author: [,WHIPPLE, J.

text:
    DIAMOND B CONSTRUCTION COMPANY, INC. v. Louisiana DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2002 CA 0573.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Russell W. Wray, Baton Rouge, for Plaintiff/Appellant, Diamond B Construction Company, Inc.

      Lawrence A. Durant, Baton Rouge, for Defendant/Appellee, Louisiana Department of Transportation and Development.
    Murphy J. Foster, III, Baton Rouge, for Intervenor/Appellee, Concrete & Aggregates Association of Louisiana, Inc.
    Eric A. Kracht, Baton Rouge, for Inter-venor/Appellee, Jones Brothers, Inc. of Tennessee.
    Chris P. Pierce, Baton Rouge, for Ami-cus Curiae, Louisiana Associated General Contractors, Inc.

    Before: WHIPPLE, GAIDRY and McClendon, jj.

      . An amicus curiae brief was filed on behalf of Louisiana Associated General Contractors, Inc. with leave of court after this appeal was lodged.

   [,WHIPPLE, J.

In this appeal, plaintiff, Diamond B Construction, Inc. (hereinafter “Diamond B”), challenges the trial court’s grant of attorney’s fees in favor of defendant, the Louisiana Department of Transportation and Development (hereinafter “the DOTD”), and intervenor, the Concrete and Aggregate Association of Louisiana (hereinafter “CAAL”) after all appeals of the final judgment of the trial court were exhausted. For the following reasons, we reverse in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

This litigation has a protracted procedural history, as set forth in the previous opinions of this court. Essentially, in connection with a project to upgrade U.S. Highway 171 from Hornbeek to Florien, Louisiana, the DOTD advertised bidding for reconstruction project. In budgeting for this project, the DOTD estimated that the project would cost $31,540,610.86 and listed Portland cement concrete in the DOTD’s Construction Cost Estimate Specifications, rather than asphaltic pavement, as the surface type to be used for the project.

After the initial specifications and construction proposal were circulated for review by interested bidders, Diamond B formally requested that the DOTD amend the design specifications and construction proposal to permit the use of “asphalt” as an alternative to Portland cement concrete as specified in the original design proposal. The DOTD declined to amend the project proposal and refused to cancel the bid schedule, stating: “The decision to use concrete on most of U.S. 171 was [3made years ago and consultants were selected with instructions to prepare the plans specifying concrete as the pavement of choice.”

In response, Diamond B filed a petition requesting a temporary restraining order and preliminary injunction to prohibit the DOTD from issuing any bids, work orders, or performing any work on the project, and for a judgment declaring the specifications of the project “illegal closed specifications,” and that any contract entered into for the project was null and void. Diamond B further alleged that requiring the contractor to use Portland cement concrete pavement to the exclusion of asphaltic concrete stifled competition and was in direct violation of LSA-R.S. 38:2290, et seq., Louisiana’s closed specification statutes. In response, the DOTD then filed an answer and reconventional demand seeking dismissal of the petition, declaratory relief in its favor, and the taxing of costs and expert witness fees against Diamond B.

Despite this ongoing litigation, the bidding process was completed, and the contract was awarded to the apparent lowest bidder, Jones Brothers, Inc. of Tennessee, based on a bid in the amount of $27,534,391.92. The trial court denied Diamond B’s application for preliminary injunction, and Diamond B appealed to this court. On appeal, we concluded that Portland cement concrete and asphaltic concrete were not equivalent in terms of quality, performance, appearance, strength and utility; thus, we found that a legitimate basis existed for the DOTD’s design specifications. As such, we determined that the trial court was legally correct in denying Diamond B’s request for injunctive and declaratory relief.

Further, citing the reasons it had previously rendered for the denial of Diamond B’s petition for preliminary injunction, the trial court granted the DOTD’s motion for summary judgment, declaring that the DOTD’s failure to include Lalternative designs in its bid documents did not constitute a violation of LSA-R.S. 38:2290, et seq.

Diamond B then filed a motion for new trial, which was denied by the trial court. Both the denial of Diamond B’s motion for new trial and the grant of the DOTD’s motion for summary judgment were also appealed to this court. In the appeal, rendered as a companion case to the original appeal of the denial of injunctive relief, we affirmed the trial court’s denial of the motion for new trial filed by Diamond B and the grant of the DOTD’s motion for summary judgment. Diamond B sought supervisory writs from the Louisiana Supreme Court on both appellate decisions, which were denied.

After all appeals were exhausted from the final judgment of the trial court dismissing Diamond B’s suit and granting declaratory relief in favor of the DOTD, the DOTD and CAAL filed motions for attorney’s fees.

In response, Diamond B filed numerous exceptions, including peremptory exceptions of res judicata and no cause of action. By judgment dated September 27, 2001, the trial court overruled Diamond B’s exceptions. Diamond B thereafter sought supervisory writs from this court. On November 15, 2001, another panel of this court denied the application stating, “On the showing made, we find no error.”

Diamond B again filed a motion for summary judgment, challenging the right of defendant, DOTD, or intervenor, CAAL, to recover attorney’s fees under the provisions of LSA-R.S. 38:2220, Louisiana’s Public Bid Law. The requests for attorney’s fees by the DOTD and CAAL were heard in open court on November 21, 2001, and the trial court found in favor of the DOTD and CAAL. On |RPecember 12, 2001, the trial court rendered judgment denying Diamond B’s motion for summary judgment, and in two separate judgments, both signed December 17, 2001, awarded the DOTD attorney’s fees in the amount of $75,000.00 and court costs in the amount of $4,268.00 with interest, and awarded CAAL attorney’s fees in the amount of $60,000.00 and court costs in the amount of $3,712.64 with interest. CAAL was also awarded expert witness fees for the testimony of Eric A. Kracht in the amount of $1,000.00.

In the instant appeal, Diamond B challenges these judgments of the trial court in favor of the DOTD and CAAL for attorney’s fees, as well as the interlocutory judgments overruling Diamond B’s peremptory exceptions of no cause of action and res judicata and denying its motion for summary judgment.

Specifically, Diamond B frames its assignments or error as follows:

1.The District Court erred in overruling the exception of no cause of action and in applying Section 2220.4, Part I, Chapter 10, Title 38 to this case brought under Section 2293, Part V, Chapter 10, Title 38 to award attorney fees to DOTD and CAAL. Part V makes no provision for attorney fees for a prevailing defendant or a prevailing plaintiff. Section 2220.4 of Part II is only applicable to a civil action brought for declaratory judgment by a “whistle-blower,” (a person with direct knowledge) alleging a violation of Part II the Public Bid Law, La. R.S. 38:2211, et. seq., and then only if the procedural requisites are strictly adhered to. Such is not the case here.
2. The District Court also erred when it denied summary judgment to Diamond B against CAAL and awarded attorney fees to CAAL under La. R.S. 38:2220.4, which states: “The court shall also award to any prevailing defendant costs and reasonable attorney fees.” CAAL is not a defendant, but merely an intervenor in this suit.
3. The District Court erred in holding that a motion requesting additional relief for attorney fees filed after final judgment on the main demand and all incidental demands was not barred by res judicata.

I DISCUSSION

Exception of Res Judicata

For judicial efficiency, we first address Diamond B’s third assignment of error and related arguments urged in response. In its third assignment of error, Diamond B contends that the requests for additional relief, ie., attorney’s fees, filed after final judgment on the main demand and all incidental demands are barred by res judi-cata. In response, both the DOTD and CAAL contend that the issues presented in this assignment have previously been rejected via this court’s denial of Diamond B’s writ application. They argue that this court is prohibited from revisiting the issue of attorney’s fees challenged on appeal pursuant to the “law of the case” doctrine. We disagree.

Pretermitting plaintiffs argument that its writ application and any consideration thereof by this court, did not encompass all of its exceptions at issue on appeal, we find this court is not precluded from re-evaluation of the issue raised by Diamond B herein merely by virtue of our earlier denial of its writ application. See Dupre v. Maynard, 96-1183, p. 3 (La.App. 1st Cir.3/27/97), 692 So.2d 36, 38, writ denied, 97-1508 (La.9/26/97), 701 So.2d 986. Generally, when an appellate court reviews and considers arguments made in supervisory writ applications or responses to such applications, the court’s disposition on the issue considered becomes the “law of the ease” foreclosing relitigation of that issue either at the trial court on remand or in the appellate court on a later appeal. See Easton v. Chevron Industries, Inc., 602 So.2d 1032, 1038 (La.App. 4th Cir.), writ denied, 604 So.2d 1315 (La.1992). However, the denial of a writ application creates a different situation. A denial of supervisory review is merely a decision not to exercise the extraordinary powers of supervisory jurisdiction, and does not bar reconsideration of, or a different conclusion on, the same question when an appeal is taken from a final judgment. Dupre v. Maynard, 96-1183 at p. 3, 692 So.2d at 38. Also, application of the “law of the case” principle to decisions made on applications for supervisory writs is discretionary. Sharkey v. Sterling Drug, Inc., 600 So.2d 701, 705 (La.App. 1st Cir.), writ denied, 605 So.2d 1099, 1100 (La.1992) (citing Landry v. Aetna Insurance Company, 442 So.2d 440 (La.1983)). Further, it has been held that where a prior disposition is clearly erroneous and will create a grave injustice, it should be reconsidered. Turner v. Pelican, 94-1926, p. 14 (La.App. 4th Cir.9/15/95), 661 So.2d 1065, 1072, writ denied, 95-2513 (La.12/15/95), 664 So.2d 441. Therefore, a prior “determination” in a pre-trial writ application is not necessarily binding on a subsequent appeal.

In the instant case, Diamond B’s application for supervisory writs was denied “[o]n the showing made.” Because it is well established that the denial of a writ based on a limited showing does not pre-termit further review of the matter after final judgment on appeal, we shall address Diamond B’s assignment of error and review the propriety of awarding attorney’s fees after final judgment herein.

Louisiana Revised Statutes 13:4231, which sets forth the doctrine of res judica-ta, provides as follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

s Prior to the amendments to Louisiana res judicata law effective in 1991, Louisiana law on res judicata was substantially narrower than federal law. Terrebonne Fuel & Lube, Inc. v. Placid Refining Company, 95-0654, 95-0671, pp. 11-12 (La.1/16/96), 666 So.2d 624, 631. The original Louisiana doctrine of res judicata was based on a presumption of correctness rather than an extinguishment of the cause of action. Leon v. Moore, 98-1792, p. 4 (La.App. 1st Cir.4/1/99), 731 So.2d 502, 504, writ denied, 99-1294 (La.7/2/99), 747 So.2d 20. A decided case precluded a second suit only if it involved (1) the same parties, (2) the same cause of action, and (3) the same object of demand as the prior suit. Leon, 98-1792 at p. 4, 731 So.2d at 504 (citing Arbour, The Louisiana Concept of Res Judicata, 34 La.L.Rev. 763, 764 (1974)). However, under LSA-R.S. 13:4231, as amended in 1990, effective January 1, 1991, res judicata bars relitigation of a subject matter arising from the same transaction or occurrence of a previous suit. Leon, 98-1792 at p. 4, 731 So.2d at 504. Thus, the chief inquiry a court must make is whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action. Terrebonne Fuel & Lube, Inc., 95-0654, 95-0671 at p. 12, 666 So.2d at 632.

The burden of proof is upon the pleader to establish the essential facts to sustain the plea of res judicata. Insurance Associates, Inc. v. Francis Camel Construction, Inc., 95-1955, p. 3 (La.App. 1st Cir.5/10/96), 673 So.2d 687, 689. The doctrine of res judicata is not discretionary and mandates the effect to be given final judgments. Leon, 98-1792 at p. 5, 731 So.2d at 504-05.

In addition to the principles set forth in LSA-R.S. 13:4231, LSA-C.C.P. art. 425 provides that a party “shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” The comments to this article, also amended in 1990, effective January 1, 1991, state that the amendment “expands the scope of this Article to reflect the changes made 19in the defense of res judicata and puts the parties on notice that all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation must be raised.” Further, LSA-C.C.P. art. 891 was also amended and provides that a petition “shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation.” The comments to article 891 explain:

This Article is amended to reflect the changes made in the defense of res judi-cata. Except as otherwise provided by law, the plaintiff is required to set forth the facts of the transaction or occurrence that is the subject matter of the litigation, and not merely the facts supporting the cause of action asserted, because all causes of action arising out of that transaction or occurrence are considered to have been submitted for adjudication and will be barred or merged in the judgment.

After a final judgment, res judicata bars relitigation of any subject matter arising from the same transaction or occurrence of a previous suit. LSA-R.S. 13:4231; LSA-C.C.P. art. 425; Avenue Plaza, L.L.C. v. Falgoust, 96-0173, p. 4 (La.7/2/96), 676 So.2d 1077, 1079; Leon, 98-1792 at p. 4, 731 So.2d at 504. Inherent in the concept of res judicata is the principle that a party had the opportunity to raise a claim in the first adjudication, but failed to do so. Jackson v. Iberia Parish Government, 98-1810, p. 9 (La.4/16/99), 732 So.2d 517, 524; Terrebonne Fuel, 95-0654, 95-0671 at p. 16, 666 So.2d at 634. Once a final judgment acquires res judicata status, no court has jurisdiction to change the judgment. Certified Finance, Inc. v. Cunard, 2001-0797, p. 3 (La.App. 1st Cir.4/17/02), 838 So.2d 1, 4, writ denied, 2002-1802 (La.10/14/02), 827 So.2d 424.

Louisiana Revised Statute 13:4231 embraces the broad usage of the phrase “res judicata” to include both claim preclusion (res judicata) and issue preclusion (collateral estoppel). Under claim preclusion, a res judicata judgment on the merits precludes the parties from relitigating matters that were or could have been raised in that action. Under issue preclusion or collateral estoppel, however, once a | incourt decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties. Thus, res judicata used in the broad sense has two different aspects: 1) foreclosure of relit-igating matters that have never been litigated but should have been advanced in the earlier suit; and 2) foreclosure of relitigating matters that have been previously litigated and decided.

Certified Finance, Inc., 2001-0797 at p. 3, 838 So.2d at 4, (citing Hudson v. City of Bossier, 33,620, p. 7 (La.App. 2nd Cir.8/25/00), 766 So.2d 738, 743, writ denied, 2000-2687 (La.11/27/00), 775 So.2d 450).

Although claims for attorney’s fees constitute a separate cause of action, the current versions of LSA-C.C.P. art. 425 and LSA-R.S. 13:4231 mandate the mover to assert all claims that arise out of the same transaction or occurrence in one action. Wood v. May, 95-0589, p. 2 (La.App. 4th Cir.6/7/95), 658 So.2d 8, reversed on other grounds, 95-2224 (La.11/27/95), 663 So.2d 739. Any additional claim will be ordinarily barred by the principles of res judicata. Wood, 95-0589 at p. 2, 658 So.2d at 8.

In the instant case, the DOTD concedes it did not request attorney’s fees in its initial pleadings, answer, or recon-ventional demand. Likewise, pretermit-ting whether CAAL as an intervenor, was entitled to attorney’s fees, CAAL does not dispute that it did not request attorney’s fees in its petition of intervention or at any other time prior to final judgment. Notably, expert fees and costs were specifically requested. Thus, the judgment dated May 31, 2000, dismissing plaintiffs suit and granting declaratory relief in favor of the DOTD, cast Diamond B with all expert witness fees and court costs as prayed for, yet was silent with regard to attorney’s fees. Only after all appeals from that judgment to this court and the Supreme Court were exhausted did the DOTD and CAAL seek statutory attorney’s fees.

A judgment determining the merits of a case is a final judgment. LSA-C.C.P. art. 1841; see also Tolis v. Board of Supervisors of Louisiana State University, 95-1529 (La.10/16/95), 660 So.2d 1206. A valid and final judgment is conclusive between the same parties, except on appeal or other direct review. LSA-R.S. 13:4231. If a certiorari application is filed, the court of appeal judgment becomes final and definitive when the Supreme Court denies the application for certiorari. LSA-C.C.P. art. 2166 D; Avenue Plaza, L.L.C., 96-0173 at pp. 4-5, 676 So.2d at 1079.

Once the Supreme Court denied further review of this case, the judgment of this court became final. Because the claims for attorney’s fees later asserted by the DOTD and CAAL, although presenting a separate cause of action, arose out of the same transaction or occurrence that formed the subject matter of the litigation, the DOTD and CAAL were required to raise or advance such claims prior to final judgment in the earlier suit. Stated simply, all causes of action arising out of the original transaction or occurrence are considered to have been submitted for adjudication and are barred or merged in the judgment. See Wood, 95-0589 at p. 2, 658 So.2d at 9.

Further, we find no merit to the DOTD’s and CAAL’s arguments that the use of the word “shall” in the statute granting attorney’s fees relieves them of the obligation to plead or otherwise timely raise these claims or be forever barred from asserting them. As Diamond B correctly observed, the right to such relief, if it existed herein, is not self-operative.

Applying the legal precepts and jurisprudence cited above, we find that the motions for attorney’s fees filed by the DOTD and CAAL are barred by the doctrine of res judicata, and the trial court erred in failing to so find. Finding merit to this assignment of error, we pretermit discussion of the remaining assignments.

I ^CONCLUSION

For the above and foregoing reasons, the portion of the December 17, 2001 judgment of the trial court denying Diamond B’s exception of res judicata and awarding attorney’s fees to the DOTD is reversed and vacated. The remaining portion of the judgment awarding court costs, interest, and expert witness fees is affirmed. The portion of the December 17, 2001 judgment of the trial court awarding attorney’s fees to CAAL is likewise reversed and vacated. The remaining portion of the judgment regarding court costs and interest is affirmed.

Costs of this appeal in the amount of $12,277.30 are assessed equally against the DOTD and CAAL.

AFFIRMED IN PART, AND REVERSED IN PART.

McCLENDON, J., concurs in the result.

      . See Diamond B Construction Company, Inc. v. Louisiana Department of Transportation and Development, 2000-1323 (La.App. 1st Cir. 12/21/00), 780 So.2d 436, writ denied, 2001-0247 (La.4/20/01), 790 So.2d 633, where this court affirmed the trial court's denial of injunctive relief to Diamond B, and its companion case, Diamond B Construction Company, Inc. v. Louisiana Department of Transportation and Development, 2000-1583 (La.App. 1st Cir. 12/21/00), 780 So.2d 439, writ denied, 2001-0246 (La.4/20/01), 790 So.2d 633, where this court affirmed the dismissal of Diamond B’s case on summary judgment against the DOTD and the denial of Diamond B’s motion for new trial.

      . See Diamond B Construction Company, Inc., 2000-1583 at pp. 6-7, 780 So.2d at 439.

      . See Diamond B Construction Company, Inc., 2000-1583 atp. 18, 780 So.2d at 449.

      . See Diamond B Construction Company, Inc. v. Louisiana Department of Transportation and Development, 2001-0246, 2001-0247 (La.4/20/01), 790 So.2d 633.

        .Diamond B Construction Company, Inc. v. Louisiana Department of Transportation and Development, 2001CW2378 (La.App. 1st Cir.11/15/01), writ denied, 2001-3302 (La.3/8/02), 811 So.2d 884.

      . We note that the trial court's award of court costs and expert witness fees are not challenged on appeal. Thus, these awards are not before us for review.

      . Even if we were to accept the interpretation of the “mandatory” nature of an attorney’s fee award as suggested by the DOTD and CAAL, such an award would constitute an integral component of the remedy afforded them; and the trial court’s obvious failure to make such an award in its judgment could have been addressed through a motion for a new trial or by answer to Diamond B's previous appeal. Notably, neither the DOTD nor CAAL raised the issue of attorney's fees prior to trial and neither requested that the issue be addressed in a separate trial or hearing.


source: Caselaw Access Project

author: LKUHN, J. 11DOWNING, J.,

license: Public Domain

text:
    PRUDENTIAL INSURANCE COMPANY v. Bobby GIDEON, Craig Webre, Sheriff, Lafourche Parish Sheriff's Office and Coregis Insurance Company. Charlene Martin and Wayne Martin v. Bobby Gideon, Coregis Insurance Company, Craig Webre, Individually and in his Official Capacity as Sheriff of the Parish of Lafourche and the Lafourche Parish Sheriff's Office.
    Nos. 2002 CA 0532, 2002 CA 0533.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Brent M. Steier, Baton Rouge, Counsel for Plaintiff/Appellee Prudential Insurance Company.
    Gary B. Roth, New Orleans, Johnny X. Allemand, Thibodaux, Counsel for Plaintiffs/Appellees Charlene Martin and Wayne Martin.
    Mr. Camile A. Morvant, II, Daniel A. Cavell, Kristine M. Russell, Thibodaux, Counsel for Defendants/Appellants Bobby Gideon, Craig Webre, Sheriff, Lafourche Parish Sheriffs Office, and Coregis Insurance Company.
    Before: KUHN, DOWNING, and GAIDRY, JJ.
   LKUHN, J.

Defendants-appellants, Bobby Gideon, his employer Craig Webre in his official capacity as the Sheriff of the Parish of Lafourche, the Lafourche Parish Sheriffs Office, and their insurer, Coregis Insurance Company, appeal a judgment awarding damages to plaintiffs, Charlene and Wayne Martin and their insurer, Prudential Insurance Company (Prudential), as a result of injuries and damages sustained in an automobile accident. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

On October 9, 1998, an automobile driven by Charlene Martin was struck by a vehicle owned by the Lafourche Parish Sheriffs Office and driven by Gideon, a lieutenant with the Uniform Patrol Division of the sheriffs office, while he was working in his official capacity. Lieutenant Gideon failed to yield the Lafourche Parish Sheriffs Office vehicle he was driving as it entered onto the roadway from a shoulder of La. Highway 1, and he struck Mrs. Martin’s vehicle.

Mrs. Martin and her husband, Wayne, filed a petition for damages, naming the lieutenant, his employer, and their insurer as defendants, demanding a trial before a jury, and averring defendants were liable to plaintiffs for damages. Prudential, the Martins’ insurer, also filed a lawsuit naming the same defendants and seeking reimbursement as a result of its subrogation rights for property damage and medical payments made to Mrs. Martin. The two lawsuits were consolidated.

On the day of trial, the Martins advised the trial judge that the amount in dispute was less than the requisite $50,000 necessary for a jury, and the trial judge dispensed the jury proceeding, allowing the matter to proceed as a bench trial.

|,sAfter the receipt of testimonial and documentary evidence, the trial court rendered a judgment awarding Mrs. Martin, among other things, general damages in the amount of $26,000 and Mr. Martin loss of consortium damages in the amount of $8,000. Special damages were awarded to Prudential for its subrogation claims.

This appeal followed. In this appeal, it is undisputed that the sole and proximate cause of the accident was Gideon’s negligence. Appellants contend that the trial court erred in dismissing the jury and seek a remand to allow a jury to hear the evidence and render a verdict. In the alternative, appellants challenge the awards of.$26,000 in general damages to Mrs. Martin and $3,000 in loss of consortium damages to Mr. Martin.

PROPRIETY OF THE DISMISSAL OF DEMAND FOR A JURY TRIAL

A jury trial is not available in a suit where the amount of no individual petitioner’s cause of action exceeds fifty thousand dollars, exclusive of interests and costs. La. C.C.P. art. 1732(1). And procedural maneuvers designed solely to deprive litigants of their right to a jury trial based on jurisdictional amounts are disfavored. Guidry v. Millers Cas. Ins. Co., 2001-0001, p. 7 (La.App. 1st Cir.6/21/02), 822 So.2d 675, 682.

In order to be entitled to a jury trial, a party must timely file a pleading demanding a jury trial, see La. C.C.P. art. 1733, and include a general allegation that the petitioner’s cause of action exceeds $50,000.00, exclusive of interest and costs. See La. C.C.P. arts. 893, 1732. See Fontenot v. Allstate Ins. Co., 02-899 (La.App. 5th Cir.11/20/02), 848 So.2d 602, 2002 WL 31600013. Louisiana 14Code of Civil Procedure article 893 prohibits the inclusion of a specific dollar amount of damages in the petition but provides, “if the specific amount of damages is necessary to establish ... the right to a jury trial ... a general allegation that the claim exceeds ... the requisite amount is sufficient.” Because the right to a jury trial does not come into existence unless a petitioner’s cause of action exceeds the requisite jurisdictional amount, either plaintiff or defendant may allege that the claim exceeds the requisite amount, thereby establishing the right or the absence of the right to a jury trial. See May v. Winn Dixie Louisiana, Inc., 613 So.2d 1026, 1028 (La.App. 3d Cir.), writ denied, 616 So.2d 704 (La.1993). If the jurisdictional amount is not clear from the plaintiffs petition, the defendant has the right to propound interrogatories requiring the plaintiff to specify the amount sought as damages. Id. See also Fontenot v. Allstate Ins. Co., 02-899 (La.App. 5th Cir.11/20/02), 848 So.2d 602, 2002 WL 31600013 (noting that in light of the time constraints of La. C.C.P. art. 1733, a defendant does not have time to propound interrogatories, receive interrogatory answers, and then timely request a jury trial, leaving him in a problematic position since an allegation of the amount in controversy made for jury trial purposes should be neither binding nor admissible in evidence against a party at the trial on the merits, indicating that the current status of the law is unclear and poses problems for practitioners.)

In this case, neither the Martins nor the appellants made a general allegation that the Martins’ claims exceeded $50,000 in their respective pleadings. In the concluding paragraph of their petition, the Martins “pray ... for a trial by jury.” |K And in answering the petition, appellants “further pray for a trial by jury as to all issues.” Although appellants propounded an interrogatory upon the Martins requesting a statement of and itemization of the amount of damages, only the amount of the property damage ($3,327.37) and total medical expenses (approximately $2,093.28) were provided. The Martins specifically stated, “The remaining damages sought have not yet been determined.” It was not until the stipulation at the commencement of trial that any further statement of total damages was given to appellants.

Appellants urge the last-minute stipulation that total damages were less than $50,000 was a procedural maneuver designed solely to deprive litigants of their right to a jury trial. Appellants also contend that a proffered letter shows the Martins failed to advise them that the claim was valued at less than $50,000 and is indicative that the stipulation was a procedural maneuver designed to circumvent appellants’ right to a trial before a jury.

The proffered letter is allegedly a request by the Martins to settle their claims for an amount in excess of $50,000. But neither the pre-trial actions of the Martins or appellants, nor the evidence introduced, supports in any reasonable view the proposition that the value of any claim in this suit was in excess of $50,000. Moreover, the letter is evidence of an offer by the Martins to furnish a release from the lawsuit (something of value) in an attempt to compromise the validity or ^amount of a disputed claim and, as such, is inadmissible to prove the amount of the claim under La. C.E. art. 408 A.

The appellants have not averred, and the record does not suggest, that they were denied access to any of Mrs. Martin’s medical records or otherwise prevented from reasonably evaluating the value of the claims independent of the valuation of the claims by the Martins. This record shows that appellants, who have demanded the jury trial but have never pleaded a general allegation that the amount of the Martins’ damages was in excess of $50,000, were given a reasonable opportunity to seek and obtain information concerning the amount of damages through interrogatories and other discovery. See Fontenot v. Allstate Ins. Co., 02-899 (La.App. 5th Cir.11/20/02), 848 So.2d 602, 2002 WL 31600013. And throughout this litigation, appellants have consistently maintained that Mrs. Martin’s damages as a result of the October 9, 1998 accident were minimal to none. In a pre-trial memorandum affixed to their pre-trial order, appellants specifically pointed out that Mrs. Martin had been involved in an earlier vehicular accident and sustained injury to the same portions of her body. Although the last-minute timing of the stipulation may be viewed as creating a questionable appearance about the Martins’ motivation, |7we find no error in the trial court’s decision to strike the jury. Cf. Tenpenny v. Ringuet, 95-1036 (La.App. 3d Cir.3/6/96), 670 So.2d 644.

DAMAGES

Appellants challenge the award of $26,000 to Mrs. Martin for general damages, maintaining that the evidence fails to establish that the October 9, 1998 accident was the cause of Mrs. Martin’s injuries.

Claire Hargis, an expert in physical therapy, testified as a treating practitioner and, by consent of appellants, from the physical therapy clinic records on behalf of Gary Dragon, a physical therapist who also treated Mrs. Martin. According to Har-gis, she treated Mrs. Martin in March 1999 on a prescription from Dr. Kyle Dickson. Hargis stated that the clinic she owned and at which she works has records indicating that Mrs. Martin had received treatment in 1997, before Hargis administered physical therapy. And in May 2000, five and one-half months after the accident with Gideon, Mrs. Martin received another prescription from another physician and was treated by physical therapist Dragon. Hargis described Mrs. Martin’s condition as classic cervical and lumbar injuries, indicating that the clinic’s records showed Mrs. Martin had neck and back problems throughout her treatment at the facility.

Hargis explained the physical therapy techniques applied to Mrs. Martin, first in March 1999 by her, and later by Dragon in May 2000. She said that when discharged, Mrs. Martin had not improved in that she had no long lasting functional restoration, but that Mrs. Martin had received temporary relief. Hargis testified |sthat Mrs. Martin returned to the physical therapy clinic in May 2000, having experienced constant pain in her shoulder after sweeping cobwebs off the ceiling in late April 2000. Dragon treated Mrs. Martin fourteen times over two months. Dragon noted that in July 2000, Mrs. Martin indicated seventy percent improvement, specifically stating she was able to sleep without symptoms and was increasing her activity level.

In Hargis’s opinion, to a fifty-one percent reasonable certainty, the pain and other symptoms that Mrs. Martin was experiencing when Dragon treated her were aggravated as a result of the October 9, 1998 accident. According to Hargis, based on Mrs. Martin having reported continuing symptoms commencing from the October 1998 car accident through the time she presented for treatment in May 2000, the symptoms continued to persist as a result of the accident, which flared up with the cobweb sweeping incident. Thus, to a reasonable medical certainty, she related Mrs. Martin’s condition to the October 1998 car accident. Hargis explained that she assumed Mrs. Martin had a baseline pain level, which was exacerbated by the later cobweb-sweeping incident.

Mindful that the record contains no contrary medical evidence, we find this testimony provides evidentiary support for the trial court’s conclusion that the October 9, 1998 car accident aggravated Mrs. Martin’s pre-existing cervical and lumbar injuries, and as such, the finding is not manifestly erroneous. See Richard v. Milazzo, 01-2283, p. 4 (La.App. 1st Cir.11/8/02), 831 So.2d 1055, 1059. Thus, we are required by our standard of review to affirm that factual finding and the ^conclusion that the October 9, 1998 accident caused an exacerbation of Mrs. Martin’s cervical and lumbar injuries. See Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993).

Appellants assert the amount of $26,000 awarded to Mrs. Martin in general damages was erroneous because Mrs. Martin had already been severely limited in the level of her participation in physical activities as a result of a prior car accident. Thus, they contend, the aggravation was not invasive enough to her lifestyle to warrant $26,000 in general damages.

The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. The standard for appellate review of general damage awards is difficult to express and is necessarily nonspecific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. The discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-61 (La.1993).

m Mrs. Martin sought medical attention at St. Anne Hospital several hours after the accident, complaining of pain in her shoulder, neck, back and pelvis. She was given a prescription and advised that her x-ray examination was normal. She subsequently sought medical attention for continuing pain from a physician, and in May 2000 was prescribed physical therapy subsequent to unsuccessful counseling at a pain management clinic.

Mrs. Martin candidly acknowledged that she had been involved in another car accident in 1993, which affected her neck, right shoulder, lower back, pelvic area, and suffered a facial injury as well. According to Mrs. Martin, immediately preceding the October 9, 1998 accident, her symptoms were not as severe. But after Gideon’s car struck hers, Mrs. Martin testified that the pain she felt was worse. She stated that the October 9, 1998 accident aggravated her injury.

Mrs. Martin recalled the pain she experienced as a severe tightness in her neck and right shoulder. In describing the right shoulder pain she said, “I always felt like I had a baseball sitting where my shoulder blade is going to my lungs. So I could never take a deep breath because my sternum felt like it was going to crack.” She also experienced tremendous pelvic pain, explaining that she had difficulty sitting due to pressure. She attributed the initial pain to the 1993 accident but felt the onset of more pain as a result of the 1998 accident. Testifying the more intensified pain that she felt as a result of the 1998 accident lasted between 20 and 24 months, Mrs. Martin explained that she'found relief as a result of the physical therapy treatment she received from Gary Dragon in May 2000 through July 2000.

In During cross-examination, Mrs. Martin admitted that she had been severely restricted in the activities she could participate in as a result of the 1993 accident. But she said that the level of pain became higher as a result of the 1998 accident.-

Based on the testimonial and documentary evidence, we cannot say the trial court abused its much discretion. The trial judge, who saw the witnesses’ demeanor and heard their intonations, clearly fashioned an award for Mrs. Martin’s particular injuries, aware of their effects on her under these particular circumstances. Although appellants suggest that in its written reasons, the trial court erroneously attributed Mrs. Martin’s inability to hunt, fish, and endure a boat ride to the Martins’ camp to the October 9, 1998 accident, a careful reading does not support this assertion. The trial court only noted that Mrs. Martin had “previously” been able to engage in those activities, without referring to a date. Since Mrs. Martin testified that the 1998 accident exacerbated the cervical and lumbar injuries she sustained in the 1993 accident, the trial court could reasonably consider the emotional and physical impact on Mrs. Martin from the increased in pain attributable to the 1998 accident. While a reviewing court may well believe the award is generous, we simply cannot say it is an abuse of the trial court’s much discretion.

Maintaining that Mr. Martin testified his wife lived an active lifestyle before the 1998 accident, which they assert was contradicted by Mrs. ‘Martin, appellants contend that in order to justify the award, the trial court had to believe Mr. Martin’s testimony and disbelieve Mrs. Martin’s testimony. They also urge the award of $3,000 to Mr. Martin for his consortium losses was an abuse of discretion.

19, An award for loss of consortium is properly made where there has been some measurable or compensable loss, such as loss of love and affection, society and companionship, sexual relations, right of performance of material services, right of support, aid, and assistance, and felicity. Cozes v. Parish of West Baton Rouge, 97-2824, p. 16 (La.App. 1st Cir.12/30/98), 744 So.2d 54, 64.

Our review of the record shows that Mr. Martin did, in fact, acknowledge that his wife’s active lifestyle was initially diminished as a result of the 1993 accident. In describing his wife’s condition on the date of trial, Mr. Martin said that she was in “a maintenance zone,” which was where she was before the 1998 accident. He explained that his reference to a “maintenance zone” meant that Mrs. Martin’s level of comfort was stabilized to a point where they were starting to get back to the lifestyle they shared before the accident. Mr. Martin testified that it took about five years for his wife to get to that “maintenance zone” after the first accident, and two years after the second one.

Mr. Martin stated that he has had to do daily chores around the house that Mrs. Martin had tended to before the initial accident and that this continued after the 1998 accident. He also was required to do more physical labor for the couple’s billboard business, which was something Mrs. Martin had assisted him with before the initial accident. He said that Mrs. Martin’s pain was so intense, he was unable even to touch her to massage her back or neck. Describing their typical evenings, Mr. Martin indicated Mrs. Martin was asleep by 7 or 8 P.M., leaving him awake watching the television alone. Mr. Martin testified that as result of Mrs. Martin’s intense pain after the 1998 accident, he had to invest more time with Mrs. Martin’s | ischildren (from a prior marriage) because his wife was unable to attend cheerleading camps or sit on bleachers during basketball game cheerleading activities in which her daughter participated. He was also having to participate in her son’s football activities because of Mrs. Martin’s inability to sit on the bleachers for the duration of a game.

Based on his wife having reached the “maintenance zone” just prior to the 1998 accident, as described by Mr. Martin and in the particulars corroborated by Mrs. Martin, the trial court could have reasonably inferred that because of the aggravation of her cervical/lumbar condition by the second accident, increased participation by Mrs. Martin in their marriage and family, as well as in physical activities, was precluded. Based on the continued need for Mr. Martin to attend to household and work-related chores, refrain from touching his wife, spend evening hours alone watching television, and invest more time participating in the children’s activities on his wife’s behalf, on appellate review, we are constrained to find no abuse of the trial court’s much discretion in awarding $8,000 for loss of consortium.

DECREE

For all these reasons, the trial court’s judgment awarding $26,000 in general damages to Mrs. Charlene Martin and $3,000 in loss of consortium damages to Mr. Wayne Martin is affirmed. Costs of this appeal are assessed to defendants-appellants, Lieutenant Bobby Gideon, his employer Craig Webre in his official capacity as, the Sheriff of the Parish of La-fourche, the Lafourche Parish Sheriffs Office, and their insurer, Coregis Insurance Company.

AFFIRMED.

DOWNING, J., concurs and assigns reasons.

11DOWNING, J.,

concurring.

If a defendant truly believes that a plaintiff is reducing a damage claim strictly to eliminate the jury, which could be the case where the jury might not understand the theory of liability, all the defendant needs to do is stipulate that the plaintiffs damages exceed $50,000.00. If the defendant is not willing to stipulate, the inescapable conclusion is that the defendant does not believe his its argument.

      . Louisiana Code of Evidence article 408 A provides:
      In a civil case, evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, anything of value in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This Article does not require the exclusion of any evidence otherwise admissible merely because it is presented in the course of compromise negotiations....


author: FITZSIMMONS, J.

text:
    Richard PARKER v. James LeBLANC (Warden at Dixon Correctional Institute), Richard Stalder (Secretary of the Department of Public Safety & Corrections) and Steven L. Thomas (Colonel at Dixon Correctional Institute)
    No. 2002 CA 0399.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Richard Parker, Jackson, Plaintiff/Appellant In Proper Person.
    William L. Kline, Baton Rouge, Counsel for Defendants/Appellees James LeBlanc, et al.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   FITZSIMMONS, J.

Plaintiff, Richard Parker, filed a petition for judicial review of an administrative remedy action. The district court found that Mr. Parker failed “to raise a substantial right violation which would state a cause of action and/or invoke the jurisdiction of [the cjourt, pursuant to [La.] R.S. 15:1177(A)(9).” The petition for judicial review was dismissed, with prejudice.

After a thorough review of the record, we agree with the reasoning of the district court and the commissioner. “[T]he Due Process Clause does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner.” Sandin v. Conner, 515 U.S. 472, 478, 115 S.Ct. 2293, 2297, 132 L.Ed.2d 418 (1995). Mr. Parker’s change in custody status from medium to maximum and a thirty-day confinement was not atypical or a significant hardship in relation to the ordinary incidents of prison life. Thus, the change in custody did not afford Mr. Parker “a protected liberty interest that would entitle him to ... procedural protections,” violate his constitutional rights, or entitle him to damages. Sandin v. Conner, 515 U.S. at 487, 115 S.Ct. at 2302; see Giles v. Cain, 99-1201, pp. 4-7 (La.App. 1 Cir. 6/23/00), 762 So.2d 734, 738-39; Lay v. Porey, 97-2903, p. 4 (La.App. 1 Cir. 12/28/98), 727 So.2d 592, 594, writ denied, sub nom. 99-2720 (La.3/31/00), 758 So.2d 812.

Therefore, we affirm the judgment in favor of defendants, State of Louisiana, Department of Public Safety and Corrections, and its employees specifically named in the suit. The costs of the appeal are assessed to plaintiff-appellant, Mr. Parker.

AFFIRMED.


author: J^WILLIAM F. KLINE JR., J Pro Tem.

text:
    LOUISIANA CASINO CRUISES, INC., d/b/a Casino Rouge and Its Parent Corporation Penn National Gaming, Inc. v. CAPITOL LAKE PROPERTIES, INC.
    No. 2002 CA 0364.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Freddie Pitcher, Jr., Rebecca B. Crawford, Baton Rouge, Counsel for Plaintiffs/Appellants La. Casino Cruises, Inc. d/b/a Casino Rouge and its parent corporation Penn National Gaming, Inc.
    Richard Mary, Melvin “Kip” Holden, Baton Rouge, Counsel for Defendant/Ap-pellee Capitol Lake Properties, inc.
    Before: FOIL, McCLENDON, and KLINE, JJ.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   J^WILLIAM F. KLINE JR., J Pro Tem.

Plaintiffs-Lessees appeal the trial court’s finding of defendant-lessor’s “reasonableness” in denying consent to a leasehold mortgage. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In June 1993, Capitol Lake Properties, Inc. (“CLP”), the owner of a certain tract of land on the Mississippi River in Baton Rouge, entered into a Ground Lease Agreement (“Lease”) granting a lease thereon to Louisiana Casino Cruises, Inc. d/b/a Casino Rouge (“LCCI”). The Lease provided that LCCI would default if it caused the Lease to be assigned, transferred, or encumbered without the consent of CLP. Such consent was not to .be “unreasonably” withheld.

In April 2001, Penn National Gaming, Inc. (“Penn”) acquired LCCI through a merger. Upon merger, LCCI became a guarantor to a $350,000,000 loan to Penn under a Credit Agreement, which required that LCCI mortgage its leasehold interest in the Baton Rouge property. Prior to the merger, LCCI, in accordance with the Credit Agreement, sought CLP’s consent by asking them to sign a waiver and estop-pel form.

CLP repeatedly declined to consent to the leasehold mortgage on the grounds that LCCI had defaulted under the Lease where at least one default was incurable, and CLP would not consider granting consent before all of the defaults were cured. CLP further declined to sign both the estoppel agreement and a revised estoppel agreement because they contained requests for actions not required by the Lease: a lessor’s estoppel, and a waiver of rights that CLP would accrue by LCCI’s default, such as the right to accelerate rental payments and the right to cancel LCCI’s option to renew.

LCCI and Penn (hereinafter known together as “plaintiffs”) filed a petition for mandatory preliminary and permanent injunctions ordering CLP to consent to the leasehold mortgage on August 6, 2001. On August 8, 2001, CLP filed exceptions of improper service, no right of action, and improper use of summary proceedings, which were later either waived or denied. After a hearing on the | «merits, the trial court denied plaintiffs’ petition and assigned oral reasons therefor on November 8, 2001.

Plaintiffs appeal and present the following assignment of error for our review:

The trial judge erred when he denied the plaintiffs’ petition for mandatory preliminary injunction on the grounds that:
a. defendant-lessor was reasonable in not wanting plaintiffs to place a mortgage on defendant’s property; and
b. defendant-lessor was reasonable in not wanting to subordinate its interest in the lease to that of its lessee’s creditors
where no evidence or testimony established either of these grounds, and in fact uncontradicted evidence to the contrary was presented. The mandatory injunction should have been granted.

DISCUSSION AND ANALYSIS

Plaintiffs, in arguing that CLP was “unreasonable” in denying consent to the leasehold mortgage, contend that: (1) the requested approval was for a leasehold mortgage, not a mortgage on CLP’s property; (2) there was no required subordination of CLP’s interest in the Lease; (3) plaintiffs had cured the defaults that occurred under LCCI’s prior management; (4) the record showed that plaintiffs are strong, financially viable companies; and (5) plaintiffs would suffer irreparable harm through the denial of consent.

Plaintiffs urge that CLP was “unreasonable” in denying its consent because the mortgage encumbered the leasehold rather than CLP’s ownership interest in the leased property. They find comfort in support of the assignment of error relative to subordination because the following language is contained in the trial court’s oral reasons for judgment:

I cannot say that because there’s evidence in the record that shows that certainly prior to and around the time of this sale, they were indicating that they were not going to do anything to subordinate their ownership interest.
Mr. Pitcher: I hate to interrupt the court’s ruling, but it was never asked to subordinate their ownership interest.
The Court: That’s what it amounts to, Judge.
Mr. Pitcher: Okay.
Let me just say that I am going to deny the injunctive relief sought.

|4Whether we conclude that the trial court simply erred or misspoke in using the legal terms “subordination” and “ownership interest” or that the expressions were a finding that any consent to the leasehold mortgage “amounted to” a less favorable position for CLP in either its ownership or its lessor capacity, we will independently review the record to determine if the ultimate conclusion of “reasonableness” is correct.

Plaintiffs aver that CLP was not required to subordinate its interest; therefore, CLP was acting “unreasonably.” Vice President and General Counsel for both Penn and LCCI, Joseph Lashinger, testified that plaintiffs renegotiated with their lender because CLP did not want to subordinate and that CLP was not required to subordinate its rights under the Lease.

Defendant, CLP, argues that, while it is true that plaintiffs previously withdrew their request for a subordination of the leasehold interest, there was no testimony or evidence as to the form or substance of any document that CLP would be required to sign should the trial court have ruled in plaintiffs’ favor. We do find evidence from correspondence in the record that defendants would be required to sign an estop-pel agreement which would constitute a waiver and an agreement to terms that CLP was not required to consent to under the Lease: (1) in a letter dated April 4, 2001, CLP’s attorney, Richard Mary, stated, “However, I would point out that given the current litigation between the parties and the fact that the lease does not require the execution of an estoppel agreement, Capitol Lake will not execute any estoppel certificate!;]” (2) in a communication dated April, 12, 2001, CLP’s attorney wrote:

Capitol Lake has recently received a revised Consent and Estoppel agreement from Mr. Barbin, counsel for [Penn] National. As indicated in my previous letter to you, Capitol Lake will not consider any documents until all defaults are cured. In addition, I would point out to you that the agreement contains requests not required by the lease, including [a] lessor’s estoppel and as I previously advised you, Capitol Lake will not consider any requests for agreements not required by the lease[;]

and (3) in correspondence dated April 20, 2001, Mr. Mary, on behalf of CLP, said:

In addition, Capitol Lake has been presented with no Consent or related document that did not call for Capitol Lake to carry out actions not required by the lease. As indicated in the | ¡¡above letters to Mr. Brantley, even assuming that the defaults can be cured, Capitol Lake will not waive any rights it may have as a result of the defaults of LCCI, including but not being limited to the right to accelerate the rental and declare the options to renew provided in paragraph 2.07 as cancelled.

Plaintiffs claim that denial of consent is “unreasonable” because they cured all incidences of default. Defendant contends that plaintiffs’ unconditional agreement to mortgage without consent is an encumbrance in violation of the Lease and constitutes a default. CLP further asserts that plaintiffs defaulted, under the terms of the Lease, when LCCI aligned with the Gaming Control Board to make CLP submit to a suitability inquiry.

In response to plaintiffs’ argument that CLP has no “reasonable” economic basis for denying consent because Penn and LCCI are strong, financially viable companies, CLP’s expert economist, Dr. James A. Richardson, informed the court that, although plaintiffs are viable, CLP is being “reasonable” in denying consent because Penn’s long-term debt to equity ratio and total debt to equity ratio are approximately twice the industry standard.

Furthermore, plaintiffs’ expert, Dr. Lamar Jones, stated that Dr. Richardson had more experience with the gaming industry, that Dr. Richardson’s finding of “reasonableness” was not frivolous and unsupported, and that reasonable experts could disagree on that particular issue. Also, the testimony of both Mr. Lashinger and CLP President, Astrid Clements, revealed that LCCI’s total debt before the merger was $58,000,000 — $ 80,000,000; whereas, after the merger, LCCI’s debt increased by the $350,000,000 owed by Penn under the loan.

The trial court did not dispute the economic vitality of Penn; however, in our consideration of the record, the debt to equity ratio, stated to be twice the industry standard, could be a genuine concern to the defendant-lessor.

Plaintiffs also assert that they are entitled to the mandatory preliminary and permanent injunctions forcing CLP’s consent because to do otherwise would cause plaintiffs irreparable harm. As noted in the trial court’s oral reasons for judgment, Penn made the decision to merge with LCCI with the knowledge that | fiCLP denied consent to the leasehold mortgage; specifically, Penn knew that CLP emphatically refused to sign the estoppel agreement required by Penn’s lender.

In a case discussing a lessor’s refusal to consent to a sub-lease, the Supreme Court put forth that withholding consent is “unreasonable” where there are no “sufficient grounds for a reasonably prudent business person to deny consent.” Caplan v. Latter & Blum, Inc., 468 So.2d 1188, 1191 (La.1985).

After a review of the record in its entirety, we conclude independently that these facts constitute “sufficient grounds” for CLP to withhold its consent to the leasehold mortgage. Therefore, we cannot say that the ultimate finding of “reasonableness” by the lower court should be reversed.

CONCLUSION

For the reasons stated herein, the judgment of the trial court denying the petition of Penn National Gaming, Inc. and Louisiana Casino Cruises, Inc. is affirmed. Costs of this appeal are assessed to Plaintiffs/Appellants, Penn National Gaming, Inc. and Louisiana Casino Cruises, Inc.

AFFIRMED.


author: J^CARTER, C.J.

text:
    SUCCESSION OF Frank CUCCHERO, Jr.
    No. 2002 CA 0368.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Jacques F. Bezou, Covington, Nathan T. Gisclair, Jr., Edmond C. Haase, III, New Orleans, for Plaintiff/Appellant, Rosemary Cucchero.
    William J. Dutel, Victoria V. Olson, Cov-ington, for Defendants/Appellees, Antoinette Cucchero O’Neil, Kathleen Cucchero Savorgnan, Janet Cucchero Wingerter, and Carmela Cucchero.
    L. Paul Hood, Covington, for Carol Cuc-chero Lockhart.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

      . Hon. Phillip Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   J^CARTER, C.J.

Rosemary Cucehero appeals a trial court judgment revoking her appointment as representative of her father’s succession.

FACTS AND PROCEDURAL HISTORY

Frank Cucehero, Jr., died testate in 1994. His wife predeceased him. He was survived by six major daughters, Antoinette Cucehero O’Neil, Carol Cucehero Lockhart, Janet Cucehero Wingerter, Carmela Cucehero Brehm, Rosemary Cuc-chero, and Kathleen Cucehero Savorgnan. Mr. Cucehero did not name an executrix of his estate in his will. Rosemary petitioned the court and was appointed representative of her father’s succession in 1995. Rosemary estimated the value of her father’s estate to be $193,265.

In 1996, Antoinette, Janet, Carmela and Kathleen (collectively, “movants”) filed a motion to revoke Rosemary’s appointment as succession representative. They alleged that Rosemary had mismanaged the estate by incurring unnecessary legal expenses, failing to file an annual account, erroneously alleging assets that caused the estate to incur additional unnecessary attorney’s fees, using her position as dative testamentary executrix to harass the mov-ants, and by failing to clear up a title problem, which caused the estate to incur additional costs. The trial court granted the motion and removed Rosemary as succession representative. On appeal, this court found the trial court committed legal error in refusing to entertain testimony by the parties on all issues raised in the motion to revoke. Accordingly, this court vacated the order revoking Rosemary’s appointment and remanded the case to the trial court for a full evidentiary hearing on the motion. Succession of Cucehero, 97-0771, pp. 3-4 (La.App. 1st Cir.4/8/98), 711 So.2d 402, 403.

In 2001, movants filed a motion to reset the hearing on the motion to revoke. They again alleged Rosemary had mismanaged the estate by including in the tableaux of distribution accountant’s and attorney’s fees for work that was not done for the benefit of the succession, failing to collect a debt owed to the succession, paying debts and charges not incurred in the administration of the ^succession, and failing to file annual accountings. Movants further alleged that the law firm representing Rosemary in her capacity as ad-ministratrix had failed to act prudently in its capacity as attorney for the succession and sought the law firm’s replacement by an attorney appointed by the trial court. After a hearing, the trial court granted the motion to revoke and ordered that Rosemary be removed as administratrix of the succession. The trial court subsequently denied a motion for new trial. Rosemary now appeals.

DISCUSSION

A party seeking removal of a succession representative must prove by convincing evidence that the representative breached her fiduciary duty to the succession under LSA-C.C.P. art. 3191 or the existence of one of the grounds for removal enumerated in LSA-C.C.P. art. 3182. Succession of Montgomery, 452 So.2d 297, 299-300 (La.App. 2nd Cir.1984); Succession of Houssiere, 247 La. 764, 174 So.2d 521, 525 (1965). Those grounds include disqualification, incapability of discharging the duties of office, mismanagement of the estate or failure to perform any duty imposed by law or court order. LSA-C.C.P. art. 3182.

It is only after such a showing is made that the court’s power to remove the representative comes into existence. Succession of Houssiere, 174 So.2d at 525 (1965). Thereafter, the trial court is not required to remove the representative, but is vested with discretion in determining whether removal is appropriate under the facts of the particular case. Succession of Krushevski, 528 So.2d 743, 744 (La.App. 4th Cir.1988). The trial court’s decision regarding removal of the representative will not be disturbed absent an abuse of discretion. In re Succession of LaFleur, 99-1100, p. 3 (La.App. 3rd Cir.12/8/99), 752 So.2d 237, 238, writ denied, 2000-0446 (La.3/31/00), 759 So.2d 74.

In deciding this matter, the trial court considered attorney’s fees incurred and paid by the succession, attorney’s fees pending in a tableau of distribution, and attorney’s fees not yet billed and not yet submitted to the court for payment. On appeal, Rosemary contends the trial court erred in considering as an element of mismanagement those attorney’s fees and expenses that had not been billed |4to the succession and not submitted to the trial court for payment. We agree. The Louisiana Supreme Court made clear in Succession of Houssiere, 174 So.2d at 525, that the potential submission of attorney’s fees for payment by a succession is not an act of mismanagement. It is something that may be done in the future as to which the complaining heirs have an adequate remedy under LSA-C.C.P. arts. 3303-3307. Moreover, once submitted to the court for payment, even if unopposed by the heirs, the judge may refuse the representative the authority to pay if he or she feels the charge is exorbitant. LSA-C.C.P. art. 3301; Succession of Houssiere, 174 So.2d at 525.

We find the trial court committed legal error in admitting and considering evidence regarding attorney’s fees not yet submitted for payment. Where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the reviewing court should make its own independent de novo review and assessment of the record. Campo v. Correa, 2001-2707, p. 10 (La.6/21/02), 828 So.2d 502, 510. Therefore, based on the legal error of the trial court, we review the removal issue de novo.

Prior to its repeal by La. Acts 1960, No. 30, § 2, LSA-C.C. art. 1191 imposed on succession representatives a duty to render an annual accounting. On failure to do so, the article mandated that the representative be dismissed from office and pay interest on all sums for which he may be responsible. However, in interpreting the article, the Louisiana Supreme Court held that cause for removal of a representative existed only after the representative failed to comply with a court order directing him to file an account. Succession of Head, 28 La. Ann. 800 (1876).

In 1960 LSA-C.C. art. 1191 was replaced by a new statutory scheme set forth in the Code of Civil Procedure. Under that new scheme, LSA-C.C.P. art. 3182 does not mandate removal, but provides the trial court with discretion to remove a succession representative in certain circumstances, including the representative’s failure to perform any duty required by law or order of the court. | ^LSA-C.C.P. art. 3331 imposes on the representative a duty to render an annual accounting. LSA-C.C.P. art. 3334 provides for removal of a succession representative who has failed to file an account after being ordered to do so by the court and further provides for penalties pursuant to LSA-C.C.P. art. 2502.

Unlike the law at the time Succession of Head was decided, the current law does not mandate removal of the succession representative for failure to file an annual accounting. Both the third and fourth circuits have recognized that under the current law, a representative’s failure to file an annual accounting is one of the grounds for which the court has the discretionary power to remove the representative. Succession of Voland, 296 So.2d 406, 408 (La.App. 4th Cir.), writ refused, 300 So.2d 184 (La.1974); Succession of Roy, 192 So.2d 603, 605 (La.App. 3rd Cir.1966). Considering the changes effected in the law, we agree.

Rosemary was appointed succession representative July 31, 1995. Prior to the October 29, 2001 hearing on the motion to revoke, the record reflects that she filed only one provisional accounting in 1996. She did, however, petition and receive court authority to pay attorney’s fees and expenses during that time. Annual accounts would have provided the heirs and the court with a concise statement showing money and property received at the beginning of each year, all revenues and disbursements during the year, and the amount remaining. See 10 Frederick William Swain, Jr. & Kathryn Venturatos Lo-rio, Louisiana Civil Law Treatise: Successions and Donations § 16.19 (1995). Thus, an annual accounting would have allowed the trial court to easily compare payments made during the year to the value of the succession’s assets. Such information would have been particularly relevant in this case, considering the trial court’s concern over the total amount of attorney’s fees incurred.

Considering the foregoing, we affirm the trial court’s judgment removing the succession representative.

^CONCLUSION

For the reasons set forth herein, the judgment of the trial court removing Rosemary Cucchero as representative of the succession of Frank Cucchero, Jr. is affirmed. Costs of this appeal are to be divided equally between the appellant and the appellees with 50% assessed to Rosemary Cucchero and 50% to Antoinette Cucchero O’Neil, Janet Cucchero Wingerter, Carmela Cucchero Brehm and Kathleen Cucchero Savorgnan.

AFFIRMED.

      . The law regarding assessment of penalties for failing to file an accounting did not change. Penalties are still available only when the representative fails to file an accounting after being ordered to do so by the court. LSA-C.C.P. art. 3334.


author: JgGAIDRY, J. 11DOWNING, J.,

text:
    Ethel DOBROWOLSKI v. LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM
    No. 2001 CA 2912.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Joseph A. Prokop, Jr., Baton Rouge, Counsel for Plaintiff/Appellee Ethel Do-browolski.
    Kevin Torres, Paulette Porter LaBos-trie, R. Stephen Stark, George Johnson, Baton Rouge, Counsel for Defendant/Appellant Louisiana State Employees’ Retirement System.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   JgGAIDRY, J.

The Louisiana State Employees’ Retirement System (LASERS) appeals an adverse judgment of the trial court in Ethel Dobrowolski’s favor, overruling LASERS’s decision that she was not disabled. For the following reasons, we reverse the trial court’s judgment and remand the case to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

This action commenced when LASERS sought to re-certify Ms. Dobrowolski’s continuing eligibility for disability benefits pursuant to La. R.S. 11:220. After three medical examinations, two rheumatologists and a psychiatrist certified that Ms. Do-browolski was no longer permanently and totally disabled; therefore, LASERS ruled she was not entitled to continued disability benefits.

The statutory certification procedure does not specifically provide for any type of hearing wherein Ms. Dobrowolski could present relevant on her behalf. See La. R.S. 11:218. Nor does it allow for her treating physician’s opinion to be considered, other than as expressed through her case history. Id. Accordingly, Ms. Dobro-wolski filed a petition for judicial review of the administrative ruling with the 19th Judicial District Court pursuant to La. R.S. 49:964.

Prior to the hearing, the trial court entered an order allowing Ms. Dobrowolski to supplement the record with evidence including the deposition testimony of her treating physician, Dr. Jed Morris, and her treatment file. After considering that evidence and the evidence in the agency record, the trial court concluded that LASERS had been arbitrary and capricious in discontinuing Ms. Dobrowolski’s disability status, and that its | ^conclusions were not supported by a preponderance of the evidence. The trial court entered judgment accordingly.

LASERS now appeals raising three assignments of error. LASERS contends that the trial court committed manifest error when it rendered judgment based upon a medical diagnosis unsupported by competent evidence, that the trial court committed manifest error when it permitted Ms. Dobrowolski to supplement the administrative record in the trial court, and that the trial court was manifestly erroneous in finding LASERS’s decision to be arbitrary and capricious.

SUPPLEMENTATION OF THE RECORD

LASERS argues that the trial court’s review of its decision is confined to the agency record “unless additional proof is taken in accordance with the Act, LSA-R.S. 49:964 ....” In this regard, La. R.S. 49:964(E) provides as follows:

E. If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence he taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court. (Our emphasis.)

Accordingly, we address two issues in determining whether the trial court committed error in supplementing the record: 1) whether the evidence from Ms. Dobro-wolski’s treating physician was material, and 2) whether the trial court erred in not remanding the matter to LASERS to “take” the additional evidence and to supplement the record.

Evidence is material if the proposition it tends to prove or disprove is a matter in issue. Matte v. Louisiana Farm Bureau Casualty Insurance Company, 95-1308, p. 4 (La.App. 3 Cir. 6/12/96), 676 So.2d 713, 715, citing State v. Rogers, 553 So.2d 453, 455 (La.1989). Here, Dr. Morris’s testimony and treatment record, detailing Ms. Dobrowolski’s “case history,” suggested that she is totally and permanently disabled. Such evidence is clearly “material” to the issue of her disability status.

LASERS argues that Dr. Morris is not qualified to render an opinion in this matter because he is not a board-certified rheumatologist. However, while Dr. Morris is not board certified, the record amply demonstrates his expertise in the field. He testified that he has received “exactly the same” training as a board-certified rheumatologist, has been practicing rheu-matology since 1974, and began that practice before the practice of board certification in that field began. He is a member of the American College of Rheumatology, and has authored articles on rheumatolo-gy. Contrary to LASERS’s assertions, La. R.S. 11:218 does not expressly limit the evidence in the record to the reports of State Medical Disability Board physicians or Board-designated physicians. The statute expressly contemplates consideration of the “disability case history” as well as, in certain instances, “medical evidence of disability.” The additional evidence of the treating physician, therefore, is not excludable on the basis of immateriality. We conclude the trial court did not err in concluding that evidence was material.

Ms. Dobrowolski argues that the trial court acted properly in receiving the additional evidence of her treating physician, as La. R.S. 11:218 does not provide for an agency hearing or other opportunity for her to submit her proposed material evidence. This is not entirely accurate. Judicial review under the Louisiana Administrative Procedure Act, particularly La. R.S. 49:964, is also part of the pertinent statutory scheme. See La. R.S. J¿1:218(D)(2). La. R.S. 49:964(E) authorizes the trial court to order “additional evidence be taken before the agency upon conditions determined by the court.” (Our emphasis.) Such conditions may properly include compliance with the procedures set forth in La. R.S. 49:955 — 958. For example, La. R.S. 49:958 requires that an agency’s final decision in an administrative adjudicatory proceeding be in writing or stated in the record, and that it include “findings of fact.”

Louisiana Revised Statutes 49:964(G) makes the trial court reviewing an administrative decision a factfinder who weighs the evidence and makes its own conclusions of fact by a preponderance of the evidence. Multi-Care, Inc. v. State, Department of Health and Hospitals, 00-2001, p. 4 (La.App. 1st Cir.11/9/01), 804 So.2d 673, 675. But La. R.S. 49:964(F) expressly confines the trial court’s review of the agency decision to its record, and La. R.S. 49:964(E) expressly restricts the submission of additional evidence found material by the court to that “taken before the agency.” West v. Louisiana Department of Public Safety, 432 So.2d 273, 278 (La.App. 1st Cir.1982). The reason for that requirement is obvious: “The agency may modify its findings and decision by reason of the additional evidence.” La. R.S. 49:964(E). Such result might obviate further review by the courts and conclude the matter.

Because we conclude the trial court erred in admitting additional evidence de novo, without following the procedure mandated by La. R.S. 49:964(E), we pre-termit discussion of its assignment of error as to the trial court’s finding that LASE RS’s decision was arbitrary and capricious under La. R.S. 49:964(G)(5).

Based on the foregoing, we reverse the trial court’s judgment, and remand this matter to the trial court for determination of the conditions for |fithe receipt of the material evidence at issue by LASERS, prior to remand of the matter to LASERS for consideration of such evidence.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion. The costs of this appeal are taxed equally to the appellant, the Louisiana State Employees’ Retirement System (in the amount of $923.92, representing half of the total appeal costs), and to the appellee, Ethel Dobrowolski.

REVERSED AND REMANDED.

DOWNING, J., concurs and assigns reasons.

11DOWNING, J.,

concurring.

I concur with the majority opinion on the off chance that the Louisiana State Employees’ Retirement System (LASERS) can suggest at the trial court a reasonable and legal method for receiving and considering Ms. Dobrowolski’s supplemental evidence, including the deposition testimony of her treating physician, Dr. Jed Morris. Otherwise, I would affirm the judgment of the trial court.

Louisiana Revised Statutes 49:964E does provide that “the court may order that the additional evidence be taken before the agency upon conditions determined by the court.” The statutory framework for LASERS’ decision-making under La. R.S. 11:218, however, does not appear to allow the introduction of Ms. Dobrowolski’s evidence, which I agree is material. No board or hearing procedure is statutorily authorized. We certainly cannot jurisprudentially grant judicial power and functions (deciding the law and fact-finding) to the evaluating physicians, who in this instance are charged statutorily with rendering medical opinions.

Even so, it appears from the record that the trial court did not explore whether any legal and practical means existed by which it could remand the matter back to LASERS for consideration before it decided to accept and consider the evidence on its own. If no such legal or practical means exists, | {¡LASERS should stipulate to the admissibility of Ms. Dobrowolski’s evidence or supplement the record with the evidence and return the record to the trial court. The law does not require the performance of vain and useless acts. See Country Club of Louisiana Property Owners Association, Inc. v. Dornier, 96-0898, p. 13 n. 2 (La.App. 1 Cir. 2/14/97), 691 So.2d 142, 149 n. 2.

I agree for reasons stated by the majority that Ms. Dobrowolski’s evidence is material and that the trial court serves as factfinder on administrative review. I also believe the trial court was correct in crediting the testimony of Ms. Dobrowolski’s treating physician, Dr. Jed Morris, who had been treating Ms. Dobrowolski long term and was intimately familiar with her condition and prognosis.

Dr. Morris testified that Ms. Dobrowol-ski had symptoms and findings of several disorders including degenerative disc disease, chronic fatigue syndrome, inflammatory arthritis, and fibromyalgia. He testified that it would be hard to pigeonhole her problems into one disorder. He noted that his use of the term “fibromyalgia” was descriptive just to place her illness in some general category. He testified that the tender points used in diagnosing fibro-myalgia may be present or absent on certain days. He explained that Ms. Dobro-wolski has never had a full-blown, classical case of fibromyalgia — that her symptoms fall into “a realm of evolving or undifferentiated connective tissue disease.”

Dr. Morris further testified that when examining a “complex rheumatological patient,” he did not think “on many occasions” one evaluation would be adequate to tell “exactly what’s going on.” Though he did state that some well defined disorders could be easily diagnosed on one visit and examination.

|3Pr. Morris stated that he had treated Ms. Dobrowolski for eight years and found her to be highly intelligent and well motivated. He said that her “compendium of symptoms of findings are consistent” and could not be made up. His diagnosis is that she is systemically ill and shows evidence of degeneration in her cervical spine, overwhelming fatigue and inflammatory polyarthroscopy. He noted that her condition had been deteriorating over the last eight months and that there have been “recent ominous findings” that she may become more ill.

Regarding Ms. Dobrowolski’s ability to work, Dr. Morris testified: “She presents as someone who is systemicaUy ill and who basically is not capable of rectifying ... her clinical status to the point that she can pursue meaningful work like the average person.” He said that perhaps she could perform her job functions for a few days but that she was not qualified to do what she was trained for because of weakness, fatigue, a sense of being overwhelmed and depression. Dr. Morris’s medical opinion based on his examinations, the years of treatment, and the tests run over the years was that Ms. Dobrowolski was totally disabled from the further performance of her normal duties and that the incapacity was likely to be permanent.

Regarding rehabilitation, he testified: “I think that somebody who has depression, inflamed joints and overwhelming fatigue is not a very rehabilitatable person, and who appears to be getting worse.”

Regarding the opinions of LASERS’ evaluating physicians, Dr. Morris testified that in a case like Ms. Dobrowolski’s, he disagreed “totally and firmly” that Ms. Dobrowolski could be diagnosed able to work in one examination. He analyzed the LASERS’ physicians’ problems with diagnosis as follows: “they had a lot of trouble with coming to total grips to what the problem was, and the reason they did was, is they were seeing her |4on one occasion and they didn’t see her during periods of disease activity, and they certainly haven’t seen her since that time when unbe-nounced (sic) to them she’s developed inflammatory arthritis. I mean that would certainly turn their heads.”

Accordingly, while I agree with the remand of this matter to the trial court to explore legal means for LASERS to accept and consider Ms. Dobrowolski’s evidence, I would otherwise affirm the trial court’s decision that by the preponderance of the evidence, Ms. Dobrowolski was totally and permanently disabled and entitled to disability benefits.


author: LGUIDRY, J.

text:
    Mary BEL, Individually and on Behalf of the Estate of Her Husband, Douglas Bel, Linda B. Mire and Carolyn B. Heard v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Allstate Insurance Company, Regal Insurance Company, Craig Lewis, Individually and dba Craig Lewis State Farm Agency.
    No. 2002 CA 0360.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Writ Denied May 30, 2003.

      Craig J. Robichaux, Mandeville, Counsel for Plaintiffs/Appellants Mary Bel, Linda B. Mire, and Carolyn Heard.
    Adrianne L. Baumgartner, Covington, Counsel for Defendant/Appellee State Farm Mutual Automobile Insurance Company.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   LGUIDRY, J.

In this wrongful death and survival action, plaintiffs, Mary Bel, individually and on behalf of the estate of her husband, Douglas Bel, Linda B. Mire, and Carolyn B. Heard, appeal the trial court’s granting of defendant’s, State Farm Mutual Automobile Insurance Company (State Farm), motion for summary judgment. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 3, 1997, Douglas Bel was involved in a vehicular accident wherein he was fatally injured. On the date of the accident, Douglas Bel, and his wife Mary Bel, had in effect an automobile insurance policy with State Farm. This policy provided for 100/300 limits on liability coverage as well as 100/300 limits on uninsured/un-derinsured motorist (UM) coverage. Additionally, Douglas and Mary Bel had a Personal Liability Umbrella Policy (PLUP) with a $1,000,000.00 limit on liability coverage. However, prior to the date of the accident, Douglas Bel executed a waiver on April 20, 1993, rejecting UM coverage under the PLUP on all vehicles.

As a result of the aforementioned accident, Mary Bel, individually and on behalf of the estate of her husband, Douglas Bel, Linda B. Mire, and Carolyn B. Heard filed a petition for damages on April 24, 1998, naming State Farm, Douglas and Mary Bel’s UM carrier, as a defendant. Thereafter, on March 26, 2001, State Farm filed a motion for summary judgment, arguing that as a matter of law, the UM waiver signed by Douglas Bel precludes UM coverage under the PLUP.

In response, plaintiffs filed a Supplemental and Amending Petition, arguing that La. R.S. 22:1406 is unconstitutional because it violates the Equal Protection Clause, Due Process Clause, and/or other provisions of the Louisiana and United UStates Constitutions. Following an August 15, 2001 hearing on State Farm’s motion for summary judgment, the trial court, in a judgment signed September 24, 2001, granted State Farm’s motion, dismissed plaintiffs’ claims against State Farm with prejudice, and designated said judgment as final. Additionally, the trial court ordered that State Farm did not provide UM coverage under the PLUP, that the waiver signed by Douglas Bel was valid, and that La. R.S. 22:1406 does not violate the Due Process or Equal Protection clauses of the Louisiana or United States Constitutions.

ASSIGNMENTS OF ERROR

The plaintiffs now appeal from this judgment and assert the following assignments of error:

1. The trial court erred as a matter of law in concluding that the rejection of UM coverage by one named insured is a valid rejection of UM coverage as to all insureds under an automobile policy.
2. The trial court erred in failing to finding [sic] LSA-R.S. 22:1406(D)(l)(a)(i) unconstitutional to the extent that one insured may waive UM coverage purchased by [sic] funds belonging to another insured, and insuring the separate and distinct insurable interests of that insured.

DISCUSSION

Standard of Review

Appellate courts review the granting of a motion for summary judgment de novo, using the same criteria governing the trial court’s consideration of whether summary judgment was appropriate. According to La. C.C.P. art. 966, a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. Esteve v. U.S. Agencies Casualty Insurance Co., 01-1009, p. 3 (La.App. 1st Cir.5/10/02), 818 So.2d 998, 1001.

\ ¿Validity of UM Rejection Executed by One Named Insured

Louisiana Revised Statutes 22:1406(D)(l)(a)(i), which governs the issuance of UM coverage, requires that coverage exist in amounts not less than limits of bodily injury liability provided by the policy. However, that same section, at the time the UM waiver was signed in 1998, also stated in relevant part:

[T]he coverage required under this Subsection shall not be applicable when any insured named in the policy shall reject in writing, as provided herein, the coverage or selects lower limits. In no event shall the policy limits of an uninsured motorist policy be less than the minimum liability limits required under R.S. 32:900. [Emphasis added.]

Despite the clear wording of the above provision, the plaintiffs argue on appeal that the rejection, obtained by State Farm and executed by Douglas Bel only, is not valid as to Mary Bel, the other named insured under the PLUP. In particular, plaintiffs claim that language found in another subpart of La. R.S. 22:1406(D)(l)(a) is inconsistent with the above statutory provision and therefore, an ambiguity exists as to who is required to sign a rejection of UM coverage. At the time the rejection at issue was signed, La. R.S. 22:1406(D)(l)(a)(ii) provided, that “[t]he form [upon which a rejection is made] shall be provided by the insurer and signed by the named insured or his legal representative.” (Emphasis added.) Based on this additional language, plaintiffs argue that, when as here, there are multiple named insureds, each insured named in the policy must sign a rejection in order for that rejection to be valid.

However, we find this argument to be without merit. When interpreting a statute, we first examine the language of the statute itself. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and its letter shall not be disregarded in search of the intent of the legislature. Barrilleaux v. NPC, Inc., 98-0728, p. 4 (La.App. 1st Cir.4/1/99), 730 So.2d 1062, 1064, writ denied, 99-1002 (La.5/28/99), 743 So.2d 672. The meaning of a statute is to be interpreted by looking to all the sections taken together so that no section, clause, sentence, or word becomes superfluous or meaningless. Barrilleaux, 98-0728 at 4, 730 So.2d at 1065.

In the instant case, any insured named in the policy may reject UM coverage if it is “in writing, as provided herein.” La. R.S. 22:1406(D)(l)(a)(i). This language thereby refers the reader to look to other sections of the statute for requirements of the writing. In the following subsection, (D)(l)(a)(ii), a description of those requirements is found. Among those requirements are that the rejection be on a form designed and provided by the insurer and signed by the named insured or his legal representative. La. R.S. 22:1406(D)(l)(a)(ii). In reading these two sections together, it is clear that “the named insured or his legal representative” merely refers to the person who is “any insured named in the policy” who elects to reject UM coverage in accordance with La. R.S. 22:1406(D)(l)(a)(i).

Having resolved that issue, it is evident that the wording of the statute clearly allows any insured named in the policy to reject UM coverage. Douglas Bel was a named insured under the PLUP, and therefore clearly had the authority under the above statute to execute a valid waiver of UM coverage under that policy. See Oncale v. Aetna Casualty and Surety Co., 417 So.2d at 474-475; Tucker v. Valentin, 01-755, pp. 4-6 (La.App. 5th Cir.12/26/01), 807 So.2d 292, 294-295; Dronet v. Safeway Insurance Co., 95-1471, p. 5 (La.App. 8 Cir. 11/07/97), 703 So.2d 97, 100-101; Huguet v. State Farm Mutual Automobile Insurance Co., 619 So.2d 186, 188 (La.App. 3rd Cir.), writ denied, 625 So.2d 1059 (La.1993).

| fiiConstitutionality of La. R.S. 22:1406

Plaintiffs additionally argue that La. R.S. 22:1406(D)(l)(a)(i), in particular that portion allowing “any insured named in the policy” to reject UM coverage and have that waiver bind any other insured under the policy, is unconstitutional as it deprives Mary Bel of her interest in the insurance policy. However, the interest that Mary Bel is allegedly deprived of is community in nature, as it is derived from the community property laws.

Mary Bel claims to have an interest in the insurance policy, which insured against her potential loss, because her property, albeit community property, was used to pay for that coverage. Therefore, to the extent that community funds were used to purchase the policy/coverage, the policy/coverage is community property. See La. C.C. art. 2338. As such, any interest or right based on ownership that Mary Bel asserts derives from, and is therefore governed by, the community property laws of this state.

Louisiana Civil Code article 2346 states that “[e]ach spouse acting alone may manage, control, or dispose of community property unless otherwise provided by law.” As there are no applicable exceptions in law to this codal provision, the community property laws clearly provide, independently of the statute at issue, that either spouse can take action to dispose of or manage community property. To the extent the PLUP, and coverage contained therein, is community property, Douglas |7Bel had the authority to reject/dispose of UM coverage in accordance with La. C.C. art. 2346.

Therefore, we find that because the community property laws govern Douglas Bel’s ability to reject UM coverage under the PLUP, despite the language contained in La. R.S. 22:1406(D)(l)(a)(i), we do not reach the issue of whether the provision allowing any named insured to reject UM coverage is unconstitutional. It has consistently been held that courts should refrain from reaching or determining the constitutionality of legislation unless, in the context of a particular case, the resolution of this is essential to the decision of the case or controversy. State v. Fleming, 01-2799, p. 4 (La.6/21/02), 820 So.2d 467, 470.

Meaningful Selection

Finding Douglas Bel was authorized, by La. C.C. art. 2346 and La. R.S. 22:1406(D)(l)(l)(i), to effectuate a valid waiver of UM coverage under the PLUP, we next address plaintiffs’ argument that, though facially valid, the rejection form fails to offer the insured any meaningful selection.

The insurer must place the insured in a position to make an informed rejection of UM coverage. In other words, the form used by the insurance company must give the applicant the opportunity to make a “meaningful selection” from his options provided by statute: (1) UM coverage equal to bodily injury limits in the policy, (2) UM coverage lower than bodily injury limits in the policy, or (8) no UM coverage. Tugwell v. State Farm Insurance Co., 609 So.2d 195, 197 (La.1992). However, a form is not valid if it fails to inform the applicant of an |savailable option or forecloses an available option. Daigle v. Authement, 96-1662, p. 4 (La.4/8/97), 691 So.2d 1213, 1215.

The UM rejection form at issue listed three options: (1) UM coverage with the full policy limits, (2) UM coverage with limits of $500,000, or (3) rejection of UM coverage. Additionally, the affidavit of Angie Wells, State Farm's Underwriting/Operations Superintendent, stated that at the time of the UM coverage rejection, State Farm was qualified in this State to issue only a PLUP with UM coverage limits equal to the PLUP policy limit, lesser limits of $500,000, or no UM coverage. In Perez v. Progressive Insurance Co., 99-956, pp. 5-6, (La.App. 5th Cir.1/25/00), 751 So.2d 1014, 1016, writ denied, 00-0531 (La.3/31/00), 759 So.2d 76, the fifth circuit was presented with an opportunity to rule on this same issue, with a form identical to that at issue in the instant case. In Perez, State Farm submitted an affidavit similar to that submitted in the instant case, stating what UM coverage State Farm was qualified to issue under the state rating guidelines. Perez, 99-956 at 4, 751 So.2d at 1014. The fifth circuit found that the form at issue complied with applicable state law in that it gave the insured a clear, meaningful choice between his three legal options, and no legal option was foreclosed.

Therefore, based on Perez and the affidavit submitted by State Farm, we find that the rejection form did offer Douglas Bel a meaningful selection in accordance with the law as outlined above and therefore, plaintiffs’ argument is without merit.

Knowingly Made Rejection

Finally, plaintiffs contend that even though valid, the rejection was not made knowingly and La. R.S. 22:1406(D)(l)(a)(i) states that a properly completed form only creates a rebuttable presumption that the insured knowingly rejected coverage. However, in the instant case, plaintiffs do not offer any evidence that Douglas Bel did not knowingly execute the waiver. The record contains the 13deposition testimony of Mary Bel and Craig Lewis, the State Farm agent, who both testified that Douglas and Mary Bel met with Craig Lewis on several occasions, whereupon UM coverage was discussed and explained to the Bels. The plaintiffs, however, argue that Mary Bel did not understand and was confused by those discussions and explanations. As Douglas Bel, and not Mary Bel, was the insured who executed the UM rejection, we find this reliance misplaced. Additionally, the evidence as presented shows that Douglas Bel was informed of UM coverage and thereafter signed the UM rejection on April 20, 1993. A person who signs a written document is presumed to have knowledge and understanding of that which he signs. Esteve, 01-1009 at 10, 818 So.2d at 1005. Therefore, we find there is no genuine issue of material fact as to Douglas Bel’s knowledge and therefore, this argument also is without merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment granting State Farm’s motion for summary judgment and dismissing plaintiffs’ claims against State Farm with prejudice. All costs of this appeal are to be borne equally by the appellants, Mary Bel, individually and on behalf of the estate of her husband, Douglas Bel, Linda B. Mire, and Carolyn B. Heard.

AFFIRMED.

      . The petition also named as defendants Anet-ta Leblanc, Melinda Leblanc, Regal Insurance Company, Allstate Insurance Company, and Craig Lewis, individually and dba Craig Lewis State Farm Agency, none of whom are parties to the instant appeal.

      . In examining the PLUP, we notice that only Mary Bel is listed on the declaration page as the named insured. However, in accordance with the definitions contained in the policy, "named insured" also includes a spouse who resides in the same household as the person listed as the named insured on the declarations page. See Oncale v. Aetna Casualty and Surety Company, 417 So.2d 471, 474 (La.App. 1st Cir.1982).

      . It appears from plaintiffs’ argument that only Mary Bel is alleged to have been deprived of a property right by La. R.S. 22:1406(D)(l)(a)(i).

      . Both parties acknowledge in their briefs that the funds used to purchase the insurance policy/coverage were community property, or that the policy/coverage itself was community property.

      . We note that La. C.C. art. 2347, requiring the concurrence of both spouses for alienation, encumbrance or lease of community immovables, all or substantially all of the assets of the community, and movables issued or registered as provided by law in the names of both spouses jointly does not apply. The insurance policy, and coverage contained therein, is not an immovable nor is it a movable that is to be issued to both spouses jointly as provided by law.

      . Plaintiffs have not asserted that La. C.C. art. 2346 is unconstitutional and therefore, we do not address this issue.

      . Plaintiffs do, however, argue that the form is not valid, to the extent that there is no proof that the form was approved by the Commissioner of Insurance, as required by law. However, at the time the waiver was signed in 1993, the law did not require the rejection form to be approved by the Commissioner of Insurance. Louisiana Revised Statutes 22:1406(D)(l)(a)(i) was amended by 1997 La. Acts 1476, and now provides in part that "the rejection ... shall be made on a form prescribed by the commissioner of insurance.” However, this amendment was not to be effective until 120 days after "premium reduction day,” September 6, 1998.