author: JLjCLARENCE E. McMANUS, Judge.

text:
    SUCCESSION OF Darryl J. PLAUCHE.
    No. 03-CA-1024.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 10, 2004.
    Frank W. Lagarde, Jr., Metairie, LA, for appellee — Neyda V. Leslie, Testamentary Executrix.
    Dennis W. Moore, New Orleans, LA, for Evans Brown, Jr.-appellant.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   JLjCLARENCE E. McMANUS, Judge.

On February 13, 1990, Darryl Plauche executed a Last Will and Testament by which he bequeathed his entire estate to the Vocational Development Fund of the Brothers of the Sacred Heart. He appointed Neyda V. Leslie as his executrix and Frank Lagarde, Jr. as the attorney for the estate.

On March 8, 2002, Plauche changed his will and bequeathed all personal effects, including automobiles, boats, trailers, etc. to Evans Brown, with a usufruct for life over the remainder of the estate. Plauche also gave Brown the right to dispose of non-consumable things. The will was notarized by Walter Jamison Crittenden, allegedly a notary public and attorney. However, Crittenden had been suspended from the practice of law by the Louisiana Supreme Court on June 30,1998.

Plauche died on November 21, 2002. Neyda Leslie filed a Petition to Probate Statutory testament on January 7, 2003. On January 21, 2003, Brown filed a Petition to Annul the Probated Testament and to Revoke Letters Testamentary issued to Leslie. Leslie filed a Rule to Show Cause Why One of the Competing Wills Should Not Be Revoked and Why Leslie Should Not Be Removed as Testamentary Executrix. A trial was held and Leslie argued that the 2002 will was invalid because at the time the will was executed and notarized, Crittenden was suspended from the practice of law, so he was prohibited from acting as a notary. Therefore, Leslie argued the will was not properly notarized and was invalid.

A hearing was held on April 16, 2003 and the trial court found the March 8, 2002 will to be invalid. The trial court stated in its reasons that Crittenden was not |3a notary on the date the will was signed because he had been suspended from the practice of law by the Louisiana Supreme Court on June 30.1998. Brown now appeals the trial court’s judgment.

DISCUSSION

On appeal, Brown argues that Critten-den was a notary de facto on the date the will was signed because Crittenden believed he was a validly authorized notary public. In addition, Brown argues that Plauche did not know that Crittenden was unqualified. Thus, Brown contends the will is valid. In opposition, Leslie argues that Crittenden was not a qualified notary and, therefore, the will was invalid. She also argues that Plauche was sight impaired so the will should have been executed according to La. C.C. art. 1579 which requires that the will be read aloud, in the presence of the testator, notary and two witnesses and the testator must declare that he heard the reading and that it is his will and he must then sign or make his mark. Finally, Leslie argues that Brown is a legatee and a witness of the will, therefore, pursuant to La. C.C.art. 1582, any legacy to him is invalid. For the reasons which follow, we agree with the trial court and find that Crittenden was not a notary on the day the will was executed and signed, and therefore, the March 8, 2002 will of Darryl Plauche is not a valid will.

La. R.S. 35:14 provides that a disbarred or suspended attorney is prohibited from exercising notarial functions and that statute states:

Any attorney at law, or person who was an attorney at law, who is disbarred or suspended from the practice of law due to charges filed by the Committee on Professional Responsibility of the Louisiana State Bar Association or who has consented to disbarment shall not be qualified or eligible nor shall he exercise any functions as a notary public in any parish of the state of Louisiana as long as he remains disbarred or suspended from the practice of law in Louisiana. Provided, however, that nothing in this Section shall apply to any action taken against an attorney at law for failure to pay annual dues.

In State ex rel. Wootan, Praying for Testing of Sureties on Notarial Bonds, 364 So.2d 1079 (La.App. 4th Cir.1978), the Louisiana Fourth Circuit Court of ^Appeal held that La. R.S. 35:14 is self executing and it is implicit in the Supreme Court’s judgment suspending an attorney from the practice of law that the attorney is also not qualified to exercise the function of a notary public.

Walter Crittenden was suspended from the practice of law on June 30, 1998 by Order of the Supreme Court and remained suspended on March 8, 2002, the date he notarized Plauche’s will. In accordance with La. R.S. 35:14, Crittenden was prohibited from exercising notarial functions on that date. La. C.C. art. 1577 provides that a notarial testament must be signed by the testator and witnesses in the presence of a notary and must also be signed by that notary. Since Crittenden was prohibited from performing as a notary on the date the will was executed, the March 8, 2002 will of Darryl Plauche was not properly notarized and is, therefore, invalid. As a result, we affirm the trial court’s judgment finding that the March 8, 2002 will of Darryl Plauche is invalid.

On appeal, Leslie, appellee, has also argued that the will was invalid because Darryl Plauche was sight impaired and, according to La. C.C. art. 1579, the will should have been read aloud and the will must have included a declaration stating that the will had been read aloud in the presence of the testator, witnesses and notary. She has also argued that Brown is a legatee and a witness of the will, therefore, pursuant to La. C.C.art. 1582, any legacy to him is invalid. The trial court made no ruling on these issues. We find these issues to be moot since we have affirmed the trial court’s ruling invalidating the will on other grounds.

In accordance with the above, we affirm the trial court’s judgment finding the March 8, 2002 will of Darryl Plauche to be invalid.

AFFIRMED.


source: Caselaw Access Project

author:
h-AMY, Judge.
      | THIBODEAUX, J.,

license: Public Domain

text:
    LONG’S PREFERRED PRODUCTS, INC. v. Linda Long MINTON.
    No. 03-1020.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 2004.

      Richard E. Lee, Pineville, LA, for Plaintiff/Appellant, Long’s Preferred Products, Inc.
    Larry W. Rivers, Alexandria, VA, for Defendant/Appellee, Linda Long Minton.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   h-AMY, Judge.

The plaintiff filed suit seeking repayment of wages paid to the defendant after she left her employment with the family business. The trial court ruled in favor of the defendant, finding no indication that the defendant agreed to repay those wages after her personal share of the business was valued and sold. However, the trial court denied the defendant’s reconventional demand in which she sought wages continuing through the time of trial for work performed in her capacity as a member of the company’s Board of Directors. Both parties raise issues on appeal. The plaintiff has also filed a motion for contempt and return of brief, alleging that the defendant’s brief includes inappropriate statements and references. For the following reasons, we affirm the judgment of the trial court and deny the motion for contempt and return of brief.

Factual and Procedural Background

This matter arises from the buy out of the defendant, Linda Long Minton, from the family’s business, Long’s Preferred Products, Inc. The record indicates Ms. Minton and her brother, Julian W. Long, were each fifty percent shareholders in the family business in July 1997, the date the buy out process began. At that time, Ms. Minton served as the company’s Vice-President, while Julian served as President. Both received a salary from the company.

The buy out of Ms. Minton’s portion of the company arose on July 17-18, 1997, due to tensions between Ms. Minton and one of the company’s employees. Due to Ms. Minton’s inability to continue in the work environment, she did not return to a regular work schedule at the company. Julian agreed to buy Ms. Minton’s share |2in the company. However, the buy out was to occur only after an inventory was taken and a value placed on the company. During the valuation period, Ms. Minton continued to receive her $4500 monthly salary. The plaintiff, Long’s Preferred Products, asserts that the continuation of the salary was made with the understanding that the accrued salary would be deducted from the value of Ms. Minton’s share at the time of the buy out. Ms. Minton disputes that an agreement was reached as to repayment.

.Long’s Preferred Products filed suit, seeking repayment of the salary paid to Ms. Minton after her job functions ceased at the company. Ms. Minton filed a recon-ventional demand, alleging that the salary reflected her ■ continued duties as a member of the Board of Directors. Following a bench trial, the trial court concluded that no oral or written agreement existed requiring Ms. Minton to repay the wages at issue. Furthermore, with regard to the reconventional demand, the trial court concluded that, although Ms. Minton remained a member of the Board of Directors after she ceased her employment functions, the evidence indicated that the members of the board were not compensated for their duties. Rather, the salary was related to her function as an employee.

Long’s appeals, presenting the following issues for review:

[1.] Did the trial court err in holding that Ms. Minton did not agree to repay the monies she received from Long’s Preferred Products, Inc.?
[2.] Did the trial court err when it held that P# 5, P# 6, and P# 7 was not the agreement that the parties had originally agreed to?

Ms. Minton answered the appeal, asserting that:

The Trial Court erred in finding that Ms. Linda Minton was compensated as an employee and not as an officer and director of Long’s Preferred Products, Inc.

laSubsequent to the filing of Ms. Minton’s brief, Long’s filed a “Motion and Order for Contempt and Return of Brief for Violation of Uniform Rule — Courts of Appeal 2-12.4 and 2-16.3.” Long’s alleged that inappropriate reference was made to an unpublished case and that certain allegations contained in Ms. Minton’s brief are viola-tive of Uniform Rules — Courts of Appeal, Rule 2-12.4, which requires that briefs be “free from vile, obscene, obnoxious, or offensive expressions, and free from'insulting, abusive, discourteous or irrelevant matters or criticism of any person .... ” The motion was deferred to the merits of the appeal.

Discussion

Repayment of Salary

Long’s first contends that the payment of Ms.. Minton’s salary between the July 18, 1997 cessation of her work duties until the date of the buy out was continued due to an agreement that the sum would be deducted from the amount paid to Ms. Minton at the time of the buy out. Long’s contends that the trial court’s determination that there was no such agreement was in error. In particular, Long’s asserts that Ms. Minton and her brother, Julian, reached an initial, oral agreement whereby Ms. Minton would continue to receive her salary which would be deducted from the proceeds of the buy out. Long’s points to an unsigned agreement that includes language requiring repayment, asserting that the agreement memorializes the original agreement. Testimony indicates that Ms. Minton forwarded the buy/sell agreement referenced by Long’s to an attorney for review, but that it was never signed. Long’s contends that the attorney’s attention to typographical errors in the agreement, but lack of any written objection to the inclusion of the repayment language, indicates that the concept of repayment was a part of Ms. Minton and Julian’s original'l ¿agreement. Ms. Minton disputes this assertion, contending that she did not sign the agreement due to her disagreement with the repayment condition.

Further, Long’s points to portions of Ms. Minton’s testimony which, it alleges, reveal internal inconsistencies indicating a lack of credibility. The majority of the statements alleged to be “vague, unsubstantiated, and contradictory” relate to various meetings of the board Ms. Minton alleged occurred. Long’s argues that, in light of Julian’s clear statements regarding the buy/sell terms agreed to, Ms. Minton’s contradictory testimony lacks sufficient weight for the trial court to have ruled in her favor on this issue.

In ruling, the trial court referenced the Louisiana Civil Code’s requirements of consent, capacity, and cause, see La.Civ. Code arts.1918, 1927, and 1971, as well as Article 1971’s instruction that: “Parties are free to contract for any object that is lawful, possible, and determined or determinable.” The trial court then reviewed the testimony offered at trial, explaining:

| ¿Testimony at trial established that Linda Minton and Julian W. Long discussed the buy-out of Mrs. Minton’s shares of stock. The parties admitted at trial that they verbally agreed that Mrs. Minton would continue to receive her salary during the buy-out. Therefore, the parties admittedly contracted for the payout of Four Thousand Five Hundred and No/100 Dollars ($4,500.00) per month to Mrs. Minton during the period between the agreement to buy back Mrs. Min-ton’s shares of stock and the completion of the buy out. Both parties had capacity as well as consent and they contracted for a lawful cause and determined object. Therefore, a verbal contract was confected between the parties. At some point afterwards a written contract was drawn up for the parties to sign. However, the contract contained a provision that required Mrs. Minton to repay the Forty-Four Thousand and No/100 Dollars ($44,000.00) in salary she received from the time of the agreement to buy back the shares of stock until the time the buy-out was completed. Mr. Ellis Saybe, an Alexandria attorney, was given the document to review for Mrs. Min-ton, during which time Mr. Saybe circled and corrected a typographical error in the contract. Plaintiff contends that Mrs. Minton admitted that there was an agreement to repay the monies when she testified that she gave the contract to Mr. Saybe because she wanted him to look at it before she signed it and did not mark through the portion requiring her to repay the monies. However, the Court does not find this argument persuasive. Mrs. Minton testified that she refused to sign the contract because she had not agreed to repay the interim salary. Mr. Julian W. Long also admitted that the reason Mrs. Minton refused to sign the contract was due to the provision requiring her to repay the salary. Furthermore, it would not be logical for Mrs. Minton to accept the salary payments as a loan, pay taxes on the monies thereby only receiving a net amount of the payments and then repay the gross amount to the Corporation. Additional evidence of the lack of agreement to repay the funds arises from the testimony of Julian E. Long, Mrs. Min-ton and Mr. Julian W. Long’s father, who testified that he informed Mr. Julian W. Long to remove the Forty-Four' Thousand and No/100 Dollars ($44,-000.00) from the amount Mrs. Minton would receive as the purchase price for her shares of stock because she did not work for that money and should not receive it. Mr. Julian E. Long told his son this at the time when the latter,was preparing a written agreement for the purchase price of Mrs. Minton’s shares of stock, not at a time prior to the oral agreement between Mr. Julian W. Long and Mrs. Minton. It appears that this occurred at approximately the time the relations with Mrs. Minton’s father and brother, Mr. Julian E. Long and Mr. Julian W. Long, respectively, became strained to the point of no return. It was also around this time when Julian W. Long changed the locks so that Mrs. Minton no longer had access to the Corporation and when Mrs. Minton’s salary was abruptly stopped, approximately March 1998. It was not long after this when it became obvious that the agreement to buy-out Mrs. Minton’s stock had .fallen through. Mrs. Minton thereafter withdrew the offer [for Julian] to purchase her Corporation stock. The | fiCourt had an opportunity to view the parties and judge their credibility during trial and, after reviewing the evidence, the Court is of the opinion no agreement existed that required Mrs. Minton to repay the monies she received as salary for that eight (8) month period of buy-out negotiations. Accordingly, the Court finds that the contract to pay Mrs. Minton her salary from the time of the agreement to buy back her stock until the completion of this event did not encompass the obligation for Mrs. Min-ton to repay the monies she received during this period. As such, Mrs. Min-ton is entitled to retain the amount she was paid in salary during the time of the buy-out negotiations.

The above reasons for ruling reflect the trial court’s acceptancé of Ms. Minton’s testimony over the version of events offered by Julian. The Louisiana Supreme Court has noted that, “[w]here there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review .... ” Parish Nat’l Bank v. Ott, 02-1562, p. 7 (La.2/25/03), 841 So.2d 749, 753. This remains true even in the event the appellate court finds that it may have weighed the evidence differently if it had been sitting as the trier of fact. Id. Only when the trial court’s factual determinations are clearly wrong will the appellate court substitute-its own findings for that of the trial court. Our review of the record reveals no such error.

Long’s asserts that Ms. Minton’s testimony was unreliable due to what it contends were internal contradictions. However, we find little merit in the contention that any such inconsistencies or lack of clarity in her recollection of meetings of ah informally operated board' necessarily bear on the central question of whether the parties agreed that, the continued salary would be deducted from the proceeds of the sale of her share of the company. The testimony, taken as a whole, supports the trial court’s determination that she and Julian agreed that her salary would continue during the valuation process. However, the trial court concluded that this initial agreement did not include a provision that the salary would be repaid from the proceeds. This l7is supported by her testimony that she did not sign the written agreement presented to her as it included this term. Although Julian’s testimony was contrary to this, the trial court noted that it was able to view the witnesses and make credibility determinations. Furthermore, although Long’s contends that the trial court gave inadequate consideration to the unsigned buy/ sell agreement and related documents, the reasons for ruling reveal that consideration was given to this evidence. However, the trial court found that the documents were more supportive of Ms. Minton’s position. As the record supports its findings, we find no clear error in the trial court’s resolution of the credibility issue in favor of Ms. Minton.

This assignment lacks merit.

Nature of Compensation

In her reconventional demand, Ms. Min-ton sought recovery for wages until the time of trial. She contended that these wages were owed after the buy out as her compensation with the company was reflective of her position as an officer of the company and that it was not compensation for her employment-related duties. The trial court denied this request, finding that the officers of the company were not compensated for their work in that capacity. In her answer to the appeal, Ms. Minton questions this finding.

In denying recovery on the recon-ventional demand, the trial court reasoned:

Ms. Minton claims that she had a verbal contract of employment with Long’s Preferred Products, Inc. and that she is owed this salary because she continued to hold a position as officer and director of the Corporation from the time her salary was stopped to date. It is accurate that Mrs. Minton continued to serve as director of the Corporation. Mrs. Minton’s purported discharge on Mary [sic] 14, 1998 by the corporate board was nullified in Civil Suit Number 196,819, on the docket of the Ninth Judicial District Court, the Honorable Ross Foote, Presiding. That Judgment was affirmed by the Third Circuit Court of Appeal and amended to specifically declare Ms. Minton a director of the | «Corporation. However, while the Corporation’s tax returns on their face show officer compensation, the evidence established that the officers and directors at the Corporation are not compensated as such. Mrs. Minton was paid as an employee at the Corporation, not as an officer and director. It was stipulated by the parties Mrs. Minton’s salary as an employee of the Corporation from October 1991 through April 1997 was Two Thousand Five Hundred and No/ 100 Dollars ($2,500.00) per month. Mrs. Minton was appointed Vice-President and Secretary-Treasurer of the Corporation on February 24, 1992 while her salary remained the same until May 1997 when it was raised to Four Thousand Five Hundred and No/100 Dollars ($4,500.00) per month. It was additionally stipulated that Ms. Tracy Percy did not receive an increase in salary when she was appointed Secretary-Treasurer in May 1998 nor did Mrs. Eva Long receive an increase in salary when she was appointed Vice-President of the Corporation. Mr. Julian W. Long also testified that he received no salary increase when he became an officer and director of the Corporation. Mrs. Min-ton discontinued her day-to-day duties as an employee of the Corporation when she agreed to sell her stock, although she remained an officer and director. However, the Court is of the opinion that Mrs. Minton was compensated as an employee, not as an officer and director of the Corporation. Accordingly, Mrs. Minton is not entitled to an award for her salary from March 1998 to date.

Our review of the testimony and related exhibits supports the above-factual conclusions. For example, despite conflicting testimony from Ms. Minton and Julian regarding the nature of their compensation, other members of the board, ie., Tracy Percy or Eva Long, did not receive an increase in their salary when their position changed from employee only, to that of both employee and board member. This assignment lacks merit.

Motion for Contempt and Return of Brief

Long’s filed a motion with this court, alleging that references contained in Ms. Minton’s brief were inappropriate and violative of the Uniform Rules of the Courts of Appeal. Specifically, the motion complains of reference to a decision of this court rendered in a suit by these same parties, relating to another difficulty with the business. The motion contends that the unpublished opinion was inappropriately 13referenced and mention was not made to the case’s publication status. Long’s asserts both that the appellee brief should be returned and that sanctions should be imposed.

Relevant to consideration of the motion are Uniform Rules — Courts of Appeal, Rules 2-12.4 and 2-16.3. Rule 2-12.4, which addresses the requirements of briefs filed with the court, provides, in part:

The language used in the brief shall be courteous, free from vile, obscene, obnoxious, or offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class or persons or association of persons, or any court, or judge or other officer thereof, or of any institution. Any violation of this Rule shall subject the author, or authors, of the brief to punishment for contempt of court, and to having such brief returned.

Furthermore, with regard to published/unpublished cases, Rule 2-16.3 provides, in part:

C. Opinions marked “Not Designated for Publication” shall not be cited, quoted, or referred to by any counsel, or in any argument, brief, or other materials presented to any court, except in continuing or related litigation. Opinions marked “Not Designated for Publication” shall be filed in the clerk’s office as public records.

After review of the appellee’s brief and references made to the other proceeding, we do not find that those references require return of the brief or imposition of sanctions. Although the opinion is unpublished, it involves the conduct of these parties in another, arguably related matter. In fact, the proceeding is referenced by the trial court in his reasons for ruling. A portion of Rule 2-16.3 permits reference to unpublished opinions if they stem from related litigation. This court is able to assess the relevance/appropriateness of the references and determine whether any weight is to be given the information in question.

With regard to Long’s assertion that a statement in Ms. Minton’s brief questioning the veracity of statements made by Julian and his father, Julian E. Long, 110we point out that both briefs call into question the truthfulness or credibility of the opposing party’s statements. We do not find sanctions in this regard appropriate. The motion is denied.

DECREE

For the foregoing reasons, the decision of the trial court is affirmed. The motion for contempt and return of brief is denied. All costs of this matter are assessed equally between the parties, Long’s Preferred Products, Inc. and Linda Long Minton.

AFFIRMED. MOTION DENIED.

THIBODEAUX, C.J., dissents in part and assigns written reasons.

| THIBODEAUX, J.,

dissenting in part.

The trial court erroneously held that Ms. Minton refused to agree to repay the monies she received from Long’s Preferred Products, Inc.

I am mindful of the deference which should be accorded to the factual findings of a trial court. I am equally cognizant that a court of appeal has a constitutional function to perform and it is entitled to determine if a trial court’s verdict is without evidentiary support. Ambrose v. New Orleans Police Amb. Serv., 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216. In performing this constitutional function, “[w]here documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.” Rosell v. ESCO, 549 So.2d 840, 844-45.

In this case, it seems to me that the objective evidence militates against the weight given to the credibility determinations of the trial court. In the proposed Installment Sale & Act of Pledge, the sum of $732,150.00 was submitted. This sum | ^reflected in part the deletion of $44,000.00 in salary received by Ms. Min-ton. The promissory note reflected this same amount. Ms. Minton was asked during her deposition:

Q. Did you by any chance consult a lawyer by the name of Ellis Saybe?
A. Yes, sir, I did. I took this contract, as a matter of fact, the first time I saw it. Let me make sure I’m saying this right. Yes, sir, I did, because this is Ellis Saybe that caught the typo. And I did want him to look at it before I signed it.

Ms. Minton does not mention any objection to deleting $44,000.00 from the total price of the proposed buy out. Her attorney, Mr. Saybe, examined the document and made one minor typographical change deleting “and” and substituting “any” in its place.

Ms. Minton’s attorney drafted a letter to Julian W. Long on April 23, 1998. That letter does not mention any disagreement with the pay-back provisions of the Installment Sale & Act of Pledge and the promissory note. Finally, Ms. Minton admits in her deposition that she never returned after July 18th to the corporate offices to perform the services she had previously performed for Long’s Preferred Products. She did not, in other words, perform any work, yet she claims to be entitled to $4,500.00 per month for work she did not perform.

I feel simply that Ms. Minton’s after-the-fact trial testimony is simply too inconsistent with the hard, objective evidence. I would reverse the trial court on this issue.

For the foregoing reasons, I respectfully dissent.

      . The father of Ms. Minton and Julian W. Long, Julian E. Long, was also a witness at the trial in this matter. Julian W. Long will hereinafter be referred to as "Julian” while Julian E. Long will be referenced by use of his full name.

      . The Articles provide:
      Art. 1918. General statement of capacity
      All persons have capacity to contract, except unemancipated minors, interdicts, and persons deprived of reason at the time of contracting.
      Art.1927. Consent
      A contract is formed by the consent of the parties established through offer and acceptance.
      Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.
      Unless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the acceptance is made.
      Art. 1966. No obligation without cause
      An obligation cannot exist without a lawful cause.

      . See plaintiff's Exhibit P-5, P-6, and P-7.


author: hAMY, Judge.- | THIBODEAUX, J.,

text:
    Thomas F. WELCH, et al. v. OAKDALE COMMUNITY HOSPITAL and Dr. Patrick S. Savoy.
    No. 03-1014.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 2004.

      W. Paul Hawley, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiffs/Appellants, Thomas F. Welch, et al.
    James R. Shelton Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Defendants/Appellees, Oakdale Community Hospital, Dr. Patrick S. Savoy.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   hAMY, Judge.-

The plaintiff filed suit alleging that hernia surgeiy performed by the defendant surgeon caused damages requiring extensive medical care and significant changes in his quality of life. Following trial, a jury found in favor of the defendant. The plaintiff appeals, alleging that the jury’s verdict was manifestly erroneous and, also, that a reference by defense counsel during closing arguments violated the collateral source rule. For the following reasons, we affirm.

Factual and Procedural Background

On January 2, 1998,. the plaintiff, Thomas Welch, underwent a laparoscopic bilateral hernia repair at Oakdale Community Hospital. The procedure was performed by the defendant, Dr. Patrick Savoy, a general surgeon. As explained at trial, the procedure requires that the abdominal lining, the peritoneum, be pierced and the hernia subsequently repaired through the use of mesh which is stapled to the Cooper’s Ligament and the abdominal wall. The mesh-is subsequently covered by the peritoneum previously lifted away. This peritoneum flap is then secured using surgical staples.

The plaintiff contends that the damages alleged in the instant case occurred when Dr. Savoy secured the peritoneum over the surgical mesh, inadvertently placing two surgical staples around the spermatic cord. It is unquestioned that the staples’ impingement of the spermatic cord would be below the applicable standard of care.

The plaintiff contends that, following surgery, he began to experience increasing pain, including sensations of stinging. In subsequent, post-operative visits, the plaintiff complained of a ripping sensation in his right groin/testicle area. On January 28, 1998, the plaintiff reported to the emergency room at Rapides Regional Medical Center in Alexandria, Louisiana, reporting a “48 hour history of abdominal | ?,pain in the lower side, nausea, vomiting which ha[d] become particularly severe over the past 24 hours.” Dr. David Remedios, a general surgeon, testified that his initial impression of the condition was that it was appendicitis, but that he informed the plaintiff that the pain could be related to the hernia repair. Surgery was performed, with Dr. Remedios performing an appendectomy. However, Dr. Remed-ios found that the condition of the appendix did not fully explain the plaintiffs symptoms and the presence of “cloudy peritoneal fluid.” Therefore, he performed further exploratory surgery, finding a mesentary tear along with a surgical staple he opined had been used by Dr. Savoy to repair the tear. Dr. Remedios denied tearing the mesentary himself during his procedure. Dr. Remedios and Dr. David Rayburn, a consulting surgeon called into the surgery, felt that the tear was an old one. Both surgeons reported seeing exposed mesh in the area, but denied pulling, stapling, or attempting to cover the mesh. However, during the procedure, adhesions which had formed after the hernia repair performed by Dr. Savoy were taken down by Dr. Remedios.

Following Dr. Remedios’ procedure, the plaintiff, again, continued to experience pain. In June 1998, he reported to Dr. Charles Brunicardi, a general surgeon and Chairman of the Department of Surgery at Baylor College of Medicine in Houston. The plaintiff complained of severe right inguinal pain which extended into his right testicle. Dr. Brunicardi performed surgery, finding the mesh used in the initial surgery had come partially loose and was “bundled” in the area. The area was repaired. Central to this case was his additional discovery of two staples “incarcerating” the spermatic cord. He opined that the staples were inadvertently placed in the area at the time Dr. Savoy was closing the peritoneum. He testified that this type of placement was below the applicable standard of care and was responsible 13for the type of pain experienced by the plaintiff. After Dr. Brunicardi’s surgery, the plaintiff again complained of pain, requiring, in July 2002, a follow-up surgery to repair the hernia once again.

In March 2000, the plaintiff filed the petition instituting this malpractice action against Dr. Savoy. He alleged that Dr. Savoy rendered negligent care in the initial January 1998 bilateral hernia repair. Specifically, the plaintiff alleged that Dr. Savoy negligently placed two staples around the spermatic cord. He contends this occurred while Dr. Savoy was reattaching the peritoneum at the close of surgery. He sought damages associated with his condition. His daughter and wife sought damages for loss of consortium. Following a trial at which both parties presented expert testimony, the jury returned a verdict in favor of the defendant, concluding that it was not proven that Dr. Savoy breached the applicable standard of care.

The plaintiff appeals, assigning the following as error:

[1] The Jury improperly completely ignored the opinions of the principal five attending physicians, four of whom were General Surgeons such as the Defendant Dr. Savoy, another of whom was a Pain Specialist, a sixth physician who was a General Surgeon who examined records, and the uncontradicted testimony of lay witnesses presented by the Plaintiffs in reaching a decision that the Defendant had not breached the standard of care owed to the Plaintiff Thomas F. Welch and caused damages to the Welchs.
[2] The Trial Court allowed counsel for the Defendant Dr. Savoy to state in closing argument over objection that there was no proof that Mr. Welch had incurred the $75,434.09 in medical expenses that he was asserting a claim for, which was a clear violation of the Collateral Source Rule, which allowed the Defendant an improper and extremely prejudicial opportunity to attack the credibility of the Plaintiff Mr. Welch.

|4Discussion

Standard of Care

The plaintiff first contends that the jury erred in failing to find that Dr. Savoy breached the standard of care in the treatment rendered. Specifically, the plaintiff contends that the jury erred in failing to accord appropriate weight to the testimony of its witnesses, several of whom had rendered treatment in the case, e.g., Dr. Brunieardi, Dr. Remedios, Dr. David Rayburn, and Dr. Bruce Rayburn. He asserts in his brief to this court that the instant matter is not a simple contest of experts on either side of the litigation, but that he presented “an overwhelmingly convincing case of malpractice based on the opinions of highly trained and experienced treating physicians who actually looked at and worked on the catastrophic condition of Mr. Welch following Dr. Savoy’s surgery.” The plaintiff further asserts that “[t]he Defendant’s evidence was based on unsubstantiated theories of what might have happened, when, and why, guesses at best which favored Dr. Savoy.”

La.R.S. 9:2794 sets forth the burden of proof applicable to medical malpractice claims, providing, in part:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., ... the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
| s(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

In this case, it is the lack of the “use of reasonable care or diligence” described in La.R.S. 9:2794(A)(1) or breach of the standard of care, that the jury found that the plaintiff failed to prove. On appeal, a jury’s determination as to this element of recovery is considered under the manifest error standard of review. Martin v. E. Jefferson Gen. Hosp., 582 So.2d 1272 (La.1991).

Our review of the record reveals support for plaintiffs position. As explained above, several surgeons, including those who treated the plaintiff, explained that they felt that the plaintiffs troubled recovery and ongoing pain were related to staples misplaced during the surgery performed by the defendant. Certainly the jury could have accepted the opinions and observations of those surgeons. However, the jury chose not to do so, preferring instead the testimony offered by the defendant.

First, the defendant explained the procedure he employed in the January 1998 surgery, denying that he had placed staples in the spermatic cord. He reported no occurrences out of the ordinary during the procedure. Furthermore, the jury was made aware that the Medical Review Panel convened in the matter found that the defendant did not breach the standard of care. Finally, a member of the Medical Review Panel, Dr. Chapman Lee, a general surgeon and Chief of Services at Earl K. Long Charity Hospital in Baton Rouge, testified that he reviewed the reports and found the defendant’s actions to be within the standard of care.

LDr. Lee explained that nerve injury resulting in the type of complaints experienced by the plaintiff are a material risk of the hernia repair procedure. Dr. Lee noted that, in his opinion, the plaintiffs condition resulted from the inflammatory processes the plaintiffs body underwent following surgery. He was not of the opinion that the injury resulted from the staples found by Dr. Brunicardi. With regard to the location of the staples on the spermatic cord, he disagreed with Dr. Brunieardi’s testimony regarding whether the staples were “clamped” around the spermatic cord. Although this type of clamping would indicate direct application, Dr. Lee denied that this could have occurred without the death of the surrounding tissue. It was his opinion that the staples were loosened from the mesh used to repair the hernia, migrated to the cord, and then were found lying in the surrounding tissue. While Dr. Lee did not find this to be the cause of the plaintiffs pain, he did explain that it could account for the presence of the staples found by Dr. Brunicardi.

While the testimony presented at trial was extensive, in sum, the jury was aware that Dr. Lee, along with the Medical Review Panel, concluded that the evidence did not support the finding that Dr. Savoy breached the applicable standard of care. The jury chose to credit this version of events. As explained by the supreme court, “where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Martin, 582 So.2d at 1277. Although the plaintiff characterizes the defendant’s testimony and that of his expert as self-serving, our review indicates that it provided a rational basis on which the jury could have reached its determination. Accordingly, this assignment lacks merit.

17Collateral Source Rule

Next, the plaintiff questions a reference made during the defendant’s closing argument indicating that the plaintiff failed to demonstrate that he had to pay his incurred medical expenses or that a bill for those expenses had been forwarded to him for payment. While the plaintiff does not contest that the $75,000 in medical expenses incurred was paid by his workers’ compensation provider, he contends that this statement violated the collateral source rule and is clear error on the record. The defendant contends that the reference was necessary as the plaintiffs wife referred to receipt of workers’ compensation benefits during her testimony.

The Louisiana Supreme Court has explained that: “Under the collateral source rule, a tortfeasor may not benefit, and an injured plaintiffs tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution.” La. DOTD v. Kan. City S. Ry. Co., 02-2349, p. 6 (La.5/20/03), 846 So.2d 734, 739.

Our review of the alleged error indicates that no correction by this court is required. First, as is pointed out by the parties in their briefs, there is no objection to the comment noted in the record. Rather, the plaintiff alleges that the defense counsel informed the trial court prior to his closing argument that reference would be made to the fact and that his objection to this reference was made during an unrecorded bench conference. Even if we were to find the comment inappropriately made, an issue we do not address, we note that any error would be harmless. The jury was aware of the stipulated medical expenses and was apprized by the trial court in instructions as to the award of damages that: “Also, you should not add or subtract [ ¿from the award because of any social security, disability, or welfare benefits.” For these reasons, we find no action required on this assignment of error.

DECREE

For the foregoing reasons, the decision of the trial court is affirmed. All costs of this proceeding are assessed against the appellants, Thomas F. Welch and Yvette Welch, individually and on behalf of their minor daughter, Loren Welch.

AFFIRMED.

THIBODEAUX, C.J., dissents and assigns written reasons.

| THIBODEAUX, J.,

dissenting.

I believe the jury’s verdict is clearly wrong. The record in this case does not support a conclusion that not one, but two staples were inexplicably loosened from the mesh used in the hernia repair and then migrated to the spermatic cord. Dr. Brunicardi, one of the physicians who examined, treated, and operated on Mr. Welch following his hernia surgery, has never seen a report of a staple traveling on its own to the spermatic cord. This is a physician who performs more than 500 such operations in a year and has done over 1,000 laparoscopic hernia repair surgeries. Neither has Dr. Phillip Shadduck, a general surgeon, who testified on plaintiffs behalf and the bulk of whose practice consists of laparoscopic and hernia repair. If a migration of a staple were to occur, such occurrence would take more than six months. It may take years. In this case, the migration of two staples occurred within six months after the initial surgery performed by Dr. Savoy.

I am aware that the number of experts is not crucial and a fact finder can accept or reject any expert opinion it chooses. However, it is difficult not to observe that Dr. Savoy’s primary expert witness, Dr. Lee, is not a practicing physician. li>Rather, he is an instructor of resident surgeons and has performed only one lapa-roscopic hernia repair during his entire career. Dr. Savoy had just been admitted to the practice of medicine for less than a year following the completion of his residency.

The defendant admits that the crucial question in this case is the manner in which the staples migrated to the spermatic cord. In other words, did Dr. Savoy staple them in that area during the hernia surgery he performed on Mr. Welch? The explanation offered for the pain which the plaintiff suffered immediately following the surgery and the injuries he sustained are all implausible and not supported by the defendant’s evidence. The most reasonable and logical explanation was that the two staples were negligently misplaced around the spermatic cord during the surgery performed by Dr. Savoy. See, e.g., Fusilier v. Dauterive, 00-0151 (La.7/14/00), 764 So.2d 74.

      . The plaintiff also named Oakdale Community Hospital as a defendant. The hospital, however, was released through a partial final summary judgment in its favor.

      . For ease of discussion, the plaintiffs will be referencéd collectively as ''Plaintiff.”


author: hGREMILLION, Judge.

text:
    Lee SAVOIE, Individually, et al. v. SOUTHWEST LOUISIANA HOSPITAL ASSOC., etc.
    No. 03-982.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 25, 2004.

      Rex D. Townsley, The Townsley Law Firm, Thomas E. Townsley, Lake Charles, LA, Counsel for Plaintiff/Appellant, Lee Savoie, Ruth Savoie.
    L. Paul Foreman, Raggio, Cappel, Cho-zen, & Berniard, Lake Charles, LA, for Defendant/Appellee, Southwest Louisiana Hospital Assoc.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   hGREMILLION, Judge.

The plaintiffs, Lee and Ruth Savoie, appeal the judgment of the trial court granting summary judgment in favor of the defendant, Southwest Louisiana Hospital Association d/b/a Lake Charles Memorial Hospital, and dismissing their claims with prejudice. For the following reasons, we reverse and remand.

FACTS

On August 23, 1999, the Savoies were at Memorial Hospital so that Ruth could undergo therapy for congestive heart failure. They were traversing the second-floor closed-in walkway connecting the hospital to the parking garage when Lee’s right foot stuck to the floor, causing him to fall.

The Savoies filed suit against Memorial Hospital seeking damages for Lee’s injuries. Memorial Hospital answered their petition and then filed a motion for summary judgment arguing that the Savoies could not show the presence of any defect in the floor or that it knew or should have known of any defect. Following a hearing on the motion, the trial court held that the testimony of the Savoies created a material issue of fact on the issue of a wax buildup on the floor. However, it held that there was no evidence to show knowledge or constructive knowledge on the part of Memorial Hospital with regard to the buildup. Accordingly, it granted Memorial Hospital’s motion for summary judgment. A judgment was rendered in this matter dismissing the Savoies’ claims with prejudice on April 29, 2003. This appeal by the Savoies has followed.

ISSUE

On appeal, the Savoies argue that the trial court erred in finding that they | ¡.had to prove that Memorial Hospital had actual or constructive notice of the alleged wax buildup on the floor.

SUMMARY JUDGMENT

The law pertaining to summary judgment is well settled. Summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Thus, appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B), (C). Judgment will be rendered in the movant’s favor if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim. Id. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.

MERCHANT LIABILITY

In order to maintain a trip and fall action against Memorial Hospital, the Savoies must prove, in addition to duty, breach, cause-in-fact, and damages, the requirements contained in La.R.S. 9:2800.6:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

lain support of its motion for summary judgment, Memorial Hospital presented deposition and affidavit testimony from several of its employees attesting to the fact that no foreign substance, such as a liquid, was found at the site of Lee’s fall on the date of the accident. There was further testimony that there was no “hot spot,” at that location, which would have caused him to slip. The employees further testified that there was nothing at the scene of the fall to put them on notice of a problem with the floor. Lisa Nugent, Memorial Hospital’s director of housekeeping and linen, testified that the floors at the hospital are stripped and waxed approximately every twelve to fifteen months. Nugent and Henry Jefferson, a housekeeping lead, further testified that Memorial Hospital’s floors are maintained by housekeeping and they described the various methods in which the floors are cared for, including stripping and waxing, restoring, spraying and buffing, mopping, and dust mopping.

In opposition to the motion, Lee and Ruth both testified that they believed a heavy wax buildup on the floor caused the accident. Lee testified that he was walking down the walkway, talking to Ruth, when his right foot stuck to the floor. He stated that his action of jerking his foot up made his body swing around to the left, causing him to fall to the floor on his left side. He stated that there was nothing about the floor’s looks which would have warned him that there was a problem with it. He stated that he was wearing shoes with a rubber sole, and that he had never had a problem with his shoes sticking or with him falling prior to the accident.

|4Ruth testified that she noticed that the floor looked shiny while they were walking out of the hospital. She stated that she was wearing athletic shoes on the date in question, and that she had no trouble with her shoes sticking to the floor that day. She further testified that there was no foreign substance on the floor, such as water or dried coke. She stated that there was nothing about the floor that day that alerted her that something was wrong with it.

The Savoies further presented the affidavit of Dr. Gary Nelson, an expert in the areas of safety engineering, safety management, human factors engineering, and occupational health engineering. He testified that he personally examined the corridor at issue on November 2, 2000, in addition to the evidence presented in support of and in opposition to the motion. After examining the corridor, Dr. Nelson stated that he observed an obvious long-term buildup of wax, which indicated that the floor had not been stripped and refinished on a timely basis. He further stated that, if such a condition existed on August 23, 1999, it could have rendered the walkway unreasonably dangerous. He testified that a failure to timely strip a floor could lead to a buildup of floor treatment materials, and that the difficulty of buffering such a floor could result in “a patchwork of potential slippery and/or sticky sections of flooring.” Dr. Nelson stated:

In this regard, with the understanding that the area where Mr. Lee Savoie fell was a high traffic area, and that a variety of cleaners, disinfectants, and restorers are applied to the floor on a regular basis, the practice of stripping and waxing the floor every 12-18 months would not be timely to prevent the buildup of such materials to result in a flooring of non-uniform slip resistance.

Dr. Nelson further dissected the process of walking and ultimately concluded that a sticky floor “that causes a person’s foot to be momentarily slowed |Bor lag behind in regard to its necessary placement to maintain balance as the upper body center of gravity moves forward beyond its base of support can result in a form of trip-type fall.” Finally, he opined that Memorial Hospital controlled and maintained the floor which caused Lee’s accident, thus, it had constructive knowledge of the unreasonably dangerous condition of the floor.

After conducting a de novo review of the evidence, we find that the Savoies have presented evidence sufficient to raise a genuine issue of material fact with regard to a possible wax buildup causing Lee to fall. Since Memorial Hospital maintains its own floors, the Savoies are not required to prove that it had notice or constructive notice of the possible buildup. If there was a buildup, Memorial Hospital created it, thus, the notice requirement of La.R.S. 9:2800.6 does not apply, as held by the trial court. Accordingly, the judgment of the trial court granting summary judgment in favor of Memorial Hospital is reversed and the matter is remanded for further proceedings.

CONCLUSION

For the forgoing reasons, the judgment of the trial court is reversed and the matter is remanded for further proceedings. The costs of this appeal are assessed to the defendant-appellee, Southwest Louisiana Hospital Association d/b/a Lake Charles Memorial Hospital.

REVERSED AND REMANDED.


author: RCOOKS, Judge.

text:
    Elizabeth MONK v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 03-742.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 25, 2004.

      Robert Beck, Jr., Alexandria, LA, for Appellee, Elizabeth Monk.
    Bonita Preuett-Armour, Alexandria, LA, for Appellant, State Farm Mutual Automobile Insurance Company.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   RCOOKS, Judge.

STATEMENT OF THE CASE

On October 14, 1999, Elizabeth Monk, a dental hygienist, was involved in an automobile accident while riding as a guest passenger in a vehicle driven by her coworker, Phoebe Alston. Ms. Alston’s vehicle was struck by Andrew Gray. Mrs. Monk asserted a claim against Mr. Gray’s insurer, Economy Fire and Casualty Insurance Company (Economy), Ms. Alston’s uninsured/underinsured motorist carrier, State Farm Mutual Automobile Insurance Company (State Farm), and her own uninsured/underinsured motorist carrier, which is also State Farm. Mrs. Monk settled with Economy for the policy limits of $10,000.00 prior to filing suit.

Prior to trial, State Farm paid Mrs. Monk $10,000.00 under the uninsured/un-derinsured motorist provision of Ms. Alston’s policy and $5,000.00 under the medical payments portion of the Alston policy. Additionally, prior to trial, State Farm paid Mrs. Monk $8,285.00 in medical payments coverage under her own uninsured/underinsured policy.

Trial on the merits was held before the Honorable Donald T. Johnson, The court awarded general and special damages in the amount of $78,285.00 with a credit to State Farm for amounts already received by Mrs. Monk. The judgment cast State Farm for $35,000.00 in “new money.” It is from this judgment that State Farm appeals. State Farm contends the trial judge erred in awarding this amount to Mrs. Monk when the evidence establishes Mrs. Monk’s complaints were actually caused by prior and subsequent accidents. We disagree. Therefore, for the reasons assigned below, we affirm the decision of the trial court.

LAW AND DISCUSSION

In order for an appellate court to reverse the trial court within the manifest error [¡¡standard of review, the appellate court must find that a reasonable factual basis does not exist for the ruling of the trial court. Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State through DOTD, 617 So.2d 880 (La.1993). An appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Lyons v. Bechtel Corporation, 00-00364 (La.App. 3 Cir. 12/27/00), 788 So.2d 34; Stobart, supra. If the trial court’s findings are reasonable in light of the record as a whole, an appellate court may not reverse, even though it may have weighed the evidence differently. Id.

We conclude a review of the record supports a finding that the injuries complained of by Mrs. Monk were caused by the October 14, 1999 automobile accident and the amount of general damages awarded by the trial court was reasonable and appropriate.

State Farm contends Mrs. Monk’s complaints were caused by prior and subsequent accidents. State Farm contends Mrs. Monk has been involved in five automobile accidents, including four in Louisiana and one in New Mexico. Actually, Mrs. Monk testified she was in one prior accident in 1994. She testified all complaints associated with that accident had resolved and she was pain free and had resumed her normal lifestyle for four years prior to the October 14, 1999 accident. State Farm was unable to introduce any medical evidence to refute her testimony on this point.

Following the October 14, 1999 accident, Mrs. Monk had complaints of pain in the right side of her neck, right shoulder and right thigh. She was referred to Dr. Gerald J. Leglue, Jr., a physical medicine and rehabilitation specialist, in Alexandria. Dr. Leglue testified Mrs. Monk complained of pain in her neck, right shoulder and right thigh and also she reported par-aesthesias, a numbness or tingling, into her right 14arm. Upon examination, Dr. Leglue found spasms in the neck and shoulder areas bilaterally and he also noted some decreased sensation in Mrs. Monk’s first three fingers and half the ring finger on her right side. With regard to her lower back, Dr. Leglue was of the opinion' that Mrs. Monk had injured the piriformis muscle which is the buttock muscle that attaches the sacrum to the hip. Dr. Leglue’s initial diagnosis was acute cervical sprain/strain, strained right rota-tor cuff, and piriformis strain together with an iliolumbar ligament strain. He prescribed physical therapy three times a week for a period of three weeks and scheduled Mrs. Monk for a follow-up evaluation. After completing a course of physical therapy, with no significant pain relief, Dr. Leglue recommended acupuncture treatments in November 1999. Mrs. Monk persisted with complaints of shoulder girdle pain on the right side with symptoms into the right arm, hand and fingers. Dr. Leglue ordered an EMG nerve conduction study of the right arm and an MRI.

An MRI performed on April 30, 2001 showed bulging discs at' C3-4 and C5-6 with foraminal narrowing on the right side. The MRI further showed some “small bone spurs” that were beginning to develop in those areas. Dr. Leglue opined the bone spurs were contributing to Mrs. Monk’s symptoms. He further opined while the bone spurs were not caused by the October 14, 1999 accident, the accident caused them to become symptomatic. With regard to the bulging discs at C3-4 and C5-6, Dr. Leglue testified it would be reasonable to assume the bulging discs were caused by the accident.

State Farm contends the injuries suffered by Mrs. Monk were, at best, aggravations of pre-existing injuries she sustained in subsequent accidents or aggravations of bone spurs that existed before October 14, 1999. The evidence does not support this contention. Mrs. Monk testified she had fully recovered from the R1994 accident. While she was involved in an accident on June 30, 2000, the evidence indicates she suffered no injuries. Mrs. Monk also described an accident in March 2002 which did cause her injury. However, prior to the March accident, her condition had become stable; Dr. Leglue testified she had reached maximum medical improvement, but her condition was far from “normal” and she was still experiencing substantial pain.

In awarding damages, the trial court considered only the time up to the March 2002 accident. The trial court stated:

Dr. Leglue agreed that up until March of 2002, her condition was stable; she had gotten some transient relief from the various things they had tried, but that her condition was basically chronic. Dr. Leglue had attempted to manage her symptoms with various forms of conservative treatment, including medications, steroids, cervical traction, acupuncture, and physical therapy. As of December of 2001, his plan was to see Ms. Monk as needed, and that was the last time he officially saw her regarding this accident.

Appellate review of a damage award was set forth in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), in which the Louisiana Supreme Court stated:

[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.

Id. at 1260-61.

The record indicates Mrs. Monk is a dental hygienist who .has worked in that capacity for the past twenty years. Other than very temporary relief following the acupuncture sessions, Mrs. Monk has continued to experience pain in varying degrees on a daily basis since the October 1999 accident. Prior to the March 2002 accident, Dr. Leglue testified she had reached maximum medical improvement and it was not | ^anticipated that her condition would significantly improve. We find the trial court was within its discretion in awarding the sum of $68,750.00 in general damages for the injuries sustained in the October 1999 accident.

Mrs. Monks filed a Motion to Dismiss the Suspensive Appeal of State Farm. Mrs. Monk contends State Farm failed to provide security within the delays allowed by law. A review of the record indicates the trial court failed to designate an amount of security. State Farm made an estimation and posted an appeal bond in the amount of $39,000.00 on June 23, 2003. On the same date, the trial judge was notified of the posting of an appeal bond. Louisiana Code of Civil Procedure article 2161 provides an “appeal shall not be dismissed because of any ... irregularity, error or defect unless it is imputable to the appellant.” We decline to dismiss the sus-pensive appeal of State Farm based on the failure of the trial judge to set an amount for the appeal bond.

DECREE

Based on the foregoing review of the record, we affirm the decision of the trial court. All costs of this appeal are assessed to State Farm.

AFFIRMED.


author: 1 ¿TERRI F. LOVE, Judge.

text:
    BROADSCAPE.COM, INC. v. Jones, WALKER, Waechter, Poitevent, Carrere & Denegre, L.L.P., Richard T. Gallagher, Jr., Keith M. Landry, Dionne M. Rousseau, and “ABC” Insurance Company.
    No. 2003-CA-0904.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 25, 2004.
    Rehearing Denied March 16, 2004.

      Robert H. Matthews and Pauline M. Warriner, Hearin & Warriner, LLC, New Orleans, LA, for Plaintiff/Appellant.
    Daniel Lund, J. Scott Loeb, Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P., New Orleans, LA, for Defendant/Appellee.

      (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge MOON LANDRIEU).
   1 ¿TERRI F. LOVE, Judge.

An arbitration panel rendered a judgment in the amount of $758,000, in favor of plaintiff on a breach of contract issue. The award was only a portion of the damages sought by plaintiff. Plaintiff, Broad-scape.com (“Broadscape”) filed a legal malpractice suit against defendants Jones, Walker, et al. (“Jones, Walker”) alleging that the partial award was a result of a contract drafting error, committed by the defendants. The trial court granted Jones, Walker’s motion for summary judgment. For the following reasons, we reverse the decision rendered by the trial court.

FACTS AND PROCEDURAL HISTORY

On April 30, 2001, Broadscape filed a legal malpractice suit against its former attorneys, Jones, Walker. In October 1999, Broadscape, a software company, retained Jones, Walker to draft contracts in which Broadscape and KDS, USA, the second largest monitor distributor in the country, were to enter into agreement concerning Broadscape’s software. Jones, Walker drafted two contracts for Broad-scape. The first contract, dated March 2, 2000, referred to as the “Rebate and Supply Agreement,” was perfected. It required KDS to

(1)distribute Broadscape’s Webscape software with KDS monitors modified to work with the Webscape software; and
|4(2) fund rebates to purchasers of those modified monitors.

The second contract, dated March 6, 2000, referred to as the “Financing, Rebate and Supply Agreement” was perfected. It required

(1) KDS to distribute Broadscape’s Myscape software on a compact disc with the sale of 2,000,000 KDS monitors;
(2) KDS to provide Broadscape with financing in the amount of $900,000.00, payable in 12 monthly installments of $75,000.00 per month;
(3) Broadscape to provide KDS with the option to fund additional rebates on additional modified monitors;
(4) Broadscape to pay KDS for- these requirements with Broadscape stock; and
(5) Broadscape to grant KDS exclusive rights to Broadscape’s technology.

In May 2000, Broadscape initiated arbitration proceedings seeking specific performance of both contracts, alleging that KDS breached both contracts. Broad-scape sought breach of contract damages based on the March 2, 2000 contract, alleging that KDS was not promoting the sale of its modified monitors with Broadscape’s Webscape software. KDS’s defense to this alleged breach was that Broadscape failed to supply Webscape software on time and that Broadscape failed to secure the financing it had agreed to secure.

Broadscape also sought damages for KDS’s alleged breach of the March 6, 2000 contract by 1) KDS failing to distribute Broadscape’s Myscape software on a compact disc with the sale of 2,000,000 KDS monitors arid 2) KDS failing to pay $825,000 owed to Broadscape based on the separate portion of the March 6, 2000 contract containing the financing agreement. KDS’s defense to the alleged breach of the March 6, 2000 contract, in failing to distribute the Myscape software with |sthe sale of 2,000,000 KDS monitors, was that it and Broadscape disagreed on the substance and subject matter of that portion of the contract referring to “Software.” KDS maintained that the agreement referred to Webscape software, while Broad-scape maintained it referred to Myscape software. KDS maintained that the meaning of the term “Software” contained in the agreement was uncertain and susceptible to more than one reasonable meaning leaving that portion of the March 6, 2000 contract unenforceable. KDS also argued that any ambiguity in the meaning of the term “Software” should be construed against the drafter, Broadscape.

Broadscape sought damages totaling $6,117,600. The matter was submitted to arbitration and the panel awarded Broad-scape $758,000, plus interest. The panel rendered judgment providing only that “KDS shall not receive any equity interest in Broadscape and this award does not represent consequential damages, which the Panel declines to award.”

Broadscape, acknowledging that the judgment rendered by the arbitration panel was binding, filed a legal malpractice action against Jones, Walker as a result of its alleged negligent drafting and preparation of the supply/distribution agreement portion of the March 6, 2000 contract. Broadscape further alleges that due to the drafting error committed by the attorneys, Jones, Walker, the arbitration panel was unable to award Broadscape damages sought as a result of KDS’s breach of section (1) of the March 6, 2000 contract, because that portion was unenforceable. Jones, Walker filed a motion for summary judgment, alleging there existed no genuine issue of material fact. The trial court granted Jones, Walker motion for summary judgment. It is from this judgment that Broadscape appeals.

LEGAL ANALYSIS

On appeal, Broadscape alleges that the trial court erred in granting Jones, Walker’s motion for summary judgment and finding that in a legal malpractice | ¡^action once the plaintiff shows the existence of an attorney/client relationship and shows negligence on the part of the defendant-attorney, the burden does not shift to the defendant to prove that the plaintiff could not have prevailed in the underlying litigation.

Appellate courts review summary judgment decisions de novo. Spellman v. Bizal, et al., 99-0723 (La.App. 4 Cir. 3/1/00), 755 So.2d 1013; Godfrey v. Boston Old Colony Ins. Co., 97-2569, (La.App. 4 Cir. 5/27/98), 718 So.2d 455, 457; Walker v. Kroop, 96-0618, (La.App. 4 Cir. 7/24/96), 678 So.2d 580, 583. The appellate court, like the trial court, should uphold a summary judgment decision only when “the pleadings, deposition, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.” La.Code of Civil Procedure (La.C.C.P.) article 966(B).

To prove a claim for legal malpractice, a plaintiff must prove: (1) there was an attorney-client relationship; (2) the attorney was negligent; and (3) that negligence caused plaintiff some loss. Spellman v. Bizal, et al., 99-0723, (La.App. 4 Cir. 3/1/00) 755 So.2d 1013 quoting Couture v. Guillory, 97-2796 (La.App. 4 Cir. 4/15/98), 713 So.2d 528 quoting Scott v. Thomas, 543 So.2d 494 (La.App. 4th Cir. 1989)). However, once the plaintiff establishes a prima facie case for attorney malpractice, the burden then shifts to the defendant attorney to prove that the litigation would not have been successful even if [sic] he had not negligently handled the plaintiffs case. Restrepo v. King, Jr. 569 So.2d 92 (La.App. 4th Cir.1990) citing Drury v. Fawer, 527 So.2d 423, 424 (La.App. 4th Cir., 1988). In Jenkins v. St. Paul Fire & Marine Insurance Co., et al., 422 So.2d 1109 (La.1982), the Supreme Court of Louisiana held that the third element, the plaintiff’s damage was a result of the defendant attorney’s negligence, can be inferred in some cases where the attorney’s action of simply entering into the “attorney-client” ^relationship provides a small threshold of proof that there was some amount of damages sought to be recovered by the plaintiff via the skill of the attorney. Jenkins, 422 So.2d 1109 (La.1982). In Jenkins, a legal malpractice action was brought against plaintiffs former attorneys, who allegedly allowed prescription to run before filing suit on plaintiffs claim for damages for personal injuries sustained in a truck collision. The court held:

once the client has proved that his former attorney accepted employment and failed to assert the claim timely, then the client has established a prima facie case that the attorney’s negligence caused him some loss, since it is unlikely the attorney would have agreed to handle a claim completely devoid of merit ... The more logical approach is to impose on the negligent attorney, at this point in the trial, the burden of going forward with evidence to overcome the chent’s prima facie case by proving that the client could not have succeeded on the original claim, and the causation and damage questions are then up to the jury to decide.

Id. at 1110.

Jenkins does not dispose of the plaintiffs burden in proving all three prongs required in a legal malpractice suit. The court reasoned:

when the plaintiff proves that negligence on the part of his former attorney has caused the loss of the opportunity to assert a claim and thus establishes the inference of causation of damages resulting from the loss opportunity for recovery, an appellate court must determine whether the negligent attorney met his burden of producing sufficient proof to overcome plaintiffs prima facie case.

Id. at 1110.

The inference of causation of damages can easily be made in cases where the attorney enters into a “relationship” with a client on the premise that the client has a valid cause of action, or on a contingency fee basis. However, this inference is not automatic in all legal malpractice cases, it must be proven that the defendant-attorney’s negligence caused the client a loss of the opportunity to assert a claim. Furthermore, the inference only assists the plaintiff in establishing that something |sof value was lost, provided that the other two prongs have been met. Spellman v. Bizal, et al., 99-0723 (La.App. 4 Cir. 3/1/00), 755 So.2d 1013.

Jones, Walker entered into the “relationship” with Broadscape for the sole purpose of perfecting two legally binding contracts between KDS and Broadscape. In no other agency relationship is a greater duty of trust imposed than in that involving an attorney’s duty to his client. Abshire v. National Union Fire Insurance Co., et al., 636 So.2d 226 (La.App. 3rd Cir.1993) citing Plaquemines Par. Com’n Council v. Delta Dev., 502 So.2d 1034 (La.1987). An attorney is obligated to exercise that degree of care, skill, and diligence, which is exercised by prudent practicing attorneys in his locality. Id. at 231. Lawyers are obligated to scrutinize any contract which they advise their clients to execute, and are required to disclose the full import of the instrument and the possible consequences that may arise upon execution of it. Id. at 231. The proper method of determining whether an attorney’s malpractice is a cause in fact of damage to his client, is to assess whether the performance of that act would have prevented the damage. Bauer v. Dyer, III, et al., 00-1778 (La.App. 5 Cir. 2/28/01), 782 So.2d 1133, citing Ault v. Bradley, 564 So.2d 374, 379 (La.App. 1st Cir.1990).

In the case at bar, the plaintiff, Broad-scape, asserts that Jenkins controls because, pursuant to the third prong as set forth in Spellman, the unenforceability of the contract resulted in their loss. As provided for in Jenkins, Broadscape asserts they loss the opportunity to assert a claim against KDS for breach of contract. Defendants Jones, Walker, assert that even if negligence is established, Broad-scape cannot satisfy the third prong of Spellman, that the alleged drafting error caused the client to suffer some loss, because the arbitrators were silent as to the enforceability of the supply/distribution portion of the contract. The trial court reasoned that Jenkins does not control because pursuant to the third prong of Spellman, the evidentiary requirement that the plaintiff prove some loss was | aincurred as a result of the defendant-attorney’s alleged negligence can never be established, solely because the arbitrators failed to provide reasons as to whether the enforceability of the supply/distribution portion of the contract was considered in the award of damages. Plaintiff asserts that pursuant to Jenkins, the burden shifts to the defendant attorney once the former client has established that an attorney/client relationship existed and that the defendant attorney was negligent. Although plaintiff misstates Jenkins, in alleging that the burden shifts to defendant upon a showing by the plaintiff that an attorney/client relationship existed and the defendant-attorney was negligent, we find Jenkins and its progeny controlling in the present case.

Jenkins provides that once the client has proved that his former attorney accepted employment and was negligent, the client has established a prima facie case that the attorney’s negligence caused him some loss. It is only at this point that the court imposes on the negligent attorney

the burden of going forward with the evidence to overcome the client’s prima facie case by proving that the client could not have succeeded on the original claim, and thus causation and damage questions are then up to the jury to decide.

Id. at 1110.

Jones, Walker guaranteed the work product of its attorney’s ability to draft two legally binding contracts between KDS and Broadscape. The trial court held that there exists no genuine issue of material fact, because the plaintiff, Broad-scape, will never be able to prove the third prong required in a legal malpractice action, that it suffered some loss as a result of the defendant-attorney’s negligence. However, before the court addresses the third prong, the plaintiff must be afforded the opportunity to establish that the defendant-attorney was negligent. In following Jenkins, “causation and damages are then up to the jury to decide.” Jenkins at 1110. Broadscape avers that had the supply/distribution agreement |inportion of the March 6, 2000 contract been enforceable, plaintiff would have been entitled to the amount it would cost Broadscape to distribute 2,000,000 units of its Myscape software on compact disc. They further allege that because KDS argued that the contract was unenforceable and the deposition testimony of plaintiffs legal expert, Richard Goins, provided that the March 6, 2000 contract was inarticulate, poorly drafted and failed to reflect the terms of the second deal between KDS and Broadscape concerning the supply and distribution of Myscape software, that the arbitration panel was unable to award Broadscape the damages it sought as a result of KDS failing to distribute the software with 2,000,000 of its monitors.

The argument of the defendants, Jones, Walker, is that no genuine issue of material fact exists because the arbitrators rendered a judgment but did not address the enforceability of the supply/distribution portion of the contract. Although this argument was accepted by the trial court, this argument requires us to pretermit the issue of the defendant-attorney’s negligence. The enforceability of the contract, which was drafted by Jones, Walker on behalf of its former client, Broadscape, is a factual determination, to be determined by the trier of fact and not a matter subject to summary judgment.

La. C.C.P. article 966(B) provides that a summary judgment motion shall be granted when there exists no genuine issue of material fact. A genuine issue is a triable issue. Bauer v. Dyer, III, et al., 00-1778, (La.App. 5 Cir. 2/28/01), 782 So.2d 1133 citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2515 (La.7/5/94), 639 So.2d 730,750. A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Id. citing Penalber v. Blount, 550 So.2d 577, 583 (La.1989). An attorney is liable to his client for the damages caused by the attorney’s negligence in handling the client’s business, providing that the client proves by a preponderance of the [nevidence that such negligence is the proximate cause of the loss claimed. Toomer v. Breaux, 146 So.2d 723, 726.

In the case at bar, the client submitted to the arbitrators a breach of contract claim against KDS, based on the two contracts drafted by Jones, Walker. However, KDS argued that only one portion of the contract was unenforceable due to drafting errors, and that an unenforceable contract is not legally binding unto the parties. Broadscape alleges that it loss the opportunity to assert a breach of contract claim against KIDS as to the “software” supply/distribution portion of the contract.

Plaintiff has established the first prong in Jenkins, in that an attorney/client relationship existed with Jones, Walker. However to satisfy the second prong, that the defendant-attorney was negligent, requires a factual determination on the enforceability of the contract. There is a genuine issue of material fact as to whether the attorney was négligent in drafting that supply distribution portion of the March 6, 2000 contract. The plaintiff asserts that the defendant-attorney’s negligence in drafting the contract resulted Jn their loss of the opportunity to assert a claim. The existence or nonexisténce of an enforceable contract is essential to plaintiffs cause of action, therefore, making it a triable issue.

We find that the trial court erred in granting Jones, Walker’s motion for summary judgment and we therefore reverse the judgment, of the trial court and remand the case for further proceedings.

REVERSED AND REMANDED.