of the listed items were the three things which must be proven by the plaintiffs. The trial court answered the juror but would not elaborate, instructing the juror to first get together with the rest of the jury and discuss the matter. He also told the juror that if they had any questions or problems after discussing it together, they could come back and submit a specific question to the court. The jury then retired for deliberations and did not return to the court with a question. Therefore, it can be assumed that any questions or concerns had by that particular juror were resolved after discussion with the entire panel. Furthermore, our review of the jury instructions and the verdict form reveals that neither is misleading nor confusing and both fairly reflect the legal principles applicable to this case. Thus, this assignment is without merit. Legal Causation In their last two assignments of error, the plaintiffs argue that the jury erred in finding the administration of Cita-nest did not cause the miscarriage and that the trial court erred in refusing to grant a JNOV or new trial. Although the opinions of the experts for the plaintiffs differed from that of those testifying on behalf of the defendants, all of the experts testified that this is the first matter known to them in which the death of a fetus was allegedly associated with a prior administration of a local anesthetic. The experts also all agreed that miscarriages are not uncommon and the cause of most of them remains unknown. Further, there was a general consensus among the experts that it is not uncommon for pregnant women, particularly in the second trimester of pregnancy, to have dental procedures done. The record also revealed that Mrs. Robinson had certain risk factors for a miscarriage including a medical history of vaginal, cervical, yeast and urinary tract infections, prior use of an intrauterine device for contraception (IUD), her age at pregnancy which was over 35, and a progesterone 19deficiency. The record also reveals that she suffered another miscarriage five months subsequent to the one at issue in this case, and a pregnancy subsequent to that which was sustained by the use of supplemental progesterone. Dr. Howard Kirschner, a dentist in New York, Dr. Steinberger, an obstetrician/gynecologist in New York, and Dr. Schrae-ger, a toxicologist in Massachusetts all testified as experts on'behalf of the plaintiffs and were each of the opinion that the administration of Citanest was a contributing cause in the demise of the Robinson’s fetus. On the other hand, defendant witnesses, Dr. Hayes and Dr. Sparks, Mrs. Robinson’s treating obstetricians/gynecologists, Dr. Wilkinson, her treating dentist, Dr. Blunt, an expert in oral surgery, Dr. Brent, pediatrician, Dr. Wiggins, dentist and pharmacologist, Dr. Vassallo, an expert in physiology and pharmacology and Dr. Robichaux, an expert in maternal fetal medicine, all testified that the Citanest given to Mrs. Robinson in conjunction with her root canal was the appropriate dosage and anesthetic for a pregnant patient in her second trimester of pregnancy. In fact, some of these experts opined that Citanest was one of the safest local anesthetics on the market. These experts all further testified that the dosage was too low to have been a contributing factor in the fetal demise, and in any event, it was not the cause of Mrs. Robinson’s miscarriage. Finally, the record established that the size of the fetus at the time of miscarriage was approximately one seventh the size of its gestational age, suggestive that the fetus had intrauterine growth retardation. In fact, based on the medical records, defendants’ experts opined that the cause of the miscarriage was poor placentation, which led to a “slow death” to the fetus over a 17-18 week period as a result of a gradual insufficiency of blood supply to the fetus that preceded the dental procedure. Thus, although the record contains conflicting opinions, there is sufficient evidence of an alternative cause of Mrs. Robinson’s miscarriage. | ^Furthermore, it was the jury’s task to make credibility determinations in assessing the conflicts in opinion and the evidence in the record. Obviously, the jury gave more credibility to the experts testifying on behalf of the defendants than to those who testified for the plaintiffs. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Canter v. Koehring, 283 So.2d 716 (La.1973). Since there is a sufficient factual basis to support the jury’s decision, it is not manifestly erroneous and will not be overturned. For these same reasons, we find no merit to plaintiffs’ argument that the trial court erred in refusing to grant a JNOV or new trial. Frivolous Appeal In brief, defendant, Astra Pharmaceutical Products, Inc., seeks damages for frivolous appeal “because plaintiffs’ appeal presents no serious legal questions and is unquestionably frivolous.” However, our review of the record reveals that Astra did not appeal nor did it answer the plaintiffs’ appeal. Therefore, it is precluded from seeking any modification or relief in this appeal. Accordingly, for all the foregoing reasons, the judgment of the trial court that adopted the jury verdict in favor of the defendants dismissing plaintiffs’ claims is hereby affirmed. All costs of this appeal are assessed to the plaintiffs. AFFIRMED. . The plaintiff, Edward A. Robinson, is a practicing attorney; however, he goes by the title "Dr.”. . This article was repealed in 1996.

LBAGNERIS, Judge. Reginald Santinac (“Santinac”) was charged by bill of indictment on June 25, 1998, with second degree murder, a violation of La. R.S. 14:3o. At his arraignment on June 30th, he pled not guilty. The trial court found probable cause and denied the motions to suppress the identification and statement on October 16th. After trial on November 24 th, a twelve-member jury found Santinac guilty as charged. He was sentenced on December 3 l'd to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant’s motion for reconsideration of sentence was denied, and his motion for an appeal was granted. At trial Officer Gregory Clay testified that at about 7:30 p.m. on December 3, 1997, he responded to a call concerning a shooting at 2012 Elysian Fields Avenue. There, he found a woman leaning over her husband, who was stretched out on the ground. The woman told the officer that a man named “Reginald” had shot her husband. Dr. William E. Newman, an expert in clinical pathology, testified that he performed the autopsy on Raymond Offord (“Offord”) on December 4, 1997. Offord suffered two gunshot wounds to the chest. One wound was in the right chest where bthe bullet went through the right lung, hit the thoracic vertebra, and was deflected into the lower lobe of the right lung. Dr. Newman recovered that bullet from the lung. The other gunshot entered the middle chest, and went through the vena cava (one of the main veins), the pulmonary artery, and the lower lobe of the left lung before exiting the body. Dr. Newman said that Offord died as a result of bleeding into his chest from the two gunshot wounds. Offord’s body fluids were tested for drugs and proved to be negative for alcohol but positive for cannabinoid. The doctor explained that the victim could have been exposed to marijuana anytime within the last few days before his death. Mrs. Nicole Offord (“Mrs Offord”), a nursing student, testified that she was married to the victim Raymond Offord for nineteen months. She said she and her husband • had known the defendant very casually for about seven years because his grandmother lived very near Mrs. Offord’s grandfather. Mrs. Offord said that on the evening of December 3 rd, she and her husband ate dinner and then went by her grandfather’s house to check on him because he was alone. As they drove up to the house at 2012 Elysian Fields Avenue, they noticed Santinac standing on his grandmother’s porch across the street. She observed him going into his grandmother’s house as she and her husband entered her grandfather’s house. The couple remained in the house only a few minutes because Mrs. Offord’s grandfather was asleep. As they walked out of the house, she realized Santinac was standing on the third step leading up to her grandfather’s house. Mrs. Offord testified that Santinac said to her husband, “Can I talk to you for a second, bro?” Offord agreed to talk, and Mrs. Offord walked down the steps and to the car. She watched as they walked down the steps and stopped to talk. She said they started arguing and their words became louder. She described the escalation of conversation into a fight: 13Reginald (Santinac) and my husband were arguing. I didn’t hear the whole conversation of the argument. Reginald was saying something about my husband left him in the Sixth Ward. My husband was saying he didn’t know what he was talking about. Reginald kept saying, “Yes, you do, bro. You do. You left me.” My husband kept saying, “No, I don’t.”.... Reginald kept saying, ‘Tes, you do.”.... And he [Reginald] shoved him [Offord] and my husband shoved him back and it turned into a fight, and which led quite close to going to the street and Reginald pulled out the gun and shot him three times. Mrs. Offord observed the scuffle, and then she saw Santinac shoot Offord from a distance of six feet. Mrs. Offord said her husband owned a gun, but it was in a safe in the attic; he was not carrying it when he was shot. After the shooting Mrs. Of-ford went inside to call the police. She noticed a bicycle near the front steps as she went into the house; when she came out, the bike was gone. She said that Santinac went to his grandmother’s house after the incident. Mrs. Offord identified Santinac in the courtroom and named him as the man who shot her husband. Detective David Hunter served as primary investigator of this incident. He testified that he arrived on the scene at 7:53 p.m., and Officer Clay briefed him. The detective collected a bullet projectile, a hat, and a neck chain with a crucifix from the scene. He spoke with Mrs. Offord who was very upset. Based on that conversation, he determined that Santinac was a suspect. A photographic lineup was prepared and shown to Mrs. Offord; she selected Santinac’s picture. An arrest warrant for Santinac was issued, and on May 3, 1998, he was arrested. When asked about the shooting, Santinac said that although he was on the scene that night, he did not shoot the victim. He said that a man on a bicycle rode by and shot over his shoulder and [¿then biked away. The detective said that no weapons were found on the victim at the scene or when he was taken to the hospital. Reginald Santinac, the twenty-four year old defendant, testified that he was raised by his grandmother who lives at 1935 Elysian Fields Avenue. He stated that he has known Mrs. Offord’s grandfather for about seven years. On December 3 rd as the couple got out of the car, Offord signaled him to come over, and he spoke with Of-ford there as he often has. Santinac explained that they were in the cocaine business together. Santinac further explained that he owed Offord about $2000 for cocaine. When they started to talk, Offord said, “You think I’m playing. You think this is a game.” They started to fight, and Offord pulled up his T-shirt to show that a black nine-millimeter gun was in his waistband. Santinac claimed he fired because he saw Offord “attempting to pull out a gun.” He admitted that he usually carries a gun. Santinac explained that he was on the run for five months after the incident because he dreaded “turning ... [his] life over to somebody.” When asked why he told the story of another man on a bike riding by and shooting Offord instead of explaining that he shot in self-defense, Santinac said he “didn’t want to implicate” himself. Before addressing the assignment of error, we note that Santinac suggests that the trial court’s failure to advise him of the prescriptive period for post conviction relief is an error patent. La.C.Cr.P. art. 930.8 C provides that at sentencing, the trial court shall advise the defendant of the prescriptive period for seeking post conviction relief. La.C.Cr.P. art. 930.8 C is supplicatory language and does not bestow an enforceable right upon an individual defendant. State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189. In what he deems another error patent, Santinac claims that the trial court | Rdenied him credit for time served, which credit is mandated by La.C.Cr.P. art. 880. In State v. Dennis, 98-1016, pp. 3-4 (La.App. 4 Cir. 9/22/99), 753 So.2d 298-99, this Court stated: The Code currently provides that a defendant shall receive credit toward service of his sentence for time spent in actual custody prior to the imposition of sentence. In 1970 this article was amended to substitute “shall” for “may,” so that the credit was no longer discretionary. In 1997, the article was amended to substitute “A defendant shall receive” for “The court, when it imposes sentence, shall give.” According to the Official Revision Comment, this article “makes the credit for prior custody self-operating even on a silent record. It does not change the law.” [Footnote omitted]. Thus, although the sentencing transcript and minute entry are silent on the issue, the appellant nevertheless shall receive the credit. In State v. Dennis, supra, this Court noted that the commitment form provided that the defendant shall receive credit for time served. Yet the trial court did not specify the dates for which the credit should be given. This Court concluded that the defendant could pursue his claim for credit for time served by application for post conviction relief if the Department of Corrections failed to give him credit. The case at bar is similar to State v. Dennis in that the trial court did not state that Santinac would receive credit for time served, and the dates he was in custody are not on the commitment form, although the form indicates that he shall receive the credit. Thus Santinac, if denied the credit, should pursue this claim in post conviction relief. In a single assignment of error, Santinac complains that the evidence was insufficient to support a conviction for second degree murder. He argues that the evidence indicates the homicide was manslaughter. The standard for reviewing a claim of insufficient evidence is whether, after [¿viewing the evidence in the light most favorable to the prosecution, a rational trier fact could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Rosiere, 488 So.2d 965 (La.1986). The reviewing court is to consider the record as a whole and not just the evidence most favorable to the prosecution; and, if rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict should be upheld. State v. Mussall, 523 So.2d 1305 (La.1988). Additionally, the reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. Id. The trier of fact’s determination of credibility is not to be disturbed on appeal absent an abuse of discretion. State v. Cashen, 544 So.2d 1268 (La.App. 4th Cir.1989). Second degree murder is the killing of a human being when the offender has the specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1 A(l). Manslaughter is a homicide that would be either first or second degree murder, but the killing is committed in “sudden passion or heat of blood caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La. R.S. 14:31 A(l). “Sudden passion” and “heat of blood” are not separate elements of the offense but are mitigating factors that exhibit a degree of culpability less than that present when the homicide is committed without them. State v. Lombard, 486 So.2d 106 (La.1986). Because they are mitigating factors, the defendant must establish them by a preponderance of the evidence. State v. Heck, 560 So.2d 611 (La.App. 4th Cir.1990), writ denied 566 So.2d 395 (La.1990). Here Santinac did not establish by a preponderance of the evidence that the killing of Offord was committed in “sudden passion” or “heat of blood.” The only |7evidence of provocation came from Santi-nac himself, and the jury, in finding him guilty of second degree murder, must not have found his testimony as to what transpired between him and Offord to be credible. Santinac claimed to have seen a gun on Offord. However, Offord’s wife testified that he was not carrying a gun, and no gun was found on his body or on the premises. Furthermore, Santinac shot the victim twice, and then he fled and remained in hiding for five months. His recounting of the incident to the police was not a description of an act committed in the “heat of blood” or “sudden passion,” but a denial of his involvement in the shooting. It is clear that the jury did not believe his testimony at trial. We fail to find this credibility determination to be an abuse of discretion. Accordingly, for reasons cited above, Santinac’s conviction and sentence are affirmed. CONVICTION AND SENTENCE AFFIRMED. . The defendant was also charged with another count of second degree murder. The charges were severed for trial, and he pled guilty to the reduced count of manslaughter; he was sentenced to serve twenty-five years at hard labor. . The victim was shot twice; whether Mrs. Offord was mistaken about the three shots or whether one bullet missed the victim was not brought out at trial.

In re Stat,e of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 193,644; to the Court of Appeal, Second Circuit, No. 32,415-KA Granted. VICTORY, J., not on panel.

LANDRY, Judge. Sentry Insurance Company (Appellant), appeals from judgment awarding Plaintiffs Clarence and Inez Prestenbach (Appellees) $40,000 each for the alleged wrongful death of Appellee’s son, Michael James Prestenbach, who was killed in a one vehicle automobile accident. The mishap occurred when a 1969 Ford Mustang, owned and driven by Appellant’s insured, Harley Blanco, Jr. (Blanco), left the highway at high speed and overturned in an adjacent borrow pit filled with water. We reverse and render judgment in favor of Appellant upon finding Decedent guilty of assumption of risk in riding with a driver whose driving ability was known to be impaired by consumption of alcohol. The accident occurred at approximately 2:30 A.M., June 16, 1973, on U.S. Highway 90, in the vicinity of Morgan City, St. Mary Parish. Blanco, then approximately 19 or 20 years of age, was proceeding from Houma to Morgan City, Louisiana, accompanied by four friends in conclusion of a night of partying which commenced at approximately 8:00 P.M. Miss Juanita Kay Green, then approximately 16 years of age was seated in the right front bucket seat of the vehicle. Mark Joseph Banks, also 16 years of age at the time, was seated on the right of the rear seat. The left rear seat was occupied by Joe Marino, 18 years of age. Decedent, 18 years old, sat in the center of the rear seat. The automobile left the highway and came to rest upside down in the water filled borrow pit. Blanco and Decedent drowned before they could be extricated from the vehicle. The remaining occupants escaped and survived to testify at trial. It is conceded that Blanco was negligent in driving at approximately 100 miles per hour and in losing control of his vehicle, apparently after striking a “hump” in the highway. Appellant’s coverage of the Blanco automobile is also conceded. The defense of this action rests solely on the contention that Decedent was contribu-torily negligent and/or assumed the risk of riding with Blanco whom Decedent knew or should have known to have been intoxicated to the extent that he could not safely operate a motor vehicle. Alternatively, Appellant maintains the awards of damages were excessive. This appeal presents factual determinations which must be made in the light of well-established principles governing applicability of the assumption of risk doctrine (often referred to as contributory negligence) in instances where a guest passenger rides with a host driver whose mental and physical faculties are impaired because of alcoholic consumption. Our jurisprudence is well established to the effect that a person, who voluntarily rides with a driver who is intoxicated to the extent that the driver has lost control of his normal physical and mental faculties, may not recover for injuries sustained in an ensuing accident where the injured plaintiff knows or has reason to know of the driver’s intoxication and where the alcohol induced impairment of the host driver’s driving ability contributes substantially to the occurrence of the accident. Marcotte v. Travelers Insurance Company, 258 La. 989, 249 So.2d 105; Jones v. Continental Casualty Company of Chicago, Illinois, 246 La. 921, 169 So.2d 50; Magee v. McCree, La.App., 278 So.2d 587; Church v. Allstate Insurance Co., La.App., 242 So. 2d 646. The record discloses that at about 8:00 P.M. on June 15, 1973, Blanco and Banks left work at a Morgan City supermarket in Blanco’s automobile. The two young friends went directly to a nearby liquor store and each purchased a fifth of strawberry wine containing 9% alcohol. Blanco then drove around town for a while during which interval Blanco drank half of his fifth of wine and Banks drank the remaining half of Blanco’s bottle as well as all of Banks’ own bottle. Blanco then drove to his home where he changed clothes and telephoned two other friends, namely, Decedent and Joe Marino, both of whom Blanco picked up in his car. Banks testified that the group of four purchased three additional bottles of wine which the friends consumed in more or less equal portions. Marino denied any wine was purchased after he was picked up. Apparently, Marino was the last to be picked up because he testified that the group had two or three bottles of wine in the car when they came to his house. Marino also testified that most of the wine had been consumed before he joined the group. At approximately 10:00 P.M. Blanco drove to a roadside hamburger stand where the group ordered and consumed some food, presumably a large hamburger, soft drink and french fried potatoes. While eating, the group met another acquaintance, Mike Dragna, who agreed to go along to a party held at a private home in nearby Bayou Vista. Dragna joined the group after disposing of his own car at his grandmother’s home nearby. Blanco then drove to Bayou Vista and arrived at the party at approximately 10:30-11:00 P.M. Banks testified that no alcoholic beverages were served at the party, except the remains of the wine which his own group brought along. However, Dragna contradicted Banks by testifying that alcoholic drinks were readily available at the party, including wine and whiskey. No witness saw Blanco partake of alcohol at the party although it is conceded that no witness was in Blanco’s presence during Blanco’s entire stay at the party. After a short time at the party, Dragna expressed the desire to go home. Banks and Marino borrowed Blanco’s car to take Dragna to the home of Dragna’s grandmother where Dragna was to spend the night. When Dragna got out of the car at his grandmother’s home, he cautioned Banks and Marino to watch Blanco because Dragna thought Blanco was “tense” or “up tight” about something or other. Dragna explained at trial that he did not at this time consider Blanco to be drunk but merely felt Blanco had some problem which Drag-na believed to be personal. About midnight Blanco, Marino, Banks and Decedent decided to leave the party to return to their respective homes. At this time they were joined by Miss Green who wished a ride home. After leaving the party, Blanco stopped in-Berwick, Louisiana, where the group purchased two six-packs of beer. Apparently the friends shared the beer in more or less equal portions, except for Miss Green who drank at most one beer. After purchasing the beer the group decided to go to the Lighthouse Lounge in Houma, Louisiana. After reaching Houma, Blanco stopped at a service station and obtained directions to the Lighthouse Lounge. Instead, however, the group went to Mickey’s Lounge in the same city, apparently because fraternity brothers of Decedent worked there as bartenders. At Mickey’s the four young men purchased a beer each. Miss Green, who had become ill, did not enter the lounge. After about 10 minutes in Mickey’s, Blanco went outside and remained in the car with Miss Green. Approximately 20 minutes later Banks and Marino joined Blanco and Miss Green in the car. The group then elected to return to their respective homes in Morgan City. Blanco proceeded toward Morgan City without undue incident until shortly after passing the Avondale Shipyard situated between Hou-ma and Morgan City. Marino, seated on the left of the rear seat, testified that he observed the speedometer reach 100 or 110 miles per hour. According to Marino, Decedent was seated in the center of the rear seat leaning forward between the front bucket seats talking with Blanco and thus also could see the speedometer. Marino recalled that after Blanco began to speed up, Decedent warned Blanco of a bump in the road ahead and that Decedent also told Blanco that Decedent had once struck the bump at high speed and almost lost control of his car. Additionally, Marino recalled that about four or five seconds before the accident Decedent told Blanco something to the effect, “Slow down, the engine can’t take the strain”. Marino, Banks, Miss Green and Dragna, all testified that in their opinion Blanco at no time exhibited overt signs of intoxication. All stated that Blanco’s speech was not slurred, that he was not staggering and that he displayed no signs of lack of coordination or mental confusion. Lester Harold Wilde, Jr., Manager, Mickey’s Lounge, testified that when Blanco came into that establishment, Blanco was in a good mood, a party mood, but was not drunk. Wilde considered that Blanco was in a normal mood for a person in a bar who had had a few drinks. At approximately 6:30 A.M., four hours after the accident, autopsies on the bodies of Decedent and Blanco were performed by Dr. Henry H. Sykes, Jr., Pathologist, Coroner, St. Mary Parish. The examination disclosed that Blanco had a blood alcohol content of .124 milligrams per cent and that Decedent had a blood alcohol content of .044 milligrams per cent. Dr. Sykes, called on behalf of Appellees, testified that the alcoholic content of one twelve ounce can of beer is the equivalent of one ounce of 85 proof alcohol. He stated that a reading of .124 could be attained by an average person (one weighing 150 to 175 pounds) consuming six to eight 12-ounce cans of beer or an equal number of ounces of 85 proof whiskey. He noted that the amount of alcohol required to produce the same level in a larger person would increase proportionately with the person’s weight and size. In this regard we note that Decedent was approximately 6 feet tall and weighed 185 pounds. Dr. Sykes also noted that three or four twelve ounce cans of beer would produce a reading of .05 in the average individual and result in a state of euphoria not noticeable by an ordinary person. Dr. Sykes was of the view that a person having drunk three or four cans .of, beer was capable of safe operation of a motor vehicle. He also stated that the average person burns up approximately .015 milligrams of alcohol per hour and explained that a person with a reading of .150 would, have a zero reading after ten hours, provided he consumed no additional alcohol. Dr. Sykes was of the opinion a person with a .124 reading would not necessarily be incapable of safe operation of a motor vehicle. He testified that the effect of such a reading would depend upon the individual’s drinking habits and tolerance of alcohol. While Dr. Sykes was of the view a person with a .124 reading would not exhibit signs of instability or impaired mental or physical faculties to an untrained layman, he acknowedged that such impairment would be revealed if the individual were required to perform specific tasks. Dr. Evariste J. Trahan, Pathologist, called by Appellees, agreed with Dr. Sykes concerning the amount of alcohol required to attain certain blood level alcoholic content and also as to the amount of alcohol dissipated hourly by the average individual’s bodily processes. According to Dr. Trahan, a person with a .124 reading would not display symptoms of instability evident to an untrained individual. He readily conceded, however, that changes occur in the average person at readings between .100 and .150. He explained that these changes commence with impairment of judgment, which effects are not measurable by visual observation. He also agreed that the amount of alcohol required to reach a reading of .124 would vary depending upon the individual’s size, weight, drinking habits and condition of the thyroid glands which control the metabolic processes. In Dr. Trahan’s opinion, a person with a .100 reading is capable of operating a motor vehicle, but not safely so. He also stated that a person with a reading of .05 may be mentally impaired as regards safe driving of an automobile. He acknowledged, however, that the effect of alcohol upon any given individual will vary depending upon drinking habits. According to Dr. Trahan, the effects of alcohol would not become noticeable to an untrained observer until a reading of .150 is reached and that usually signs of intoxication will become evident to an untrained observer at readings between .150 and .2. Appearing on behalf of Appellant, Dr. Albert L. McQuown, Pathologist, testifying by deposition, agreed in essence with Drs. Sykes and Trahan in their general observations regarding the amount of alcohol required to attain specific blood levels in the average person and also as to the amount of alcohol metabolized by the average person in an hour. Dr. Mc-Quown also stated that in general a reading of .05 will produce some euphoria with basically no potential behavior changes. At a level of .085 an imbiber will show some signs of inability to coordinate well but not necessarily show effects of true intoxication. In Dr. McQuown’s opinion, a person with a reading of .100 will exhibit definite signs of poor coordination, especially to perform specific tasks. Dr. Mc-Quown also testified that a person with a reading of .100 is incapable of safe driving and would be even more so with a reading of .124 because instability would be more evident and coordination poorer. According to Dr. McQuown, at .150 gradual confusion of the senses commences although at this stage a person is not considered socially intoxicated, only happy, notwithstanding a marked inability for performance of specific tasks. At .25, according to Dr. McQuown a person reaches the stupor area and may be said to be drunk. All of the experts agreed that, in the criminal field, the majority of jurisdictions set a reading of no more than .100 as the level at which intoxication is presumed. We add, however, that the presumption of intoxication at a level of .100, as provided by our own criminal statute, La.R.S. 32:662, is inapplicable in civil cases. We are in agreement with the jurisprudence established in Brown v. Collins, La.App., 223 So.2d 453, that in a civil case, the party alleging intoxication must establish by a preponderance of evidence that the normal mental and physical faculties of the party involved were impaired to the extent that the individual was incapable of safe driving. We find that in this instance Appellant has established this salient fact to the degree of certainty required by law. We next determine whether Decedent knew or should have known of Blanco’s condition. In this regard Appellees contend that a guest passenger is not required to test a driver’s condition prior to entering a vehicle but merely to make reasonable observations as to the driver’s condition and to react reasonably to such observations. Appellees rely considerably upon the pronouncement in Galmiche v. Smith, La.App., 269 So.2d 490, to the effect that a guest passenger is under a duty to decline a ride only if the intended driver is so obviously intoxicated that it would be patently unsafe to ride with him. On this premise, Appellees contend that even if Blanco were intoxicated, Decedent did not assume the risk of riding with an intoxicated driver because the evidence is to the effect that Blanco at no time showed visible evidence of intoxication or instability. We note that the mentioned holding in Galmiche, above, is not supported by citation of authority. We believe the rule thus announced is contrary to the weight of our jurisprudence on the subject. We understand our jurisprudence to hold that where the attending circumstances are such that a person knows, or has reason to' know, that his host driver has imbibed to the extent the host’s mental and physical faculties are impaired to a degree that renders the host an unsafe driver, such a guest passenger assumes the risk of riding with an unsafe driver. Jones v. Continental Casualty Company of Chicago, Illinois, above; Magee v. McCree, above; Church v. Allstate Insurance Co., above. In this instance the record shows that prior to 10:00 P.M., Decedent and his host driver, were members of a group of three or four young friends who purchased three fifths of wine and shared the beverages, consuming virtually all thereof by 10:00 P.M., at which time all partook of food. After eating, the group attended a party where alcoholic beverages were available. Upon leaving the party at about midnight the group, which had increased to five, purchased two six packs of beer which were presumably consumed in equal portions save for one who drank only one beer. At somewhere around 1:30 or 2:00 A.M., Decedent and his host driver had one additional beer. The accident occurred at 2:30 A.M., and at 6:30 A.M. Decedent’s host driver was found to have a blood alcohol content of .124 which the record shows to be intoxicating to the average person. The record establishes that such a blood level requires ingestion of the equivalent of six to eight 12-ounce cans of beer, the alcohol from which is still in one’s system. Since the average individual dissipates .015 milligrams of alcohol hourly, the conclusion is inescapable that Blanco either drank the equivalent of at least two beers hourly commencing at approximately 9:00 P.M. or else drank six or eight cans of beer within a relatively short time of the accident. While the record does not show that Decedent saw Blanco take every drink Blanco consumed, Decedent was in Blanco’s presence most of the time and had ample reason to know the extent to which Blanco was imbibing. In this respect we note Banks’ testimony that when the group left Houma he was “feeling pretty good” and everyone in the party was having a good time. We also note Wilder’s testimony that when Blanco left Mickey’s Lounge, Blanco was in a normal mood for a person who had taken a few drinks. Although the record indicates Blan-co showed no overt signs of intoxication, we nevertheless conclude Decedent should have known of Blanco’s true condition. According to the expert testimony, there is no question but that Blanco had drunk to excess and that his mental and physical faculties were impaired, notwithstanding such impairment may not have been visible to an untrained observer. The record also establishes by a preponderance of evidence that Decedent’s association and contact with Blanco during the period in question was of such intimacy that Decedent had every reason to know the extent of Blan-co’s alcoholic consumption. Although Decedent did not see Blanco take every drink Blanco consumed, Decedent did in fact see Blanco take numerous drinks during the interval in question. Decedent was on an evening out with Blanco and other friends. Drinking appeared the order of the day and the group apparently purchased or had other access to drinks as their desires dictated. Decedent had every reason to know that Blanco probably took additional drinks out of Decedent’s actual presence. We find such circumstances sufficient to charge a reasonably normal and intelligent individual with notice that a host driver, having so imbibed, is incapable of safe operation of a motor vehicle. We also find that the record estab-i lishes that Blanco’s condition was a substantial contributing cause of the accident. The record shows there was no compelling reason why the group should return to Morgan City at other than a legal and reasonable rate of speed. Nevertheless, Miss Green testified that Blanco left Houma driving at a high rate of speed and that at some point before the accident she had requested that he slow down. Under cross-examination Banks admitted having given a prior statement to the effect that Blanco began driving at a speed of 85 to 90 miles per hour shortly after leaving Houma whereas at trial he testified that Blanco began speeding only a few moments before the accident. Dr. McQuown, given a resume of the circumstances and events attending the accident, expressed the opinion that Blanco’s impaired driving ability was a substantial contributing cause of the accident. We agree with this conclusion inasmuch as impaired driving ability appears the only logical explanation for the highly irrational conduct of Blanco which caused the tragedy. We are mindful that this case primarily involves factual findings and that such determinations by triers of fact should not be disturbed on appeal except in case of manifest error. Canter v. Koehring, La., 283 So.2d 716; Veazey v. Nassar, La. App., 285 So.2d 263. Nevertheless, in view of our constitutional mandate to review facts as well as law on civil appeals, it is our duty to reverse on factual findings where the conclusions of the trier of fact appear to be patently erroneous. In this instance we find such error. La.Const. of 1974 Art. V, Sec. 10(B). The judgment of the trial court is reversed and judgment rendered herein rejecting the claims of Plaintiffs Clarence and Inez Prestenbach and dismissing said Plaintiffs’ claims, at Plaintiffs’ cost. Reversed and rendered.

REDMANN, Judge. “[TJhose who know not how or are not able to read, cannot make dispositions in the form of the will provided for in R.S. 9:2442 . . . .” La.R.S. 9:2443. We decide that a testator’s disability to read, with his ordinary eyeglasses, type sized smaller than 10 mm does not invalidate his will typed in type sized about 2 mm. The testator who can only read his will with his eyeglasses is “able to read” within the statute, and the testator who can only read his will with a five-power or stronger magnifying lens is also “able to read” (if he knows how, as our testator did). Appellant proved, by the testimony of the testator’s optician, that the testator could not read this will with his ordinary eyeglasses. But the optician also testified there was “a good chance” that the testator could have read larger type, of S, 6 or 10 mm size. The statute does not require recital or proof that the will was actually read by the testator. Therefore, that the testator did not read the will does not invalidate it; Estate of Moreau v. Moreau, La.App. 3rd Cir., 1972, 261 So.2d 293, writ refused 262 La. 193, 262 So.2d 789. It is thus immaterial that our will’s witnesses testified that the testator did not use any magnifying device in order to read the will at the time of its signing. Affirmed.

PRICE, Judge. William E. Wilson, plaintiff herein, brought this suit to recover the balance owed of $26,416.41 due under an alleged subcontract to furnish a portion of the carpentry labor in the construction of an apartment complex known as “The Nest” in Shreveport. Defendants named in the suit are: Centennial Homes, Inc., the owner; Allen & O’Hara, Inc. its general contractor; and B. J. S. Builders, Inc., a subcontractor with whom plaintiff contends his contract was made. In supplemental pleadings, plaintiff sought to have recognized and enforced a lien file by him affecting the property on which the work was performed. Defendant, Allen & O’Hara, in accord with its obligation under the general contract with Centennial, filed a bond to secure the lien claimant under the provisions of LSA-R.S. 9:4841 and the lien was canceled. A third party demand was filed by Allen & O’Hara against B. J. S. Builders, Inc., and two other non-residents who had executed a guaranty of completion on the work of B. J. S. This demand was not pursued in the trial court and is not before us on this appeal. Subsequent to the filing of certain preliminary pleadings counsel for B. J. S. was allowed to withdraw and B. J. S. was unrepresented and made no appearance at the trial on the merits. The record reflects that in a separate proceeding plaintiff herein obtained judgment by default against B. J. S. for the amount of his claim. After a trial of the merits of the subject action against Centennial and Allen & O’Hara, the district court rejected plaintiff’s demands. From this judgment plaintiff has appealed. The principal question at issue is whether the plaintiff sustained the burden in the trial court of proving the oral agreement he contends was made with B. J. S. Builders, Inc., which would entitle him to the protection afforded under the lien statute, LSA-R.S. 9:4801, et seq. for the amount he contends is owed under the disputed contract. The pertinent facts giving rise to this litigation as shown by the record are substantially as follows: In July 1973, Centennial Homes, Inc. began the construction of a second phase of an apartment complex containing approximately two hundred units. Allen & O’Hara Inc., the general contractor for the project subcontracted with B. J. S. Builders, Inc., a Florida firm, to perform a substantial portion of the contract which included the carpentry work giving rise to this litigation. Plaintiff made inquiry of the general contractor in regard to furnishing labor in connection with this work and was referred to the B. J. S. superintendent, A1 Moore. Plaintiff contends he made an oral agreement with Moore to furnish the labor necessary for the framing and flooring of the units then being constructed for the sum of $.35 per square foot. He contends B. J. S. agreed to pay his payroll and to make and disburse the necessary deductions therefrom. He further contends that he was to be paid the contract price of $.35 per square foot on the total of 178,404 square feet less the total labor costs, including FICA taxes, union pension fund contributions, and workmen’s compensation premiums. In his testimony plaintiff describes this payment to be in the nature of a “bonus” for his crew and him finishing the work quickly. The record shows that prior to the completion of its subcontract work, B. J. S. became involved in financial difficulties and left the job. Allen & O’Hara assumed direct supervision of the remainder of the B. J. S. contract work and made directly the payment of wages to laborers or trades working under the B. J. S. subcontract. It is undisputed that plaintiff has been paid the full hourly wage of $7.35 as a carpenter foreman for the hours worked by him and that full wages have been paid to other members of the crew over which plaintiff supervised in the subject work. Therefore for plaintiff to obtain the relief sought by him in this action, he must fall within the following pertinent provisions of LSA-R.S. 9:4801: Every contractor, subcontractor, . who performs work . . . for the erection, construction, ... of immovable property, . . . with the consent or at the request of the owner thereof, . . . or of any person with whom the owner has contracted for such work has a privilege for the payment in principal and interest of such work or labor performed . . . upon the land and improvements on which the work or labor has been done . (emphasis supplied) In his attempt to prove he was a “subcontractor” and thus entitled by virtue of the above statute to assert his claim for the balance alleged to be owed him by B. J. S. against the lien bond filed by the prime contractor in lieu of the privilege against the owner’s property, plaintiff sought to prove an oral contract with B. J. S. by his own testimony and other corroborating circumstances. The trial judge did not find plaintiff had met his burden of proof in this regard and rejected his demands. Although we consider the evidence to present a close question, we do not find the trial court has committed manifest error in its factual finding and affirm the judgment appealed from. The standard of proof required to constitute legal proof of an oral contract is reviewed by the court in Hoffpauir v. La-Cal Mud Specialties, Inc., 165 So.2d 65 (La.App. 1st Cir. 1964) as follows: Clearly the burden of proof, with legal certainty and by a preponderance of the evidence, rests upon a plaintiff who sues on an alleged oral contract; he must prove the existence of the contract and the term thereof. Haase v. Brumfield, La.App., 137 So.2d 680; Carroll Lumber & Supply Co. v. Bushong, La.App., 125 So.2d 210; Hunter Co. v. Commissioners of Bossier Levee Dist., La.App., 115 So. 2d 226; E. Levy & Company v. Shreveport Plumbing Company, La.App., 108 So.2d 810. And LSA-C.C. Art. 2277 provides that all contracts for the payment of money above $500 “ * * * must be proved at least by one credible witness, and other corroborating circumstances.” Therefore, in the instant case plaintiff has the double burden of proving the terms of the oral contract on which he relies and of making such proof by at least one credible witness and other corroborating circumstances. Also see Bordlee v. Pat’s Construction Company, Inc., 316 So.2d 16 (La.App. 4th Cir. 1975). Plaintiff sought to corroborate his own testimony that he had an oral agreement with the foreman of B. J. S. for payment on a unit price basis by the testimony of three carpenters who worked in the framing crew with him. They testified plaintiff solicited them to work on the subject construction job on a percentage and told them he had an agreement with B. J. S. to do the work for $.35 per square foot. The testimony shows one of these witnesses expected to receive sixteen per cent and the other two eight per cent each of any amount plaintiff was paid under the alleged agreement with B. J. S. Their testimony must be weighed in the light that it is hearsay and that the witnesses have a financial interest in the result. Plaintiff also presented the testimony of another labor contractor, W. E. Hendrix, who testified the method of payment for framing work as claimed by plaintiff in this case was followed in the construction industry and that he had engaged plaintiff on this basis on prior jobs. However, he testified he also has engaged such work on a straight hourly wage basis. While the foregoing evidence presented by plaintiff does have some corroborating value, we do not believe it constitutes proof by a preponderance of the evidence under the circumstances presented. Enforcement of the contract in this proceeding is sought against parties who were not privy to its formation and who are therefore less able to offer proof to negate the existence of the agreement than is plaintiff to prove the affirmative. For this reason, the proof demanded of plaintiff to constitute a preponderance of the evidence should be clear and convincing. All time records of employees submitted by B. J. S. to Allen & O’Hara for procurement of progress payments show plaintiff and his crew members as earning regular carpenter or foreman’s wages. According to the testimony of an accountant for Allen & O’Hara the method of accounting followed was not in accord with the proper procedure used when there is a necessity to accrue the wages of certain employees separately to accord with a cost plus subcontract. The preponderance of the evidence establishes that none of Allen & O’Hara’s personnel were aware plaintiff had an arrangement with B. J. S. other than as a carpenter foreman. We find it unusual that at the time B. J. S. quit the job and Allen & O’Hara took over supervision of its contract work, that plaintiff did not inquire if his anticipated “bonus” promised by the defaulting subcontractor would be honored if he continued the work. This is all the more unusual in that plaintiff testified on one occasion prior to B. J. S. leaving the job, he and his men called a several hour shutdown of their work in an attempt to force B. J. S. to make payment under the agreement. No payment was made at that time by B. J. S. and plaintiff continued to work after allegedly being assured by the B. J. S. superintendent the money would be paid soon. At the time Allen & O’Hara took over payment of B. J. S. employees directly, it would appear plaintiff would have made some demand for the balance which he contended was then owing under the oral agreement or would have discussed its future payment in the event he did not consider payment due until completion of the entire contract. The foregoing circumstances create an inference there was no contractual relationship between plaintiff and B. J. S. other than an employment relationship as a carpenter foreman. Plaintiff has failed to prove his claim to be a “subcontractor” under the lien statute and therefore his demands were properly rejected by the trial court. In accord with the foregoing, the judgment appealed from is affirmed at appellant’s costs.

In re: John McRay Mollish applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 328 So.2d 189. Writ denied. The judgment of the court of appeal is correct. DENNIS, J., is of the opinion the writ should be granted.

LEMMON, Judge. This is an appeal from a summary judgment dismissing plaintiff’s suit for workmen’s compensation benefits. The sole issue is whether plaintiff, under the circumstances of this-accident, can elect to- pursue his compensation claim under the Louisiana Workmen’s Compensation Act, R.S. 23 :1021 et seq., or whether the Longshoremen’s & Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., as amended in 1972, provides his exclusive remedy. Plaintiff, employed as a shipfitter by Equitable Equipment Company in a barge and boat building operation, was injured while working on barge assembly inside a fabrication building used exclusively for ship construction. The building adjoined the Industrial Canal (admittedly a navigable waterway), separated from the water by a narrow area in which a movable loading crane was located. In the course of Equitable’s operation, barges were assembled in the fabrication building, then moved into an adjacent area for blasting and painting, and finally launched directly into the Industrial Canal. I The pertinent provisions of the amended federal act as to coverage of accidents in areas adjoining navigable waters are: “§ 902. “When used in this chapter— * * * * * * “(3) The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. “(4) The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing or building a vessel). “§ 903. “(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). * * *» The federal act undoubtedly applies under the circumstances of this case. Plaintiff was employed and actively working in the building of a barge and thus was a shipbuilder under any reasonable interpretation of § 902(3), and he therefore qualified as an employee. Equitable’s employees worked in maritime employment, as included in the illustrations listed in § 902(3), in an area adjoining navigable waters customarily used by Equitable in building vessels, and Equitable thereby qualified as an employer under § 902(4). Moreover, the injury occurred upon navigable waters as defined in § 903 (a). We therefore reject plaintiff’s contention that his claim was not cognizable under the federal act because he was not directly involved in the building of a vessel, but was simply fabricating parts used by other Equitable employees in shipbuilding. The 1972 amendments extended coverage to all employment-related injuries occurring within the territorial limits established by the amended act, when both the employer and employee qualify as such under a broad construction of the terms of the act. We hold that the amended federal act provides coverage under the facts and circumstances of this case. II The more difficult question is whether application of the state act is precluded when jurisdiction under the federal act exists. Plaintiff contends that benefits under the state act in this particular case are “much more generous” (perhaps because of Louisiana’s liberal standards for determining total disability) and that he should be allowed to elect between concurrently applicable compensation remedies so as to achieve optimum recovery of benefits. On the other hand, Equitable contends that the very purpose of the 1972 amendments was to eliminate the “twilight zone” of concurrent jurisdiction by providing for exclusive recovery under the federal act where that act applies. These contentions raise questions as to the pre-eminence of the federal maritime power in cases where states have otherwise valid legislative jurisdiction. Congress has the power and authority to legislate compensation liability for accidents occurring over navigable waters. Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L. Ed. 598 (1932). Arguably, Congress also has the power and authority under Articles I and III of the United States Constitution to legislate liability for shoreside accidents incurred in maritime employment. See Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971). Thus, the issue framed in this case is whether Congress in exercising this power and authority pre-empted the field and thus precluded states from exercising legislative jurisdiction over maritime employment injuries occurring on land. Historical Background The United States Supreme Court in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), held that a state compensation act did not apply to a longshoreman injured aboard ship while loading cargo. Since the nature of the employment and the site of the injury were maritime, the state could not validly legislate liability and thereby prejudice the constitutionally required national uniformity of the maritime law. Thereafter, in Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922) the Supreme Court established the “maritime but local” test, holding that the required uniformity was not prejudiced by the application of state law when plaintiff’s injuries occurred during construction of a partially completed vessel lying in a dry dock on navigable waters. The court characterized the contract for constructing the vessel as non-maritime and plaintiff’s activities and general employment as not related directly to navigation. Subsequent cases drew fine distinctions based on abstract concepts in individual cases. In 1927 Congress enacted the Longshoremen’s and Harbor Workers’ Compensation Act Section 3 of the act originally provided in pertinent part: “Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law.” (Emphasis supplied) After an ensuing period of confusion caused by the perplexing problem of determining when a state could or could not grant protection under a compensation act, the “twilight zone” rule was introduced in Davis v. Department of Labor & Indus., 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), which held that a state compensation act could be applied in cases in which workers “occupy that shadowy area within which, at some undefined and undefinable point, state laws can validly provide compensation.” In effect the “twilight zone” rule allowed workers to elect the forum in cases where the proper forum was difficult to determine, thus preventing workers from losing rights by choosing the wrong forum. Concurrent jurisdiction was subsequently recognized in Bethlehem Steel Co. v. Moores, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417 (1948), which held that a state compensation act could be applied in the case of an injury incurred in ship repair, an activity which had been classified as federal under the “maritime but local” test. In fact, the Supreme Court has not denied application of state compensation laws on grounds related to the “local concern” doctrine since shortly after the original federal act was passed. Furthermore, in the 1960’s the Supreme Court probably wrote out the “may not validly be provided by State law” limitation of the original Section 3, holding in Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), (without overruling Davis) that the act always applies when the injury occurs on navigable waters, and in Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969), that the act never applies when the injury does not occur on navigable waters. The 1972 Amendments The federal act was originally designed to provide compensation to those employees who could not constitutionally be covered by state acts. Various periods of uncertainty ensued, and finally the federal line was drawn in recent decisions at the water’s edge, thus limiting federal coverage for certain longshoremen and harbor workers to only the parts of their working days spent over water. In 1972 Congress accepted the invitation in the Nacirema opinion to “move the line landward” and included this extension of jurisdiction in a comprehensive revision of the federal act. In reporting on this phase of the legislation, the House Committee on Education and Labor observed: “The present Act, insofar as longshoremen and ship builders and repairmen are concerned, covers only injuries which occur ‘upon the navigable waters of the United States.’ Thus, coverage of the present Act stops at the water’s edge; injuries occurring on land are covered by State Workmen’s Compensation laws. The result is a disparity in benefits payable for death or disability for the same type of injury depending on which side of the water’s edge and in which State the accident occurs. “To make matters worse, most State Workmen’s Compensation laws provide benefits which are inadequate; even the better State laws generally come nowhere close to meeting the National Commission on State Workmen’s Compensation Law recommended standard . . The report concluded: “The Committee believes that the compensation payable to a longshoreman or a ship repairman or builder should not depend on the fortuitous circumstance of whether the injury occurred on land or over water. Accordingly, the bill would amend the Act to provide coverage of longshoremen, harbor workers, ship repairmen, ship builders, shipbreak-ers, and other employees engaged in maritime employment (excluding masters and members of the crew of a vessel) if the injury occurred either upon the navigable waters of the United States or any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other area adjoining such navigable waters customarily used by an employer in loading, unloading, repairing, or building a vessel. “The intent of the Committee is to permit a uniform compensation system to apply to employees who would otherwise be covered by this Act for part of their activity.” (Emphasis supplied) 3 U.S.Cong. & Adm.News 72’ #56 (p. 4707-8) III Referring to this stated intention, Equitable contends that Congressional enactment of the recommended legislation indicates, at least by implication, the intention for preemption by the new federal act. While the 1972 amendments extended federal law under the admiralty power into an area which was formerly subject only to state regulation, the extension does not automatically terminate the state’s power of regulation. As stated in Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973), in reference to the Admiralty Extension Act: “Even though Congress has acted in the admiralty area, state regulation is permissible, absent a clear conflict with the federal law.” Thus, state power was not pre-empted unless it was the clear and manifest purpose of Congress to do so or unless the exercise of dual authority is repugnant to the Congressional objective. We believe the history and wording of the 1972 amendments do not reasonably evidence Congressional intent to preclude applicability of state compensation laws in the extended area. The principal concern of Congress was that the federal act would always apply to these particular employees, not that the state act might sometimes apply. The “uniformity” desired was for adequate minimum benefits, payable to those employees engaged in maritime employment who previously were sometimes in and sometimes out of federal coverage. Congress sought uniform applicability, not uniform and exclusive applicability. Under the amended act these particular employees are now assured benefits at a level deemed adequate by the Congress. Achievement of this purpose, however, does not require exclusion of state power to provide a more favorable remedy. Congress neither had nor should have had any compelling concern as to whether some states might provide greater benefits under some situations, as long as there was no double recovery. On the other hand, a state has a legitimate interest in applying its compensation laws to injuries incurred within its jurisdiction. Equitable argues, however, that the elimination of the “may not validly be provided by State law” limitation evidenced the Congressional intent that state law cannot operate in areas where the federal act applies. We disagree. That limitation led to the original conclusion that the then-new federal system and the existing state system were mutually exclusive. Elimination of the unworkable limitation from the newly-renovated federal system is therefore a stronger argument for concurrent jurisdiction than for exclusive federal jurisdiction. Gilmore & Black, Law of Admiralty 425-426 (2d ed. 1975). Furthermore, the limitation had already effectively been written out by judicial decisions, as previously noted. Nor can we say that the Congresional action was so pervasive as to compel the conclusion that state law could no longer operate within the expanded territorial limits. Indeed, academic discussion of the expanded jurisdiction has suggested that concurrent jurisdiction is the only workable policy, the following being particularly pertinent: “On grounds of policy it seems undesirable in the highest degree to construe the amendments as having reintroduced the idea that the federal and state compensation systems are mutually exclusive. That had of course been the construction given to the 1927 Act under the ‘may not validly be provided by state law’ limitation. That construction led to the horrors of the ‘maritime but local’ period, from which the Supreme Court rescued us by the invention of the twilight zone in the 1942 Davis case. The twilight zone has its own difficulties, conceptual and otherwise, but, in practice it seems to have worked reasonably well. Indeed, a theory of concurrent jurisdiction (whether it is called a twilight zone or something else) seems to be the only sensible way of dealing with state and federal statutes which meet at some vaguely defined line. If LHCA is taken to be exclusive up to its new territorial limits, injured maritime workers will have to guess at where the new line (piers, wharves and so on which ‘adjoin’ navigable waters) is located just as such workers during the 1930’s and early 1940’s had to guess at where the ‘maritime but local’ line was located. Eventually the Supreme Court would no doubt find the resulting situation intolerable, and would rescue us once again by establishing a new theory of concurrent jurisdiction. But there seems to be no good reason why we should be condemned to relive the depressing episode of the 1927-1942 ‘maritime but local’ LHCA case law. * * * * * * “If we assume a concurrent jurisdiction (or twilight zone) solution to the problem, what are its limits to be? The pre-1972 twilight zone involved the seaward extension of the coverage of state statutes, not (at least after the Nacirema case) the landward extension of the coverage of LHCA. If the only purpose of twilight zone theory is to make it unnecessary for claimants to guess at the precise location of an invisible line, that purpose will be served by locating the post-1972 twilight zone at the outer limits of the landward extension of LHCA. Under that approach workers injured at or near the ‘adjoining navigable waters’ line should he entitled to claim under either the state or the federal act. We have already suggested that ‘adjoining’ should be broadly construed with respect to claims under LHCA; adoption of a twilight zone approach would allow both the deputy commissioner and his state counterpart to operate on both sides of the line.” (Emphasis supplied, footnotes omitted) Gilmore & Black, Law of Admiralty 425-426 (2nd ed. 1975). Neither can § 905(a) support Equitable’s contention that the 1972 amendments required exclusive federal jurisdiction.8 First, § 905 was not amended in 1972, but has existed in its present form since 1927 and has not barred state remedies in concurrent jurisdiction cases. More importantly, the exclusivity language of § 905(a) is merely a statement of the basic compensation theory that an employer who is statutorily obligated for compensation benefits is likewise statutorily absolved from tort liability. Obviously, the “exclusive” liability language of § 905(a) cannot reasonably be interpreted to preclude resort to the state compensation system in a concurrent jurisdiction situation. See Industrial Commission v. McCartin, 330 U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140 (1947), in which an employee, after receiving compensation under Illinois law which contained a similar exclusivity provision, was allowed to receive a supplemental award in Wisconsin. Finally, we cannot determine that there is such a conflict between the federal and state acts that the two acts cannot consistently stand together. Certainly there is no physical impossibility for application of concurrent jurisdiction (at least, not as to the issues raised in this case). Furthermore, while there may be some areas of conflict between the two systems, these are not such as to compel a total divestiture of state power. We conclude that Congressional enactment of the 1972 amendments to the federal act did not absolutely pre-empt the power of the states to provide a compensation system for injuries occurring on land within the state. For these reasons, the judgment of the trial court is set aside, and the case is remanded for further proceedings. Costs of this appeal are assessed to defendant. SET ASIDE AND REMANDED. . For a challenge to the constitutionality of this legislative power, see Halter Marine Fabricators, Inc. v. Nulty, No. 75-2317, presently pending in the U. S. Court of Appeals for the Fifth Circuit. . The emphasized portion of Section 3 was omitted when the section was amended in 1972. See § 903(a), quoted supra. . See Larson, Workmen’s Compensation § 89.20 (Desk ed. 1973), for a detailed discussion of the evolution of the applicable rules prior to the 1972 amendments. . The authors argued: “The case for construing the amendments to provide for concurrent state and federal jurisdiction is strengthened by the fact that § 903(a), as revised, no longer contains the ‘may not validly be provided by state law’ limitation. It was that limitation which led to the original conclusion that the new federal system and the existing state system were to be mutually exclusive. Its deletion leaves the statute blank on the relationship of the expanded federal system to the state system. A vague idea of ‘federal preemption’ should not lead us to the unfortunate and unnecessary conclusion that the state statutes can now operate only up to (and never beyond) the newly demarcated federal line.” . The term “twilight zone” has developed a different meaning from the original usage, now connoting generally an area of concurrent jurisdiction. . § 905(a) reads in pertinent part: “§ 905. “(a) The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death . . . .” . “The purpose of expanding federal coverage was to insure a substantial remedy. In light of the confusion likely to arise as to the coverage of the amended Act, it would seem contrary to this purpose to force an injured employee to seek compensation under the state or federal scheme, only to be told his guess was incorrect. Dual coverage would seem to aid rather than hinder this function. The employer is in no way disadvantaged, as the cost of insuring for both acts is minimal and double recovery would of course not be allowed.” (Footnotes omitted) Watson, Broadened Coverage under the LHWCA, 33 La.L.Rev. 683, 695 (1973).

EDWARDS, Judge. This is a suit for damages resulting from an alleged illegal detention for suspected shoplifting. Appellant Jenny Lynn Smith Mapes appeals the decision of the trial court which dismissed her suit against National Food Stores of Louisiana, Inc. and its agents and employees James Blair and Thompson Foret. There are two primary issues presented in this appeal: (1) whether or not there was reasonable cause to detain Mrs. Mapes for questioning and (2) whether the inquiry was conducted in a reasonable and sufficient manner. On September 12, 1972 Jenny Lynn Smith Mapes was shopping in the National Food Store in Hammond, Louisiana. While in the store she put a small package of alka seltzer'in her purse and may or may not have put four packages of meat marinade in her purse also. Mrs. Mapes was observed by a security guard, James Blair, both while doing her shopping and while checking out. After she exited the checkout counter, Blair confirmed with the cashier that Mrs. Mapes had not checked out nor paid for any alka seltzer. Thereupon Blair followed her into the parking lot and questioned her. At Blair’s request Mrs. Mapes returned into the store, went to the “breakroom” (for employee coffee and cigarette breaks), and exposed the contents of her purse. Included therein were a package of alka seltzer and four packages of meat marinade. Present in the room were an assistant manager and several other employees. Mrs. Mapes signed a statement that she took the alka seltzer without having paid for them, the police were called, and she was taken to the police station. Where the detention complained of is authorized by La.Code Crim.P. art. 215, the merchant will be immune from criminal and civil liability. For this privilege to be operative, that statute simply requires a reasonable cause in the mind of the merchant to believe that the person has committed a theft. The article does not address, and we are not concerned with, the state of mind of the person detained. That issue, the criminal intent, is relevant only in determining guilt or innocence of a criminal charge. Blair, the security guard, observed Mrs. Mapes put the alka seltzer in her purse and leave the store. After he ascertained that the item had not been checked out, he followed Mrs. Mapes into the parking lot, verified that she had the alka seltzer, and asked her to return into the store. Clearly Blair had reasonable cause at that point to believe a theft had been committed. The initial detention was therefore privileged; Appellant next complains that the inquiry was conducted in an unreasonable manner; that it was calculated to humiliate the appellant rather than to determine whether there was a reasonable explanation for appellant’s actions. In the break room, Mrs. Mapes was asked to and did sign a statement admitting that she took the alka seltzer without paying for it. Basically, this was the extent of the inquiry. Appellant did not and does not now in brief deny the admissions in the statement. Her complaint is that the refusal to investigate further her insistence that she did not intend to take the item without paying for it renders the inquiry arbitrary and unreasonable. We cannot agree. There was no way to verify appellant’s state of mind. She pointed out no facts by which her story could have been corroborated. The investigation was as complete as possible under the circumstances. In the absence of any other showing of ill treatment of the appellant, we hold the manner of inquiry reasonable and the privilege properly maintained. The decision of the trial court is affirmed at appellant’s cost. Affirmed.

In re Walker, Gregory; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 284,368; to the Court of Appeal, First Circuit, No. 98 KA 2604. Denied. KNOLL, J., not on panel.

In re Victor Leggett; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 518-578; to the Court of Appeal, Fourth Circuit, No. 2014-K-1329. Denied.

In re Chad Parks; Doris Parks, et al.; Jadah Parks; Robbyn Parks; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 507,407 C/W 528,994; to the Court of Appeal, First Circuit, No. 2018 CA 2121 C/W 2013 CA 2122. Denied.

In re Whaley, Michael; — Defendant; Applying For Supervisory and/or Remedir al Writs, Parish of Orleans, Criminal District Court Div. F, No. 496-957; to the Court of Appeal, Fourth Circuit, No. 2014-K-1010. Denied.

COOKS, Judge. hFACTS AND PROCEDURAL HISTORY Alexis Sarrabea (Defendant), was charged by bill of information with driving without documentation demonstrating his lawful presence in the United States, a violation of La.R.S. 14:100.13, which provides: A. No alien student or nonresident alien shall operate a motor vehicle in the state without documentation demonstrating that the person is lawfully present in the United States. B. Upon arrest of a person for operating a vehicle without lawful presence in the United States, law enforcement officials shall seize the driver’s license and immediately surrender such license to the office of motor vehicles for cancellation and shall immediately notify the INS of the name and location of the person. C. Whoever commits the crime of driving without lawful presence in the United States shall be fined not more than one thousand dollars, imprisoned for not more than one year, with or without hard labor, or both. ■ Defendant, a thirty year-old man, is a Spanish speaking person who does not speak or read English. The record does not contain any other facts concerning Defendant such as his country of origin. The facts of record only indicate the State of Louisiana alleges it could prove Defendant is either “an alien student or an (sic) non-resident alien,” who operated a motor vehicle in Lafayette Parish, Louisiana, “without documentation demonstrating that he was lawfully present in the United States.” The record does not provide any factual basis for the police approaching Defendant, nor any basis which would establish probable cause for arresting Defendant. Additionally, the record does not provide any information on Defendant’s immigration status other than to indicate Defendant was involved in the federal immigration process at the time of his arrest and at the time he entered his plea. ^Defendant first entered a plea of not guilty, but, after spending more than three months in the parish jail, Defendant changed his plea to a no-contest plea. The State agreed in exchange for Defendant’s no-contest guilty plea, it would recommend he receive a sentence of three months with credit for time served. Defense counsel stated on the record Defendant was entering his plea reserving his right to appeal several issues of law concerning the constitutionality of the state statute, and/or the constitutionality of applying the statute under which he was prosecuted, expressly stating “[Tit’s in his best interest at this point to accept the plea so that he can move on in the Federal immigration process.” Defendant specifically asserted at the guilty plea hearing that La.R.S. 14:100.13 is preempted by federal law; it violates the Equal Protection Clause of the United States Constitution; it is over-broad and vague; and it potentially violates the provisions of the Eighth Amendment to the U.S. Constitution. Defendant was sen tenced to three months in the parish jail, •with credit for time served, concurrent with any other sentence he was serving at the time. On appeal, Defendant asserts the following assignment of error and separates the assignment into four separate issues: The trial court erred in entering a judgment convicting the Appellant for Operating a Vehicle without Documentation of Lawful Presence because the State of Louisiana does not have the authority to require drivers to prove, with documentation, that they are lawfully in the United States. State trial courts lack subject matter jurisdiction to adjudicate this statute. Issues Presented for Review I. Did Officer Matt Broussard have any lawful authority for arresting and booking Alexis Sarrabea into the Lafayette Parish jail on probable cause that he was an undocumented immigrant driving in Lafayette Parish? II. In light of the recent United States Supreme Court case, Arizona v. United States, [No. 11-182, 2012 WL 2368661] [— U.S. —, 182 S.Ct. 2492, 188 L.Ed.2d 351] ([U.S. June 25,] 2012), is Louisiana’s law requiring motor vehicle operators to carry proof that they are lawfully present unconstitutionally preempted by federal law, Rwhich denies Louisiana trial courts subject matter jurisdiction to convict persons under the law? III. Does Louisiana’s law unconstitutionally regulate immigration by creating a pervasive law which practically excludes all undocumented aliens from Louisiana by making it improperly difficult for them to move around the state for work or basic necessities? IV.Does Louisiana’s law create a scheme for regulating immigration and aliens which is impermissible under the federal constitution? LEGAL ANALYSIS Defendant entered a guilty plea preserving his right to seek review of specified issues pursuant to State v. Crosby, 338 So.2d 584 (La.1976). In Crosby, the court held in pertinent part: [E]ven an unqualified plea of guilty does not preclude review of what are regarded as ‘jurisdictional’ defects— those which, even conceding the accused’s factual guilt, do not permit his conviction of the offense charged. These include, for example: the lack of jurisdiction of the sentencing court, La. C.Cr.P. art. 362(1); the conviction represents double jeopardy, La.C.Cr.P. art. 362(2), State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974); Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); the prosecution, when instituted, had prescribed, La.C.Cr.P. art. 362(7), see also State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974); the state lacked constitutional or legal power to try the accused for the offense charged, Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); State ex rel. Jackson v. Henderson, 283 So.2d 210 (La.1973); the statute under which the prosecution is brought is unconstitutional, State v. Bergeron, 152 La. 38, 92 So. 726 (1922); the charge brought by the indictment does not constitute a crime, State v. Watson, 41 La.Ann. 598, 7 So. 125 (1889); certain types of patent error preventing conviction for the offense, La.C.Cr.P. art. 920(2), see indicative listing at State v. Guillot, 200 La. 935, 9 So.2d 285, 239 (1942). Id. at 586-589 (emphasis added). We note in the record Defendant did not file a motion to quash the bill of information on the basis that the statute was unconstitutional, thus the trial court made no ruling on this issue. Generally, Crosby pleas allow a defendant to | ¿preserve his right to seek review of a trial court’s pretrial rulings. Although in this case there was no pretrial ruling on this issue, Defendant expressly preserved his right to raise several issues regarding the constitutionality of this statute on appeal, ahd it is therefore properly before this court on appeal. In State v. Flores, 27,736, p. 3 (La.App. 2 Cir. 2/28/96), 669 So.2d 646, 649, the court explained in pertinent part: Attacks on the constitutionality of a statute may be made by two methods. The statute itself can be challenged, or the state’s application to a particular defendant can be the basis of the attack. Constitutional challenges may be based upon vagueness. State v. Gamberella, [633 So.2d 595 (La.App. 1st Cir.1993), writ denied, 94-0200 (La.6/24/94), 640 So.2d 1341] supra; State v. Walker, 26,-026 (La.App.2d Cir.5/4/94), 637 So.2d 583, writ denied, 94-1369 (La.9/30/94), 642 So.2d 868. In this case, Defendant challenges the statute itself. Additionally, in Flores, 669 So.2d at 649, the court explained in pertinent part: [T]he Louisiana Supreme Court has consistently held that the facial unconstitutionally of a statute on which a conviction is based is an error discoverable by the mere inspection of the pleadings and proceedings, without inspection of the evidence. This issue is subject to appellate review under La.C.Cr.P. Art. 920, even though the defendant did not raise the issue in the trial court and did not comply with the assignment of error procedure in La.C.Cr.P. Art. 844 or with the contemporaneous objection rule of La.C.Cr.P. Art. 841. State v. Hoofkin, 596 So.2d 536 (La.1992); State v. Stewart, 325 So.2d 828 (La.1976), cert, denied, 425 U.S. 997, 96 S.Ct. 2213, 48 L.Ed.2d 822 (1976). Also, the defendant is entitled to raise this issue, even though he entered a plea of guilty. State v. Crosby, 338 So.2d 584 (La.1976). Statutes are presumed to be valid; whenever possible, the constitutionality of a statute should be upheld. State v. Gamberella, 633 So.2d 595 (LaApp. 1st Cir.1993), unit denied, 94-0200 (La.6/24/94), 640 So.2d 1341. Because a state statute is presumed constitutional, the party challenging the statute bears the burden of proving its unconstitutionality. Initially, we note Defendant asserts on appeal the officer lacked probable cause to arrest him. However, Defendant did not file a motion to suppress on this ground in the trial court, and did not preserve his challenge of this issue when he | ^entered his guilty plea. Defendant therefore waived the issue of probable cause for his arrest as a basis to attack his conviction, and we are precluded from reviewing this issue on appeal. Next, Defendant contends the trial court erred in entering a judgment convicting him for operating a vehicle without documentation of lawful presence because the State of Louisiana does not have the authority to require drivers to prove, with documentation ac- - ceptable to state authorities, they are lawfully present in the United States. Further, he contends the courts of this State lack subject matter jurisdiction over the status of aliens. Defendant argues La.R.S. 14:100.13 is an unconstitutional attempt to preempt federal law because it attempts to preempt the field of alien registration which is occupied by federal law. Thus, he asserts, the trial court lacked jurisdiction to convict him. In support of this assertion Defendant cites Arizona v. United States, 576 U.S.-, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). We find the decision in Arizona dispositive in this case and binding upon this court. Defendant directs our attention to Section 3 of the Arizona law at issue in that case which he argues is similar in scope to La.R.S. 14:100.13. He contends La.R.S. 14:100.13, like the Arizona Statute, invades federal law by penalizing the failure to carry documents proving a person’s lawful presence in the United States. Defendant further asserts the field of alien registration occupied by the federal government includes establishing requirements and penalties for failure to carry proof of lawful status. He maintains La.R.S. 14:100.13 is conflict preempted because the Louisiana penalty further intrudes into federal law by making the state penalty harsher than the federal penalty for failure to carry documentation. Under the federal law, such a failure is a misdemeanor, whereas under Louisiana law it is a felony. Defendant asserts La.R.S. 14:100.13 “institutes state criminal charges 16against certain aliens that federal officers may determine should not be prosecuted.... ” Defendant further points out, when the Louisiana First Circuit Court of Appeals addressed this issue, it relied on the argument that the state law was complementary to the federal law. This reasoning, as Defendant correctly notes, was recently rejected by the U.S. Supreme Court in Arizona. All of the cases considered by our sister circuit preceded the decision in Arizona and are therefore of no precedential value here. Defendant also contends La.R.S. 14:100.13 has the “practical effect” of excluding undocumented aliens as drivers of motor vehicles on the public highways of this state. In support of his argument, he cites Villas at Parkside v. City of Farmers Branch, Tex., 675 F.3d 802 (5th Cir.2012), (herein after referred to as Farmers Branch) and states in pertinent part: In Farmers Branch, the federal Fifth Circuit held that an ordinance passed by a city in Texas was constitutionally, field, and conflict preempted. 675 F.3d 802. The City of Farmer Branch, Texas passed an ordinance requiring, among other things, “that every adult person wishing to rent or lease any single family residence or apartment within Farmers Branch must apply for a residential occupancy license from the City’s Building Inspector.” Id. at 804. The ordinance further required that all applicants who were not United States citizens or nationals must provide identification numbers establishing that they were lawfully present. Id. After the applicant received a license, which was to be issued immediately, the Building Inspector only then was to verify the ' non-citizen’s legal status with the federal government; no independent determination by the Building Inspector was allowed. Id. Criminal sanctions were created for violators who either occupied rental housing without a license or provided false documentation. Id. The Fifth Circuit “conclude[d] that the ordinance’s sole purpose [was] not to regulate housing but to exclude undocumented aliens, ... and that it [was] an impermissible regulation of immigration.” Id. (emphasis in original). The court further concluded that the “Ordinance is designed to burden aliens, both documented and undocumented.... As such, the Ordinance serves no legitimate City interest and is not a mere housing regulation entitled to a presumption [7against preemption; instead it burdens the field of immigration.” Id. at 807. Defendant asserts the Louisiana statute creates “a comprehensive classification, determination, and notification scheme which impermissibly regulates immigration,” stating in pertinent part: Louisiana’s Immigration law is a regulatory scheme that (1) creates “classifications” of aliens that are not found under federal law, (2) calls for state agents to make “determinations” as to whether a person fits within one of the state classifications, in addition to granting state agencies, alone, the authority to “determine” which documents actually “demonstrate lawful presence,” and (3) calls for the state agents to ultimately “notify” federal immigration officials only after an arrest has been made. R.S. §§ 14:100.11-100.14. While the notification requirement alone may not be unconstitutional, when combined with the classification and determination elements of Louisiana’s law, both of which are unconstitutional, the “state scheme” is preempted as a regulation of immigration. Defendant also complains La.R.S. 14:100.13 impermissibly grants authority to Louisiana and its agencies to determine which documents provide satisfactory proof of an alien’s legal presence in the United States. As he points out, the state officers are directed to look at the state law to determine what documents satisfy the statute instead of federal law. Defendant concedes the notification requirement of the statute does not facially preempt federal law because federal law envisions coordination between the State and federal authorities for reporting known or suspected immigration violators. However, Defendant suggests the notification requirement of the statute further emphasizes the comprehensiveness of Louisiana’s scheme. Responding, the State argues La.R.S. 14:100.13 is not field preempted because it is not an alien registration statute, unlike Section 3 of the Arizona law. 18The State asserts there is no federal crime with the same elements as La.R.S. 14:100.13 and further argues in pertinent part: Sanabea (sic) attempts to conflate the field of alien registration with the field of regulating the legal operation of motor vehicles. The First Circuit found that the field at issue is the regulation of public roads, rather than that of alien registration. Moreover, the State argues conflict preemption does not exist because both laws can be complied with, and La.R.S. 14:100.13 does not create an obstacle for enforcement of federal law. The State further contends: It appears that a person who violates La. R.S. 14:100.13 must also be violating 8 U.S.C. § 1304(e) at the same time. This is of no consequence in terms of conflict preemption. See e.g. Hughes v. State, 943 So.2d 176, 186 (Fla. 3rd Dist. App.2006). Field preemption, on the other hand, would prevent Louisiana from passing La. R.S. 14:100.13 even if it complemented federal law. The State additionally asserts only the federal government decides what immigration consequences, if any, attach to a conviction under La.R.S. 14:100.13. It also contends the Farmers Branch case is of questionable precedential value as there is currently an en banc rehearing pending which was granted on July 31, 2012. Villas at Parkside v. City of Farmers Branch, Tex., 675 F.3d 802 (5th Cir.2012). It distinguishes the law at issue in Farmers Branch from La.R.S. 14:100.13 by asserting the legislative intent behind La. R.S. 14:100.13, which was set forth in La. R.S. 14:100.11, is to combat terrorism. The State insists La.R.S. 14:100.13, unlike the law in question in Farmers Branch, does not have the practical effect of preventing illegal immigrants from residing, living, or working in Louisiana. It disagrees with Defendant’s position that La. R.S. 14:100.13 is a classification scheme and argues it does not determine who is and is not lawfully in the United States. We believe Defendant’s focus on the Supreme Court’s ruling in Arizona regarding section 3 of the Arizona law is well-placed. We could find no reported ^Louisiana cases addressing the constitutionality of La.R.S. 14:100.13 since the ruling in Arizona. Previously, when Louisiana’s law was challenged on the grounds of preemption, the First Circuit Court of Appeal addressed this issue in several cases. In its earliest decision the first circuit correctly found La.R.S. 14:100.13 is preempted by federal law. In its later decisions, the first circuit reversed its position holding that the legislative intent set forth in enacting the statute and the nature of the statute is a legitimate police power of the state. Be that as it may, the U.S. Supreme Court in Arizona held such power cannot be exercised by a state when so fully preempted by the United States. We are satisfied that the decision in Arizona is controlling in this case. In Arizona, the U.S. Supreme Court clearly held where Congress occupies an entire field, as it has in the field of alien registration, even a complementary state regulation is impermissible. Arizona, 132 S.Ct. at 2503. We find La.R.S. 14:100.13 is an impermissible attempt by Louisiana to regulate matters in a field already preempted by federal law. As the U.S. Supreme Court so aptly states in Arizona: The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here. The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational, civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law. | ^Arizona, 132 S.Ct. at 2510. Nor can Louisiana pursue policies that undermine federal law despite its legislature’s apparent belief that Louisiana is also frustrated with problems caused by terrorism occasioned by illegal immigrants. Louisiana has enacted laws and applied administrative provisions in tandem with La.R.S. 14:100.13 which seek to make its own determination of what forms of documentation are acceptable proof of an alien’s right to be in the United States or Louisiana, disregarding federal provisions in the field of immigration which fully regulate forms of documentation foreign visitors are required to obtain and carry. In Arizona, as discussed below, we were informed that such documentation often relates to an alien’s given status at a particular time or at a particular juncture of the naturalization process, or, according to the alien’s relationship to the United States at a given time: The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens, (citations omitted) This authority rests, in part, on the National Government’s constitutional power to “establish , an uniform Rule of Naturalization,” U.S. Const. Art. I, § 8, cl.4, and its inherent power as sovereign to control and conduct relations with foreign nations!.] (citations omitted) The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws, (citations omitted) Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad, (citation omitted) It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States. See Chy Lung v. Freeman, 92 U.S. 275, 279-280, 23 L.Ed. 550 (1876); see also The Federalist No. B, p. 39 (C. Rossiter ed. 2003) (J. Jay) (observing that federal power would be necessary in part because “bordering States ... under the impulse of sudden irritation, and a quick sense of apparent interest or injury” might take action that would undermine foreign relations.) This court has reaffirmed that “[o]ne of the most important and delicate of all international relationships ... has to do with the | nprotection of the just rights of a country’s own nationals when those nationals are in another country.” Id. at 2498 (citations omitted). The U.S. Supreme Court also found in Arizona the federal government has extensively dealt with the complex rules, regulations, and requirements relating to immigration and alien status. It explained: Unlawful entry and unlawful reentry into the country are federal offenses. §§ 1325, 1326. Once here, aliens are requested to register with the Federal Government and to carry proof of status on their person. See §§ 1301-1306. Failure to do so is a federal misdemeanor. §§ 1304(e), 1306(a). Federal law also authorizes States to deny non-citizens a range of benefits, § 1622; and it imposes sanctions on employers who hire unauthorized workers, § 1324a. Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. See § 1227. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. See Brief for Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae 8-13 (hereinafter Brief for Former INS Commissioners). Fed eral officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal. See § 1229a(c)(4); see also, e.g., §§ 1158 (asylum), 1229b (cancellation of removal), 1229c (voluntary departure). Discretion in the enforcement of immigration law embraces immediate concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The ■foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities. 11?/⅛ at 2499 (emphasis added). Louisiana’s statute makes actions by an alien present in this country a felony offense while the same action by such an alien visitor is but a misdemeanor offense under federal law which provides that “removal is a civil, not criminal, matter,” Id. at 2499, with broad discretion to exercise removal being “[a] principal feature of the removal system.” Id. at 2499. We note Section 8 of the Arizona,statute, rejected by the United States Supreme Court, only made the offense a misdemeanor, but, because it imposed stricter penalties than the federal laws, it was held unconstitutional by the Supreme Court under the Supremacy Clause. Louisiana Revised Statute 14:100.13, which makes failure to carry proof of lawful presence in the United States while driving in Louisiana a felony offense, impermissibly usurps federal authority. Section 3 of S.B. 1070 creates a new state misdemeanor. It forbids the “willful failure to complete or carry an alien registration document ... in violation of 8 United States Code section 1304(e) or 1306(a).” Ariz.Rev.Stat. Ann.' § 11-1509(A) (West Supp.2011). In effect, § 3 adds a state-law penalty for conduct proscribed by federal law. The United States contends that this state enforcement mechanism intrudes on the field of alien registration, a field in which Congress has left no room for States to regulate.” Arizona, 132 S.Ct. at 2501. The United States Supreme Court made it very clear in Arizona that the states may not in any manner, even by enacting “complimentary” laws, intrude in an area of law entirely occupied by federal law. It said: The framework enacted by Congress leads to the conclusion here, as it did in Hines [v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941) ], that the Federal Government has occupied the field of alien registration. See American Ins. Assn. v. Garamendi, 539 U.S. 396, 419, n. 11, 123 S.Ct.. 2374, 156 L.Ed.2d 376 (2003) (characterizing Hines as a field preemption case); Pennsylvania v. Nelson, 350 U.S. 497, 504, 76 S.Ct. 477, 100 L.Ed. 640 (1956) (same)[.] (citation omitted) The federal statutory directives provide a full set of standards governing alien registration, including the punishment for noncompliance. It was | ^designed as a “ ‘harmonious whole’ ” Hines, supra, at 72, 61 S.Ct. 399. Where Congress occupies an entire field, as it has in the field of alien registration, even complimentary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders. If § 3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, “diminishing] the [Federal Government’s control over enforcement” and “detracting from the “integrated scheme of regulation” created by Congress.” Wisconsin Dept, of Industry v. Gould Inc., 475 U.S. 282, 288-289, 106 S.Ct. 1057, 89 L.Ed.2d 223 (1986). Even if a State may make violation of federal law a crime in some instances, it cannot do so in afield (like the field of alien registration) that has been occupied by federal law. See California v. Zook, 336 U.S. 725, 730-731, 733, 69 S.Ct. 841, 93 L.Ed. 1005 (1949); see also In re Loney, 134 U.S. 372, 375-376, 10 S.Ct. 584, 33 L.Ed. 949 (1890) (States many not impose their own punishment for perjury in federal courts). Arizona contends that § 3 can survive preemption because the provision has the same aim as federal law and adopts its substantive standards. This argument not only ignores the basic premise of field preemption — that States may not enter, in any respect, an area the Federal Government has reserved for itself — but also is unpersuasive on its own terms. Permitting the State to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted. Cf. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347-348, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001) (States may not impose their own punishment for fraud on the Food and Drug Administration); Wisconsin Dept., supra, at 288, 106 S.Ct. 1057 (States may not impose their punishment for repeat violations of the National Labor Relations Act). Were § 3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies. There is further intrusion upon the federal scheme. Even where federal authorities believe prosecution is appropriate, there is an inconsistency between § 3 and federal law with respect to penalties. Under federal law, the failure to carry registration papers is a misdemeanor that may be punished by a fine, imprisonment, or a term of probation. See 8 U.S.C. § 1304(e) (2006 ed.); 18 U.S.C. § 3561. State law, by contrast, rules out probation as a possible sentence (and also eliminates the possibility of a pardon). See Ariz.Rev.Stat. Ann. § 13-1509(D) (West Supp.2011). This state framework of sanctions creates a conflict with the plan Congress put in place. See Wisconsin \ uDept, supra, at 286, 106 S.Ct. 1057 (“[C]onflict is imminent whenever two separate remedies are brought to bear on the same actmty” (internal quotation marks omitted)), These specific conflicts between state and federal law simply underscore the reason for field preemption. As it did in Hines, the Court now concludes that, with respect to the subject of alien registration, Congress intended, to preclude States from “complementing] the federal law, or enforce[ing] additional or auxiliary regulations.” 312 U.S., at 66-67, 61 S.Ct. 399. Section 3 is preempted by federal law. Id. at 2502-03. (emphasis added) (citations omitted). We find La.R.S. 14:100.13 is likewise preempted by federal law. The United States Supreme court in Arizona also considered Section 6 of S.B. 1070, Ariz.Rev.Stat. Ann. § 13-3883(A)(5)(West Supp.2011), which authorizes Arizona law enforcement authorities “without a warrant, [to] arrest a person if the officer has probable cause to believe ... [the person] has committed any public offense that makes [him] removable from the United States.” Id. at 2504. Louisiana Revised Statute 14:100.13 impliedly also authorizes law enforcement personnel to make a warrantless arrest of any “alien student or nonresident alien” La.R.S. 14:100.13(A), if such persons are found “operating a vehicle [on Louisiana roadways] without lawful presence in the United States.” See La.R.S. 14:100.13(B). Moreover, the Louisiana Statute imposes a requirement on “alien student[s] or nonresident alienfs]” requiring they carry with them “documentation demonstrating that the person is lawfully present in the United States.” Id. Louisiana Revised Statute 14:100.13 does not expressly require any probable cause for arrest, and when questioned in oral argument, the State’s attorney could not, or would not, offer any response to this court’s repeated encouragement that he offer one example of what might constitute probable cause for an arrest under La.R.S. 14:100.13. Moreover, La.R.S. 14:100.13 offers no | ^definition of the terms “alien student” or “nonresident alien.” These terms have no real meaning under the federal immigration scheme and are not recognized in federal immigration provisions. Neither does the statute define what is meant by “lawfully present in the United States.” La.R.S. 14:100.13(A). Indeed it is for the federal government to define “lawful presence” in the United States and it has done so through a complex and comprehensive scheme regulating immigration and naturalization. These unanswered questions in Louisiana’s statute underscore the reason why the various states in the United States cannot be left to their own designs to “compliment” federal law or make additional or auxiliary requirements to federal immigration law. The United States Supreme Court in Arizona expressly recognized the unwelcome prospect of state laws such as La.R.S. 14:100.13 being used to unnecessarily harass college students from foreign countries attending our great universities. Indeed it is foretelling that Louisiana’s statute expressly targets “alien student[s].” Id. Rejecting Arizona’s Section 6 of S.B. 1070, the United States Supreme Court explained in further detail its reasons for holding such state laws unconstitutional. As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984). If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a Notice to Appear. See 8 U.S.C. § 1229(a); 8 CFR § 239.1(a) (2012). The form does not authorize an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. See 8 U.S.C. § 1229(a)(1). If an alien fails to appear, an in absentia order may direct removal. § 1229a(5)(A). The federal statutory structure instructs when it is appropriate to arrest an alien during the removal process. For example, the Attorney General can exercise discretion to issue a warrant for an alien’s arrest and detention “pending a decision on whether the alien is to be removed from the United States.” (citations omitted) And if an alien is ordered removed after a hearing, the Attorney General will issue a warrant. See 8 CFR § 241.2(a)(1). In both instances, the warrants are |16executed by federal officers who have received training in the enforcement of immigration law. See §§ 241.2(b), 287.5(e)(3). If no federal warrant has been issued, those officers have more limited authority. See 8 U.S.C. § 1357(a). They may arrest an alien for being “in the United States in violation of any [immigration] law or regulation,” for example, but only where the alien “is likely to escape before a warrant can be obtained.” § 1357(a)(2). Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers. Under state law, officers who believe an alien is removable by reason of some “public offense” would have the power to conduct an arrest on that basis regardless of whether a federal warrant has issued or the alien is likely to escape. This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed. This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. A principal example is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government. See § 1357(g)(l)[.].... By authorizing state officers to decide whether an alien should be detained for being removable, § 6 violates the principle that the removal process is entrusted to the discretion of the Federal Government. (citations omitted) A decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice, (citations omitted) In defense of § 6, Arizona notes a federal statute permitting state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” 8 U.S.C. § 1357(g)(10)(B). There may be some ambiguity as to what constitutes cooperation under the federal law; but no coherent understanding of the term would, incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government.... [T]he unilateral state action to detain authorized by § 6 goes far beyond these measures, defeating any need for real cooperation. Congress has put in place a system in which state officers may not make war-rantless arrests of aliens based on possible removability except in specific, limited circumstances. By nonetheless authorizing |17state and local officers to engage in these enforcement activities as a general matter, § 6 creates an obstacle to the full purposes and objectives of Congress. See Hines, 312 U.S. at 67, 61 S.Ct. 399. Section 6 is preempted by federal law. Arizona, 132 S.Ct. at 2505-07 (citations omitted) (emphasis added). To put it plain and simple, La.R.S. 14:100.13 is preempted by federal law; and the State of Louisiana lacks Constitutional authority to enforce it. Defendant’s conviction and sentence are reversed and set aside. All costs of this appeal are assessed against the State of Louisiana. REVERSED. DEFENDANT’S CONVICTION AND SENTENCE ARE REVERSED AND SET ASIDE. . Defense counsel recites in his brief Defendant is from Honduras and had his wife and two children in the car when the arrest occurred. . The record recites the plea was entered as an Alford plea, but it is clear that Defendant entered his plea pursuant to Crosby expressly reserving his right on the record to raise several constitutional law issues on appeal. . The list of documents are referenced in La. R.S. 32:409.1 and set forth in La. Admin. Code title 55 section 147(B)(1). . See State v. Gonzalez-Perez, 07-1813 (La. App. 1 Cir. 2/27/08), 997 So.2d 1, writ denied, 09-292 (La.12/18/09), 23 So.2d 930 and State v. Sanchez, 10-16 (La.App. 1 Cir. 6/11/10), 39 So.3d 834. However, in State v. Lopez, 05-685 (La.App. 4 Cir. 12/20/06), 948 So.2d 1121, writ denied, 07-110 (La.12/7/07), 969 So.2d 619, the court previously found that La.R.S. 14:100.13 was preempted by federal law.

In re James, Chakha Danny; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. E, No. 240,893; to the Court of Appeal, Third Circuit, No. KH 14-00113. Denied. See State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, — U.S. —, 134 S.Ct. 2663,189 L.Ed.2d 214 (2014).

SAUNDERS, Judge. _JjThe Defendant, Therand Guy Thacker, was charged in an indictment filed on February 28, 2012, with the following eleven counts: 1) aggravated rape, a violation of La.R.S. 14:42; 2) aggravated rape, a violation of La.R.S. 14:42; 3) attempted aggravated rape, a violation of La.R.S. 14:42 and La.R.S. 14:27; 4) aggravated incest, a violation of La.R.S. 14:78.1; 5) aggravated incest, a violation of La.R.S. 14:78.1; 6) aggravated incest, a violation of La.R.S. 14:78.1; 7) aggravated incest, a violation of La.R.S. 14:78.1; 8) aggravated incest, a violation of La.R.S. 14:78.1; 9) aggravated incest, a violation of La.R.S. 14:78.1; 10) intimidating a witness, a violation of La. R.S. 14:129.1; and 11) obstruction of justice, a violation of La.R.S. 14:130.1. The Defendant was arraigned on March 2, 2012, and entered a plea of not guilty. On March 27, 2012, the State filed an amended indictment. Jury selection commenced on October 16, 2012, and, on October 18, 2012, the jury returned the following verdicts: 1) guilty of the responsive verdict of sexual battery, a violation of La.R.S. 14:43.1; 2) guilty of the responsive verdict of sexual battery; 3) guilty; 4) guilty; 5) guilty; 6) guilty; 7) guilty; 8) guilty; 9) guilty; 10) not guilty; and 11) guilty. On November 2, 2012, the Defendant was sentenced to serve twenty years at hard labor for obstruction of justice and fifty years at hard labor without benefit of probation, parole, or suspension of sentence for each count of sexual battery and one count of aggravated incest. The sentences were to be served concurrently. The trial court failed to impose sentences for the remaining five counts of aggravated incest. |;>A motion for appeal was filed on November 15, 2012, and was subsequently granted. In a brief filed by appellate counsel, the Defendant asserted two assignments of error. Therein, the Defendant contended the evidence presented was insufficient to support guilty verdicts regarding the sexual offenses of which he was convicted, and the trial court imposed excessive sentences. In a pro se brief, the Defendant also asserted two assignments of error. Therein, he contended the trial court refused to allow exculpatory evidence, and the indictment charged multiple counts of the same offense, which constituted double jeopardy. On appeal, this court affirmed the Defendant’s convictions, finding the evidence presented by the State was sufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Thacker, 13-516 (La.App. 3 Cir. 1/22/14), 130 So.3d 1037, vacated, 04-418 (La.10/24/14), 150 So.3d 296. However, this court vacated the Defendant’s sentences for sexual battery, attempted aggravated rape, and obstruction of justice, and the single sentence imposed for six counts of aggravated incest and remanded the matter for resentencing. Id. On March 17, 2014, the trial court resentenced the Defendant. The Defendant sought review of this court’s ruling in the supreme court. See Thacker, 150 So.3d 296. In its opinion, which was issued on October 24, 2014, the supreme court stated: In reviewing defendant’s claim that the sentence for attempted aggravated rape was unconstitutionally excessive, however, the court of appeal found that it was unable to determine the victim’s age at the time of this offense from the record. See State v. Thacker, 13-0516, pp. 15-16 (La.App. 3 Cir. 1/22/14), 130 So.3d 1037, 1047-48. The court of appeal correctly noted that if the victim was not under the age of 13 at the time of the offense was perpetrated then the evidence would not support a conviction for attempted aggravated rape in accordance with La. R.S. 1442(A)(4). Nonetheless, the court of appeal did not address this issue further because “[tjhis concern was not raised by the Defendant in his briefs to this court.” Id., 13-0516 at 16, 130 So.3d at 1048. Similarly, in considering whether defendant’s sentence for obstruction of justice was unconstitutionally excessive, |sthe court of appeal indicated that it was unable to determine the factual basis of this conviction but did not consider whether sufficient evidence was presented to support this conviction because defendant did not raise the issue. Id., 13-0516 at 21,130 So.3d at 1050. When the state’s case is devoid of evidence of an essential element of the charged offense, the conviction and sentence must be set aside “regardless of how the error is brought to the attention of the reviewing court.” State v. Raymo, 419 So.2d 858, 861 (La.1982). The court of appeal thus erred in failing to consider the issue of sufficiency further once it came to the court’s attention. In addition, the court of appeal’s decree requires clarification. The court of ap peal rejected defendant’s claim that the sentence for attempted aggravated rape is unconstitutionally excessive. However, in its decree, the court of appeal vacated this sentence. Accordingly, the application is granted to vacate the court of appeal opinion and remand the matter to the court of appeal for reconsideration consistent with State v. Raymo, supra. The court of appeal is further directed to clarify the decree. State v. Thacker, 14-418 (La.10/24/14), 150 So.3d 296, 296-97. In light of the language in the supreme court’s ruling vacating this court’s prior opinion, we will once again review all errors assigned by the Defendant on appeal. Additionally, we find that the trial court sentencing that occurred on March 17, 2014, as a result of the remand ordered by this court is null. FACTS: The Defendant was convicted of sexual offenses involving his nieces, N.D. and C.D. ERRORS PATENT: In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find that there is an error patent regarding the aggravated incest convictions and a potential error patent regarding the sexual battery convictions, which will be discussed within the assignment of error relating to excessiveness of the sentence for the reasons explained in the discussion of the assignment of error. DThe Defendant was convicted of six counts of aggravated incest. The minutes of sentencing indicate that the trial court imposed a sentence of fifty years at hard labor without the benefit of probation, parole, or suspension of sentence on each count of aggravated incest. However, the sentencing transcript indicates the trial court imposed a single sentence of fifty years at hard labor without the benefit of probation, parole, or suspension of sentence, and it failed to specify for which conviction it was imposing the sentence. Additionally, the trial court failed to impose sentences for the other aggravated incest convictions. In State v. Grace, 10-1222, p. 19 (La.App. 3 Cir. 4/6/11), 61 So.3d 812, 825-26, writ denied, 11-961 (La.10/21/11), 73 So.3d 382, the court explained in pertinent part: In instances where the minutes and the transcript differ, the transcript must prevail. State v. Kimbrough, 09-1564 (La.App. 3 Cir. 6/2/10), 38 So.3d 1258. Louisiana Code of Criminal Procedure Article 879 states, “[i]f a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.” Where the trial court has imposed one sentence for multiple counts, this court has previously set aside the defendant’s sentence on those counts as indeterminate and remanded the case to the trial court for resentencing on each count. State v. Monceaux, 04-449 (La.App. 3 Cir. 10/20/04), 885 So.2d 670. Consequently, the single sentence imposed on the aggravated incest conviction is vacated and the matter remanded to the trial court for a legal sentence to be imposed on each of the aggravated incest convictions in accordance with the applicable penalty in effect at the time of the commission of the offense. ASSIGNMENT OF ERROR NUMBER ONE: |,Jn his first assignment of error, the Defendant contends the evidence presented was insufficient to support verdicts of guilty of the sexual offenses in counts one through nine. We disagree. The Defendant was convicted of two counts of sexual battery of C.D., one count of attempted aggravated rape of C.D., and six counts of aggravated incest. The victims of the aggravated incest charges were not set forth in the indictment. When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983). To obtain a conviction, the elements of the crime must be proven beyond a reasonable doubt. State v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580. Furthermore, the testimony of a single witness is sufficient to support a conviction “[i]n the absence of internal contradiction or irreconcilable conflicts with physical evidence.” State v. Dixon, 04-1019, p. 12 (La.App. 5 Cir. 3/15/05), 900 So.2d 929, 936. The trier of fact may accept or reject the testimony of any witness, and the determination of the credibility of that witness, in whole or in part, is left to its sound discretion and “will not be re-weighed on appeal.” Id. at 936. State v. F.B.A., 07-1526, pp. 1-2 (La.App. 3 Cir. 5/28/08), 983 So.2d 1006, 1009, writ denied, 08-1464 (La.3/27/09), 5 So.3d 138. |fiN.D. was twenty years old at the time of trial. N.D.’s aunt, Wtissue, was married to the Defendant. When N.D. was growing up, she occasionally spent the night with her uncle, the Defendant, and her Aunt Wtissue. N.D. testified that, when she was five to seven years old, she spent the night “over there,” and “[h]e” brought her to the shed where the washer and dryer were located, sat her on the washer, pulled down her pants, and licked her vagina with his tongue. N.D. indicated there was also a time the Defendant was working on a vehicle in his shop, and he put her in the back seat of that vehicle, pulled down her pants, and started “using his tongue on [her] again.” N.D. thought she was in middle school when this incident occurred. N.D. got pregnant when she was seventeen years old. She testified that during her pregnancy while she was sitting at a computer in the Defendant’s home, he shoved his hand down her pants and put his finger inside her. N.D. testified that, “[a]fter [she] was pregnant,” she accompa nied the Defendant to a house where he had to work on an air conditioner. While there, the Defendant took her to a bedroom and tried to stick his “wiener” inside her; however, she was able to get away. N.D. stated, “he was busy looking down, trying to unbuckle his pants, and so I was able to slip by him really fast.” N.D. was eighteen at the time of this incident. N.D. remembered another incident that occurred after her son was born. At that time, she went to a storage area of the Defendant’s old house with him, and he pulled down her pants and started licking her. N.D. testified there were no witnesses to the events at issue. However, she told her mother about the abuse once when she was seven or eight years old, but no action was taken. As an adult, N.D. told her boyfriend about the abuse. N.D. subsequently reported the abuse to police. N.D. testified that her grandfather told her she needed to drop the charges against the Defendant because he did not 17deserve to be in jail. N.D. also testified that her mother was pressured and told her to drop the charges. N.D. said she waited to report the abuse because her mother did not believe her which made her think that no one else would believe her. N.D. was aware the Defendant had been charged with a sexual offense before she reported her abuse to police. C.D. was the Defendant’s second alleged victim. C.D. was sixteen years old at the time of trial, and her date of birth was June 26, 1996. During C.D.’s testimony, the video of her interview at Rapides Children’s Advocacy Center was played to the jury. The interview was conducted on December 16, 2011. During the interview, C.D. stated that, when she was six years old, she was at the Defendant’s house staying the night with his daughter, Chasta, when the Defendant put his hand up her shorts and touched her private part under her panties. C.D. did not tell anyone what had occurred, as she was scared no one would believe her. She subsequently stated, “this stuff happened to me, my sister and my cousin, Chasta[,] his own daughter.” C.D. said she and Chasta told Chas-ta’s mother, who confronted the Defendant, and the Defendant said “it was just an accident.” The next day, C.D. and Chasta were helping the Defendant build a cabinet in the kitchen. C.D. was wearing a skirt while sitting on the floor, and the Defendant told her to lean back and tried to stick his tongue “down there.” C.D. described the event as follows: “He lifted up my skirt and he looked at my underwear and he was getting closer and he heard Chasta coming so he stopped.” On cross-examination, C.D. indicated she was fourteen years old when this event occurred. | SC.D. next described another event that occurred when she was fourteen years old around Christmas time and the Defendant started rubbing all over her body. C.D. said the Defendant used his hand to rub her “boobs,” “nuny cat,” and “butt.” C.D. described another incident when she was “maybe about 10,” the Defendant made her put her hand down his pants, and she touched his “hot dog.” C.D. said that on another occasion, she and Chasta were in the tub or shower with bathing suits on, and the Defendant was washing their hair. During that time, the Defendant stuck C.D.’s hand down his pants. C.D. testified she was “around ten” when this occurred. C.D. said that on August 2, 2011, the Defendant put his hands in her shirt and touched her “boobs” under her underwear. The Defendant also stuck his hand in her gym shorts and put his finger in her “nuny cat hole.” That night, the Defendant pulled his pants down and tried to put his “hot dog” in her “nuny cat.” C.D. described the event as follows: [C.D.]: He stuck half of his hot dog in my nuny cat and I started crying and told him to stop. Ashley: Okay. And uh, how was he able to stick his hot dog in? [C.D.]: Whenever he pulled his pants down he stuck it in through the back of my shorts and stuck it through. [C.D.]: Through my shorts and underwear. C.D. said the Defendant told her, “relax, just take it.” C.D. also stated that when she was nine or ten years old, the Defendant licked the outside of her “nuny cat.” C.D. testified that after the Defendant was arrested, her aunt asked other family members to talk to her about dropping the charges against the Defendant. C.D. met with a detective in an attempt to drop the charges. C.D. testified that she |3told the detective that her family was being torn apart, but the accusations were true. C.D. acknowledged that during her interview at the advocacy center she stated that Chasta said things had happened to her too, and she testified that Chasta told her the Defendant molested her as well. C.D. testified that Chasta did not witness any of the abuse she suffered. C.D. denied knowing the Defendant had previously been charged with a sex offense. When asked if she had been banned from the Defendant’s home, C.D. indicated that a couple of months before charges were filed against the Defendant, she was involved in a fight with her grandmother and was asked not to return to the Defendant’s home. She denied telling the Defendant that she would have him locked up for molesting her. Detective Steve Phillips testified that he was notified of a report regarding C.D. on December 13, 2011, and set up an appointment for her to be interviewed at the Rapides Children’s Advocacy Center. Detective Phillips subsequently monitored phone calls between the Defendant and his wife. Detective Phillips discussed their conversations as follows: There’s a series of phone calls over the next couple of weeks dealing with— between him and his wife. Basically, he was explaining to his wife that if we can get an affidavit signed by the kids, being [N.D.] and her sister, CD, to drop the charges or say that they lied about the charges and made it up, then they’ll have to let me go. One of [sic] the very first it appeared that [Wtissue] started things off by herself because she was explaining to [Therand] that, don’t worry, this is the Sunday, he was arrested on a Friday — this is Sunday, don’t worry, I think I’ve got it taken care of. They’re going to come up there and drop the charges. The day following this conversation, C.D. was brought to Detective Phillips’s office. Detective Phillips was not sure if Wtissue had provided C.D. with transportation that day. During that meeting, C.D. informed Detective [ ^Phillips that she wanted to drop the charges against the Defendant. When he asked why, C.D. told him the abuse did occur, but it was. tearing her family apart. Detective Phillips then took a recorded statement from C.D. In that statement, C.D. repeated what she had previously told Detective Phillips. Detective Phillips was further questioned about C.D. dropping the charges against the Defendant as follows: Q. What did she tell you before you turned on the tape recorder or the digital recorder or whatever — whatever it was? Did she indicate anything else about this — this—with respect to any pressure that might have been put on her or suggestions made? 'A. I’m trying to think. Q. Did she ever indicate to you that Tish, W’tissue— A. Uh-huh (affirmative response). Q. Did she ever indicate to you that W’tissue or anyone else had told her what she needed to say to you? A. She indicated to me that she was receiving pressure from her family to let the case go, to drop the charges because it was tearing the family apart. Q. But not specifically what to say? A. Not at that time. Q. What do you mean by that? A. During the first particular incident, no. The second incident, around January 3rd, I believe this might be what you’re referring to as whenever W’tissue actually for sure brought, that I know of, brought both [C.D. and her mother], and instructed [C.D.] that day of what to actually put either into an affidavit, or if allowed to speak to do that with the DA’s office, or whenever speak [sic] to the detective, what to say. Detective Phillips continued to discuss the events as follows: | UQ. Okay, I realize that you’re paraphrasing, but that’s — but essentially Mr. Thacker was trying to get his wife to— A. Correct, both times. Q. —get the charges dropped? A. Correct. Q. And so the second time you had a visit was January 3rd— A. Yes, sir. Q. —or somewhere abouts [sic] ? And who came that time? A. That time, again, [C.D. and her mother] that time, but [Wtissue] waited outside. She actually transported them that day for sure. Q. Okay. Did you take a statement from anybody on that occasion? A. I did. I did, from [ ] the mother. Q. The mother. But you didn’t take one from [C.D.]? A. No, sir, it would have been redundant. Q. Okay. And during that investigation you learned that W’tissue had actually told— A. [The mother] confessed that she had been approached by W’tissue and she actually spoke about the conversation that W’tissue had with [C.D.] in her vehicle, telling her what to say when she spoke with either the DA or a representative of or myself. Q. So she was — what was it she was supposed to say? A. That it was a lie, it didn’t happen. Detective Phillips testified that: “whenever you bring everything in totality together is [sic] very easy to understand what was going on.” Detective Phillips was further questioned as follows: Q. Okay. I mean, she’s capable of— of — why do you think there was intimi- ' dation involved? A. Through the use of him using the jail phones whenever he spoke to his wife of his intent to get her to drop them. And then when |1Pshe comes in and actually follows through with it and tells me it really did happen and I want to drop the charges. Detective Phillips took a statement from N.D. He confirmed that her testimony was consistent with the statement she gave to him. Chasta, the Defendant’s daughter, was aware that her father had a conviction for a sexual offense. Chasta indicated that C.D. and N.D. were her cousins. Chasta testified that she and C.D. did not tell her mother the Defendant molested them. Chasta additionally testified that her father had never molested her. Chasta also testified that she was seen by a physician to determine whether her hymen was intact, and “[everything was normal.” Chasta further testified that she never witnessed anything inappropriate between the Defendant and C.D., and neither C.D. nor N.D. told her that the Defendant acted inappropriately with them. Chasta denied leaving the bathroom while the Defendant washed C.D.’s hair, and she did not recall C.D. ever being alone with the Defendant. Chasta subsequently agreed that it was possible that she left C.D. in the room with the Defendant while she went to get something. Chasta testified that C.D. was banned from her home for pushing their grandmother down. As a result, C.D. was mad. Chasta indicated that, the day after C.D. was banned from her home, C.D. went to the residence and Chasta’s brother told her to leave. As a result, C.D. stated, “ ‘F’ all of y’all, /all can all burn down there.” Chasta said the Defendant was arrested a week after the fight. Chasta never heard her mother threaten C.D. with respect to dropping the charges against the Defendant. Donald Dyer, the Defendant’s brother-in-law, testified that he did not witness the Defendant molest anyone, and he did not believe the allegations made by C.D. and N.D. were true. Dyer testified that he did not witness the fight C.D. | ^supposedly had with her grandmother; however, he, the grandmother, and C.D.’s mother and father discussed the matter with C.D. Dyer testified that C.D. did not like what the group said to her, so she threatened to press charges against the Defendant for sexual molestation. Dyer testified that C.D.’s claim that the Defendant molested Chasta was a lie, as Chasta loved her father. Dyer claimed the wrong person was in jail. He based his conclusion on “the drugs or the sneaking out of the house to [C.D.’s] boyfriend’s house all hours of the night.” Dyer testified that C.D. threatened to have him arrested because he was going to “whip her butt” for hitting his mother. Finally, Dyer was aware the Defendant had pled guilty to carnal knowledge involving a babysitter who was thirteen or fourteen years old. Betty Dean Gaspard, the Defendant’s neighbor, grew up with C.D. and Chasta. Betty testified that Chasta never indicated that her father was molesting her. Betty was aware the Defendant was a sex offender, and her parents would not let her go to his residence. Betty did not feel uncomfortable or threatened when she was around the Defendant. Additionally, C.D. never told her the Defendant did aiiything inappropriate to her. Betty was asked if she stated the following during an interview at the advocacy center: “I don’t like it when she ... leaves me in there "by myself — by myself with him casue [sic] people have told me that he’s done stuff in the past and it makes me feel weird around him.” Betty responded, “that’s like around any man. Like, I just — I don’t really like being alone with men.” Betty then admitted she made the statement during the interview. Thereafter, Betty testified that neither C.D. nor N.D. had ever said anything about the Defendant to her. Betty said that she did not remember telling the interviewer differently, i.e., that N.D. told her about feeling weird around the 114Pefendant because of the things that she, N.D., had heard. Further, Betty did not remember telling the interviewer that C.D. told her that the Defendant was always doing “stuff with her.” Finally, Betty denied she told the interviewer that C.D. told her that the Defendant tried to touch her, C.D.’s, “boobs and stuff.” The Defendant was forty-four years old at the time of trial. The Defendant admitted that he had sex with his thirteen-year-old babysitter and pled guilty to carnal knowledge of a juvenile. He spent six months in jail, was on supervised probation for five years, and had to register as a sex offender for fifteen years. The Defendant denied the allegations made by his nieces, C.D. and N.D. The Defendant agreed that he told the truth regarding the prior allegations once the detective told him there was a witness to his inappropriate acts. The Defendant testified that he did not approve of the way C.D. conducted herself at times and of the language she used, so he did not want her around his children. The Defendant indicated that C.D. and N.D. knew he was a sex offender. The Defendant indicated that, when he found out who the supposed victims of the current charges were, he asked his wife to ask them “why they did it and to drop this nonsense.” The Defendant was surprised that N.D. accused him of such behavior, as she seemed pleased with the things he and his wife had done for her. In brief to this court, the Defendant contended “[t]he most obvious and glaring aspect of the prosecution’s case is the utter absence of any physical or forensic evidence” to support N.D.’s allegations. The Defendant asserted that N.D. stated there were several incidents, but she did not remember them. Defendant asserted that if we were to believe N.D.’s allegation that she was sexually abused as early as six years old and the abuse continued for many years, “isn’t the absence |1sof any forensic/medical evidence irreconcilable with the testimony?” The Defendant noted that no one observed him abuse N.D., and she never told anyone about the abuse because no one would believe her. The Defendant contended that C.D.’s testimony was fraught with the same internal contradictions and inconsistencies as that of N.D. The Defendant noted that C.D. testified she told Chasta of the sexual abuse, and Chasta said she had been abused; however, Chasta denied C.D.’s claims. The Defendant notes that no one saw the Defendant abuse C.D. Additionally, C.D. told Detective Phillips she wanted to drop the charges. The Defendant contended that C.D. had a motive to lie, as she had been banned from his residence shortly before the allegations were reported to police. The Defendant argued that it was internally inconsistent that a person subjected to repeated sexual assaults would return time after time to the residence of her attacker. The Defendant contended that the testimony of N.D. and C.D. was irreconcilable with the physical evidence, was internally inconsistent, and should have been rejected. N.D. testified the Defendant licked her vagina, inserted his finger into her vagina, and tried to penetrate her while she was .pregnant. It is clear that physical evidence of several of the claims made by N.D. would not be available because the offenses occurred many years prior to N.D. reporting them to police. Additionally, N.D. was clearly sexually active when the last offense occurred, as she was pregnant at that time. The only act committed against C.D. which might have left physical evidence at the time the offenses were reported to police was the Defendant’s attempt to penetrate her on August 2, 2011. “However, Louisiana jurisprudence has consistently held that the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even if there is no physical 11fievidence.” State v. Ware, 11-337, p. 4 (La.App. 3 Cir. 11/23/11), 80 So.3d 593, 597, writs denied, 11-1391 (La.3/9/12), 84 So.3d 549, and 12-46 (La.8/22/12), 97 So.3d 358. Furthermore, the testimony of C.D. and N.D. may have conflicted with that of Chasta and the Defendant; however, there was no internal contradiction in the testimony of N.D., and the only contradiction in C.D.’s testimony dealt with the age she was when the Defendant raised her skirt in his kitchen. The jury’s verdicts indicate it chose to believe the testimony of N.D. and C.D. over that of the Defendant and his daughter Chasta. This court will not second-guess those credibility determinations. Accordingly, the claims raised by the Defendant in his first assignment of error lack merit. Although not raised by the Defendant in his assigned error, we will consider the sufficiency of the evidence to support the Defendant’s convictions for attempted aggravated rape and obstruction of justice. See Thacker, 150 So.3d 296. The bill of information charged the Defendant with committing attempted aggravated rape upon a child under the age of twelve, a violation of La.R.S, 14:42(A)(4). In order to support a conviction of attempted aggravated rape, the State was required to prove beyond a reasonable doubt that the Defendant attempted to have oral, vaginal, or anal sexual intercourse with C.D. when she was under twelve years of age. See La.R.S. 14:42(A)(4). This court’s prior opinion indicated there may have been insufficient evidence to support the Defendant’s conviction for attempted aggravated rape. However, upon a thorough review of the record, we find that the evidence was, in fact, sufficient to support the Defendant’s conviction. Louisiana Revised Statutes 14:41 defines rape as follows: |17A. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent. B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime. C. For purposes of this Subpart, “oral sexual intercourse” means the intentional engaging in any of the following acts with another person: (1) The touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender. (2) The touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim. Louisiana Revised Statutes 14:42, in pertinent part, defines aggravated rape as follows': A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances: (4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense. During her interview at the advocacy center, C.D. stated that, when she was nine or ten years old, the Defendant licked the outside of her “nuny cat.” In Lowe, 999 So.2d at 203-04, this court stated: Viewing the evidence in the light most favorable to the prosecution, we find that the evidence presented to the jury established that the Defendant kissed and/or licked the vaginas of K.S. and A.S., and each girl was under the age of thirteen at the time of the offenses. Louisiana Revised Statutes 14:41 requires penetration when the rape involves vaginal or anal intercourse. However, contrary to the Defendant’s assertion, penetration is not required for oral sexual intercourse, which is what occurred in the instant case. | isThe indictment listed the date of the offense as occurring between January 1, 2003, and December 31, 2005. However, C.D. said she was nine to ten years old when the Defendant licked the outside of her “nuny cat,” which means the offense occurred between June 26, 2005, and June 25, 2007. Louisiana Code of Criminal Procedure Article 468 provides, “The date or time of the commission of the offense need not be alleged in the indictment, unless the date.or time is essential to the offense.” Despite the discrepancies with the dates listed in the indictment, the evidence indicated that C.D. was under the age of thirteen at the time the Defendant licked her genitals, and the Defendant’s acts met the requirements of La.R.S. 14:42. Accordingfy> the evidence presented by the State was sufficient to prove the elements of attempted aggravated rape. The Defendant was also convicted of obstruction of justice. Louisiana Revised Statutes 14:130.1 defines the offense as follows: A. The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as hereinafter described: (1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance either: (a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers; or (b) At the location of storage, transfer, or place of review of any such evidence. (2) Using or threatening force toward the person or property of another with the specific intent to: (a) Influence the testimony of any person in any criminal proceeding; | iS(b) Cause, or induce the withholding of testimony or withholding of records, documents, or other objects from any criminal proceeding; (c) Cause or induce the alteration, destruction, mutilation, or concealment of any object with the specific intent to impair the object’s integrity or availability for use in any criminal proceeding; (d) Evade legal process or the summoning of a 'person to appear as a witness or to produce a record, document, or other object in any criminal proceeding; (e) Cause the hindrance, delay, or prevention of the communication to a peace officer, as defined in R.S. 14:30, of information relating to an arrest or potential arrest or relating to the commission or possible commission of a crime or parole or probation violation. (3) Retaliating against any witness, victim, juror, judge, party, attorney, or informant by knowingly engaging in any conduct which results in bodily injury to or damage to the property of any such person or the communication of threats to do so with the specific intent to retaliate against any person for: (a) The attendance as a witness, juror, judge, attorney, or a party to any criminal proceeding or for producing evidence or testimony for use or potential use in any criminal proceeding, or (b) The giving of information, evidence, or any aid relating to the commission or possible commission of a parole or probation violation or any crime under the laws of any state or of the United States. In the indictment, the State asserted the Defendant committed the offense by tampering with evidence. At trial, the State argued the Defendant obstructed justice by having his wife attempt to have C.D. drop the charges against him. The Defendant was incarcerated at the time C.D. was “pressured” to drop the charges and did not speak directly to C.D. Thus, the Defendant would have to be a principal to Wtissue’s acts in order to be found guilty of the offense at issue. “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in limits commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” La.R.S. 14:24. Detective Phillips testified about phone calls the Defendant had with his wife, Wtissue. Detective Phillips said that during the first call, “it appeared that [Wtis-sue] started things off by herself.” Later, Wtissue told C.D. what to say in an affidavit. Detective Phillips testified that C.D. never specifically said who pressured her to drop the charges. However, C.D. testified that Wtissue asked other family members to talk to her about dropping the charges. Given the above, we find that there was no evidence that the Defendant told Wtissue to use or threaten force to influence C.D. to drop the charges or even that Wtissue used or threatened force to influence C.D. Accordingly, the State failed to prove that the Defendant committed the offense of obstruction of justice beyond a reasonable doubt. As such, we will consider whether a lesser offense was proven. Under La.Code Crim.P. art. 821(C), “an appellate court that finds ‘the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense ... may modify the verdict and render a judgment of conviction on the lesser included responsive offense.’ ” State v. Teague, 04-1132, p. 9 (La.App. 3 Cir. 2/2/05), 893 So.2d 198, 205. We must, therefore, determine whether any responsive offense was proven. State v. Willis, 05-218, p. 13 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, 377, writ denied, 06-186 (La.6/23/06), 930 So.2d 973, cert. denied, 549 U.S. 1052, 127 S.Ct. 668, 166 L.Ed.2d 514 (2006). There are no statutory responsive verdicts provided in Article 814 for obstruction of justice, and the matter is therefore controlled by La. C. Cr. P. art. 815, which provides: In all cases not provided for in Article 814, the following verdicts are responsive: (1) Guilty; 121(2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense is a misdemeanor; or (3) Not guilty. Our law on responsive verdicts in jury trials is clear. Attempted obstruction of justice is a proper responsive verdict to a bill of information charging obstruction of justice. State v. Butler, 41,985 (La.App.2d Cir.6/20/07), 960 So.2d 1208. State v. Newton, 42,743, pp. 3-4 (La.App. 2 Cir. 12/19/07), 973 So.2d 916, 919, writ denied, 08-1147 (La.1/16/09), 998 So.2d 90 (footnote omitted). Louisiana Revised Statutes 14:27 defines attempt, in pertinent part, as follows: A.Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. B.(1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended. Given the above, the State also failed to prove the Defendant had the specific intent to use force or threats to influence C.D. Accordingly, the Defendant’s conviction and sentence for obstruction of justice are vacated. ASSIGNMENT OF ERROR NUMBER TWO: In his second assignment of error, the Defendant contends the trial court imposed an excessive sentence tantamount to a life sentence. We find no error in the Defendant’s remaining sentence. The Defendant’s sentence for the aggravated incest conviction was vacated due to an error patent, and the Defendant’s conviction and sentence for obstruction |2aof justice were vacated. The remaining sentences are the Defendant’s fifty-year sentence for attempted aggravated rape and his fifty-year hard-labor sentences for each of two counts of sexual battery. The trial court ordered all sentences to be served concurrently. The law is well .settled concerning the standard to be used in reviewing excessive sentence claims: La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 .So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331. Even when a sentence falls within the statutory sentencing range, it still may be unconstitutionally excessive. In determining whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has suggested that several factors may be considered: [A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best Imposition to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958. State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061. Prior to imposition of the Defendant’s sentences, the trial court questioned the Defendant, who indicated he was forty-four years old; his date of birth was February 12, 1968; he had graduated from high school; he had worked in construction and as a truck driver; he had been unemployed for a couple of years; he was married; he had four children, ages eighteen, seventeen, fifteen, and five; he had not been in the military; and he did not have a substance abuse problem. The State informed the trial court that the Defendant had a prior conviction for carnal knowledge of a juvenile. The trial court then stated: [Under Louisiana Code of Criminal Procedure Article] 894.1, the aggravating factors are — well, I’ll say under paragraph [A], if it’s an undue risk during the period of a suspended sentence or on probation that he will commit a crime, I believe that he’s in need probational treatment or a custodial environment that can be provided most effectively by his commitment to an institution, and I believe that a lesser sentence would deprecate the seriousness of his crime. I believe that B(2) is an aggravating factor in that the victim was particularly vulnerable and incapable because of extreme youth. I believe that he used his position of status to facilitate the commission of the offense. That’s number 4. ... The mitigating factors, well that would be — -just reverse those. I find that his conduct caused a serious harm to these children. We know most females that are sexually abused, most of them have substance abuse problems; most of them have problems with relationships with men; most of them have multiple divorces, is what— that’s a few of the causes of sex abuse amongst females. I find that his conduct caused serious harm and that he contemplated that. He did not act under strong provocation. There were not grounds to excuse or justify his criminal conduct. I do not laJbelieve that the victims induced or facilitated his commission. I do not have any information that he could compensate the victims for his criminal conduct. He does have a history of prior criminal activity, which was carnal knowledge of a juvenile over a long period of time involving a babysitter. I find that his conduct is the result of circumstances that will likely recur if he does not receive this sentence. I do not find that he would respond affirmatively to probation treatment because he was on probation before and he did not respond to that. The trial court then found that the children’s dependence on the Defendant as a father was a mitigating factor and continued: I find another factor for the Court to consider is that he’s not admitted his blame or expressed any remorse. He was not under a serious emotional strain at the time of the events. Okay, the factors that I consider are rehabilitation. I do not find that the defendant is subject to rehabilitation. This is an ongoing problem with him and I do not know if he could respond to that. I need to consider general deterrence, and I believe that the community needs to know that this type of activity is serious. It is to be considered by the— serious by the District Attorney’s Office because they prosecuted him for eleven (11) counts and the sentence needs to reflect that the Court considers it serious so that it will create general deterrence in the community.... In punishment, I need to give him some type of sentence to specifically deter him from future — from future criminal conduct such as this. Attempted aggravated rape is punishable by a term of imprisonment of ten to fifty years at hard labor, and the Defendant was sentenced to the maximum term of incarceration. See La.R.S. 14:42; La.R.S. 14:27. “Maximum sentences are reserved for the most serious violations and the worst offenders.”. State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The trial court did consider the circumstances of the Defendant at the time the sentence was imposed and discussed several aggravating and mitigating factors that were present. In State v. York, 48,230 (La.App. 2 Cir. 8/7/13), 121 So.3d 1226, writ denied, 13-2154 (La.3/21/14), 135 So.3d 617, the defendant was convicted of attempted aggravated rape. The victim, who was mentally | ^handicapped, testified that the defendant licked and kissed her vagina. The defendant was sentenced to serve fifty years at hard labor without benefits for the offense. On appeal, the defendant alleged his sentence was excessive. When addressing the issue, the second circuit stated: As for the maximum sentence for attempted aggravated rape of the sister-in-law, the trial court made reference to the article 894.1 factors, noting that the defendant should have known the victim was particularly vulnerable or incapable of resistance, and that the defendant used his position and status to facilitate the commission of the offense. Then the court said, “You know, without me going into a diatribe about the insidious nature of this or of these offenses ... this court hereby sentences you to 50 years at hard labor without benefit of probation, parole, or suspension of sentence....”. Considering the factors articulated by the court, and considering that a strong argument can be made that there was more than enough evidence to convict the defendant for aggravated rape of Y.P., the court’s sentence on the attempted aggravated rape does not shock the sense of justice. We find no abuse of discretion in sentencing. Id. at 1241-42. Due to the sordid nature of the offense, the decision in York, and the fact that the Defendant in the case at bar has a prior felony conviction for carnal knowledge of a juvenile, this court cannot say the trial court abused its discretion in imposing the maximum sentence for his attempted aggravated rape conviction. Next, we will address the Defendant’s sentences for sexual battery. Initially during the sentencing proceeding, the trial court stated the sentencing range for sexual battery was up to ten years. The prosecutor then stated, “There’s some different ranges on that depending on the age of the victim and also the effective date. The effective date of the amendments, I believe was 2006, making it twenty-five (25) to ninety-nine (99).” Thereafter, the trial court stated, “All right, so sexual battery is twenty-five (25) to ninety-nine (99).... ” On each of the sexual 1 ^battery convictions, the trial court sentenced the Defendant to fifty years at hard labor without the benefit of probation, parole, or suspension of sentence. In State v. Sugasti, 01-3407, p. 4 (La.6/21/02), 820 So.2d 518, 520, the supreme court held, in pertinent part: This court has consistently held that the law in. effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Wright, 384 So.2d 399, 401 (La.1980). A defendant must ’be sentenced according to sentencing provisions in effect at the time of the commission of the offense. State v. Narcisse, 426 So.2d 118,130-131 (La.1983). According to the charging instrument, the Defendant committed count one of aggravated rape between January 2003 and December 2005 and count two of aggravated rape between January 1999 and December 2002, and C.D. was listed as the victim on each count. The jury found the Defendant guilty of the responsive verdict of sexual battery on each count. One of the incidents that C.D. testified to that fits the definition of sexual battery occurred when she was six years old. C.D. testified her date of birth was June 26, 1996. Given C.D.’s date of birth, that incident would have occurred sometime between June 2002 and June 2003. If this incident is used for one of the sexual battery convictions, the sentencing range in effect at that time was not more than ten years with or without hard labor without the benefit of parole, probation, or suspension of sentence. There are several other incidents that C.D. testified to that fit the definition of sexual battery; however, two of the incidents, as discussed below, may have occurred outside the date ranges specified in the charging instrument for the sexual battery counts, and several of the incidents definitely occurred outside the date ranges specified in the charging instrument for the sexual battery counts. | ^Additionally, "with respect to two of the incidents, it is unclear whether the 2006 amendment to La.R.S. 14:43.1 applies. As noted in the sufficiency review, C.D. testified that she was “maybe about 10” when the Defendant put her hand down his pants, and with respect to a separate incident, she testified that she was “around ten” when the Defendant put her hand down his pants. C.D. turned ten on June 26, 2006. The effective date of the 2006 amendment to La.R.S. 14:31.1, which added the penalty range of twenty-five to life when the victim is under the age of thirteen, was August 15, 2006, approximately a month and a half after C.D. turned ten. Therefore, CJD.’s testimony that she was “maybe about 10” for one incident and “around 10” for the other incident does not pinpoint the time of the offenses and could mean the incidents occurred sometime before or after her tenth birthday. Therefore, it is unclear whether the two incidents just discussed occurred prior to or after the 2006 amendment to La.R.S. 14:43.1. Since the dates of these two incidents cannot be determined, the legality and excessiveness of the sentence on one of the counts of sexual battery cannot be determined if one of the above-referenced incidents was the basis of one of the sexual battery convictions. There were three other incidents C.D. testified to that fit the definition of sexual battery, and based on her testimony regarding her age at the time of the incidents, the incidents clearly occurred after the effective date of the 2006 amendment to La.R.S. 14:43.1. Therefore, if any one of these three other incidents was the basis for one of the sexual battery convictions, the 2006 amendment to La.R.S. 14:43.1 would apply to that conviction. Louisiana Code of Criminal Procedure Article 872 provides, “A valid sentence must rest upon a valid and sufficient ... [vjerdict, judgment, or plea of guilty.” In State ex rel. Simpkins v. State, 12-1599 (La.12/14/12), 102 So.3d 776, l,athe trial court sentenced the relator to ten years for a molestation conviction. In reviewing the relator’s claims, the supreme court stated: In reviewing the sufficiency of the evidence on direct appeal, the court of appeal determined, sua sponte, that relator’s 10-year sentence for molestation was illegally lenient under R.S. 14:81.2, as amended in 2006 to increase the penalty for a person who commits the crime of molestation of a juvenile when the victim is under the age of 13 years from one to 10 years imprisonment to 25 years to life imprisonment at hard labor. Specifically, the court of appeal made a factual determination that relator must have molested the victim during a five-month window between the effective date of the amendment and the victim’s 13th birthday. Id. at 776. The supreme court further stated, the state concedes that relator is correct his sentence is illegal because the penalty, far in excess of the maximum 10-year sentence he initially received under the law as it read before the 2006 amendment, “is based on facts not found by the jury at trial, but assumed by the court of appeal when it order [sic] him resentenced.” Id. at 777. The supreme court vacated relator’s life sentence for molestation of a juvenile under the age of thirteen and reinstated the original sentence of ten years. In view of Simpkins, it is improper for this court to assume which conduct supports which convictions or to assume the dates the offenses were committed when the victim’s testimony did not pinpoint the commission dates. Summarizing, because the record does not establish which conduct supports which conviction and because the legality and excessiveness of at least one of the two sexual battery convictions cannot be determined, we vacate the two sexual battery sentences and remand the matter to the trial court for resentencing in accordance ■with the applicable penalty in effect at the time of the commission of the offenses and order the trial court to clarify the reasons for the sentences imposed on both sexual battery convictions. |29In conclusion, the Defendant’s sentence for attempted aggravated rape is affirmed and his sentences for sexual battery are vacated and the matter remanded for resentencing in accordance with this court’s opinion. PRO SE ASSIGNMENT OF ERROR NUMBER ONE: In his first pro se assignment of error, the Defendant contends the trial court clearly violated his fundamental right to due process of law by refusing exculpatory evidence, which would clearly undermine the verdict and would tend to show the victim lied under oath. The Defendant contends the trial court abused its discretion when it “refused to allow defense counsel’s witness to testify, and who’s [sic] testimony attest’s [sic] that prior to the alleged offense, several reliable persons heard the alleged victim make a threat that she would falsely accuse the defendant of sexual misconduct with her.” The Defendant fails to reference a ruling by the trial court denying any witness the right to testify, to set forth the name of the witness to which he is referring, or to reference anything in the record that sets forth the basis for his claim. For these reasons, this court will not consider the Defendant’s assignment of error. See State v. Lewis, 09-846 (La.App. 3 Cir. 4/7/10), 33 So.3d 1046, writ denied, 10-967 (La.11/24/10), 50 So.3d 825; Uniform Rules—Courts of Appeal, Rule 2-12.4. PRO SE ASSIGNMENT OF ERROR NUMBER TWO: In his second pro se assignment of error, the Defendant contends it is “plain error on the patent of the face of the record” where the charging instrument charges multiple counts of the same distinct offense which clearly violates his rights against cumulative and successive punishments under U.S. Const. amend. V and La. Const. art. 1 § 15. The Defendant asserts the following: lanA provision in a penal statute that any person “who violatyes [sic] or fails to comply with an of’ it’s [sic] requirements shall be punished as there specified is not construable as imposing a single punishment for the violation by a single act, of separate requirements, and the penal section of these statutes does not authorize, cumulative and successive punishments. Wherefore the trial court violated Petitioner’s constitutional right’s [sic], and statutory right’s [sic] against Double Jeopardy. “The constitutional protections against double jeopardy prevent a second prosecution for the same offense after an acquittal or conviction, and prevent multiple punishments for the same offense.” State v. Grace, 10-1222, p. 14 (La.App. 3 Cir. 4/6/11), 61 So.3d 812, 823, writ denied, 11-961 (La.10/21/11), 73 So.3d 382. The Defendant fails to set forth which of his convictions are for the same offense or for which offense he received multiple punishments. For these reasons, we find that this assignment of error lacks merit. DECREE: In light of the supreme court’s opinion, the resentencing held on March 17, 2014, is null. The Defendant’s conviction and sentence for obstruction of justice is vacated. The Defendant’s remaining convictions and his sentence for attempted aggravated rape is affirmed. However, the fifty-year sentences imposed on each count of sexual battery is vacated and the matter remanded to the trial court for resentencing in accordance with this opinion. Additionally, the single sentence imposed on the aggravated incest convictions is vacated and the matter remanded to the trial court for a legal sentence to be imposed on each count of aggravated incest in accordance with this opinion. AFFIRMED, IN PART; VACATED, IN PART; VACATED AND REMANDED. . Although filed, this court could find no changes to the indictment in the amendment filed by the State. . Although moot due to our decision to vacate the aggravated incest sentences, the trial court did not make any finding as to the Defendant’s ability to pay the victims’ reasonable costs of counseling pursuant to La.R.S. 14:78.1(E). See State v. P.T., 07-665 (La.App. 3 Cir. 12/5/07), 970 So.2d 1255, writ denied, 08-26 (La.5/30/08), 983 So.2d 895. Louisi ana Revised Statutes 14:78.1(E) was in force at the time relative to this case. It has since been repealed in 2014. . Ashley Honor, a forensic interviewer at the center, interviewed C.D. At the time of the interview, C.D. was under seventeen years of age. . A joint stipulation indicated the Defendant pled guilty to this offense on October 7, 2002. (Joint Exhibit No. 1.) . Louisiana Revised Statutes 14:42(A)(4) provided that the victim be under the age of twelve until August 15, 2003, at which time the statute required the victim to be under the age of thirteen. See 2003 La. Acts No. 795, § 1. . The 2006 amendment to the sexual batter statute, La.R.S. 14:43.1, added the range of twenty-five years to life when the victim was under the age of thirteen. In 2008, life was changed to ninety-nine years.

In re Windsor, Stephen J.; — Plaintiff; Applying For Supervisory and/or Remedí al Writs, Parish of Orleans, Criminal District Court Div. D, No. 389-171; to the Court of Appeal, Fourth Circuit, No. 2013-K-1666. Denied.

JOY COSSICH LOBRANO, Judge. | defendant, Travis Alexis, was charged by a bill of information with the armed robbery of a high school student. Following a bench trial, the trial court found defendant guilty as charged and sentenced him to serve ten years at hard labor. Defendant appealed. ' On January 28, 2011, Detective Brandon Ludwig (Det. Ludwig), a member of the New Orleans Police Department’s Fourth District investigative unit, was sent to investigate an armed robbery that had occurred behind L.B. Landry High School. Through his investigation, Det. Ludwig learned that the victim, a L.B. Landry ninth grade student, was attending a basketball game on the night he was robbed. He had gone behind the school when he was approached by three individuals. The victim recognized one of the three, Ta-maine Pitts, as a fellow Landry student and was able to identify him in a photographic line up. Pitts subsequently identified defendant as a participant in the robbery. The third individual was never identified. |2The victim stated that defendant, Pitts and the unidentified perpetrator approached him and told him to walk with them. As they walked, the unidentified perpetrator struck the victim in the face and .defendant put a gun to his chest. The perpetrators ordered the victim to surrender his cell phone, boots and money. Following the robbery, the three perpetrators ran away. The victim returned to the school and called the police. Counsel for defendant has requested only a review of the record for errors patent. Counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). Counsel filed a brief complying with State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. Counsel’s detailed review of the procedural history of the case and the facts of the case indicate thorough reviews of the record. Counsel moved to withdraw because she believes, after a conscientious review of the record, that there is no non-frivolous issue for appeal. Counsel reviewed the record and found no trial court ruling that arguably supports the appeal. Copies of counsel’s brief were forwarded to defendant, and this Court informed him of his right to file a brief in his own behalf, which he exercised on May 6, 2014. As per State v. Benjamin, this Court performed an independent, thorough review of the pleadings, minute entries, and the bill of information in the appeal records. Defendant was properly charged by bill of information with armed robbery, a violation of La. R.S. 14:64. Defendant was present and represented by counsel during' arraignment, trial, and at sentencing. The trial court’s verdict of guilty as charged of armed robbery is legal in all respects. Furthermore, a review |sof the trial transcript shows that the State provided sufficient evidence to prove beyond a reason able doubt that defendant was guilty of armed robbery. However, the review of the record for errors patent does reveal an error in defendant’s sentence for armed robbery. A person convicted of armed robbery shall be imprisoned at hard labor for not less than ten years and not more than ninety-nine years, without benefit of parole, probation or suspension of sentence. La. R.S. 14:64 (B). In the instant case, the trial court failed to deny defendant benefits on his armed robbery conviction. Accordingly, defendant’s sentence is illegally lenient. However, in instances where the statutory restrictions were not recited at sentencing, they are contained in the sentence, whether or not imposed by the sentencing court. La. R.S. 15:301.1(A); State v. Hall, 2002-1098 (La.App. 4 Cir. 3/19/03), 843 So.2d 488. In a pro se assignment of error, defendant contends there was insufficient evidence to support his conviction because the State presented no physical evidence of anything of value being taken, and he was wrongfully identified. Defendant was convicted of armed robbery. “Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” La. R.S. 14:64 The victim testified at trial as follows: Q. So you said you walked behind the school to see the other team and then what happened? A. I was looking at my phone and I looked up. Everybody was walking to the front and three people were walking toward me. They said, walk with me, so I walked with them. They were just standing |4around. So one of them had hit me and told me to give them my phone and my boots and they put the gun on me. Q. Okay. Now, the one that hit you, where did he hit you? A. In my face. Q. Okay. Then you gave him your phone? A. Yes, ma’am. Q. Okay. You said your boots? A. Yes, ma’am. Q. And was anybody armed with a weapon? ' A. Yes, ma’am. Q. Okay. Do you remember what the gun looked like? A. It was black. Q. Okay. Where was the gun pointed? A. My chest. Q. And how many people were involved in this robbery? A. It was three of them over there. Q. And do you see someone in court that was involved in the robbery? A. Him over there. Q. Okay. And what was his role in the robbery? A. He had the gun. Q. ... I have handed you State’s exhibit 2. Do you recognize what that is that I have handed you? A. Yes Ma’am Q. Okay. What is that? A. ' More pictures. Q. Did you identify anyone in those pictures? A. Yes Ma’am. Q. And who was that? A. This one in the middle. Q. Who was that individual? A. Over there. IsQ. And what did he do in the robbery? A. He had the gun. When questioned by defense counsel, the victim stated that he was certain the defendant was the one with the gun and that he was not promised anything in return for his testimony. Det. Ludwig testified that when presented with the photographic line-up, the victim immediately identified the defendant as the subject who was armed with the handgun during the robbery. Det. Ludwig also testified that Pitts positively identified the defendant as being the perpetrator with the gun. In exchange for his testimony, Pitts was promised his case would not be removed from juvenile court. “ ‘In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.’” State v. Neal, 00-0674, p. 9 (La.6/29/01) 796 So.2d 649, 657 (quoting State v. Captville, 448 So.2d 676, 678 (La.1984)); see also State v. Magee, 2012-1025, p. 18 (La.App. 4 Cir. 5/22/13), 116 So.3d 948, 959, writ denied, 2013-1396 (La.12/6/13), 129 So.3d 530. This Court, discussing the standard for evaluating a claim of insufficient evidence, stated: When circumstantial evidence is used to prove the commission of the offense, La. Rev.Stat. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Neal, 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson | fito prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)). When a key issue at trial is whether the defendant was the perpetrator of the crime, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof beyond a reasonable doubt. State v. Bright, 1998-0398 (La.4/11/00), 776 So.2d 1134, 1147. The fact-finder weighs the respective credibilities of the witnesses, and a reviewing court will generally not second-guess those determinations. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). However, the touchstone of Jackson v. Virginia is rationality and that “irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). The trier of fact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witnesses, State v. Hampton, 98-0331 (La.4/23/99), 750 So.2d 867, 880, and we have repeatedly held that a factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Huckabay, 2000-1082 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093; State v. Harris, 99-3147 (La.App. 4 Cir. 5/31/00), 765 So.2d 432. State v. Wilson, 2009-0304, p. 2-3 (La.App. 4 Cir. 2/17/10), 68 So.3d 1031,1033. Defendant contends that the evidence reflects that he did not take any thing of value from the victim. However, the testimony of Pitts substantiates that the victim’s boots and cell phone were taken by the third perpetrator who was not caught. The victim’s testimony also establishes that the third perpetrator took the boots as well as the cell phone. La. R.S. 14:24 states: All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. The testimony at trial shows that defendant directly committed an act constituting the offense of armed robbery by pointing a gun at the victim’s chest while the other perpetrator took the boots and phone from the victim. |7In determining from the totality of the circumstances whether an identification created a substantial likelihood of mis-identification, this Court in State v. Santos-Castro, 2012-0568 (La.App. 4 Cir. 7/31/13), 120 So.3d 933 applied the factors enunciated in Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977). The five factors include: 1) the witness’s opportunity to view the criminal at the time of the crime; 2) the witness’s degree of attention; 3) the accuracy of his prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation. Manson, 432 U.S. at 114-15, 97 S.Ct. at 2254. Considering the Manson factors, and viewing all the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the state negated any reasonable probability of misidentification of defendant. The victim had ample opportunity to view the defendant as he pointed a gun at his chest; was able to provide an accurate description of the perpetrators; identified defendant in a photographic line up and in court; and stated he was certain of the identification. Pitts also identified defendant in a photographic line up and in court. Both photographic line ups occurred within days of the crime. Furthermore, Pitts stated that he grew up with defendant. Thus, there was sufficient evidence to negate any possibility of misidentification, and the evidence presented at trial supports the finding that defendant was the person who robbed the victim. The trial court’s findings regarding credibility were not contrary to the evidence presented at trial. This assignment of error is without merit. ^Accordingly, for the reasons stated above, defendant’s conviction and sentence are affirmed. Counsel’s motion to withdraw is granted. AFFIRMED; MOTION TO WITHDRAW GRANTED . On October 22, 2013, defendant filed an application for writs seeking an out-of-time appeal which was transferred to the trial court for its consideration in State v. Alexis, unpub., 2013-1444 (La.App. 4 Cir. 1/05/13). The trial court granted defendant an out-of-time appeal on November 12, 2013.

In re Black, Harold Joe; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. C612768; to the Court of Appeal, First Circuit, No. 2013 CA 1154. Denied.

AMY, Judge. |TThe defendant pled guilty to home invasion, a violation of La.R.S. 14:62.8, and attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1. The trial court sentenced the defendant to twenty years at hard labor on each count, to run concurrently with each other. Further, the trial court ordered that the first ten years of the defendant’s sentence for attempted second degree murder be served without the benefit of probation, parole, or suspension of sentence. The defendant’s appellate counsel initially filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967). However, this court denied the defendant’s Anders motion and ordered additional briefing. Having received the additional briefing, for the following reasons, we affirm the defendant’s conviction and order the trial court to correct the commitment order. Factual and Procedural Background According to the State, the defendant, Cornelius Eugene Wilson, and several accomplices forced their way into a residence. Thereafter, according to the allegations, the defendant and his accomplices shot one of the residents, beat another, and took various items from the residence. The defendant was initially charged with attempted first degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30; home invasion, a violation of La.R.S. 14:62.8; second degree kidnapping, a violation of La.R.S. 14:44.1; conspiracy to commit home invasion, a violation of La.R.S. 14:26 and La.R.S. 14:62.8; conspiracy to commit aggravated burglary, a violation of La.R.S. 14:26 and La.R.S. 14:60; and accessory after the fact, a violation of La.R.S. 14:25. Thereafter, pursuant to a plea agreement, the defendant pled guilty to attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1, j2and home invasion, a violation of La.R.S. 14:62.8, and the State agreed to a sentencing cap of twenty-five years and to nolle prosequi the defendant’s other charges. The trial court subsequently sentenced the defendant to twenty years at hard labor on each count, to be served concurrently with each other. The trial court also ordered that the first ten years of the defendant’s sentence for attempted second degree murder be served without the benefit of probation, parole, or suspension of sentence. The defendant appealed, and his appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that no non-frivolous issues exist upon which to base an appeal and seeking to withdraw as the defendant’s counsel. However, in State v. Wilson, 13-1164 (La.App. 3 Cir. 3/26/14), 135 So.3d 842, this court denied the defendant’s Anders motion and or dered additional briefing on the issues of “1) whether the trial court properly informed the defendant of the essential elements of the offense to which he plead, and 2) whether the defendant’s guilty plea was rendered involuntary as a result of any such failure.” Id. at 845. Pursuant to that order, additional briefing has now been submitted. Discussion Errors Patent Pursuant to La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. Our review of the record reveals one error which requires correction by this court. The sentencing transcript and the minutes reflect that the trial court ordered that the first ten years of the defendant’s sentence for attempted second degree murder be served without the benefit of probation, parole, or suspension of sentence. However, the commitment order states that la“[t]hese sentences are to run concurrent with each other. Court designates these charges as crimes of violence. The first (10) years are to be served without the benefits of probation paróle or suspension of sentence.” We find that the wording of the commitment order does not clearly indicate that the restriction was to be imposed only on the defendant’s sentence for attempted second degree murder. Accordingly, we order the trial court to correct the commitment order to accurately reflect the sentences imposed. Failure to Inform the Defendant Pursuant to La.Code Crim.P. art. 556.1 Pursuant to La.Code Crim.P. art. 556.1(A), when accepting a plea of guilty or nolo contendere, the trial court must personally inform the defendant of, and determine that he understands “[t]he nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.” This court has determined that, in order to comply with Article 556.1, the trial court must advise the defendant of the elements of the charges against him. State v. Morrison, 99-1342 (La.App. 3 Cir. 3/1/00), 758 So.2d 283. Here, the record reveals that the trial court did not properly inform the defendant as to the elements of the crime of attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1. Louisiana Revised Statutes 14:30.1, in relevant part, defines second degree murder as: the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm; or (2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, armed |4robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juveniles, or terrorism, even though he has no intent to kill or to inflict great bodily harigi. In State v. Bishop, 01-2548, p. 4 (La.1/14/03), 835 So.2d 434, 437, the supreme court addressed the elements of the crime of attempted second degree murder, stating: To sustain a conviction for attempted second degree murder, the state must prove that the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim’s death. La. R.S. 14:27; 14:30.1. Although the statute for the completed crime of second degree murder allows for a conviction based on “specific intent to kill or to inflict great bodily harm,” La. R.S. 14:30.1, attempted second degree murder requires specific intent to kill. At the defendant’s guilty plea proceedings, the trial court stated: On Home Invasion, this is what the State would have to prove: That is the Unauthorized entering of an Inhabited Dwelling, or other structure, belonging to another and used in whole or in part as a home or a place of abode by a person. Where a person is present, with the intent to use force or violence upon a person of another, or to vandalize the face [sic], damage the property of another.... Attempted Second Degree Murder, I’m going to read to you the definition of Second Degree Murder, even though you’re not pleading guilty to that, because you’re charged with an attempt to do this, okay? So, Second Degree Murder is the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of a Second Degree Kidnapping, or an Armed Robbery, even though he has no intent to kill or inflict great bodily harm — okay. And, so what you’re charged with doing, is attempting to do that. And, that is any person who having a specific intent to commit a crime, does an act for the purpose of intending directly toward the accomplishing of his object, is guilty of an attempt to commit the offense intended. And, it shall be immaterial, whether under the circumstances; he would have actually accomplished his purpose. So, what that means is, someone who has a specific intent to commit a crime, the State says that you had a specific intent to commit the crime of Armed Robbery, Second Degree Kidnapping, and Home Invasion, and you do an act for the purpose of intending directly towards the accomplishing of this object. Any act in furtherance. You sit down and you make a plan, you go to the house, you get a gun, you knock on the door, those are act[s] in furtherance. You’re guilty of and [sic] attempt to commit the offense intended. And, if thelfiOffense so attempted is punishable by death or life imprisonment, you shall be imprisoned at hard labor not less than 10, no more than 50 years, and that’s with without benefit of probation, parole or suspension of sentence. Do you understand what the State would have to prove and what the possible penalties could be? Thus, the record indicates that, although the trial court read one of the definitions of second degree murder provided in La. R.S. 14:30.1, it failed to clarify that attempted second degree murder, i.e., the crime to which the defendant pled guilty, requires specific intent to kill. See Bishop, 835 So.2d 434. However, “[a]ny variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.” La.Code Crim.P. art. 556.1(E). Further, because the requirements of Article 556.1(A)(1) are statutory requirements, as opposed to constitutional requirements (such as the requirement that the defendant be informed of his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)), errors concerning Article 556.1(A)(1) are subject to the harmless error analysis. State v. Stephan, 11-648 (La.App. 3 Cir. 12/7/11), 79 So.3d 1175 (quoting State v. Ford, 06-1435 (La.App. 3 Cir. 4/4/07), 954 So.2d 876). This court has previously stated that the defendant must allege that there was a misunderstanding as to the nature of the charges to which he pled guilty. See State v. Whiddon, 99-1 (La.App. 3 Cir. 6/2/99), 741 So.2d 797. Further, in State v. Gross, 99-3534, p. 1 (La.6/23/00), 768 So.2d 592, 593, the supreme court found that, where the defendant was charged with capital murder and ultimately pled guilty to second degree murder, the trial court’s failure to advise the defendant, as part of the plea colloquy required by La.Code Crim. Proc. art. 556.1, that a charge of first degree felony murder under La.Rev.Stat. 14:30A(1) requires the state to prove specific intent to kill or to inflict great bodily harm, as opposed to second degree felony murder, another life Roffense, which does not have a specific intent component, La.Rev.Stat. 14:30.1A(2)(a), cannot “ ‘reasonably be viewed as having a material factor affecting the [defendant’s] decision to plead guilty.’ ” State v. Guzman, 99-1528, p. 11 (La.5/16/00), 769 So.2d 1158, 1165 (quoting United States v. Johnson, 1 F.3d 296, 301-02 (5th Cir.1993)). Having reviewed the record before us, we find nothing that would indicate that the defendant was unaware of the nature of the charge nor anything that would indicate that the defendant’s guilty plea was involuntary. The trial court confirmed that the defendant intended to plead guilty to home invasion and attempted second degree murder, informed the defendant of his Boykin rights, and determined that the defendant understood those rights. Additionally, the defendant was initially charged with attempted first degree murder, home invasion, armed robbery, second degree kidnapping, conspiracy to commit home invasion, conspiracy to commit aggravated burglary, and accessory after the fact. The majority of these charges were dismissed pursuant to the defendant’s guilty plea and the attempted first degree murder charge was changed to attempted second degree murder. See Gross, 768 So.2d 592; Stephan, 79 So.3d 1175. In his appellate brief, the defendant does not assert that there was a misunderstanding as to the nature of the charges to which he pled guilty, but argues that “[tjhere is no indication that this seventeen-year-old with a tenth grade education actually understood the proceedings.” We note that, in addition to stating that his plea of guilty was free and voluntary, the defendant indicates on the guilty plea form contained in the record that he “understood] all of [his] constitutional rights and the nature of the charge[,]” and the trial court confirmed that the defendant had “been through this form” with his attorney. 17Thus, based on our review of the evidence in this record, we do not find an indication that any violation of La.Code Crim.P. art. 556.1 in this case undercut the voluntariness of the defendant’s plea. Any argument by the defendant regarding vol-untariness of the guilty plea that is reliant on additional evidence would be relegated to post-conviction proceedings. Accordingly, we find no merit to this argument. DECREE For the foregoing reasons, the convictions of the defendant, Cornelius Eugene Wilson, for home invasion and attempted second degree murder are affirmed. Within ten days of the date of this opinion, the trial court is ordered to correct the commitment order to accurately reflect the sentences imposed. AFFIRMED WITH INSTRUCTIONS. . At his guilty plea hearing, the defendant indicated that he was eighteen years old.

In re Stephanie Bellanger; — Defendant; Applying For Supervisory and/or Remedíal Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 739-093; to the Court of Appeal, Fifth Circuit, No. 14-C-832. Denied.

In re Patricia Klees; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 726-692 C/W 726-877; to the Court of Appeal, Fifth Circuit, No. 14-C-582. Denied.

In re Lyles, Ronnie M.; — Plaintiff; Applying for Reconsideration of this Court’s action dated November 26, 2014, Parish of Beauregard, 36th Judicial District Court Div. B, No. C-2009-0661; to the Court of Appeal, Third Circuit, No. CW 14-00744. Reconsideration denied; original application not timely filed.

In re Dupas, Leother; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 01-08-0260; to the Court of Appeal, First Circuit, No. 2013 KW1533. Denied.

In re Jones, Gregory G.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 520116; to the Court of Appeal, First Circuit, No. 2013 KA1716. Denied.

SANDRA CABRINA JENKINS, Judge. | T J.W., a juvenile, appeals his delinquency adjudication for simple burglary of an inhabited dwelling, a violation of La. R.S. 14:62.2. In the one assignment of error presented to this Court on appeal, J.W. challenges the sufficiency of the evidence to support his adjudication asserting that the State failed to prove the requisite specific intent. For the following reasons, we affirm the delinquency adjudication. FACTUAL AND PROCEDURAL BACKGROUND On November 27, 2013, the State filed a petition charging J.W. with one count of simple burglary of an inhabited dwelling. The adjudication hearing was held on February 12, 2014 with New Orleans Police Department (“NOPD”) Officer Jermell Taylor (“Officer Taylor”) and victim Patricia Chester appearing as the State’s witnesses. J.W. did not present any witnesses. Officer Taylor testified that on November 25, 2013, he responded to a complaint about a possible burglary in progress on North Prieur Street. According to Officer Taylor, upon arriving to the house to investigate, he observed three |2males running out of the house. Specifically, Officer Taylor stated “I [saw] them as they were exiting the house, coming out of the back door or the side door.” Officer Taylor testified that he recognized one of the subjects, J.W., from a prior incident and gave a description of all three subjects over the radio. Officer Taylor, with the help of another officer, then set a perimeter around the property for the purpose of apprehending the subjects. According to Officer Taylor, once J.W. was apprehended, he was brought back to the residence, where Officer Taylor positively identified him as one of the subjects he had observed fleeing from the residence. Fortunately, Ms. Chester was not home at the time of the burglary; however, she was informed shortly thereafter by several calls from the police department. According to Ms. Chester, she returned home as soon as she could and observed her front and back door open. Ms. Chester testified that clothes were all over her bedroom and her living room was in disarray, which she stated was not the condition she had left it in earlier that day. Ms. Chester further testified that two televisions, a laptop, two game consoles, and a few other nonessential items were missing. At the hearing, Ms. Chester acknowledged the photograph of a footprint on the bottom of her back door, which she stated was not there when she left earlier that day. Furthermore, Ms. Chester testified that she does not know J.W., and he did not have permission to be in her house on the day in question. The trial court adjudicated J.W. delinquent for simple burglary of an inhabited dwelling and immediately proceeded with his disposition hearing. The trial court committed J.W. to the Department of Public Safety and Corrections for a period not to exceed two years; however, J.W.’s commitment was suspended and he was placed on active probation for two years. This appeal followed. | -¡LAW AND ANALYSIS It is well established that in reviewing a claim of sufficiency of evidence to support a conviction, this Court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Ennis, 11-0976, pp. 4-5 (La.App. 4 Cir. 7/5/12), 97 So.3d 575, 579 (quoting State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18). In applying this standard, the reviewing court does not determine whether it “believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Peters, 12-1641, p. 16 (La.App. 4 Cir. 8/21/13), 123 So.3d 307, 316 (quoting State v. Taylor, 12-0345, p. 19 (La.App. 4 Cir. 6/26/13), 118 So.3d 65, 77). The reviewing court is to consider the record as a whole, and if rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict should not be disturbed. Id. (quoting Taylor, 12-0345, p. 18,118 So.3d at 77). To establish the crime of simple burglary of an inhabited dwelling, the state must prove beyond a reasonable doubt that the offender, without authorization, entered the victim’s home with the intent to commit a felony or theft therein. La. R.S. 14:62.2. Thus, the three essential elements to this crime are: (1) Unauthorized entry, (2) of an inhabited dwelling, (3) with the intent to commit a felony or theft therein. Furthermore, when circumstantial evidence forms the basis of the conviction, the applicable standard is: “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. |4Specific intent is an essential element of the crime of simple burglary of an inhabited dwelling. State v. Agee, 08-0203, p. 6 (La.App. 4 Cir. 7/23/08), 990 So.2d 95, 98 (citing State v. Chairs, 99-2908, p. 9 (La.App. 4 Cir. 2/7/01), 780 So.2d 1088, 1095). Specific intent is that “state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Moreover, specific intent need not be proven as fact since it can be inferred from facts, acts, and circumstances. State v. Buhcannon, 11-1727, p. 11 (La.App. 4 Cir. 3/13/13), 112 So.3d 312, 319 (quoting State v. Pittman, 11-0741, pp. 3-4 (La.App. 4 Cir. 2/29/12), 85 So.3d 782, 785). J.W. asserts that Officer Taylor’s testimony that he saw J.W. run out of the residence does not prove that he had the intent to commit a felony or theft inside and therefore argues that the evidence is insufficient to justify the delinquency adjudication. Despite J.W.’s contention, the physical evidence inside the house indicates the offender intended to commit a theft, and the signs of forced entry prove an unauthorized entry. The state of disarray of Ms. Chester’s bedroom and living room suggest the offender reviewed and considered the property before actually removing it from the dwelling. The absence of the televisions, game consoles, and laptop further support this inference. Thus, the inference that J.W. broke into Ms. Chester’s home to steal her property is rational under these facts and should not be disturbed. The trier of fact is in a unique position to judge the credibility and weight of the evidence before it. This court will not disturb the trial court’s judgment where, as here, the trial judge chose to accept as true one version of the facts over another version she found less credible. There fore, reviewing the evidence in the light most |Rfavorable to the prosecution, a rational trier of fact could have concluded that J.W. possessed the intent to commit a felony or theft inside the dwelling, and J.W.’s delinquency adjudication was not error. DECREE For the forgoing reasons, the judgment of the trial court adjudicating J.W. delinquent is affirmed. AFFIRMED. LOBRANO, J., concurs in the result. . As J.W. is a juvenile, he will be referred to by his initials. La. Ch.C. art. 412(a). . J.W. does not contest elements 1 or 2.

In re Davis, Anthony; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd' Judicial District Court Div. F, No. 83-CR-37859; to the Court of Appeal, First Circuit, No. 2013 KW 2023. Denied. Untimely and repetitive. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.4(D).

In re Donna Charles; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 1S-PDB-121. Leave to appeal denied.

In re Roberts, Andrew J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 488303; to the Court of Appeal, First Circuit, No. 2013 KW 2136. Denied.

In re Hoard, Brian; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 389-469, 389-366; to the Court of Appeal, Fourth Circuit, No. 2013-K-1208. Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189. HUGHES, J., would grant.

In re Proctor’s Cove II, LLC; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. K, No. 641-536; to the Court of Appeal, Fifth Circuit, No. 1S-CA-802. Denied.

In re United Federal Savings and Loan Assn, formerly First Federal Savings and Loan Assn, of Concordia, Vidalia applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 327 So.2d 657. Writ denied. The result is correct.

In re: Placid Oil Company applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 325 So.2d 313. Writ denied. On the facts found by the Court of Appeal, there is no error of law in its judgment.

HEARD, Judge. This case, before us for the second time, presents only the issue of correctness of the district judge’s order denying plaintiff penalties and attorney’s fees against the insurer. The issues of liability, the amount of damage, and the proper parties have already been determined in favor of plaintiff. The facts and circumstances of the suit were stated in our previous decree rendered April 23, 1974, in which we ordered the suit remanded for further proceedings. See Davis v. Aetna Casualty and Surety Company, 293 So.2d 906 (La. App.2d Cir. 1974). We shall reiterate only the chronology of the facts necessary to a determination of whether defendants’ actions were arbitrary and capricious in refusing to make payment under its flood insurance policy within the 60-day period required by Louisiana Revised Statutes 22:658. That act provides: “All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on pol icies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.” (Emphasis supplied) The policy of flood insurance upon which this claim was based was purchased by James Davis on May 23, 1973. Said policy was issued on a National Flood Insurers Association policy form, with Aetna Casualty & Surety Company named as the servicing company. On July 7, 1973, plaintiff’s premises were damaged by flood and he timely furnished defendants with sufficient proof of loss. On September 11, 1973, National Flood Insurers Association issued its draft for $5,924.08 payable to James B. Davis and Blaylock Investment Corporation. On October 9, 1973, less than a month after receipt of the check, Davis notified defendants by letter that he refused to accept the check as written, and demanded that a new check be issued to him individually. This demand was based on his stated contention that since the flood insurance policy contained the letters “N/A” in the space reserved for the mortgagee’s name, if applicable, Blaylock Investment Company should not have been made a co-payee on the check. This letter further advised defendants that plaintiff did not consider the check to be a proper tender of payment under the terms of the policy; that if the check was not rewritten payable to James B. Davis only, omitting Blaylock Investment Corporation as a payee, suit would be filed immediately asking for penalties, interest and attorney’s fees. This request was either ignored or refused and plaintiff filed suit December 17, 1973, more than six months after the flood. On January 3, 1974, defendants moved for summary judgment in response to which plaintiff filed an opposition, attaching thereto two affidavits. The first affidavit was signed by plaintiff and was to the effect that the subject policy was not the policy required by the lending agency which financed his home; that he was only required to obtain the homeowners policy which names Blaylock as mortgagee in the loss payable clause, the premiums for that policy were paid through an escrow account set up by Blaylock; further, that subject policy was paid for solely by plaintiff and it contained the letters “N/A” in the space provided for naming the mortgagee, if any. The second affidavit was made by the agent, or broker, who had signed the subject policy, and reiterated the information contained in the first affidavit. The trial court rendered judgment on the motion for summary judgment in favor of defendants, denying penalties and attorney’s fees, and ordered plaintiff to make Blaylock Investment Company a party to the suit within ten days, failing which the motion for summary judgment would be sustained and plaintiff’s suit dismissed as of nonsuit. Plaintiff applied for writs of certiorari, prohibition and mandamus to this court, which writs were granted and the case was heard and decision was rendered as stated in our previous opinion cited above. Thereafter, on May 6, 1974, defendants filed an answer to the original petition and a concursus proceeding alleging that Blay-lock Investment Corporation “has formally made demand upon respondents that the proceeds of said policy covering said loss be paid to it, as provided in its mortgage.” Defendants also prayed that Blay-lock Investment Corporation be ordered to appear and assert such claim as it might have to the monies deposited in the registry of the court. Blaylock answered the concursus May 21, 1974, and for the first time demanded payment to it of the $5,924 deposited in the registry of the court. May 22, 1974, plaintiff filed a pleading entitled “Dilatory Exceptions of Unauthor ized Use of Concursus Proceeding, Prematurity, Failure of Petition to Comply with Formal Requirements, and Improper Join-der of Parties.” In this pleading plaintiff showed that on September 20, 1972, Blay-lock had, by authentic act, assigned the note and mortgage covering plaintiff’s property to the Dime Savings Bank of New York, and thus Blaylock had no interest in the pending litigation. On October 15, 1974, Blaylock Investment, joined by the Dime Savings Bank of New York, filed a motion and order to dismiss, in which they stated “appearers now desire to withdraw their claim as to the funds and request that their claim and answer to concursus be dismissed with prejudice.” Plaintiff filed his second motion to withdraw funds from the registry of the court on October 17, 1974, in which he asked for judgment for the funds on deposit and that all his rights to penalties and attorney’s fees be reserved. November 15, 1974, the court below rendered judgment denying plaintiff’s motion because of the attempted reservation of his right to claim penalties and attorney’s fees. Thereafter, on March 6, 1975, the district judge rendered a judgment reversing his position and stated his opinion as follows: “It is the opinion of this court that in order to be consistent with the directions from the upper court . . . and in order to avoid payment of penalties and attorney’s fees, the defendant would have to have filed its concursus (if a concursus is to be considered within said directions) either before suit is filed initially, or in answer to the original suit, rather than after the case has gone to the Court of Appeal and back. By filing the concursus proceeding the defendant has perhaps protected itself from double liability, but has not necessarily freed itself from the obligation of liability for penalties and attorney’s fees. “Defendant insurance company (and this court) misinterpreted its obligations under the policy. Defendant acted at its own risk. Because it misinterpreted the legal effect of its obligations under the policy, and because of the long delay occasioned thereby it is liable for interest, penalties and attorney’s fees. “Let there be judgment for plaintiff for the proceeds of the policy amounting to $5,924.08, plus 12% penalty amounting to $710.88, plus $3,500.00 attorney’s fees or a total of $10,134.96, with legal interest from judicial demand and all costs of these proceedings.” Judgment in accordance with the foregoing opinion was rendered March 12, 1975, and on March 14, 1975, Aetna and National moved for a new trial, which was granted. On May 28, 1975, the district judge rendered judgment, again reversed itself, and gave judgment in favor of defendants against plaintiff, rejecting Davis’ demands for penalties and attorney’s fees and casting plaintiff with costs of the concursus and all costs accruing subsequent to the filing thereof on May 6, 1974. It is from this last judgment plaintiff has appealed. Appellant urges on appeal that the lower court erred in finding that defendants, by filing the concursus proceeding, were relieved from liability for penalties and attorney’s fees for failure to pay plaintiff’s claim, which insurers admitted owing, within 60 days from the date of the receipt of the proof of claim, as provided in La.R.S. 22:658. Appellee argues the trial court was correct in rejecting plaintiff’s claims for penalties and attorney’s fees for the reason that Blaylock held a mortgage on plaintiff’s property, which mortgage contained a clause providing: “8. If the property covered hereby, or any part thereof, shall be damaged or destroyed by fire or other hazard against which insurance is held, the amounts due by any insurance company shall, to the extent of the indebtedness then remaining unpaid, be paid to creditor, and, when so paid, may, at its option, be applied to the debt or be used for the repairing or rebuilding of the said property.” In support of their contention that the flood insurance payment due was subject, under the above clause, to be paid to Blay-lock, the original holder of the mortgage note, appellees cite Wheeler v. Factors’ and Traders’ Insurance Co., 101 U.S. 439, 25 L.Ed. 1055 (1880) and 5 Couch on Insurance 2d Ed. §§ 29:82 and 29:88. While we are cognizant of the equitable lien theory enunciated in Wheeler and the recitation of the general law of equitable liens in the cited sections of Couch, we nevertheless are bound by the statutory rules with regard to the imposition of penalties and attorney’s fees against an insurer who fails to pay timely an insurance claim after sufficient notice of a loss had been received. In the instant case defendants received notice of the loss on or before September 11, 1973, when they attempted to make a tender of the full amount of the claim by check made payable to Davis and Blaylock. The letter rejecting this purported tender and returning the draft was dated October 9, 1973. The attempt of defendants’ attorney to obtain the endorsement of Blaylock on the check in January, 1974, did not constitute tender to plaintiff of the amount of the claim. No further effort was made to pay the claim until the concursus was filed on May 6, 1974. The insurer is charged with knowledge of its policy contents and where the policy is clear and free of ambiguity, it constitutes the law between the parties and must be enforced as written. Louisiana Civil Code Articles 1945 and 1946. The instant policy contains no ambiguities since there is no dispute the letters “N/A” were interpreted by each of the parties to mean “not applicable”. If the insurer was anxious to avoid the possibility of having to pay the claim twice, i.e., to Davis and to Blaylock, some effort should have been made by the insurers to determine whether Blaylock had a valid claim against the funds within the 60-day period following the submission by plaintiff of his proof of loss. We find the record is devoid of evidence of any demand by Blaylock until after the filing of the concursus proceeding in May, 1974, more than nine months after the proof of loss. In Agency Management Corporation v. Green Acres Realty, Inc., et al, 286 So.2d 465 (La.App.1st Cir. 1973), the court held: “As heretofore shown, the contract of insurance is strictly a personal contract, and never runs with the property insured. Accordingly it follows that where the mortgagor independently insures his own interest in the mortgaged premises, without reference to any contract with the mortgagee, the proceeds of such insurance in case of destruction of the property belong solely to the mortgagor, freed from any lien or other claim by the mortgagee. This rule obtains even though there may be a stipulation in the mortgage contract providing that the mortgagee may insure and charge the premiums to the mortgagor, to be covered by the security of the mortgage.” Hartford Fire Insurance Co. v. Landreneau, 19 La.App. 280, 140 So. 52 (1st Cir. 1932). (Emphasis added) Furthermore, in the same case the court peripherally addressed the issue of a concursus proceeding and indicated that for this to relieve an insurer from liability for penalties and attorney’s fees, the con-cursus must be invoked at the time the claim is denied, not later on, or well into the proceedings. It is apparent Aetna simply misinterpreted the provisions of its own policy and based the refusal to pay on this misinterpretation. Thereafter, defendants’ attorney took a position which would tend to minimize the arbitrary and capricious nature of defendants’ action. In Broussard v. National American Life Insurance Co., 302 So.2d 627, 631 (La.App.3d Cir. 1974), the court said: “(6) An insurer must take the risk of misinterpreting its policy provisions. When it misinterprets its own contract, this does not necessarily constitute reasonable ground for refusing payments of benefits, and will not automatically relieve the insurer of an assessment of penalties and attorney’s fees. Albert v. Cuna Mutual Insurance Society, 255 So. 2d 170 (La.App.3 Cir. 1971).” In Walker v. Fidelity Bankers Life Insurance Company, 302 So.2d 397, 399 (La. App.lst Cir. 1974), the court held: “We find this argument to be sound. The insurance contract, free of ambiguous language, determines the rights and duties of the parties, and must be enforced as it is writtén. LSA CC Arts. 1901, 1905. Albritton v. Fireman’s Fund Ins. Co., 224 La. 522, 70 So.2d 111; Vidrine v. Southern Farm Bureau Cas. Ins. Co., 247 So.2d 660 (La.App.3d Cir. 1971).” We conclude the actions of defendants in failing to pay the amount of the loss under the insurance policy to plaintiff within 60 days after submission of the necessary proof of loss were arbitrary and capricious within the meaning of La.R.S. 22:658. In the judgment dated March 12, 1975, later reversed by the trial judge, he awarded $3,500 as attorney’s fees. We find that amount was reasonable for the time and efforts expended by plaintiff’s attorney prior to that time. For the litigation and efforts in the court below and here since that time, we believe an additional amount of $1,500 is reasonable. For the reasons assigned the judgment of the lower court authorizing plaintiff to withdraw the sum of $5,924.08 on deposit in the registry of the court is affirmed; that portion of the judgment denying penalties and attorney’s fees is reversed and it is now ordered that there be judgment in favor of plaintiff, James B. Davis, and against defendants, Aetna Casualty & Surety Company, Inc., and National Flood Insurers Association, in solido, for 12% penalty on the amount of the loss as damages, amounting to $710.89; it is further ordered that there be judgment in favor of plaintiff and against defendants for $5,000 attorney’s fees, for a total of $5,710.89, together with legal interest from judicial demand until paid, and for all costs of these proceedings. Before BOLIN, PRICE, HALL, MARVIN and SMITH, JJ.

In re: Michael W. Jackson, applying for writ of review. Granted — and consolidated for hearing with State v. Boettcher, La., 329 So.2d 451. (See Order). The petition of the relator in the above entitled and numbered case having been duly considered, It is ordered that a writ of certiorari issue herein, directing the Honorable Donovan W. Parker, Judge of the 19th Judicial District Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of April, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained. It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 25th day of June, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted. Granted — and consolidated for hearing with State v. Boettcher, Docket No. 57,558.

hBAGNERIS, Judge. Leonard Harris was charged by bill of information on January 7, 1999, with aggravated battery, a violation of La. R.S. 14:34. At his arraignment on February 12th, he pleaded not guilty. However, on May 12th after waiving his right to a jury trial, Harris was found to be guilty as charged. Through counsel Harris filed a motion for a new trial which was withdrawn on August 27, 1999, the day he pleaded guilty as a second offender to the multiple bill. Harris was sentenced on that same day to serve five years at hard labor. This Court granted Harris an out-of-time appeal. At trial Ms. Nadine Margaret Foy testified that she knew Harris through her work at St. Claude Hospital. On November 28, 1998, Ms. Foy was getting dressed when Harris entered her house with his own key. He was in a “rage,” acting “very strangely,” and asking her about a battery charger. Ms. Foy, who was ironing in the kitchen, told him she knew nothing of the charger. Harris opened a kitchen drawer, pulled out a knife, and stabbed’ her in the palm of her right hand. Ms. Foy immediately tried to stop the bleeding. Harris left the house, and she called the Lpolice. Ms. Foy went to the hospital for treatment and had stitches in her hand. Someone told her that a man in a visitors’ area wanted to see her, and when she went there, she found it was Harris. Under cross-examination, Ms. Foy testified she called the police twice, but with the first call she simply told them everything was all right. Ms. Foy also testified that she was not sure whether she or her son first called the police or whether she or her son first told the police over the telephone that she had been stabbed. She denied burning Harris’ arm with the iron. She testified that she took a shower before going to the hospital. She testified that she did not know who washed the blood from the knife, but she did not do it. By the time the police officer arrived at her home, Harris had fled. Detective Andre Gilds testified that he responded to a call of aggravated battery at 2245 Dupre Street. Officer Cherylyn was at the scene, and so the detective went to the hospital to interview Ms. Foy, the victim. Ms. Foy told him her boyfriend had stabbed her in the hand. Harris appeared at the hospital, and the detective spoke with him. Harris gave another name, and the detective had the victim identify the defendant before arresting him. Detective Gilds testified that Ms. Foy received stitches for a stab wound to her hand. Under cross-examination, Detective Gilds testified that he did not seek to have Harris treated for a burn on his arm. Mr. Jamal Foy, the victim’s son, testified that he woke up about 6 a.m. on the morning of November 28, 1998, when he heard the door open and Harris come into his home. He described Harris as “drunk.” Jamal testified that he went into the kitchen where he found his mother screaming and with a bloody hand. He testified that he wiped the blood from the floor and called the police the first time to report | ¡¡that Harris entered the home. Jamal also testified that his mother and Harris had dated for about a year and a half. Officer Ike Sterling testified that he investigated the aggravated battery at 2245 Drew Avenue where he spoke with Ms. Foy and wrote the police report. She told him Harris had stabbed her. She said that when she went into the bathroom to take a shower, Harris took a ring of hers before he left. She showed him her wounded hand, and he called the emergency medical unit for aid. There was no blood on the floor or on the knife used because the victim had cleaned it up. The officer said he took Harris to a doctor for treatment for a burn on his arm. Harris, the defendant, testified that on November 28, 1998, he entered Ms. Foy’s house and argued with her because she pawned his battery charger. He denied stabbing Ms Foy; however, he said she burned him with the iron. He acknowledged he became angry when he found she had pawned his battery charger, but he could not remember what happened after he got angry. When asked exactly when the burn occurred, he said “[ajfter I wasn’t there [sic]. After the police — first police officer came.” Jamal Foy called the police initially because Mr. Harris was “disturbing the house.” Under cross-examination, Harris admitted prior convictions for indecent behavior, possession of a stolen automobile, and theft. Harris testified that he found out from her son that Ms. Foy had gone to the hospital when he called her home sometime later that morning. He appeared at the hospital to find out what happened to her and not for treatment for his burn. When the policeman approached him, he gave a false name because the officer “looked like a stranger.” | ¿DISCUSSION In a single assignment of error Harris argues that the evidence is insufficient to support the conviction. When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, view ing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987). Harris was convicted of aggravated battery. La. R.S.14:33 defines battery as “the intentional use of force or violence upon the person of another.” La. R.S. 14:34 defines aggravated battery as “a battery committed with a dangerous weapon.” On appeal, Harris complains of inconsistencies and omissions in the evidence. Specifically he points out that Ms. Foy did not testify that they were dating; that she gave inconsistent testimony about calling the police; that she originally told the police nothing happened; that she took a shower before going to the hospital; that blood was not found on the floor or the knife; that she denied burning him; that her son said Ms. Foy was sleeping and she testified she was ironing when the defendant entered the house; that she recanted the ring theft; and that he did not flee the scene but arrived at the hospital. In a discussion of the standard of evidence required to support a conviction, the Louisiana Supreme Court stated, “The principal criterion of a Jackson v. Virginia review is rationality.” State v. Mussall, 523 So.2d 1305, 1310. The court continued: |,Jf rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view , of all the evidence most favorable to the prosecution must be adopted. Thus, irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. [Emphasis in original]. (Id.). Applying the Jackson standard to this case, we conclude that any rational trier of fact would find the evidence sufficient. Harris lists inconsistencies and omissions on the victim’s part that are irrelevant or trivial. Harris objects that Ms. Foy did not testify that she dated him. When Ms. Foy was asked how she knew Harris, she responded that she met him through her job. However, she did say he had a key to her house, and her son testified that Ms. Foy and Harris dated. Similarly, the inconsistent testimony complained of is irrelevant. Harris points out that Ms. Foy said she called the police once or twice or maybe her son called the police both times. She also testified that she did not remember whether she or her son called. Jamal testified that he initially called because Harris was drunk and causing a disturbance, and at that time, Ms. Foy told the police nothing was happening. Likewise, the facts that Ms Foy took a shower before going to the hospital, and that her son wiped up the blood from the floor and from the knife, do not weaken the aggravated battery conviction. Both Ms. Foy and her son testified that she received a knife wound in the palm of her hand; Harris said he did not cut her, but he also said he could not remember what happened. The essential facts are that Ms. Foy received stitches for a knife wound inflicted, according to her testimony, by Harris. | a As to Harris’ burn, the evidence is unclear as to how and when it occurred. Even though he testified that Ms. Foy burned him, he did not give a lucid account of the alleged incident, and he did not argue he cut her in self-defense or charge her with battery. Furthermore, he did not seek medical attention for the burn until it was clear that he was going to be arrested. The inconsistent testimony as to what Ms. Foy was doing — whether sleeping or ironing — when Harris arrived at her house is immaterial. The fact that Ms. Foy recanted the ring theft goes to her reliabili ty, and the fact that Harris arrived at the hospital does not attest to his innocence, especially since he gave the police an alias rather than his real name. A factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Morgan, 94-2586 (La.App. 4 Cir. 3/14/96), 671 So.2d 998, writ denied 96-0975 (La.9/27/96), 679 So.2d 1359; State v. Cashen, 544 So.2d 1268 (La.App. 4th Cir.1989). In the instant case, the trial court’s findings are not clearly contrary to the evidence. Ms. Foy, her son, and two police officers testified that she had a deep cut in her hand. Thus, her testimony was corroborated by other testimony. Accordingly, Harris’ conviction and sentence are affirmed. CONVICTION AND SENTENCE AFFIRMED. . Two other witnesses testified that the address was 2245 Drew Street. . In her testimony, Ms Foy said she later found the ring and realized that she had mistakenly accused the defendant of taking it.

In re: Willie Raven applying for Writs of Habeas Corpus, Mandamus, Prohibition and other Remedial Writs. Writ refused. No merit in application. TATE, J., dissents from the denial.

In re Jackson, Timothy; — Plaintiff; Applying for Reconsideration of this Court’s action dated March 31, 2000; Parish of Orleans Criminal District Div. F, No. 381— 279 Court of Appeal, Fourth Circuit No. 98-K-1775. Denied. KIMBALL, J., not on panel; JOHNSON, J., would grant the writ.

In re Anear, Allen; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 364-400; to the Court of Appeal, Fourth Circuit, No. 97-KA-1974. Denied. VICTORY, J., not on panel.

In re Carroll, E. Linus Dr., et al.; Louisiana Medical Mut. Ins. Co.; — Defendant^); Applying for Writ of Certiorari and/or Review, Parish of Caldwell, 37th Judicial District Court Div. O, No. 14,796; to the Court of Appeal, Second Circuit, No. 32,752-CA Denied. KIMBALL, VICTORY, and TRAYLOR, JJ., would grant the writ. MARCUS, J., not on panel.

| t STEWART, J. Plaintiff, Kenneth Fletcher Booth, challenged the qualifications Larry Jefferson as candidate for the position of Monroe City Court Division A. Formerly a Monroe City Court Judge, Jefferson was removed from judicial office pursuant to the order of the Louisiana Supreme Court rendered on January 19, 2000 in In re Judge Larry D. Jefferson, 99-1313 (La.1/19/00), 753 So.2d 181. Mr. Booth based his challenge on Rule XXIII, § 26 of the Louisiana Supreme Court, which states that any former judge who has been removed from office by the Supreme Court pursuant to La. Const, art. 5, § 25(C) is not eligible to become a candidate for judicial office until certified by the Louisiana Supreme Court. After five years from the date of removal, a former judge may file a petition for reinstatement of eligibility to seek judicial office with the Judiciary Commission. When such a petition is filed, the Supreme Court ultimately reviews the recommendation of the commission and issues an order either granting or denying a former judge certification of eligibility to seek judicial office. Citing these legal provisions, the trial court found that Larry Jefferson was prohibited by law from becoming a candidate. For the following reasons, we vacate the district court’s judgment. FACTS At trial, Booth represented himself, while Jefferson was represented by counsel. At the beginning of the trial, the court noted that it had reviewed exceptions of nonjoinder of necessary parties and no cause of action, filed by Jefferson. The court overruled the exceptions and Jefferson was called on cross-examination by Booth. Jefferson admitted to being removed from judicial office by the Louisiana Supreme Court on January 18, 2000. Jefferson also admitted that he had not applied to the Louisiana Supreme Court for “re-certification” so as to be eligible to run for judicial office. On direct examination, Jefferson testified that he was familiar with Rule XXIII, § 26 of the Louisiana Supreme Court, but that he [^understood it to be “a rule of court and not statutory law nor constitutional law.” He also stated that he understood that if it were considered a statute it would require “justice department approval under 42 U.S.C.1973. C.” Finally, Jefferson testified that he possessed all the qualifications listed in the election laws of the State of Louisiana. At this point, Booth rested his case. When called on cross-examination, Booth stated his name, gave his address as “1802-C Woodhaven Drive,” and stated that he was employed in Monroe as a broadcast journalist. When asked if he recently had declared his removal of domicile to Phoenix, Arizona, he responded in the negative. Jefferson’s counsel then proceeded to ask him various questions concerning the difference between a law and a rule of court, as well as questions concerning pre-clearance under the Voting Rights Act. Finally, William J. Hodge, the Ouachita Parish Clerk of Court, was called as a witness, and testified that he had qualified Jefferson to run, but did not do research on any candidate who came in to qualify. This appeal followed. I «DISCUSSION The threshold issue raised by appellant concerns the fact that Booth never proved he had standing to challenge Jefferson’s qualifications as a candidate. The provisions of La. R.S. 18:491, entitled “Standing to Object to Candidacy,” state: A registered voter may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary election for an office for which the plaintiff is qualified to vote. Likewise, the provisions of La. R.S. 18:1401(A) state: A qualified elector may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary election for an office in which the plaintiff is qualified to vote. These provisions show that a person who is not qualified to vote in a particular election is not qualified to object to the candidacy of an individual running in that election. In instances where an individual lacks standing to object to candidacy, the proper procedural vehicle for objecting to standing is the peremptory exception of no right of action. Although Jefferson did not raise such an exception in the trial court, we observe that an objection to the right or interest of a plaintiff to institute a suit may be noticed by the appellate court on its own motion. La. C.C.P. art. 927(B). We farther observe that in this case Booth neither asserted in his petition, nor proved at trial, that he was a “qualified elector” or a “registered voter” .in the election, in which Jefferson qualified as ■ a candidate. In his petition objecting to candidacy, Booth merely, alleged that he was a “major domiciliary of Ouachita Parish, Louisiana.” As previously mentioned, at trial Booth merely gave his street address and denied moving his domicile to Phoenix, Arizona. After re-* viewing the entire record we find it to be totally devoid of any evidence showing that Booth is a qualified elector or registered voter, much less qualified to vote in the election for which Jefferson qualified as a candidate. |4In Hardy v. Jackson, 253 So.2d 647 (La.App. 2d Cir.1971), the court sustained an exception of no right of action where an individual bringing an election challenge was found not to be a qualified elector entitled to object to qualification of a candidate in a party primary election. As in Hardy, we conclude that plaintiffs challenge herein must be rejected for failure to disclose a right or interest in the plaintiff, to institute the suit. Accordingly, the judgment of the trial court is hereby vacated at appellee’s cost. VACATED. BROWN, J., concurs with reasons. DREW, J., concurs for reasons assigned by J. BROWN. . Because this Court was concerned over the legal issue of whether the matters that are the subject of this appeal fall within the continuing jurisdiction of the Louisiana Supreme Court under its exclusive original jurisdiction in judicial disciplinary proceedings, this Court certified the following question to the Louisiana Supreme Court pursuant to the provisions of La. Const, art. V, § 11: Where a judge has been removed from office by order of the Louisiana Supreme Court under its constitutional authority, and that judge subsequently seeks election to judicial office in violation of the provisions of Louisiana Supreme Court Rule XXIII, § 26, should an .intermediate appellate court exercise jurisdiction over issues concerning the former judge’s qualifications, or should the Louisiana Supreme Court exercise jurisdiction? In response, the Louisiana Supreme Court denied certification. However, the court stated in a per curiam: This court has exclusive original jurisdiction, upon recommendation of the Judiciary Commission, to censure a judge, to suspend or remove a judge from office, or to retire a judge involuntarily. The present matter is an action objecting to the candidacy of a judicial candidate, which was properly filed in the district court, and the judgment of the district court declaring a candidate ineligible, based on eligibility requirements of either a statute or a Supreme Court rule, is properly reviewed through the normal appellate process.

In re: Arthur H. Barnes applying for Writ of Habeas Corpus. Granted. Evidentiary hearing ordered.

In re American Motorists Insurance Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 99-19012; to the Court of Appeal, Fourth Circuit, No. 2000-C-0585. Denied. KIMBALL, J., not on panel; MARCUS, LEMMON, and TRAYLOR, JJ., would grant the writ.

| THIBODEAUX, Judge. Dale Hartford slipped in rainwater and fell in the Wal-Mart store in Franklin, Louisiana. She sustained injuries to her right knee and lower back. After a bench trial on the merits, the trial court apportioned fault for the accident between Wal-Mart, eighty-five percent, and Mrs. Hartford, fifteen percent. Mrs. Hartford was awarded $25,000.00 in general damages, $9,467.61 in medical expenses, and $580.00 in special damages for household and yard work. David Hartford, Mrs. Hartford’s husband, was awarded $1,500.00 for loss of consortium. Wal-Mart appeals. We affirm the judgment of the trial court. 'ISSUES We shall consider: 1. whether the trial court erred when it found that Wal-Mart had constructive notice of the condition and failed . to timely clean the substance, which resulted in the plaintiffs injuries; 2. whether the trial court erred when it failed to assess a greater percentage of comparative fault on the plaintiff. FACTS On the morning of February 28, 1995, Mrs. Hartford went shopping at the Wal-Mart store in Franklin, Louisiana. It had been raining that morning. When Mrs. Hartford arrived at Wal-Mart, it was drizzling. As she entered the store, she was greeted by a Wal-Mart employee, Terry Eldridge, who offered her a sales circular. Mr. Eldridge was to her right on the opposite side of a rail that separated the entrance from the exit. According to Mrs. Hartford, the circulars were in the basket of a | ^wheelchair shopping cart which was positioned next to the railing. She did not accept the circular and continued into the store. There were mats on the floor in the vestibule and one in front of the door where Mrs. Hartford entered. She wiped her feet on the mat in the vestibule, and entered the store, crossing the mat in front of the entrance doors. As she stepped off the mat in front of the door, she slipped in a puddle of water. She landed on her right knee, then fell onto the floor. When she stood up, her leg and the back of her shorts were wet with water. Mr. Eldridge was employed by Wal-Mart as a greeter. On the day of Mrs. Hartford’s accident, he arrived at work at 8:45 a.m. That day he was performing four duties: checking customers’ sales slips as they exited the store, greeting customers as they entered the store, watching for rainwater that accumulated in front of the entrance door, and mopping that area as needed. He was stationed in front of the exit doors where he greeted exiting customers and checked their sales slips. He would also turn toward the entrance and greet customers he happened to see entering the store. According to Mr. Eldridge, the store was operating under its “rainy day” schedule. Wal-Mart’s procedure requires the placement of extra floor mats and “wet floor” caution signs at the store entrance for rainy days. He testified there were mats in the vestibule of the entrance, a warning cone in the vestibule, and a wet floor caution sign inside the store entrance. There was one mat inside the store entrance which was placed sideways in front of two doors, as opposed to lengthwise in front of one door. When he arrived for work, Mr. Eldridge noticed the floor in front of the entrance doors “looked a little damp,” so he ordered a dry mop and mopped the floor. |aHe testified that he checked the floor in' front of the entrance door every chance he got and that he had mopped the floor there three to four minutes before Mrs. Hartford fell. Due to the rail separating the exit from the entrance, he had to exit the store, then re-enter through the entrance to mop the area in front of the entrance doors when needed. Mr. Eldridge did not recall seeing Mrs. Hartford walk into the store and denied offering her a sales circular, claiming he did not hand out circulars that day. He testified that he did not see Mrs. Hartford until he heard her scream; then he saw her on the floor on her hands and knees. At that time, he went to the customer service desk and asked the employee there to call a manager. He denied mopping the floor after Mrs. Hartford fell, testifying that he checked the floor but it was dry. He also denied seeing water on Mrs. Hartford’s leg or shorts. Lee Carlton, assistant manager of the store, arrived at the scene of the fall after being notified. He did not see water on the floor when he arrived; however, he testified that the greeter should have mopped the floor immediately after the fall. He also testified that he did not see a “wet floor” caution sign or cone in front of the entrance when he arrived on the scene. Mrs. Hartford testified that Mr. Carlton tore a piece of a sales circular in the wheelchair basket and wrote her name on it. He did not recall what he wrote the information he obtained from her on, but testified that circulars were usually available and offered to customers at the end of and beginning of each month. After speaking with Mrs. Hartford, he returned to his office and prepared an accident report. Thereafter, he returned to the entrance and took two photographs of the area where Mrs. Hartford slipped. The photographs taken by Mr. Carlton depict a warning cone in the vestibule, a “wet floor” caution sign to the left of the entrance door used by Mrs. Hartford, and a basket near the “wet floor” 1 ¿caution sign. Mrs. Hartford was not present when Mr. Carlton prepared the accident report or when he took the photographs attached to the report. The trial court accepted Mrs. Hartford’s testimony over Mr. Eldridge’s, concluding that she slipped “on accumulated water in an area inside of the store near the floor mat, as she testified.” STANDARD OF REVIEW A trial court’s findings of fact may not be reversed absent manifest error or unless it is clearly wrong. Stobart v. State of Louisiana, through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). Evaluations of credibility and reasonable inferences of fact should not be disturbed on review. When reviewing the trial court’s findings of fact, the áppellate court must review the entire record to determine whether the trial court’s conclusion was a reasonable one. Id. If the trial court’s findings are “reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 882-83, quoting Housley v. Cerise, 579 So.2d 973 (La.1991). LAW AND ARGUMENT La.R.S. 9:2800.6 Under La.R.S. 9:2800.6 B Mrs. Hartford had to prove that Wal-Mart created or had actual or constructive notice of a condition that caused damage to her. Constructive notice is defined by La.R.S. 9:2800.6 C(l): “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee in the vicinity in which the condition exists does not, alone, | Rconstitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition. Constructive notice is defined to include a temporal element, “such a period of time ... [.]” White v. Wal-Mart Stores, Inc., 97-393 (La.9/9/97); 699 So.2d 1081. The Louisiana Supreme Court addressed the constructive notice requirement in White, p. 4 at 1084-86, stating: The statute does not allow for the inference of constructive notice absent some showing of this temporal element. The claimant must make a positive showing of the existence of the condition prior to the fall.... Though there is no bright line time period, a claimant must show that “the condition existed for such a period of time ... [.]” Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite showing of some time period. A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall. According to the court in White, “[tjhis is not an impossible burden.” White, p. 4 at 1088. The court cited the case of Oalmann v. K-Mart Corp., 630 So.2d 911 (La.App. 4 Cir.1993), writ denied, 94-0244 (La.3/18/94); 634 So.2d 859, as one of four examples where the claimant did carry the burden of proving that the condition existed for some time period prior to his fall, thus fulfilling the constructive notice requirement. White, 699 So.2d 1081. In Oalmann, as in this case, the plaintiff slipped and fell in rainwater at the entrance of the store. There was no “positive evidence” as to the length of time the rainwater was on the floor before the plaintiff slipped in it. The trial court determined “[gjiven the totality of the circumstances^. 6 K-Mart had the requisite constructive notice of the wet floor which caused the fall.” Oalmann, 630 So.2d at 913. In reaching this determination, the court noted that K-Mart knew it was raining outside and should have known the floor would become wet and slippery vnth customers entering the store. In Norton v. Wal-Mart Stores, Inc., 97-1060 (La.App. 3 Cir. 2/11/98); 707 So.2d 489, the plaintiff slipped on a piece of wax paper that was on the floor in the store’s bakery. The Third Circuit Court of Appeal affirmed the trial court’s conclusion that Wal-Mart had either constructive or actual notice that the condition, the pieces of wax paper, was present before the plaintiffs fall. The court concluded that it was “not necessary to show the exact time period at which the piece of paper was on the floor” because Wal-Mart was aware of the condition. Id. at 493. The existence of the condition and Wal-Mart’s awareness of the condition satisfied the requirements of La.R.S. 9:2800.6 and White. See also Riolo v. National Tea Co., 98-872 (La.App. 6 Cir.1999); 726 So.2d 515, writ denied, 99-525 (La.4/9/99); 740 So.2d 633, where the court of appeal accepted the plaintiffs’ argument that they only had to prove the existence of a hazardous condition for a period of time sufficient to give the merchant constructive notice. In Riolo, the granting of summary judgment in favor of the defendant was reversed and the plaintiffs were not required to prove the length of time the plastic bag on which they tripped was present in defendant’s parking lot because they proved that plastic bags and other trash were usually loose in the store’s parking lot, creating a hazardous condition for customers as they walked in the lot. In this case, not only did Wal-Mart know it was raining prior to Mrs. Hartford’s entry to the store, Mr. Eldridge knew rainwater was being tracked into the 1 gStore and onto the floor by customers, creating a hazardous condition. We find no error with the trial court’s finding that Mrs. Hartford satisfied her burden of proof. The trial court determined that Wal-Mart failed to exercise reasonable care, stating: In this case, the risk of water on the floor on a rainy day at the entrance of Wal-Mart was high. Although Wal-Mart had a dry mop stationed with Mr. Eldridge at the door, Mr. Eldridge was working as an exit checker rather than a greeter. He was, in fact, separated from the entrance door by a railing. Mr. Eldridge testified that he mopped the area three to four minutes before Mrs. Hartford fell. Defendant argues that it made a reasonable effort to keep the floor of the entrance on that day, i.e. mats, caution signs, door greeter with mop and bucket, plastic bags for umbrellas and shopping carts came only through the exit doors on the other side of the metal railing. In reviewing Wal-Mart’s procedures manual, specifically in relation to Weather Related Floor Hazards, the procedure notes the special concern for the vestibule, entry and exits. The manual directs that “Extra floor mats should be placed inside the vestibule and in the entry way.... ‘CAUTION WET FLOOR’ signs should be posted near the front vestibule doors during these periods. Greeters can be a big help in keeping management informed of weather conditions.” It is evident that Wal-Mart did not place extra mats in the entry way. Neither the Plaintiff nor the assistant manager saw the “cones” cautioning wet floors in the area where the accident occurred. The Defendant witnesses never testified that more mats were placed at the entry way then were there on any other day. Although there was one large mat, the Wal-Mart safety manual suggests the placement of “extra floor mats.” Additionally, with the inclement weather and the flux of customers with wet shoes and umbrellas, the court does not feel that it was reasonable to place an employee at the front exit doors rather than the -entrance doors where people were coming in from the rain. | sOur review of the record reveals additional support for the trial court’s findings in this matter. Wal-Mart provides plastic bags for customers’ wet umbrellas. Mr. Eldridge testified that it was his duty to ask customers entering the store with umbrellas to place them in the plastic bags. However, he admitted that he did not see every customer entering the store because of his duties as exit greeter. According to his testimony and the pictures taken by Mr. Carlton, the plastic bags for umbrellas were not in a location that was in open view of customers entering the store. Therefore, customers with umbrellas may have entered the store without Mr. Eldridge’s knowledge and not placed their umbrellas in plastic bags, increasing the likelihood of rainwater dripping from the umbrellas onto the floor. Additionally, the placement of one mat sideways in front of the two entrance doors, rather than one mat placed lengthwise in front of each door, reduced the area of the floor covered by the mat and increased the likelihood of rainwater from customers feet and umbrellas reaching the floor. Last, we find Mr. Eldridge’s testimony that he mopped the floor three to four minutes before Mrs. Hartford fell less than reliable. Along with his duties of greeting exiting customers and checking their sales slips, he had to greet entering customers and watch the entrance for rainwater. After noticing rainwater, he had to leave his post at the exit, actually exit and re-enter the store, obtain the mop, mop the floor, replace the mop, exit the store again or traverse a portion of the store to return to his post, and resume his duties at the exit. Under these circumstances, we find it un likely that Mr. Eldridge’s concept of time was accurate. Accordingly, we find no error with the trial court’s conclusion that Wal-Mart failed to exercise reasonable care in light of the hazardous condition presented by rainwater at the entrance of the store. | sApportionment of Fault Wal-Mart contends the trial court committed error in failing to assign a larger percentage of fault to Mrs. Hartford. The allocation of fault among the parties is a factual determination which is subject to the manifest error standard of review. Clement v. Frey, 95-1119 (La. 1/16/96); 666 So.2d 607. Wal-Mart argues that Mrs. Hartford’s failure to wipe her feet on the mat in front of the entrance door, her failure to watch where she was walking as she stepped off the mat, and her failure to see the “wet floor” caution sign warrant the assessment of a higher percentage of fault to her. Wal-Mart did not present any evidence to show that Mrs. Hartford’s shoes were wet when she stepped off of the rug. Furthermore, Mrs. Hartford’s attention was distracted by Mr. Eldridge as she entered the store as he greeted her and offered her a sales circular; therefore, her duty to use reasonable care and avoid obvious hazards was diminished. Dupre’ v. Maison Blanche, Inc., 97-652 (La.App. 1 Cir. 4/8/98); 712 So.2d 567, unit denied, 98-1239 (La.6/19/98); 721 So.2d 471. Additionally, neither Mrs. Hartford nor Mr. Carlton recalled seeing the wet floor caution signs that Mr. Eldridge testified were out when Mrs. Hartford slipped. We find no error in the trial court’s determination of fault. The judgment of the trial court is affirmed. All costs are assessed to Wal-Mart Corporation. AFFIRMED.

In re Entergy Louisiana, Inc., applying for Rehearing of this Court’s Order dated May 12, 2000; Parish of Assumption, 23rd Judicial District Court, Div. C., No. 22,830; to the Court of Appeal, First Circuit, No. 97-CA-2613. Rehearing granted to clarify our previous order. Our ruling of May 12, 2000 does not preclude an ultimate review of quantum of damages by the court of appeal on appeal from the judgment on the new trial. JOHNSON, J., not on panel.

In re Bon Marche Homes, Inc. applying for Writ of Review. Application not considered. Aside from the untimeliness of the application (see Rule X5(b) as amended effective January 15, 1976), the issues raised herein are reviewable by an appeal taken from the trial judgment of the trial court.

In re: Norman Clark applying for Writs of Certiorari, Mandamus and Prohibition. Granted. (See Order.) The petition of the relator in the above entitled and numbered case having been duly considered, It is ordered that writ of certiorari issue herein, directing the Honorable Daniel W. LeBlanc, Judge of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 9th day of April, 1976 the record in duplicate, or a certified copy of the record in dupli-case, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained. It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 25th day of June, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.

In re: Louisiana Tax Commission and State of Louisiana, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans, 325 So. 2d 673. It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.

In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 99-8001; to the Court of Appeal, Fifth Circuit, No. 00-K-1190 Denied. TRAYLOR, J., would grant the writ. KNOLL, J., not on panel.

In re Christian Health Ministry et al.; Southern Baptist Hospital; Mercy Hospital of New Orleans Inc. d/b/a/; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. E, No. 93-11088; to the Court of Appeal, Fourth Circuit, No. 2000-C-0894 Stay denied. Writ denied. KIMBALL, J., not on panel.

In re Stacy L. Sonnier, Applying for Reconsideration of this Court’s order dated May 12, 2000; Parish of Calcasieu, No. 162-89; to the Court of Appeal, Third Circuit, No. 99-00967. Denied. KNOLL, J., not on panel.

In re: Willie Seals and Leroy Smith applying for Supervisory Writs, Writ of Certiorari and stay order. ■ Writ granted. The ruling of the trial judge is set aside and the appeal is maintained in forma pauperis.

In re American Optical Corp.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 95-199; to the Court of Appeal, Fourth Circuit, No. 00-C-0037. Denied. TRAYLOR, J., would grant the writ. LEMMON, J., not on panel.

In re Harvin, Asahel; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. B, No. 36,664; to the Court of Appeal, Third Circuit, No. 99-01010 Denied. KNOLL, J., not on panel, recused.

In re: Benny L. Craighead and Lula R. Craighead, applying for Certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 324 So.2d SS4. Application denied. The judgment of the Court of Appeal is correct.

In re: City of New Orleans and City Council of N. O., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 325 So. 2d 665, 325 So.2d 671. It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.

In re: Bobby Moore applying for Writs of Certiorari, Prohibition and Mandamus. Granted. (See Order). The petition of the relator in the above entitled and numbered case having been duly considered, It is ordered that a writ of certiorari issue herein, directing the Honorable Leon Ford, III Judge of the 21st Judicial District Court, for the Parish of Tangipahoa, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of April, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained. It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 25th day of June, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.

hMcMANUS, Judge. This is an appeal by Rena Sutton, plaintiff-appellant, from a trial court judgment awarding her $40,535.81 in damages and finding that her uninsured/underinsured motorist insurer was not in bad faith and did not act arbitrarily and capriciously in refusing to tender an offer on her claim. Liability is not an issue on this appeal. FACTS On November 15, 1995, Ms. Sutton filed suit against defendants Lee Oncale, Mickey Oncale, tutor for his minor son Lee Oncale, and Prudential Property and Casualty Insurance Co. (hereafter Prudential), the automobile liability insurer for defendants Lee and Mickey Oncale. In her original petition, Ms. Sutton’ alleges that on November 15, 1994, she was traveling east on Louisiana Route 44 (River Road) when she stopped because the car in front of her was signaling that it was making a left hand ton. Lee Oncale, operating a vehicle owned by his father, Mickey On-cale, was proceeding east on River Road directly behind Ms. Sutton’s vehicle. Mr. Oncale failed to notice that Ms. Sutton stopped, and crashed into her automobile. Ms. Sutton alleges that the force of the impact propelled her car into the vehicle in front of her. As a result of the accident, Ms. Sutton alleges that she sustained severe cervical and lumbar strain, herniated discs of the spinal column, various contusions, and nerve damage that resulted in disability. On March 20, 1997, Ms. Sutton filed an Amending Petition adding USAA Casualty Insurance Company (hereafter USAA) as the | auninsured/underinsured motorist insurer (hereafter UM/UIM) for the vehicle she occupied at the time of the crash. On March 24, 1998, Ms. Sutton filed a Second Amending Petition alleging that USAA refused to tender $76,455.63 when Ms. Sutton presented a settlement demand containing satisfactory proof of loss, and that USAA’s refusal was arbitrary, capricious or without probable cause subjecting USAA to ten percent (10%) penalties and reasonable attorney’s fees pursuant to LSA-R.S. 22:658. Ms. Sutton’s Second Amending Petition further alleges that USAA breached its duties of good faith by demanding and receiving partial subrogation of $3,060.90 from Prudential for Ms. Sutton’s medical bills when she had preference over USAA to those Prudential funds thereby subjecting USAA to penalties pursuant to LSA-R.S. 22:1220. Ms. Sutton settled with the Lee and Mickey Oncale and Prudential for the remaining $21,939.91 of the Prudential policy’s $25,000 liability limit. On March 31, 1998, the trial court signed an order dismissing Lee and Mickey Oncale and Prudential with prejudice from the suit while reserving Ms. Sutton’s right to pursue USAA for legal interest on the obligation pursuant to the codal provision of LSA-C.C. art. 2925. On May 4,1998, Ms. Sutton filed a Third Supplemental and Amending Petition, further alleging that USAA had information at its disposal sufficient to contain “satisfactory proof of loss” to the UM/UIM proceeds and that USAA failed to properly investigate and/or adjust Ms. Sutton’s UM/ UIM claim in violation of LSA-R.S. 22:1220(B)(1). On April 9, 1998, the parties agreed that the UM/UIM claims and the bad faith allegations would be severed and tried separately. On May 18, 1998, the trial court rendered judgment for Ms. Sutton finding that Mr. Lee Oncale’s negligence was 13the sole proximate cause of the accident. The trial court awarded damages in these amounts: General Damages: Past and Present Pain, Suffering and Loss of Enjoyment of Life $30,000.00 Future Pain and Suffering and Loss of Enjoyment of Life $10,000.00 Subtotal General Damages $40,000.00 Special Damages: Lost Wages: $ 152.00 Medical Bills $ 3,443.90 Future: 0 Subtotal Special Damages $ 3,595.90 Total Damages $43,595.90 The trial court found USAA liable to Ms. Sutton for damages in the amount of $43,- 595.90, subject to a credit of $25,000, representing the amount received by Ms. Sutton from Prudential, the liability carrier, plus legal interest thereon, court costs, and witness fees. USAA filed a motion for a new trial on June 5, 1998. On July 2, 1998, the trial court granted the motion for new trial and amended its judgment, reducing the amount of recovery for special damages by $3,060.90, thereby granting USAA a credit for payment of Ms. Sutton’s past medical bills. The trial court entered a judgment for $40,535.81, subject to a credit for the $25,000.00 for the limit of Prudential’s liability policy. The trial court ordered that legal interest be awarded on the sum of $15,535.81 from November 15, 1995, the original date of judicial demand. The trial court further also awarded $900 in expert fees to Dr. Cesar Roca and Dr. RRandall Poche and court costs. On April 14, 1999, the trial court issued a judgment finding that USAA did not act in an arbitrary or capricious manner in refusing to tender a settlement offer to Ms. Sutton. In its reasons, the trial court noted that it had difficulty awarding damages to Ms. Sutton because, although it found Ms. Sutton credible, there was very little supporting medical evidence. The trial court also noted Ms. Sutton did not follow through with her medical treatment. On April 23, 1999, Ms. Sutton filed a motion for new trial that was denied by the trial court on April 26, 1999. Ms. Sutton filed a timely appeal on the final judgment rendered on April 14, 1999. On appeal, Ms. Sutton alleges these trial court errors: (1) the trial court erred in failing to award Ms. Sutton legal interest against USAA on the full amount of the judgment from the date of judicial demand; (2) the trial court erred.in giving USAA a credit for the $3,060.90 medical payment it made because USAA was reimbursed by Prudential; (3) the trial court erred in failing to award Ms. Sutton bad faith penalties and attorney fees against USAA pursuant to the provisions of LSA-R.S. 22:658 and LSA-R.S. 22:1220 because USAA provided satisfactory proof of loss that she was underin-sured at Prudential’s liability limit of $25,000.00 as evidenced by the trial court’s damage award, and (4) the trial court erred in awarding only $40,000 in general damages. LEGAL INTEREST In her first specification of error, Ms. Sutton argues that the trial court erred in fading to award legal interest on the full amount of the judgment from the date of judicial demand because she reserved her rights against USAA to judicial interest on the entire judgment pursuant to LSA-C.C. art. 1 r2925 when she released her claim against the tortfeasors and Prudential. Ms. Sutton reasons that the UM/UIM insurer is liable for legal interest because it is solidarily hable with the tortfeasor and its liability insurer. USAA responds that the trial court correctly awarded interest only on the portion of the award that USAA is liable to pay; namely, the $15,535.81 that exceeds the underlying $25,000 tendered pursuant to Prudential’s liability policy limit. USAA argues that LSA-R.S. 22:1406(D) provides that a UM/UIM carrier is entitled to a credit for the entire amount available to an insured from a tortfeasor and his primary liability policy, and that credit logically includes the interest on the amount available from a tortfeasor’s liability policy. In Carona v. State Farm Insurance Company, 458 So.2d 1275 (La.1984), the Supreme Court addressed the issue of whether a personal injury claimant, who failed to expressly reserve his rights to proceed against his UM/UIM carrier pursuant to former LSA-C.C. art. 2203, was barred from doing so by virtue of his settlement with the tortfeasor. LSA-C.C. art. 2203, which was replaced by LSA-C.C. art. 1803 in the revision of Louisiana obligations law and became effective on January 1,1985, provided: The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter. In the latter case, a tortfeasor can not claim the debt without making a deduction of the part to whom he has made the remission. The Supreme Court, in its ruling in Ca-rona, supra, declared that, “[t]he object of the UM statute is to promote full recovery for damages by automobile accident victims .... The technical rule of LSA-C.C. art. 2203 serves as a barrier to full recovery by innocent accident victims, and thereby conflicts with the basic object of the UM legislation.” Carona, 458 So.2d at 1 fil278. The Supreme Court concluded that because the provisions of former LSA-C.C. art. 2203 were superseded by LSA-R.S. 22:1406(D)(4) of the UM/UIM statute, the plaintiff-victim, despite his release of the tortfeasor, nevertheless retained all of his rights as against his UM/ UIM carrier. Carona^ 458 So.2d at 1279. In Martin v. Champion Insurance Co., 95-0030 (La.6/30/95), 656 So.2d 991, 999 (La.1995), the Supreme Court pretermit-ted deciding whether the holding of Caro-na, supra, by extension, makes a UM/UIM insurer liable for the payment of judicial interest on the amount paid to the plaintiff by the tortfeasor’s insurer. The Supreme Court reasoned that the plaintiff waived his rights to interest on the amount paid by the primary insurer through his failure to specifically reserve his rights pursuant LSA-C.C. art. 2925. LSA-C.C. art. 2925 states: The release of the principal, without any reserve as to interest, raises the presumption that it also has been paid, and operates a release of it. In the case at bar, Ms. Sutton reserved her right to interest pursuant to LSA-C.C. art. 2925. Therefore, we must now consider this issue of first impression and we find that the holding of Carona, supra, by extension, makes a UM/UIM insurer liable for the payment of judicial interest on the amount paid to the plaintiff by the tortfeasor’s insurer when the plaintiff reserves her right to judicial interest pursuant LSA-C.C. art. 2925. Generally, judgments in ex delicto cases bear legal interest from the date of judicial demand until paid. LSA-R.S. 13:4203 states: Legal interest shall attach from the date of judicial demand, on all judgments, sounding in damages, “ex delic-to”, which may be rendered by any of the courts. Liability and UM/UIM insurers owe interest on their policy limits from |7the date of judicial demand. Martin v. Champion Ins. Co., 95-0030 (La.6/30/95), 656 So.2d 991, 995; citing Ainsworth v. Government Employees Insurance Company, 433 So.2d 709 (La.1983). The tort-feasor, its liability insurer, and the UW UIM insurer are solidarity bound to repair the damage caused by the tortious conduct. Martin, 656 So.2d at 999. Therefore, a UM/UIM insurer is liable for the judicial interest on the amount paid to the plaintiff by the tortfeasor’s insurer when the plaintiff elects to compromise his claim against one solidary obligor, and he either simultaneously asserts his claim to judicial interest, or expressly reserves his rights thereto pursuant to LSA-C.C. art. 2925. In the case at bar, Ms. Sutton expressly reserved her right to the judicial interest for the entire judgment in the Motion and Order to Dismiss which was granted by the trial court on March 31, 1998. The Motion and Order to Dismiss explicitly states that “Rena Newman Sutton’s claim for judicial interest on the Prudential/On-cale obligation against anyone other than Prudential, Mickey D. Oncale and Lee On-cale is hereby reserved; as are any and all other rights against any and all other per sons and parties; especially USAA Insurance Company.” It is axiomatic that an insurance policy is a contract and it constitutes the law between the parties. Pareti v. Sentry Indemnity Company, 536 So.2d 417, 420 (La.1988). The supplemental payment provision of Ms. Sutton’s UM/UIM policy issued by USAA obligates USAA to pay the prejudgment interest on “that part of the judgment we pay.” Ms. Sutton purchased UM/UIM coverage in the amount of $100,000 bodily injury per person, $300,000 per accident. Therefore, USAA is liable for pre-judgment interest to the extent of its policy limits up to $300,000. IsUSAA is clearly liable for judicial interest on the entire judgment from the date of judicial demand because the object of the UM/UIM statute is to promote full recovery of damages by automobile accident victims, the plaintiff expressly reserved her rights to judicial interest under LSA-C.C. art. 2925, and the amount of interest is well below USAA’s policy limits of $300,000 per accident, MEDICAL PAYMENT COVERAGE Ms. Sutton also argues that the trial court erred in finding that USAA is entitled to a credit for the $3,060.90 it paid pursuant to the medical payment coverage of its policy because the trial court also granted USAA a $25,000 credit for the liability limits of the Prudential policy, even though Prudential only tendered the $21,939.10 remaining under Prudential’s liability policy after reimbursing USAA pursuant to USAA’s subrogation claim. USAA responds that the trial court correctly amended its judgment to provide USAA a credit for the $3,060.90 that had already been paid toward Ms. Sutton’s medical bills. USAA further responds that to permit Ms. Sutton to recover $3,060.90 for medical bills that have already been paid would grant her a double recovery. UM/UIM coverage is “excess” coverage, and a plaintiff has a right to receive from a UM/UIM insurer only that portion of his damages which exceeds the limits of the tortfeasor’s liability insurance; even though the trial court might use the word “credit,” its judgment does nothing more than determine the amount by which a plaintiffs total damages exceed the tort-feasor’s liability insurance limits. White v. Patterson, 409 So.2d 290, 292 (La.App. 1 Cir.1981), writ denied, 412 So.2d 1110 (La.1982). In determining the amount that a UM/UIM carrier must pay, the relevant | gamount is the amount of the tortfeasor’s policy limits rather than the actual amount received by a plaintiff. Edmonds v. Shelter Mutual Insurance Co., 508 So.2d 211, 214 (La.App. 3 Cir.1987). As to the credit for medical payments, according to the jurisprudence, where a plaintiffs total damages do not exceed the UM/UIM policy limits, and the language of the policy allows such, the UM/UIM carrier is entitled to a credit for any amount which it has paid the plaintiff under the medical payments coverage. Barnes v. Allstate Insurance Co., 608 So.2d 1045, 1047 (La.App. 1 Cir.1992); White v. Patterson, 409 So.2d at 294. In this case, USAA paid Ms. Sutton $3,060.90 for her medical bills under the medical payments coverage. USAA then asserted its rights to subrogation and received the same amount from Prudential, Mr. Oncale’s liability insurer. Therefore, Prudential deducted the $3,060.90 payment to USAA from its $25,000 liability limit when it settled with Ms. Sutton for $21,-939.10. Therefore, USAA was not entitled to the $3,060.90 credit because the total damages exceeded the tortfeasor’s liability insurance limits and USAA received the $25,000.00 credit for the liability limits of the Prudential policy. ENTITLEMENT TO PENALTIES AND ATTORNEY’S FEES Ms. Sutton argues that USAA was arbitrary and capricious when it failed to ten der $76,455.63 within thirty days after she presented “satisfactory proof of loss” that her damages exceeded the $25,000 liability limit of the Prudential policy. Ms. Sutton further argues that USAA acted in bad faith when it notified Prudential of its intent to exercise its right to subrogation on the $3,060.90 amount paid under its medical payment coverage before Ms. Sutton, the insured, was compensated for her injuries. hnUSAA responds that it did not arbitrarily and capriciously fail to tender a settlement offer because there was insufficient medical testimony as to the causation of Ms. Sutton’s injuries. USAA further responds that Ms. Sutton’s medical bills were reimbursed by Prudential on November 3, 1995, before it was aware that the matter would be litigated. The determination as to whether an insurer’s handling of a claim is arbitrary and capricious is one of fact which should not be disturbed in the absence of manifest error. B. Bennett Mfg. Co., Inc. v. S. Carolina Ins. Co., 96-731 (La.App. 5 Cir. 3/25/97), 692 So.2d 1258, 1270-71. Both LSA-R.S. 22:658 and LSA-R.S. 22:1220, are penal statutes which must be strictly construed, Perkins v. Guaranty National Insurance Co., 95-229 (La.App 3 Cir. 11/2/95), 667 So.2d 559, 565, writ denied, 96-0759 (La.5/31/96), 673 So.2d 1033. Statutes LSA-R.S. 22:658 and LSA-R.S. In22:1220 are similar in that each provides for penalty awards when an insurer has acted arbitrarily, capriciously or without probable cause in failing to timely settle a claim. One primary difference between the two statutes is that under LSA-R.S. 22:658, penalties are automatic once the finding of arbitrary and capricious is made, while under LSA-R.S. 22:1220, penalties are discretionary. This interpretation is based on the language of LSA-R.S. 22:658 which states that when the insurer is found to be arbitrary and capricious, the insurer shall be subject to penalties and attorney fees. On the other hand, LSA-R.S. 22:1220 states the claimant may be awarded penalties in the event the insurer is found to have acted arbitrarily and capriciously. An insurer’s refusal to pay is not arbitrary, capricious, or without probable cause where serious issues regarding the appellant’s right to recovery are raised. In the present case, the only question before us is h ¿whether the UM/UIM insurer had reasonable cause to contest plaintiffs claim that her damages exceeded the limits of the tortfeasor’s Lability policy. For a party to prevail under LSA-R.S. 22:658, the claimant must establish that the insurer received satisfactory proof of loss, failed to pay the claim within the applicable statutory period, and that the failure to timely tender a reasonable amount was arbitrary and capricious. Khaled v. Windham, 94-2171(La.App. 1 Cir. 6/23/95); 657 So.2d 672, 679. A “satisfactory proof of loss” within the meaning of LSA-R.S. 22:658 is that which is sufficient to fully apprize the insurer of the insured’s claim. McDill v. Utica Mutual Insurance Company, 475 So.2d 1085, 1089 (La.1985); Khaled, 657 So.2d at 679. To establish a “satisfactory proof of loss,” the insured must establish that the insurer received sufficient facts which fully apprize the insurer that (1) the owner or operator of the other vehicle involved in the accident was uninsured or underinsured; (2) that he was at fault; (3) that such fault gave rise to damages; and (4) establish the extent of those damages. McDill, 475 So.2d at 1089. There is no question that USAA knew that Lee Oncale was at fault for the accident. However, the record does reflect that there was a valid issue as to the extent of Ms. Sutton’s damages and whether Prudential’s liability policy was sufficient to compensate her. In its reasons for judgment dated April 14,1999, the trial court stated that “it had great difficulty in determining plaintiffs damages” because it faced the dilemma of awarding damages to an injured plaintiff, who, other than her credibility offered minimal medical evidence elaborating on her disc injury and its ramifications. The court further noted that “there was an unexplained lack of medical follow-through subsequent to the initial diagnosis three years preceding trial brother than her annual employment physical) and that plaintiff only lost one day of wages.” The trial court stressed that “both causation and damage portions of its judgment turned overwhelmingly on the credibility of plaintiff rather than any medical evidence, which was sorely lacking.” The record substantiates the trial court’s findings. Dr. Cesar Roca, an expert in orthopedics and orthopedic surgery, treated Ms. Sutton for her back injuries. Dr. Roca testified that he treated Ms. Sutton on June 23, 1995, June 30, 1995, and July 28, 1995. Dr. Roca testified that Ms. Sutton told him that she was a 35 year old woman who was involved in a motor vehicle accident on November 15, 1994. Ms. Sutton also told Dr. Roca that she did not lose consciousness and that there was no immediate low back pain after the accident. The physical examination of her back revealed no spasm and the neurologi cal exam appeared normal. The radio-graphs of the lumbar region were normal with some relative narrowing of the L5-Sl. The MRI of the lumbar spine revealed that she had an asymmetric bulge on the right side of the L5-S1 level with a mild central bulge at the L4-L5 level suggesting either an asymmetrical annular bulge or a right sided disc herniation. Dr. Roca opined that Ms. Sutton might have a nerve impingement and diagnosed her with disc herniation at the L5-S1. On June 30,1995, Dr. Roca recommended that Ms. Sutton return to work, but avoid driving the forklift for about four weeks and avoid lifting objects over thirty pounds. Dr. Roca related that Ms. Sutton stated she was well when he saw her on July 28, 1995, and she denied any pain to the back or lower extremities. The physical exam revealed no spasms and no atrophy to the back or to the lower extremities and full range of motion to the lumbar spine. Since Ms. |14Sutton still had some weakness in the L5-S1 disc level, Dr. Roca recommended that she should avoid heavy lifting, and avoid bouncing in the forklift if at all possible. However, he released her to work without restrictions. Dr. Roca testified that it is difficult for him to state that there is a reasonable probability of causal connection between the November 15, 1994 car wreck and Ms. Sutton’s herniated disc because he did not see an MRI of her spine before the accident. The MRI showed a chronic problem that an accident can exacerbate, however, the MRI also demonstrated a normal degenerative process at the L4-5 and at the L5-S1 level. Since Ms. Sutton first complained of neck pain, Dr. Roca opined that the symptom is indicative of a whiplash mechanism which does not affect the lower back. Ms. Sutton told Dr. Roca that the neck pain disappeared shortly after the accident. Dr. Roca opined that Ms. Sutton’s condition is caused by her bouncing on the forklift because the axial compression is more consistent with the finding of a bulge. Dr. Randall Carl Poche is a medical doctor who is an expert in family practice. He became the plant physician for NAL-CO in 1993. On December 19, 1994, Dr. Poche treated Ms. Sutton for her injuries from the November 15, 1999 automobile accident. Ms. Sutton complained of persistent low back pain, neck discomfort, and posterior headaches. Dr. Poche found that Ms. Sutton had some tenderness across her lower lumbar area, and that the pain was radiating into her right thigh. Dr. Poche opined that Ms. Sutton suffered from cervical and lumbar whiplash. On January 6,1995, Dr. Poche saw Ms. Sutton and recommended physical therapy since she did not seem to be improving. In 1996 and 1997, he found Ms. Sutton fit for any duty at 11sNALCO. Dr. Poche related her symptoms to the accident, but did not find them debilitating to the extent that he had to limit her duties at work. Ms. Sutton testified that she suffered injury to her lower back from the impact of the crash on November 15, 1994. She testified that the impact broke her car seat and jolted her forward, and her seat belt restrained her from flying through the window. Ms. Sutton began experiencing pain in her neck immediately after the accident and the record reflects that she was treated at Rivers Parishes Hospital after the crash for neck pain. She testified that she has had to curtail her activities because of lower back pain, which she never suffered before the accident. Dr. Poche ordered physical therapy and she was treated on five different occasions. She consulted with Dr. Roca when the pain continued to be a problem for her. Whether a refusal to pay a claim is arbitrary, capricious, or without probable cause hinges on the facts known to the insurer at the time of its refusal to pay the claim. Genusa v. Robert, 98-449 (La.App. 5 Cir. 10/14/98), 720 So.2d 166, 172-173. Based on the above testimony and medical documents, it is clear that USAA did not act in bad faith pursuant to LSA-R.S. 22:658 by refusing to tender payment under the UM/UIM policy. USAA was not arbitrary nor capricious in the manner in which it conducted its evaluation of Ms. Sutton’s claim or in failing to offer a settlement. As the trial court noted, there was little medical evidence supporting Ms. Sutton’s claim for damages exceeding $25,000. An insured’s burden under LSA-R.S. 22:1220 is great and sanctions should be imposed against the insurer only where the facts negate probable cause for nonpayment, and plaintiff proves that the insurer’s actions or failure to act were not justified. Delahoussaye v. Madere, 98-1033 (La.App. 5 Cir. 4/14/99), 733 So.2d 679, 689-690. From the evidence in the record, it is apparent that USAA did not act in bad faith. Upon receiving Ms. Sutton’s medical bills, it immediately paid them under its medical payment coverage. The record reflects that USAA had no actual proof that Ms. Sutton’s damages exceeded $25,000 and that this matter would be in litigation when USAA notified Prudential of its intent to assert its subro-gation rights. Further, the medical evidence supports USAA’s position that Ms. Sutton would be more than adequately compensated by the remainder of Prudential’s liability policy especially since Dr. Roca testified that Ms. Sutton’s injuries were caused by working on the forklift, not the accident. We find that the trial court properly determined that USAA was not in bad faith and did not act arbitrarily or capriciously in handling Ms. Sutton’s claim. GENERAL DAMAGE AWARD In her last specification of error, Ms. Sutton alleges that her general damage award is too low. The standard of review of general damage awards is whether the trial court abused its great discretion in fixing the award. In Youn v, Maritime Overseas Corp., 623 So.2d 1257 (La.1993), the Supreme Court reiterated the- long standing rule that an appellate court is not to decide what it considers an appropriate award, but rather to review the exercise of discretion by the trier of fact. In this inquiry, consideration must be given to the particular injuries and their effects on the particular circumstances of the particular plaintiff. Youn, 623 So.2d at 1261. It is only when the appellate court determines, for articulable reasons distinct to the case at hand, that the trier of fact abused its much discretion, that it may set aside the award as either too high or too low. Youn, 623 So.2d at 1261. In the present case, it is clear Ms. Sutton did suffer an injury to her disc after this accident, however, she did not require surgery nor did she require significant medical treatment, indicating that her pain was not severe. While these damages may be on the low side, we find that the trial court did not abuse its discretion in awarding Ms. Sutton $40,000 in general damages. For the foregoing reasons, the part of the trial court’s judgment insofar as it grants USAA a credit of $3060.90 and awards interest only on USAA’s portion of the award is reversed. In all other respects, the trial court judgment is affirmed. AFFIRMED IN PART; REVERSED IN PART; AND RENDERED. . LSA-R.S. 22:658 provides, inter alia: A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest. (3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant. In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1220. (4) All insurers shall make a written offer to settle any property damage claim within thirty days after receipt of satisfactory proofs of loss of that claim. B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor, as provided in R.S. 22:658(A)(1), or within thirty days after written agreement or settlement as provided in R.S. 22:658(A)(2) when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of ten percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, together with all reasonable attorney fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, ten percent of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney fees for the prosecution and collection of such amount. . LSA-R.S. 22:1220 provides, in pertinent part: A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach. B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A: (1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue. (5)Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from tire claimant when such failure is arbitrary, capricious, or without probable cause. C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by die insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

In re: St. Paul Fire and Marine Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 325 So.2d 395. Application denied. No error of law in the court of appeal judgment.

11 KIRBY, Judge. P.G. Insurance Company appeals a partial summary judgment that was designated as final. That Judgment held that LSA-R.S. 22:1406 D(l)(a)(iii) obliges the court to apply Louisiana law to a foreign insurance contract that covers an accident in Louisiana that involves Louisiana residents. The standard of review for a summary judgment on appeal is de novo. The appellate court asks whether there is any genuine issue of material fact and whether movant is entitled to judgment as a matter of law. Walker v. Kroop, 96-0618 (La. App. 4 Cir. 7/24/96), 678 So.2d 580. STATEMENT OF FACTS On February 6, 1997, Richard Austin and Lisa Farago, residents of the State of New York, traveled to New Orleans, Louisiana to attend Mardi Gras. When they arrived at New Orleans International Airport, they hailed a taxicab to take them to a downtown hotel. The taxicab was owned and operated by Roschelle Francis, a Louisiana resident, and Ms. Francis drove the taxicab from the airport toward downtown New Orleans via Interstate 10. As the taxicab approached the I — |10/6102 split, a flatbed tow truck operated by Phillip Melerine, a resident of Louisiana, veered into the taxicab’s lane of travel. Ms. Francis failed to avoid the tow truck, and a violent and life threatening collision occurred due to the joint fault of Mr. Mele-rine and Ms. Francis. As a consequence of the collision, Richard Austin sustained a severe head injury. At Charity Hospital he was treated and diagnosed with a massive epidural hemato-ma. This condition caused cranial bleeding, and Mr. Austin was required to undergo an emergency craniotomy to relieve the pressure on his brain and to implant cranial plates. Following surgery, he suffered a possible seizure, continued cranial bleeding, and severe headaches. Mr. Austin was also diagnosed with a TMJ disorder, for which he has undergone splint therapy, and a herniated disc in his lower back. Approximately four months post-accident, Mr. Austin underwent a second cranial surgery to remove bone fragments, the cranial plates and screws, and to address a postoperative infection of the skull. Mr. Austin experiences right side weakness, including his arm, hand and leg, a diminished ability to focus and to concentrate, blurred vision, and slurred/stuttered speech. Richard Austin and Lisa Farago filed suit in the Civil District Court for the Parish of Orleans to recover damages they sustained in the collision. Named as defendants in the lawsuit were: (1) Roschelle Francis; (2) North American Fire and Casualty Insurance Company, the liability insurer of the taxicab; (3) Phillip Melerine; (4) Western World Insurance Company, Mr. Melerine’s liability insurer; (5) GEI-CO, Mr. Austin’s supplementary underin-sured motorist (hereinafter “UM”) 13insurer; (6) P.G. Insurance Company of New York (hereinafter “P.G. Insurance”), which provided additional UM coverage in favor of Mr. Austin through a policy issued to Mr. Austin’s parents; (7) Integon Insurance Company, Ms. Farago’s personal UM carrier; (8) the State of Louisiana, through the Department of Transportation and Development (hereinafter “DOTD”); and, (9) LeBlanc Metairie, d/b/a LeBlanc Autoplex, a Louisiana limited corporation. In response to Mr. Austin’s lawsuit, GEICO filed a Motion for Summary Judgment, arguing that, under New York law, GEICO was entitled to an “offsef’for the amount of liability insurance held by the tortfeasor, thereby reducing the limits of the GEICO UM policy. Since the Louisiana tortfeasor had liability coverage which exceeded the GEICO UM limits, GEICO asserted that, under New York law, it did not owe any UM benefits to its insured, Richard Austin. Mr. Austin opposed the Motion, pointing out that because the accident arose in Louisiana and involved at least two Louisiana residents, Louisiana law should be applied to the interpretation of the GEICO UM policy; pursuant to Louisiana law, GEICO owed coverage to the full extent of its policy limits and was not permitted to apply the New York “offset clause.” The district court denied GEICO’s Motion for Summary Judgment. In the wake of the district court’s denial of GEICO’s Motion for Summary Judgment, plaintiffs moved for summary judgment against the New York UM insurers — GEICO, P.G. Insurance, and Integon Insurance Company — asserting |4that Louisiana law should be applied in interpreting the UM policies. Plaintiffs’ motion was supported by the applicable choice of law rule, La.Rev.Stat. § 22:1406 D(l)(a)(iii), which provides: “This subparagraph and its requirements for uninsured motorist coverage shall apply to any liability insurance covering any accident which occurs in this state and involves a resident of this state.” LEGAL ANALYSIS Automotive insurance coverage requires a coherent system or network of regulations. That is why all fifty States and the District of Columbia have their own insurance codes or regulations. To juxtapose provisions from noncongruous automotive insurance codes results in anomaly. The central issue in this case is whether Louisiana should disregard a provision of its UM Statute, so as to insert a reduction, or offset clause that is noncongruous with its UM statute. As stated in the Louisiana Civil Law Treatise on Insurance Law and Practice § 119: Any credit reducing the UM limits by the amount of liability insurance of the adverse driver is clearly contrary to the underinsured motorist protection required by statute. The insured is entitled to recover, subject to the limits of his policy, the difference between his damages and liability insurance of the negligent motorist. P.G. Insurance Co. advances three arguments as to why the Louisiana Statute should not apply and New York law, i.e. the reduction clause, should apply. They are: (1) a conflict of laws argument; (2) a United States Constitutional law Due Process argument; and (3) a United States Constitutional law Contract Clause argument. They will be addressed in this order. |RP.G. Insurance argues that Civil Code Articles 3515 and 3537 require an application of New York law, making LSA-R.S. 22:1406 D(l)(a)(iii) nugatory. LSA-C.C. art. 14 dealing with multistate cases states: Unless otherwise expressly provided by the law of this state, cases having contacts with other states are governed by the law selected in accordance with the provisions of Book IV of this Code. Moreover, Comment (b) to LSA-C.C. art. 14 states: ...The residual nature of the provisions of Book IV is established by the introduction phrase of this Article “[u]nless otherwise expressly provided by the laws of this state”. This phrase means that the provisions of Book IV are not intended to supersede more specific choice-of-law rules contained in other Louisiana statutes, such as the Insurance Code (see La. R.S. 22:611 et seq.)... When applicable those rules, being more specific, should prevail over the provisions of Book IV. In Dekeyser v. Automotive Cas. Ins. Co., 97-1251 (La.App. 4 Cir 2/4/98) 706 So.2d 676, we noted that the Legislature adopted LSA-C.C. art. 14 at the same time as the Conflict of Laws Articles. Also in that case, we found LSA-R.S. 22:1406 D(l)(a)(iii) provided a specific rule governing the question of underinsured motorists insurance coverage. It follows that it was the Legislature’s intent that the specific rule, i.e. LSA-R.S. 22:1406 D(l)(a)(iii), control the conflict of laws issue, rather than the general rules of Book IV concerning conflict of laws. Dekeyser, supra. Allstate Ins. Co. v. Hague, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981) addresses P.G.’s Due Process argument. The United States Supreme Court in Allstate determined that the application of a forum state’s laws in the interpretation of an insurance contract of a foreign state does not violate the [ ^constitutional rights of the insurer. In Allstate the Supreme Court set forth the following analysis: In deciding constitutional choice-of-law questions, whether under the Due Process Clause or the Full Faith and Credit Clause, this Court had traditionally examined the contacts of the State, whose law was applied, with the parties and with the occurrence or transaction giving rise to the litigation. [Clay v. Sun Ins. Office, Limited, 377 U.S. 179, 181-182, 84 S.Ct. 1197, 1198, 12 L.Ed.2d 229 (1964) ]. In order to ensure that the choice of law is neither arbitrary nor fundamentally unfair, see Alaska Packers Assn. v. Industrial Accident Comm’n, 294 U.S. 532, 542, 55 S.Ct. 518, 521, 79 L.Ed. 1044 (1935), the Court has invalidated the choice of law of a State which has had no significant contact or significant aggregation of contacts, creating state interest, with the parties and the occurrence or transaction. Allstate, 449 U.S. at 308, 101 S.Ct.. 633 (footnotes omitted). In this case, there are significant contacts: The accident occurred in Louisiana, the accident involves two Louisiana residents; all vehicles involved in the accident were registered in Louisiana; Mr. Austin received significant medical treatment in Louisiana; and the P.G. Insurance policy, while issued in New York, provides UM coverage for its insured in each of the fifty states. These contacts create a state interest in the event, such that application of Louisiana’s law is neither arbitrary nor fundamentally unfair. Allstate Ins. Co. v. Hague, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981). In the aggregate, these contacts are more than sufficient to satisfy the Due Process requirements of the United States Constitution. The Contracts Clause, found in Article 1, § 10 of the United States Constitution, states: No State shall...pass any...law impairing the Obligation of Contracts. To determine whether a choice of law provision violates the Contracts Clause of the United States Constitution, we ask whether the state law has, in fact, 17operated as a substantial impairment of a contractual relationship. Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978). The party complaining of unconstitutionality has the burden of demonstrating, first, that the statute alters contractual rights or obligations. National R.R. Passenger Corp. v. Atchison, Topeka and Santa Fe Ry. Co., 470 U.S. 451, 105 S.Ct. 1441, 84 L.Ed.2d 432 (1985). In this case LSA-R.S. 22:1406 D(l)(a)(iii) does alter P.G. Insurance Company’s contractual obligations because P.G. Insurance would owe little or nothing if Austin can settle with the two Louisiana residents and if the “reduction” clause were applied using New York law. In determining the extent of impairment, a reviewing court is to consider whether the industry of the complaining party has been regulated in the past. Energy Reserves Group, Inc. v. Kansas Power & Light, 459 U.S. 400, 411, 103 S.Ct. 697, 704, 74 L.Ed.2d 569 (1983); Veix v. Sixth Ward Building & Loan Assn. of Newark, 310 U.S. 32, 38, 60 S.Ct. 792, 794, 84 L.Ed. 1061 (1940) (“when he purchased into an enterprise already regulated in the particular to which he now objects, he purchased subject to further legislation upon the same topic”). As stated before, all fifty states regulate insurance, and have done so for some time. Thus, P.G. Insurance cannot argue that they were unaware, when they put the provision that extends their liability coverage to all fifty states, that the insurance industry was anything' but an industry that was, and is, heavily regulated. Assuming Louisiana’s choice of law provision constitutes an impairment, the state must have a significant and legitimate public purpose behind the regulation, such as thé remedying of other broad and general social or economic problems. Energy Reserves, 459 U.S. at 412, 103 S.Ct. at 704; Allied Structural Steel Co., 438 U.S. at 247, 98 S.Ct. at 2723. The requirement of a legitimate | «public purpose guarantees that the state is exercising its police power, rather than providing a benefit to special interests. Energy Reserves, 459 U.S. at 412, 103 S.Ct. at 705. The goal of Louisiana’s UM legislation is to promote full recovery for the innocent automobile accident victim. Clearly this goal is a legitimate public purpose that is not biased to any special interest except those who are victims in Louisiana. Moreover, the fact that Congress has allowed all fifty states to have their own uniform system of regulations governing insurance strongly suggests that this is a legitimate public purpose. Because the public purpose of having a uniform system of insurance is legitimate, it is a legitimate exercise of a state’s police power. With this legitimate purpose identified, the next inquiry is whether the adjustment of the rights and obligations of the contracting parties is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation’s adoption. Energy Reserves, 459 U.S. at 412, 103 S.Ct. at 705. When legislation modifies or abrogates contracts already in effect, the crucial question is whether the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end. Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, (1934). Unless the state itself is a contracting party, courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure. U.S. v. Carolene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783 n. 4, 82 L.Ed. 1234 (1938). The goal of Louisiana’s UM legislation is to promote full recovery for the innocent automobile accident victim in Louisiana by making UM coverage |3available for their benefit when the tortfeasor is inadequately insured. LSA-R.S. 22:1406 D(l)(a)(i); Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992). This court is correct in deferring to the Legislature as concerns the necessity and reasonableness of protecting innocent automobile accident victims in Louisiana by mandating that its UM Statute apply when Louisiana has the requisite contacts. La. R.S. 22:1406 D(l)(a)(iii) states: This subparagraph and its requirements for uninsured motorist coverage shall apply to any liability insurance covering any accident which occurs in this state and involves a resident of this state. P.G. Insurance is the Lability insurer of Mr. Austin. Any provision of its insurance policy enhancing Lability coverage and benefiting Mr. Austin, the insured, must enhance UM coverage and benefit insured. Dekeyser. The liability provisions in P.G.’s pohcy would cover this accident, which occurred in Louisiana and involves two residents of Louisiana. Therefore, Louisiana’s UM Statute, which ensures that Mr. Austin fuLy recovers, appLes. The Trial Court was correct in holding that Louisiana’s UM Statute appLes to the facts of this accident. AFFIRMED. . GEICO specifically argued that “New York law provides that when an underlying liability policy has higher limits than an underinsured motorist policy, the underinsured motorist coverage is not applicable.” . Louisiana Civil Law Treatise: 15 Insurance Law and Practice § 119, William S. McKenzie & H. Alston Johnson, III, West Publishing (2d ed. 1996), p. 293. . The Due Process Clause, U.S. Const., Amend. XIV § 1: "...nor shall any State deprive any person of life, liberty, or property, without due process of law...”.

[WILLIAMS, Judge. The appellant, Joey M. Willis, seeks review of a district court judgment reinstating his termination from civil service employment. For the following reasons, we reverse and remand with instructions. FACTS AND PROCEDURAL HISTORY Joey Willis was employed as a corporal with the Shreveport Police Department. On August 26,1998, Willis traveled to Min-den, Louisiana with the intent of disciplining his sixteen-year-old daughter, Alicia Ridley. Mary Drew, Alicia’s mother, had requested that Willis come to Minden and discipline his daughter. At the time of the incident, Willis was dressed in his police uniform and carrying all of his department-issued equipment, including his handgun and handcuffs. According to Willis, when he confronted his daughter, she retaliated by attempting to hit him with a stick and a hammer. After Willis disarmed his daughter, he handcuffed her, placed her face-down on the floor and whipped her with his department-issued leather belt. Minden police officers were called to the scene and Willis was arrested and charged with cruelty to a juvenile, a violation of LSA-R.S. 14:93. The charges were ultimately dismissed at the mother’s request. On September 10, 1998, the Shreveport Police Department terminated Willis’ employment because of the incident with his daughter. Willis subsequently appealed to the Municipal Fire & Police Civil Service Board (“Board”). On April 23, 1999, the Board conducted a hearing consisting of testimony from witnesses including Willis, his wife, Shreveport Police Department employees and the Minden Police Department investigating officers. The Board found that the Shreveport Police Department had acted in good faith for cause; however, the Board voted to modify the disciplinary action from termination to a 90-day suspension with mandatory counseling. The City of Shreveport subsequently [ ^appealed the Board’s decision to the district court. The City argued that based on the present incident and Willis’ disciplinary history, the Board’s decision should be re versed. Ultimately, the district court overturned the decision of the Board and reinstated the decision of the Shreveport •Police Department to terminate Willis’ employment. In its findings of fact and reasons for judgment, the court did not find that the Board had failed to act in good faith for cause. Rather, in its conclusions of law, the trial court stated, inter alia: [0]nce the Civil Service Board found that the Shreveport Police Department had terminated Corporal Willis with cause, in good faith, and had not acted arbitrarily or capriciously, the Board was required by law to affirm the decision of the Department. Willis now appeals the district court’s judgment reinstating his termination. DISCUSSION On appeal, Willis argues that the trial court erred in finding that the Shreveport Police Department had not acted arbitrarily and capriciously and that the Board could not modify the punishment imposed by the police department. An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action by his employer except for cause expressed in writing. The employee may appeal to the Board and the burden of | aproof on appeal, as to the facts, is on the appointing authority to establish by conclusive evidence that the action taken was in good faith and for cause. LSA-R.S. 33:2501(0(1). LSA-R.S. 33:2501(E) grants any appointing authority the right to appeal any decision or action of the Board that is prejudicial to the appointing authority. The appeal is limited to the determination of whether the Board’s decision was made in good faith for cause. A civil service board’s decision, if made in good faith and for legal cause, should not be disturbed by the district court on appeal. Shields v. City of Shreveport, 565 So.2d 473 (La.App. 2d Cir.), writ granted, 571 So.2d 637 (La.1990), aff'd, 579 So.2d 961 (La.1991). The district court should accord deference to a civil service board’s factual conclusions and must not overturn them unless they are manifestly erroneous. Shields v. City of Shreveport, supra. More importantly, a district court is not free to substitute its opinion as to appropriate disciplinary action when it is shown that officers violated a valid departmental regulation, and that disciplinary action was necessary for the efficiency of the department and to avoid detriment to the public. Although this court has in dicta given a different interpretation, see City of Bossier v. Gauthier, 512 So.2d 623 (La.App. 2d Cir.1987), writ denied, 514 So.2d 1182 (La.1987), a close analysis of LSA-R.S. 33:2501 in its entirety, and Section (C)(1) in particular, reveals that the statute not only enables the board to affirm the decision of the Shreveport Police Department to discipline Willis, but it also allows the board to modify the action. Section A of the statute provides that the board is charged with determining the “reasonableness” of the department’s action. In keeping with that charge, Section (C)(1) provides: After the- investigation ... the board may, if the evidence is conclusive, affirm the action of the appointing authority.” By use of the permissive “may” rather than the mandatory “shall,” the legislature has given the board the authority to reject the “action” of the appointing authority even when the evidence produced by the investigation is conclusive. The statute provides that the term “action” is used to refer both to discharge and to corrective or disciplinary action. By its terms, the statute requires reinstatement when the board finds that the appointing authority’s action was not taken in good faith for cause. The statute is clearly designed to protect the employee from political or otherwise arbitrary action by the appointing authority. By providing for retroactive reinstatement and back pay, the legislature apparently contemplated the relative rarity of actions not | Rin good faith for cause. Good faith is linked to the decision to discipline by the appointing authority, not to the degree of the disciplinary action taken. Hardison v. Natchitoches Municipal Fire & Police Civil Service Board, 614 So.2d 354 (La.App. 3d Cir.1993). Section (C)(1) also provides that the board may modify the order of removal, suspension, demotion, discharge or other disciplinary action by directing a suspension without pay, for a given period. This portion of the statute is the legislative grant of authority to the board to modify the action of the appointing authority. It provides the flexibility required by the board’s authority to determine the reasonableness of the appointing authority’s action. The board decided that punishment was appropriate for Willis, but decided to modify that punishment to a 90-day suspension plus mandatory counseling. The statute empowering the board allows the board to uphold the decision of the appointing authority to discipline the employee while modifying the punishment specified by that authority. However, we note that the board’s authority to modify punishment is not unbridled. Indeed, when the board declines to affirm a disciplinary decision made in good faith for cause, the statute allows the board only to “[direct] a suspension with out pay, for a given period.” The board’s order did not explicitly make Willis’ suspension without pay. Moreover, there is no authority in the statute for the board to order that Willis undergo counseling. Although an appeal is taken from the judgment and not from reasons for judgment, Walsworth v. Municipal Fire & Police Civil Service Board of the City of Shreveport, 567 So.2d 712 (La.App. 2d Cir.1990), we believe that the district court’s error of law concerning the board’s authority to modify the discipline imposed by the Shreveport Police Department requires this court to reverse the decision of the district court and remand this case. A civil service board’s |fidecision, if made in good faith and for legal cause, should not be disturbed by the district court on appeal. McDonald v. City of Shreveport, 26,877 (La.App.2d Cir.5/10/95), 655 So.2d 588. A reviewing court cannot overrule a decision of a municipal civil service board merely because it disagrees with the penalty imposed; the court cannot simply substitute its judgment for that of the board. Pearson v. Municipal Fire and Police Civil Service Board, 609 So.2d 1038 (La.App. 2d Cir.1992). CONCLUSION We reverse the district court’s judgment. The district court is directed to remand the case to the Municipal Fire & Police Civil Service Board of the City of Shreveport so that the Board may determine the proper disciplinary action for Joey Willis consistent with LSA-R.S. 33:2501(0(1) and this opinion. REVERSED AND REMANDED WITH INSTRUCTIONS. . Willis was involved in three separate incidents that were grouped into one disciplinary action. One incident occurred on March 9, 1996 and involved an argument with a girlfriend at a local nightclub. Another incident occurred on March 17, 1996, and involved an altercation with a girlfriend at a local nightclub. On April 20, 1996, Willis was charged with unbecoming conduct, firearms policy violation and unauthorized person in his police vehicle. According to the record, Willis had his three-year-old daughter in his police vehicle with him. Willis received a thirty-day suspension. He was advised to contact the City of Shreveport Employee Assistance Program for instruction on domestic violence, substance abuse and conflict resolution, and to submit to a psychological fitness for duty evaluation. . LSA-Const. art. 10 § 8(A) provides: Disciplinary Actions. No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission pursuant to Section 12 of this Part. The burden of proof on appeal, as to the facts, shall be on the appointing authority- LSA-R.S. 33:2501 provides: A. Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause, may within fifteen days after the action, demand, in writing, a hearing and investigation by the board to determine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request. C. (1) After the investigation provided for in Subsection B of this Section, the board may, if the evidence is conclusive, affirm the action of the appointing authority. If they find that the action was not taken in good faith for cause under the provisions of this Part, the board shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which he was removed, suspended, demoted, or discharged, which reinstatement shall, if the board so provides, be retroactive and entitle him to his regular pay from the time of removal, suspension, demotion, discharge, or other disciplinary action. The board may modify the order of removal, suspension, demotion, discharge, or other disciplinary action by directing a suspension without pay, for a given period. E.(l) Any employee under classified service and any appointing authority may appeal from any decision of the board, or from any action taken by the board under the provisions of the Part that is prejudicial to the employee or appointing authority. This appeal shall lie directed to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled. (2) The appeal shall be taken by serving the board, within thirty days after entry of its decision, a written notice of the appeal, stating the grounds thereof and demanding that a certified transcript of the record, or written findings of facts, and all papers on file in the office of the board affecting or relating to such decision, be filed with the designated court. The board shall, within ten days, after filing of the notice of appeal, make, certify, and file the complete transcript with the designated court, and that court shall thereupon proceed to hear and determine the appeal in a summary manner. (3) This hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part. No appeal to the court shall be taken except upon these grounds and except as provided in Subsection D of this Section.

In re Jackson, Derrick; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, No. 1-97-502; to the Court of Appeal, First Circuit, No. 00 KW 1376. Denied. MARCUS, J., not on panel.

JjBYRNES, Judge. On November 21, 1995, the defendant, Larry McNeal, was charged with one count of armed robbery in violation of La. R.S. 14:64 and one count of possession of a firearm by a convicted felon in violation of La. R.S. On September 10, 1996, the State severed the firearm possession charge from the armed robbery charge and proceeded to trial on the armed robbery charge. The defendant was found guilty as charged after a jury trial. On August 17, 1998, the State filed a multiple bill of information. The State then nolle prosequied the charge of possession of a firearm by a convicted felon. The defendant filed a motion to quash the multiple bill which was denied by the trial court. The trial court thereafter adjudicated the defendant to be a second felony offender. On August 20, 1998, the trial court sentenced the defendant to serve one hundred thirty-three years at hard labor without benefit of probation, parole or suspension of sentence. The trial [gcourt denied defendant’s motion to reconsider sentence on August 21, 1998. The defendant appealed. STATEMENT OF FACT On the evening of August 25, 1995, Do-nyette Williams went to the Casino Lounge with her friend, Shannon, and her sister-in-law, Deidra. They arrived at the lounge at approximately 11:30 p.m. Do-nyette’s husband, Burnell Williams, arrived at the lounge at approximately 12:00 a.m. Donyette saw both Monty Howard and Larry McNeal at the lounge. She spoke with Howard for a short time. She knew both men from school. Howard saw Burnell arrive and told Donyette that Bur-nell was at the lounge. Howard asked Donyette if Burnell was interested in selling his van. Meanwhile, Shannon got into a fight with another woman. Donyette stopped the fight and decided to take Shannon home. Donyette, Deidra and Irvin Blaze took Shannon home. When Do-nyette left the lounge, she noticed that Howard and McNeal were standing outside the lounge. After Donyette took Shannon home, she, Deidra and Irvin returned to the lounge. As they approached the lounge, she saw Burnell running down the street towards them. Burnell got into her car and told her that he had been robbed. She then saw McNeal driving their van. They tried to follow the van but were unsuccessful. Donyette went to her mother’s house and called the police. Bur-nell and some others continued to search for the van. About fifteen minutes later, Burnell arrived at Donyette’s mother’s house. They again called the police. When the police did not respond, Burnell went to the police station and made a report. Approximately an hour later, they learned the van was found in Monty Howard’s backyard. When she saw the van, the entire dashboard had been torn up. The stereo and air conditioner had been ripped out. | ¡¡Irvin Blaze testified that he went to the Casino Lounge with Burnell Williams in the early morning hours of August 26, 1995. The defendants, McNeal and Howard, were both at the lounge. While Blaze was at the lounge, two women began fighting. One of the women was a friend of Donyette Williams. When Donyette decided to take her friend home, he went with them. As Burnell’s van was parked in front of Donyette’s car, Burnell had to move the van so Donyette could leave. When they returned, they saw Burnell running up the street. Irvin, who was driving Donyette’s car, stopped the car. Burnell got into the car and told them that he had been robbed. Irvin and Burnell then went looking for the van. The police were called. When the police did not respond, they went to the police station. The van was eventually found in Howard’s backyard. The police arrived on the scene at approximately 6:00 a.m. Burnell Williams testified that he went to the Casino Lounge with his cousin, Irvin Blaze, in the early morning hours of August 26, 1995. While they were at the lounge, two women began fighting. Do-nyette, Burnell’s wife, told Burnell she was going to take one of her Mends home. Burnell went outside to move his van so his wife could leave. After Donyette left, he went back to the lounge but it was closed. He saw a man, later identified as McNeal,' standing near his van. Burnell and his brother-in-law, Eddie, walked to his van. Burnell saw Howard standing in the street near the van. He hit the alarm on his van to open the doors. Eddie entered the passenger side of the vehicle. As he turned to enter the van, he heard someone say, “Let me get the keys out ya.” Burnell turned around and saw McNeal holding a gun to his face. Burnell threw the car keys in the air and started running down the street. McNeal went for the keys. Burnell saw his wife 1 ¿returning to the lounge as he ran down the street. He got into the car and told his wife that he had been robbed. They followed the van for a short while but lost it. Donyette went to her mother’s house and called the police. Burnell and Irvin continued looking for the van. When they couldn’t find the van, they went to Do-nyette’s mother’s house. They called the police. When the police did not respond, Burnell went to the police station and reported the theft. Later, Burnell learned the van was found in Howard’s backyard. When they found the van, the interior of the van was destroyed. The seats, stereo and air conditioner had been taken out and the dashboard was torn up. Burnell identified McNeal in a photographic lineup and at trial as the person who was armed with the gun. Officer Wellington Beaulieu conducted the follow-up investigation of the armed robbery. He developed two suspects. The officer prepared two photographic lineups which he presented to Burnell Williams. Williams identified Howard and McNeal in the photographic lineups. Officer Beaulieu thereafter obtained arrest warrants for Howard and McNeal. The officer arrested McNeal at his residence on September 26, 1995. When the officers pulled up at McNeal’s residence, there were four men on the front porch. The officers asked the four men to approach them. McNeal did not comply and walked towards the front door of the residence. Officer Norbert Carol apprehended McNeal. A Glock automatic gun with a shoulder holster was seized from McNeal after his arrest. The gun was retrieved from the front room of the house. Officer Norbert Carol assisted in McNeal’s arrest. When the officers approached McNeal at his residence, McNeal attempted to enter the residence. Officer Carol apprehended McNeal between the door and the Indoor frame. When the officer detained the defendant, he observed a handgun and shoulder holster two feet away. The officer noted that the gun was loaded when it was seized. ERRORS PATENT A review of the record for errors patent reveals none. DISCUSSION ASSIGNMENT OF ERROR NUMBER 1 In his first assignment of error, the defendant contends that the evidence is insufficient to support the defendant’s conviction for armed robbery. When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987). In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact maybe inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. La. R.S. 15:438 is not a separate test from Jackson v. Virginia, supra, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, supra. lfiThe defendant contends that the State failed to sufficiently prove his identity as the perpetrator. He suggests that Burnell Williams’ identification of him as the perpetrator was unreliable. In Manson v. Brathwgite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Supreme Court set forth a five-factor test to determine whether an identification was reliable: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the assailant; (4) the level of certainty demonstrated by the witness; and, (5) the length of time between the crime and the confrontation. See also Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In the present case, Burnell Williams positively identified the defendant in a photographic lineup and at trial as the perpetrator. Mr. Williams testified at trial that he saw the defendant standing near the van immediately prior to the robbery. He also stated that he was face to face with the defendant during the robbery. Mr. Williams had a clear and close up view of the defendant during the robbery. Further, he identified the defendant in a photographic lineup that took place one day after the robbery. Such evidence indicates that Mr. Williams’ identification of the defendant as the perpetrator was reliable. This assignment is without merit. ASSIGNMENT OF ERROR NUMBER 2 The defendant also argues that the trial court erred when it denied defendant’s motion to quash the multiple bill of information. The defendant suggests that the multiple bill was untimely filed. La. R.S. 15:529.1(D) provides that a defendant may be charged as a multiple offender if at any time after either conviction or sentence, it appears |7that a person convicted of a felony has previously been convicted of another felony. The statute does not contain a prescriptive period; but, in State v. Broussard, 416 So.2d 109 (La.1982), the Supreme Court held that a multiple bill must be filed within a reasonable time after the State becomes aware of the defendant’s prior felony record. The court stated that upon conviction, a defen- ' dant was entitled to know the full consequences of the verdict within a reasonable time, and proceedings to sentence a defendant as a habitual offender should not be unduly delayed. As stated in State v. Morris, 94-0553 (La.App. 4 Cir. 11/17/94), 645 So.2d 1295, application of the Brous-sard doctrine is a fact-specific inquiry which depends upon the particular circumstances of each case. In State v. Broussard, 416 So.2d at 111, the multiple bill was filed thirteen months after sentencing and three months before the defendant was eligible for parole. The Supreme Court found that this delay was unreasonable. In State v. Morris, 94-0553 at pp. 3-4, 645 So.2d at 1297, this court found that a delay of five months between the defendant’s guilty plea and the holding of the multiple bill hearing was not unreasonable and did not prejudice the defendant because the State was delayed by having to wait for documents and because the defendant knew he would be multiple billed when he pleaded guilty. In State v. Langlois, 96-0084 (La.App. 4 Cir. 5/21/97), 695.So.2d 540, writ granted in part on other grounds and remanded, 97-1491 (La.11/14/97), 703 So.2d 1281, the defendant, whose first multiple offender adjudication had been vacated, argued that the fifteen to seventeen month delay in holding a second multiple bill hearing was unreasonable. The trial court stated that the delay was justified by the unique and distinctive procedural history of the case. This court also found that the delay was [¿justifiable and that the defendant was not prejudiced. The court noted that the defendant was not expecting an early release prior to the delayed multiple bill hearing. In State v. Carter, 630 So.2d 926 (La.App. 4 Cir.1993), this court found a fifteen month delay reasonable where both the State and the defendant were granted continuances, where an investigation was undertaken to determine the validity of the defendant’s claim of a breach of a plea bargain agreement not to multiple bill him, and where the case was transferred to a different section of court. This court also rejected the defendant’s assertion that he was eligible for release on good time some six months after the adjudication because he offered no proof. In State v. Jenkins, 595 So.2d 780 (La.App. 5 Cir.1992), the Fifth Circuit found a delay of nearly two years between the filing of the multiple bill and the holding of the hearing was not unreasonable because the defendant had been notified immediately of the intended filing of the multiple bill and was still incarcerated at the time of the hearing. The court noted that the continuances requested by the State and the defendant were roughly equal in number. In the case at bar, the State filed the multiple bill of information almost two years after defendant’s conviction for armed robbery. During that time, the defendant was not sentenced on the original conviction. The defendant was found guilty of armed robbery on September 10, 1996. The State eventually filed the multiple bill of information on August 17, 1998. A review of the record indicates that defendant’s sentencing was continued three times on joint motion of the State and the defendant. The last joint motion to continue was granted on June 29, 1998. The court reset the matter |flsix other times. The record does not indicate which party sought to have the matter reset on these other occasions. While almost two years elapsed between defendant’s conviction and the filing of the multiple bill, the delay was not prejudicial. The defendant was convicted of armed robbery and was incarcerated at the time the multiple bill was filed. Although the defendant had not been sentenced on the original conviction prior to the filing of the multiple bill, the minimum sentence under La. R.S. 14:64 would have been five years at hard labor without benefit of probation, parole or suspension of sentence. Thus, even if defendant had been sentenced to the minimum sentence on the original conviction, he would still have been incarcerated at the time the State filed the multiple bill. In addition, the defendant had pending charges of possession of a firearm by a convicted felon and first degree murder against him during this time period. Therefore, it appears that the delay was not prejudicial and the trial court did not err when it denied defendant’s motion to quash. This assignment is without merit. ASSIGNMENT OF ERROR NUMBER 3 Lastly, the defendant contends that the sentence imposed was unconstitutionally excessive. Article 1, Section 20 of the Louisiana Constitution of 1974 provides that “No law shall subject any person ... to cruel, excessive or unusual punishment.” A sentence within the statutory limit is constitutionally excessive if it is “grossly out of proportion to the severity of the crime” or is “nothing more than the purposeless imposition of pain and suffering.” State v. Caston, 477 So.2d 868 (La.App. 4 Cir.1985). Generally, a reviewing court must |1fldetermine whether the trial judge adequately complied with the sen tencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983); State v. Quebedeaux, 424 So.2d 1009 (La.1982). If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, supra; State v. Guajardo, 428 So.2d 468 (La.1983). In the present case, the defendant was convicted of armed robbery. After trial, the State filed a multiple bill alleging defendant to be a second felony offender based upon defendant’s prior conviction for manslaughter. The trial court adjudicated the defendant to be a second felony offender and sentenced defendant to one hundred thirty-three years at hard labor without benefit of probation, parole or suspension of sentence. Prior to sentencing defendant, the trial court noted that the defendant had recently been convicted of manslaughter in another case. Thus, in addition to the conviction for armed robbery, the defendant had two convictions for manslaughter. The trial court also stated: I am familiar with the facts of this armed robbery and I am somewhat familiar with the facts of the underlying manslaughter, as well as the plea to the manslaughter that was entered earlier this week. And there seems to be a pattern Mr. McNeal. When you get around people, two things happen. They get robbed or they get killed— Actually three things — or both. And on two different occasions potentially twelve people could have voted to put you to death or to give you a life sentence. The position the Court is in today is that I cannot sentence you to death and I cannot give you a life sentence. As counsel for the State, as well as your attorney pointed out the minimum since I’ve already found you to be a second offender is forty-nine and a half and the maximum is 198. I have | T reviewed the sentencing guidelines under article 894.1. And as to 894.1 A(2), the defendant is in need of correctional treatment or custodial environment that can be provided most effectively by his committed to an institution. I absolutely find that. And I find that a weapon was used. I find that — that several people could have been injured in this event. And as for potentially mitigating factors I really see none either in the case at hand or in the other cases or in your record in general. And while I feel that the minimum of forty-nine and a half would deprecate from the seriousness of this offense, I find that any more time than what I’m going to sentence you to would be the needless inflection of pain and suffering. So, as a multiple offender, pursuant to provision of 15529.1(sic), I sentence you to 133 years in the custody of the Department of Corrections at hard labor. That’s without the benefit of parole, probation or suspension of sentence. The sentence imposed by the trial court is not unconstitutionally excessive in light of the defendant’s criminal history. In addition to the present armed robbery conviction, the defendant pled guilty to two counts of manslaughter. In each case, the defendant had been charged with first degree murder and worked out a plea bargain in which he pled guilty to manslaughter. The trial court was well aware of the defendant’s involvement in the armed robbery and the two murders. Further, maximum sentences of 198 years have been upheld on second felony offenders convicted of armed robbery. See State v. Donahue, 408 So.2d 1262 (La.1982); State v. Curtis, 363 So.2d 1375 (La.1978); and State v. Jolla, 337 So.2d 197 (La.1976). This assignment is without merit. Accordingly, the defendant’s conviction and sentence are affirmed. CONVICTION AND SENTENCE AFFIRMED. . McNeal’s co-defendant, Monty Howard, was charged with armed robbeiy in the same bill of information. Howard was acquitted after the jury trial on September 10, 1996. . It appears that Burnell was actually referring to his remote keyless entry device.

In re Golden Rule Insurance Co.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 498-582; to the Court of Appeal, Fifth Circuit, No. 00-C-0877. Denied. MARCUS, J., not on panel.

In re: Harold J. Hayes applying for Writ of Mandamus. Writ denied. The trial judge having acted on the applicant’s petition in the trial court, this application is moot.

BLANCHE, Judge. This is a suit arising out of two purported oral agreements which were incidental to and contemporaneous with the sale of a rental house from plaintiff, William F. Lawless (hereinafter referred to as “Lawless”), to defendant, Gulf South Title Insurance Agency, Inc. (hereinafter referred to as “Gulf”), and the second sale of a home from Gulf to Lawless. Lawless sued Gulf seeking rescission of the home sale, return of a $1,500 deposit, the cost of repairs he allegedly performed on Gulf’s rental house and the cost of repairs to the newly purchased home of Lawless. Gulf reconvened, seeking the costs incurred to repair the rental house, which repairs Gulf alleges it was forced to make, plus additional expenses incurred in conjunction with the sale and maintenance of the rental house. Both parties have appealed the judgment of the trial court, which was in favor of Gulf for $1,500, plus all costs and expert witness fees of $50. The judgment in Gulf’s favor is amended and as amended, affirmed. On January 9, 1974, Lawless sold to Gulf a rental house located on Lots 18 and 20, Square 32, East Garden City, in the Parish of East Baton Rouge, Louisiana, for the recited sum of $16,500 cash. That same day Gulf sold to Lawless a house located on Lot 185, Iberville Terrace Subdivision, Third Filing, in the Parish of East Baton Rouge, Louisiana, for the sum of $39,900, financed through Standard Mortgage Corporation, on which the loan was guaranteed by the Veterans Administration. This house was to be Lawless’ home. At the time of the sales, Lawless orally contracted to repair the rental property so that it would meet the standards for the loan guaranteed by the Veterans Administration. To insure that the repairs would be performed according to the agreement, Gulf withheld $1,500 from the price it was to pay Lawless. Lawless contends that at the same time a second oral agreement was reached whereby Gulf was to remedy certain defects in the Iberville Terrace house. The terms, and even the very existence, of these oral agreements are not completely clarified by the testimony and evidence presented at trial. However, in an attempt to reconstruct the agreements, we carefully considered both the entire record and the facts found by the trial judge. Our findings are set forth as follows. Bobby L. Forrest was the president and sole stockholder of Gulf. On October 23, 1973, after negotiations with realtor Hoyle Buckley and builder Jim Forrest, brother of Bobby Forrest, Lawless signed a purchase agreement to buy the Iberville Terrace property from Gulf, conditioned upon obtaining V.A. approval. That same day Jim Forrest, acting as the agent of Bobby Forrest, signed a purchase agreement obligating Gulf to buy the described rental property from Lawless. On November 19, 1973, a Veterans Administration certificate of reasonable value was prepared by a duly authorized inspector listing the value of the Iberville Terrace house as $39,900. Since the house was not completely finished, the certificate was made subject to installation of the air conditioner compressor and window screens, painting exterior wood trim, repairing cook top, repairing holes in sheet-rock, repairing certain light fixtures, and replacing missing light fixtures. Lawless’ purchase of the house was entirely dependent upon 100 percent Veterans Administration financing since at the time he was financially unable to obtain the down payment required by conventional lenders. At Gulf’s request on January 4, 1974, a Veterans Administration certificate of reasonable value was also obtained on the rental property indicating a worth of $16,500. Because the house was in a state of disrepair, that appraisal was made subject to replacing all rotted wood on the exterior, painting exterior with two coats of paint, replacing five broken screens, and installing taped, floated, and stippled sheet-rock on all interior ceilings and walls. Gulf was buying the rental house for resale and required the certificate of reasonable value since, due to the location of the house, V.A. or F.H.A. financing would have probably been the only available method of financing the house to a future purchaser. In effect, Gulf wanted to insure that it could resell the house after it was purchased from Lawless. The sales were passed on January 9, 1974. At the sale Gulf’s president, Bobby Forrest, demanded that it be allowed to withhold $1,500 from the purchase price of the rental house. It is clear that this money was to insure Gulf that all materials used by Lawless to bring the rental house up to V.A. standards were paid for by Lawless. Gulf was not concerned at that point with the possibility of labor liens, since Lawless was to perform all of the labor personally. Gulf contends that Lawless agreed to perform the work within thirty days and that $1,500 was to be returned to Lawless upon completion of the repairs if the house was not subj ect to liens. On the other hand, Lawless contends that he only agreed to do the work within a reasonable time, not necessarily in thirty days as contended by Gulf. Lawless also asserts that he was not required to pay for the materials out of his own pocket but rather he was to be allowed to draw on the $1,500 to pay the material bills as they accrued. Lawless testified that he was financially unable to purchase the materials and, therefore, would not have entered into an agreement which would not allow him to draw on the $1,500. Bobby Forrest countered Lawless’ contentions by noting that the repairs could have been performed within a period of one month. He argued that Lawless could have utilized credit to obtain the supplies and could have had the job completed even before the bills for said supplies were due. Thereafter, Lawless could have obtained lien waivers from the suppliers or could have had the defendant issue the checks to pay the bills once they were all in hand. The record indicates that the first work done by Lawless was in the latter part of March, 1974. This is evidenced by a letter dated May 6 from Lawless to Gulf requesting a draw of $298.95 for materials. The earliest invoice listed therein was from Travis and Sons, Hardware, dated March 28. At the trial Lawless contended that work commenced in February. However, the only proof offered to substantiate that claim was Lawless’ own uncorroborated testimony. The evidence preponderates that the first attempts to repair the house were in March. It is obvious from the record that irrespective of whether the agreement was to complete the work in thirty days, as contended by Gulf, or within a reasonable time, as argued by Lawless, both parties contemplated that the work should at least begin before March, which was two months after the sales took place. Therefore, Lawless neither commenced nor completed the repairs within the allotted time. However, he argues that he was excused from performing the work because the house was occupied by tenants. While it is true that tenants occupied the house after the sale, Lawless had previously served them with a notice of termination of lease and request to vacate. The notice was given on January 7, 1974, two days prior to the sales. This was done so that Gulf could take possession of the premises. On March 22, Lawless sent another notice to the tenants to vacate the property. At no time during the period in question did Lawless resort to legal measures to force the tenants to vacate, even though he knew he was obligated to repair the house. Furthermore, Lawless was aware that under the terms of the agreement it was his responsibility to evict the tenants. The tenants were finally evicted by Bobby Forrest’s law firm on April 5, over three months after the date of the sale, on the basis of Lawless’ January 7 notice. In order to avoid further delay, the tenants were evicted in the name of Lawless. Lawless’ argument that the occupancy of the house excused him from performing any repairs overlooks the fact that he obviously could have at least performed the outside work on the house even though the tenants remained on the premises. In view of the foregoing, we find that the presence of the tenants on the property was not a valid reason for Lawless to delay accomplishing the required work. Lawless requested the first and only draw for materials on May 6, 1974. At that time he submitted a request for $298.-95, which was only partially substantiated by invoices. Gulf refused Lawless’ request, and Lawless cites the refusal to grant the draw as an additional excuse for his failure to perform. As of the date of the request on May 6, the work had not been completed by Lawless, and in the transmittal letter requesting the draw Lawless advised Gulf that “hopefully” he would complete the work by May 20. However, after Gulf’s refusal to grant the draw, Lawless abandoned all attempts to repair the house. At the trial Bobby Forrest explained that he refused to allow Lawless to draw on the $1,500, not only because it was contrary to their agreement but also because Lawless had resorted to hired labor to repair the house, therefore, subjecting Gulf, as owner, to the possibility of labor liens in addition to material liens. From the record there can be no doubt but that Lawless contracted to personally perform all of the labor. Lawless acknowledged that because of financial difficulties he had agreed to perform the work himself in order to save the expense of hiring laborers. Therefore, in addition to delaying an unreasonable length of time before commencing the work, the evidence shows that Lawless deviated from the agreement when he hired other laborers to do the work for him. Lawless contends that the refusal of his demand for the draw on May 6 was a breach of contract by Gulf. However, at that point Lawless had already breached the agreement in two ways, by failing to perform the repairs within a reasonable time and by hiring laborers to do the work. LSA-C.C. Art. 1931 provides that a breach of contract is passive when what was covenanted to be done was either not done or was not done on time, or when it was done in a manner other than that stipulated in the contract. It, therefore, appears that the above-described actions of Lawless amounted to a passive violation of the subject agreement. When the thing to be done was not of such a nature that it could only be done within a certain time, damages for a passive breach, as occurred herein, are due only from the time that the debtor has been put in default, LSA-C.C. Art. 1933. Time was not of the essence in the instant contract and, therefore, damages resulting from Lawless’ breach would be due only from the date Lawless was put in default by Gulf. Upon realizing that Lawless had deviated substantially from the agreement, Gulf made demand on Lawless on May 15, 1974, to complete the repairs within ten days. We consider that letter as sufficient to place Lawless in default. Accordingly, Gulf is entitled to damages from May 25, 1974, or ten days after the date of the letter. Concerning the amount of damages, LSA-C.C. Art. 1934 provides that in a case such as this damages due to the creditor are the amount of loss he has sustained and the profit of which he has been deprived. Furthermore, where the debtor is not guilty of fraud or bad faith, as is clearly the case herein, only such damages as were contemplated or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract are owed by the debtor. There has been no showing that Gulf was deprived of any profit due to the breach of Lawless. However, the record does indicate that Gulf sustained a loss since the repairs were performed at Gulf’s expense after the refusal of Lawless to complete same. Gulf’s residential builder and cost expert, William E. Day, testified that he supplied materials valued at $1,420 for the repair of the house through his construction corporation. The labor was performed by Billy Devall, and a check payable to him in the sum of $1,912.93, dated September 25, 1974, drawn on the account of Forrest, Kiefer and Bac-ot, Attorneys at Law, was produced at trial. Both Bobby Forrest and Nelda Edwards, the secretary who prepared the check testified that said check was drawn on Gulf’s account even though the check does not reflect same. Although Devall did not appear at the trial, Day testified that he inspected the job several times and that the amount of the check accurately represented the labor performed by Devall. In view of the foregoing, we are of the opinion that Gulf has proved by a preponderance of the evidence that it suffered losses of $1,420 for materials and $1,912.93 for labor. Gulf also seeks recovery of $989.19, representing the total amount for nine can-celled checks in the sum of $109.91 each, payable to Union Federal Savings & Loan Association and dated February through October, 1974. These checks represented payments on the mortgage that Gulf assumed as part of the purchase price. Gulf seeks payment of all nine checks on the theory that it would not have been obligated to pay said notes if Lawless had timely completed the repairs. There is no evidence to show that the failure of Lawless to repair the property as per his agreement' delayed the sale of the property or caused Gulf to make any additional payments on the mortgage for that reason. Furthermore, after Gulf placed Lawless in default, Gulf spent at least four or five months performing the repairs which it expected Lawless to make in one month. Gulf also seeks recovery of $650.15 which was paid to Edwins Flooring, Inc., to repair the floor in the house. That item of repair was not listed on the Veterans Administration certificate of value and, therefore, Lawless was not required to perform the work. Since those repairs were not the responsibility of Lawless, Gulf is precluded from recovering therefor. In its reconventional demand, Gulf sought 11 percent interest on the sum of $7,000. No evidence was presented at the trial to substantiate that loss and it is, therefore, rejected. There is evidence that some work was performed on behalf of Lawless prior to commencement of work by Gulf. However, the record is not clear concerning how much, if any, of Lawless’ work was incorporated into the subsequent repairs performed by Gulf. The plaintiff, accordingly, failed to prove that he is entitled to a monetary credit for that amount of work. In view of the foregoing, we find that Gulf has proved losses of $1,420 and $1,912.93, or a total of $3,332.93. The last issue on this appeal concerns Lawless’ allegations that Gulf defaulted on its agreement to repair certain defects in the Iberville Terrace property. Lawless contends that Gulf agreed to make certain repairs to the house in addition to those required by the Veterans Administration certificate of value. The additional repairs were not made and Lawless seeks damages therefor. On the other hand, Gulf has contended throughout the trial and also on appeal that the only agreement it entered into with Lawless concerned bringing the Iber-ville Terrace property up to the standard demanded by the Veterans Administration. Gulf points out that the defective items listed on the certificate of value were remedied by it, citing the Veterans Administration compliance inspection report of January 18, 1974, reflecting the notation “Items on C.R.V. complied with.” In the light of this, Gulf concludes that it has fulfilled its obligation under the agreement. The trial judge did not specifically find that there was an agreement to perform these additional repairs. However, he did find as a fact that all of the defects complained of were apparent at the time of the sale and refused to allow Lawless to recover the cost of repairing them. That finding obviously negates Lawless’ argument that Gulf agreed to repair the additional items. There would be no necessity to inquire as to whether a defect is apparent or not where an agreement existed to make the repairs. The trial judge was apparently contemplating that even though no agreement existed, Lawless might have an action for redhibition of the sale due to the defects. However, he concluded that the defects were apparent and Lawless could not ' maintain such an action. The record amply supports a finding that Gulf’s obligation was limited to the defects listed on the certificate. Accordingly, the trial judge’s holding that Lawless was not entitled to recover for the repair of the additional defects will not be disturbed on this appeal. Canter v. Koehring Company, 283 So.2d 716 (La.1973). For the foregoing reasons, the judgment of the trial court is amended so as to increase the award to plaintiff in reconvention, Gulf South Title Insurance Agency, Inc., from $1,500 to the sum of $3,332.93 against defendant in reconvention, William F. Lawless. In all other respects the judgment is affirmed. All costs of this appeal are to be borne by defendant in reconvention, William F. Lawless. AMENDED AND AS AMENDED, AFFIRMED.

TATE, Justice. The defendant Monroe was convicted of armed robbery, La.R.S. 14:64, and sentenced to twenty years at hard labor. Reversible error is presented by bills of exception numbers one and two. They relate to a substantial curtailment of voir dire examination of prospective jurors by the defense. As will be noted, voir dire examination is an important trial right given to both the state and the defendant to aid them in securing an impartial trial jury and to uncover predispositions -or attitudes of prospective jurors which might serve as the basis for causal or peremptory challenge. Context Facts The trial court’s rulings foreclosed lines of inquiry concerning the prospective jurors’ attitudes toward the presumption of innocence, to which those accused of crime are entitled before our courts. The rulings were especially prejudicial in the light of the context facts of this prosecution. The robbery occurred in the early afternoon. The victim, a route salesman, was robbed at gunpoint of his wallet and eight dollars or so in change. He did not see the face of the robber, nor could he ever identify him. He did, however, note that the robber was wearing a red, white, and blue plaid shirt and so reported to the police shortly after the robbery. In roving the neighborhood about thirty minutes later, a police officer saw the defendant Monroe, wearing a shirt similar to the one described by the victim. Monroe was standing on the sidewalk, three blocks from the robbery, in conversation with another man. The officer approached Monroe, grasping his revolver, to interrogate him. He saw an expression of shock and surprise on the face of Monroe, who started to walk away. When the officer ordered Monroe to stop, the defendant commenced running away. Within a minute or so, under continuous observation of the police, Monroe was stopped. He had a pistol and one dollar and ninety cents in change. The wallet and amount of change stolen in the robbery were never located, nor did the officers see the suspect drop them during the chase, nor did immediate examination of his path locate them. The defendant Monroe took the stand. He stated he was talking to a friend on the street, about a block from his own home, on his way to his employment. On his person was some marijuana and a pistol (which he carried, he said, to protect himself because of a quarrel over a girlfriend). Because of this illegal possession, he said, he ran when he thought the police officer was going to search him. Other uncontradicted evidence produced by Monroe showed that he had never been arrested before and was of quiet, law-abiding good character. The defense thus raised was that, although the state undoubtedly proved a robbery beyond a reasonable doubt, the accused himself was a suspect simply because he wore a shirt similar to one worn by the robber. (In fairness to the state, it also relied upon a fingerprint taken from the truck which matched that of the left index finger of the defendant.) The Issue The defense counsel had first asked the prospective jurors if they could acquit the defendant if the state failed to prove its case against him beyond a reasonable doubt. After receiving their affirmative responses, the defendant attempted to explore more concretely the juror’s understanding of this general principle. Sua sponte, the trial court curtailed further voir dire examination along the lines of inquiry raised by the following two questions : “Does it present any problems to you or do you have difficulty in accepting the fact that it is better to see a crime go unpunished than to find the wrong man guilty. Can you accept that?” (Bill of Exception No. 1.) “If the State should fail to prove who did in fact commit the crime and you are satisfied that we didn’t, could you find him not guilty?” (Bill of Exception No. 2.) The record does not indicate that any further voir dire examination was permitted on the issue. The trial court disallowed the first question as argumentative and the second as repetitious. (The latter reasoning was solely because the defense had already secured juror assent to the general principle that they must acquit if the state failed to prove the defendant’s guilt beyond a reasonable doubt.) In State v. Drumgo, 283 So.2d 463 (La. 1973), decided some time prior to the present trial, in accordance with long-established jurisprudence we held that this type of questioning was proper to explore the jurors’ attitudes towards the presumption of innocence to which the accused is entitled, La.C.Cr.P. art. 804(A). The purpose would be to establish the basis if any for exercise of a challenge for cause, La. C.Cr.P. art. 797(2) (as well as, of course, for an intelligent exercise of peremptory challenges, La.C.Cr.P. art. 799). In Drumgo, although we recognized the error, we held it harmless, partly because, there, our examination of the entire voir dire examination indicated that in fact defense counsel was afforded wide latitude in his voir dire examination. Here, however, neither the record nor the trial court’s per curiam indicate other than that the questions were disallowed as repetitious or argumentative probing of the veniremen’s assent that they understood the generally expressed general principle that an accused must be acquitted if the state failed to prove its case beyond a reasonable doubt. Thus, we are not, here, faced with a situation where the questions were truly repetitious nor where wide latitude or voir dire examination had in fact afforded the accused a reasonable opportunity to uncover predispositions or misunderstandings of the veniremen which might militate against their impartial service as jurors or might afford a reasonable basis by which the defendant might exercise his constitutional right to challenge jurors peremptorily, see La.Constitution of 1921, Art. I, Section 10 and Louisiana Constitution of 1974, Art. I, Section 17. The foreclosing of the lines of inquiry effectively denied the accused the voir dire right of ascertaining the prospective jurors’ understanding of an attitude toward the presumption of innocence, as disclosed by minimal but specific questioning as to its application— including not only that the state prove that an armed robbery had occurred beyond a reasonable doubt, but also that the accused himself beyond a reasonable doubt had committed it. As we noted in State v. Brumley, 320 So.2d 129 (1975) in likewise reversing a conviction because of the denial to an accused of voir dire rights: “A defendant who is unable to inquire of potential jurors as to any tendentious attitude toward these criteria is unable to effectively make challenges for cause and peremptory challenges Defendant’s questions were not an attempt to lecture on the law . . . nor were they an attempt to induce the jurors to commit themselves in advance. Nor does it offer adequate security toward obtaining an unbiased jury, for a potential juror, in response to the general question whether he will accept the law as given him by the court, to recite that he will accept such instruction when the juror has no concept of the complex nature of the law and where the issue is so interrelated to basic rights * * * The state suggests that the error was cured by the trial court’s instructions to the prospective jurors that they must accept the law as given to them by the court, to which they assented, and by general instructions as to the presumption of innocence. This suggestion overlooks the historic function of voir dire examination. As we stated in State v. Hills, 241 La. 345, 129 So.2d 12, 31 (1961) : “It is a general view as to voir dire examination that the defendant in a criminal prosecution is entitled to make reasonable and pertinent inquiries of the prospective juror so that he may exercise intelligently and wisely his right of peremptory challenge — since each party has the right to put questions to a juror not only to show that there exists proper grounds for a challenge for cause, but to elicit facts to enable him to decide whether or not he will make a peremptory challenge. For this reason, a wide latitude is allowed counsel in examining jurors on their voir dire, and the scope of inquiry is best governed by a liberal discretion on the part of the Court so that if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision, this may be uncovered. It is by examination into the attitudes and inclinations of jurors before they are sworn to try a case that litigants are enabled to reject those persons, by use of peremptory challenges where necessary, who are deemed to be unlikely to approach a decision in a detached and objective manner. The Constitution itself (La.Const. of 1921, Art. 1, Sec. 10) guarantees to the accused the right to peremptorily challenge jurors . . . . The intelligent exercise of the right of rejection, by use of those twelve peremptory challenges, is the meat of the privilege, and can be substantially weakened by a restriction of questions — the answers to which might be regarded as informative of a juror’s attitude and therefore of vital importance to his defense.” See also other instances where convictions were reversed because of improper curtailment of voir dire examination, such as: State v. Jones, 282 So.2d 422 (La. 1973); State v. Crittle, 263 La. 418, 268 So.2d 604 (1972) (opinion authored by Hamlin, J.); State v. Henry, 196 La. 217, 198 So. 910 (1940); State v. Guidry, 160 La. 655, 107 So.2d 479 (1926). See also American Bar Association Standards for the Administration of Justice Relating to Trial by Jury, Standard 2.4 and official commentary thereto (1968). .These cited decisions hold that in Louisiana the accused’s intelligent exercise of his substantial right to exercise peremptory challenges or challenges for cause cannot be curtailed by the exclusion of non-repetitious voir dire questioning reasonably exploring potential misunderstandings of law, predispositions, or prejudices of prospective jurors relevant to the issues of the case in which they will serve. We therefore hold that, since the present accused was denied his exercise of this basic trial right, his conviction must be reversed and the matter remanded for a trial in accordance with law. This trial was held prior to the adoption of the 1974 constitution. Nevertheless, the importance of the traditional rights here asserted is emphasized by their explicit recognition by the Louisiana Constitution of 1974, Art. I, Section 17: “ * * * The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. * * Other Bills of Exceptions Other Bills: Six other bills of exceptions were reserved and perfected. We need here note only that two of them raise substantial issues of trial conduct which probably will not arise on the re-trial: Bill No. 4, where the trial court sustained an objection to a question attempting to lay a foundation for securing as inconsistent with trial testimony a pretrial statement of the accused, cf. State v. Sbisa, 232 La. 961, 95 So.2d 619 (1957); Bill No. 5, where the defense was denied an opportunity to inspect (or at least have the trial court inspect in camera) a document used by the witness to refresh his memory on the stand and after doing so gave testimony which varied from his earlier trial testimony, see State v. Perkins, La., 310 So.2d 591 (1975). The other bills, at least as raised, do not present substantial issues. Decree For the reasons assigned, we reverse the conviction and sentence and remand for a new trial. Reversed and remanded for a new trial in accordance with law. SANDERS, C. J., and MARCUS, J., dissent. SUMMERS, J., dissents and will assign reasons. . La.C.Cr.P. art. 804(A) (1968) provides: “In all cases the court shall charge the jury that: “(1) A person accused of crime is presumed by law to be innocent until each element of the crime, necessary to constitute his guilt, is proven beyond a reasonable doubt “(2) It is the duty of the jury, in considering the evidence and in applying to that evidence the law as given by the court, to give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence in the .case; and” “(3) It is the duty of the jury if not convinced of the guilt of a defendant beyond a reasonable doubt, to find him not guilty.” “The court may, but is not required to, define ‘the presumption of innocence’ or ‘reasonable doubt’ or give any other or further charge upon the same than that contained in this article.” It is to be noted that, since the accused is not entitled as of right to further explanation, by the court of bis presumption of innocence, voir dire examination may be important to establish the understanding of this principle by prospective jurors. The importance of. the right of the accused... to a presumption of innocence on his trial before an American court is emphasized by the reiteration of this ancient principle by the Louisiana Constitution of 1974, Art. I, Section 16: “Every person charged with a crime is presumed innocent until proven guilty. * *

In re: Donald Lovett applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order. Granted. The trial court’s denial of the defense motion is set aside. The state is ordered to make the witnesses, John H. Jensen, Jr. and Kenneth (Pee Wee) Hooper, available to the defense for interview, under court supervision or show cause to the contrary in this court, on or before Monday, April 12, 1976. In the interim, other proceedings in this matter are stayed.

In re: Friedrichs Refrigeration, Inc., applying for Certiorari, or writ of review, to the Court, of Appeal, Third Circuit, Parish of Natchitoches. 326 So.2d 919. Granted. Applicant is entitled to rear-gument in the Court of Appeal under the provisions of Article S, Section 8 .of the Constitution of 1974. The Court of Appeal’s denial of rehearing is vacated and the matter is remanded to the Court of Appeal for reargument before five judges.

MARVIN, Judge. These consolidated cases began as pos-sessory actions and were converted into petitory actions. After remand from this court [304 So.2d 853] and from judgments dismissing demands of plaintiffs and recognizing intervenors as owners of the property in dispute, Herbert Reeves Wood-ell appeals. We affirm the judgment of the lower court. This case was previously before this court on an appeal from summary judgments recognizing intervenors’ ownership of the disputed property. We reversed and remanded for further proceedings because the case presented genuine issues of material fact. See Woodell v. Roberts, 304 So. 2d 853 (La.App.2d Civ. 1974). There we stated the posture of the case in this language : “Herbert Reeves Woodell, Herbert Reeves Woodell, Jr., Robert Woodell and W. B. Woodell, filed a possessory action against defendant, Virl Roberts, alleging their possession as owners of a tract of land in Caddo Parish for more than a year prior to a disturbance of their peaceful possession by Roberts’ filing of an eviction suit against them. Subsequently, Herbert Reeves Woodell and Herbert Reeves Woodell, Jr. filed a similar possessory action. “William M. Rudersdorf, Miss Stella Rudersdorf and Mrs. Lena Rudersdorf Oualline intervened, joining the defendant Roberts in resisting the demands of the original plaintiffs, and converting the action into a petitory action in accordance with LSA-C.C.P. Art. 3657. The Rudersdorfs alleged their ownership of the property by a regular chain of title originating with a patent from the United States of America and prayed for recognition of their ownership of the property.” The Woodells alternatively pleaded the acquisitive prescription of thirty years based on their adverse possession of the property for a period in excess of thirty years. When intervenors converted plaintiffs’ possessory action to a petitory action, plaintiffs’ possession of the property was judicially confessed. LSA-C.C.P. Art. 3657. It became incumbent upon interve-nors to prove valid record title good as against the world without regard to the title of the plaintiffs. See LSA-C.C.P. Arts. 3653, 3654 and Pure Oil Co. v. Skinner, 294 So.2d 797 (La.1974). On October 21, 1898, William Ruders-dorf, father of intervenors, was the paten-tee under a homestead grant of property described as: NE/4 of NW/4; S/2 of NW/4 and fractional SW/4 of Section 11, T. 20 North, Range 16 West. The patent was recorded on February 4, 1904. William Rudersdorf died on December 30, 1907, survived by a widow, Mrs. Annie Rudersdorf, and three children, William M. Rudersdorf, Stella Rudersdorf, and Mrs. Lena Rudersdorf Oualline, intervenors herein. William Rudersdorf executed in Harris County, Texas, a last will and testament bequeathing “all real estate” to his wife, Annie Rudersdorf, and naming her executrix of his estate. As executrix, Mrs. Rudersdorf listed the patented property which is now. in dispute as community property acquired during her marriage. William Rudersdorf’s widow married James Barry in 1910 . Following probate in Texas of William Rudersdorf’s will, the First District Court of Caddo Parish, on the widow’s petition, ordered the will approved, registered, and executed on July 5, 1911. Expressly recognizing that the disposition in William Rudersdorf’s will of all real estate to his widow was subject to reduction under Louisiana law of forced heirship, the widow and forced heirs entered into a partition agreement whereby the widow received an undivided one-half interest in the property and the three forced heirs each received an undivided one-sixth interest. The partition in authentic form was recorded in Caddo Parish on October 25, 1924. The Rudersdorfs, beginning in 1907, leased the property from time to time for oil and gas purposes and in 1928 executed a five acre surface lease to the mineral lessee. In 1948, they granted a pipeline right of way and in 1949 they granted a surface lease, hereafter discussed, to Oliver Wood-ell and Herbert Reeves Woodell. In 1951, the Rudersdorfs granted another oil and gas lease on 80 acres of the property and in 1972 they granted a surface lease to one Virl Roberts, a production superindent of a company engaged in the drilling and operating of oil and gas wells. Ad valorem taxes on the property have been paid through the years by the Rudersdorfs, to whom the property is assessed. Roberts, the production superintendent, testified that he had lived on the land since 1951 and that his company erected in 1949, and has since maintained, buildings and storage facilities on the property in connection with oil and gas wells which the company has drilled and operated on the property over the years. This occupancy, ás well as that of others, was known to the Woodells. Oil and gas have been produced from the property in various quantities since discovery of the resource in this area (Caddo Lake) and royalties have been paid to the Rudersdorfs and not to the Wood-ells. The Rudersdorfs have proved record’ title good as against the world, corporeal possession of parts of the property and civil possession of the whole. Pure Oil v. Skinner, supra. Possession of part of a larger tract is considered as possession of the whole unless adverse claimants prove adverse corporeal possession in themselves in a sufficient manner and for a sufficient period of time to establish prescriptive title. See our opinion of this date, Hanna v. Green, 329 So.2d 850 (La. App.2d Cir. 1976). Art. 3500, La.C.C., requires : “The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.” La.C.C. Art. 3503, provides: “How favorable soever prescription may be, it shall be restricted within just limits. Thus, in the prescription of thirty years, which is acquired without title, it extends only to that which has been actually possessed by the person pleading it.” La.C.C. Art. 3510, states: “Those who possess for others and not in their own name, can not prescribe, whatever may be the time of their possession. “Thus, farmers, tenants, depositaries', usufructuaries and all those generally who hold by a precarious tenure and in the name of the owner, can not prescribe on the thing thus held.” The burden of proof is on the claimant in a particular case who relies on the plea of 30-year acquisitive prescription. In 1949, the Rudersdorfs hired a Shreveport attorney with respect to the occupancy of various portions of the property by several persons and companies engaged in oil field work. Herbert Reeves Woodell admitted that he signed a lease instrument prepared by this attorney and would not deny [or acknowledge for that matter] that his father, Oliver Woodell had signed the instrument. This instrument affected not only 32 acres of the 161 acres, but the entirety of the property insofar as the claims of the signers as to possessory claims. The instrument was a 20-year lease for an annual rental of $10.00 per year. It provided in part: “Lessors being owners of a tract of land in Caddo Parish, Louisiana containing about 161 acres, being more fully described as follows: NE/4 of NW/4, S/2 of NW/4, and fractional SW/4 of Sec. 11-T20N-R16W, Caddo Parish, Louisi ana, do hereby lease for surface and fishing rights only to lessees approximately 32 acres in the Southwest portion of said tract this part to be leased more fully described as follows: * * * * * * “No claim in being made by lessees to this or any other portion of said 161 acre tract except under this lease, nor shall any future action by lessees such as fencing or using this or any part of said 161 acre tract be made the basis of any claim, except under this lease.” [sic] The Shreveport attorney testified that he personally talked to both Herbert Reeves Woodell and Oliver Woodell and they specifically stated they did not own or claim to own the property. A copy of the lease instrument was given or sent to both Woodells by the attorney, Oliver Woodell’s copy being sent by registered or certified mail with return receipt signed by Oliver Woodell. The Woodells did not request Roberts or Roberts’ employer to remove themselves from any of the property when they moved on it in 1949-51. Notwithstanding that the Woodells lived on a portion of the property since about 1914, the trial court found that the Woodells did not “hold themselves out” as owner of the property or possess in the capacity of owner. The record fully supports the trial court’s findings. The burden of proving facts essential to support a plea of 30-year acquisitive prescription was appellants’ burden. The intent to possess as owner should not be, and in this case is not, inferred where the circumstances are insufficient to reasonably apprise the public and the record title owner that the possessor is unequivocably possessing under the intent of possessing as owner. La.C.C. Art. 3500. See also La.C.C. Arts. 3436, 3499 and 3503. At appellants’ cost, judgment below is AFFIRMED. . A child of this union, Mrs. Ruth Barry Herring, by authentic act dated Febuary 5, 1944, renounced her interest in the property after the death of her mother. . We note that had the partition been executed in accordance with the codal authority governing reduction, Mrs. Barry would have been entitled to two-thirds of the property in question. The three forced heirs would have each been entitled to a one-ninth interest.