author: JjPETERS, J. | WOODARD, J.,

text:
    Mark TAYLOR, et al. v. STATE of Louisiana, DOTD.
    No. 2003-0219.
    Court of Appeal of Louisiana, Third Circuit.
    June 23, 2004.

      David LaFargue, Special Assistant Attorney General, Marksville, LA, for Appellant, State of Louisiana.
    Russell Purvis Smith, Talliaferro, Purvis & Boothe, Jonesville, LA, for Appellee, Mark Taylor, et al.
    Court composed of Chief Judge ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, JIMMIE C. PETERS, and ARTHUR J. PLANCHARD, Judges.

       Judge Arthur J. Planchará participated in this decision by appointment of the Louisiana Supreme Court as judge pro tempore.

   JjPETERS, J.

This litigation arises from the replacement of two highway bridges on Louisiana Highway 8 (La. 8) in Catahoula Parish by the State of Louisiana, through the Department of Transportation and Development (DOTD). Drewitt Taylor and his wife, Debbie Taylor, and Mark Taylor and his wife, Patti Taylor, (the Taylors) filed suit against DOTD, asserting that the replacement project and its subsequent effects caused their immovable property, which lies south of La. 8, to flood excessively, rendering it useless for any commercial purpose. The trial court awarded judgment in favor of the Taylors and against DOTD, awarding $136,000.00 in damages and $26,000.00 in attorney fees. DOTD appeals, and for the following reasons, we amend the damage award and affirm as amended.

As it traverses southwest Catahoula Parish in an east-west direction, La. 8 crosses two small, north-south flowing streams, Yellow Branch and Bushley Creek. The land north of La. 8 is generally hilly, while the land south of the highway is basically flat. Together, the two streams drain approximately 72.9 square miles of the hill country and are located 1,000 to 1,500 feet apart from one another where they cross La. 8. Bushley Creek, which is located to the east of Yellow Branch, drains 99.4 percent of the area.

After it crosses La. 8, Bushley Creek meanders in a southwesterly direction and converges with Yellow Branch, at a point approximately 400 feet south of Yellow Branch’s intersection with La. 8. Yellow Branch flows directly south from the point it crosses La. 8 to its intersection with Bushley Creek. At the point where the two streams intersect, Yellow Branch ceases to exist, and the newly created stream retains the Bushley Creek identity.

|2The stream beds of Yellow Branch and Bushley Creek carry the day-to-day natural drainage of the northern hills, but it takes very little rainfall to cause the stream banks to overflow. Before any highways traversed the area, the overflow simply spread from the hills in sheets across the flat plain below. The original construction of La. 8 changed this natural drainage flow primarily because the roadway grade of La. 8 between the Yellow Branch and the Bushley Creek bridges was elevated such that anytime the streams overflowed their banks, the backwater which could not drain through the Bushley Creek bridge would pool behind La. 8 and flow south to the Yellow Branch bridge. Thus, the Yellow Branch bridge acted as an escape valve for Bushley Creek’s excess water. This had the effect of channeling the flow of the two streams to the land south of the highway, instead of allowing the overflow to spread naturally across all of the land lying south. At times of heavy rain, the topography of the land below the flat plain slowed the water’s escape and caused it to back up onto the properties located immediately south of La. 8.

When originally constructed, the Yellow Branch bridge was eighty feet in length, and the Bushley Creek bridge spanned 300 feet. Both were constructed with timber pilings. Although adequate to disburse the runoff from an average rainfall in the hills above La. 8, the two structures were not adequate to disburse extraordinary runoff caused by a heavy rain. In such an event, the bulk of the water flowed through the Bushley Creek bridge because of the size disparity between the two structures. Once the water flowed through the two structures, it began to overflow onto the property adjacent to the natural streambed.

In December of 1982, a public school facility located immediately west of Yellow Branch and North of La. 8, the Manifest School, flooded when a rainfall in|3the hills created a “fifty year flood.” This rainfall event was followed in February and April of 1983 by two “twenty-five year floods,” which flooded the roads near the school. Pressure from the Catahoula Parish School Board caused DOTD to consider alterations to La. 8, in an effort to avoid future flooding of the Manifest School and the surrounding area.

After studying the flooding problem associated with the Manifest School, DOTD replaced the eighty-foot Yellow Creek bridge with a 200 foot bridge and replaced the 300 foot Bushley Creek bridge with a 250 foot bridge. Both of the new structures were constructed with concrete pilings. Additionally, DOTD raised the elevation of La. 8 between the two structures by 3.8 feet and straightened the Yellow Branch channel from the new bridge to its intersection with Bushley Creek. While considering the effect that the replacement project would have on the drainage issue north of La. 8, DOTD made no effort to determine the effect that it would have on the property situated south of the highway. Construction on the replacement bridges began in January of 1994 and ended with the removal of the former bridge structures in April of 1995. The replacement project included the straightening of the Yellow Branch channel immediately south of the bridge. This replacement project gave rise to the litigation now before us.

In 1988, the Taylors had purchased 340 acres of land south of La. 8 for the purpose of raising cattle and producing hay to feed the cattle. The northern boundary of the Taylors’ land lies almost due south of the Yellow Branch bridge and below its intersection with Bushley Creek. The combined Yellow Branch and Bushley Creek beds form the eastern boundary of the Taylors’ property.

pThe Taylors filed suit in April of 1995, asserting that the newly constructed bridges resulted in increased flooding of their property, rendering it useless for their cattle operation or any other commercial use. In seeking monetary damages, the Taylors acknowledged the fact that their property flooded even before the construction of the new bridges. In fact, Drewitt Taylor testified that between 1988 and 1994, the property flooded on the average of two times per year, usually in the spring. According to Mr. Taylor, these floods required at least six inches of rainfall and would inundate approximately seventy-five percent of the property for three to four hours. Mr. Taylor further explained that this infrequent flooding did not affect the cattle operation or the hay producing portion of the property. However, Mr. Taylor testified that after DOTD began construction of the new bridges in 1994, as little as a three-inch rain event would cause the property to flood. This change caused the frequency of flooding to increase drastically. According to Mr. Taylor, the property began to flood on a monthly or bi-monthly basis. Mr. Taylor asserted that while erosion had been a minor problem before 1994, thereafter, the erosion became significantly worse. The increased flooding washed silt and sand into the pastures so severely that a fence built in 1994 had be removed in 1997, and, by 2001, the silt and sand deposit had risen two feet. Mr. Taylor expressed his concern that the property would ultimately be cut in half by the erosion and that he and his co-owners would have to construct a bridge or large culvert to have access to all of the property.

James Richard Kreinborg, a Slidell, Louisiana civil engineer, and Dr. Jerry Rogers, a Houston, Texas hydrology expert, were retained by the Taylors to evaluate the effect that the La. 8 construction project had on their property. Both experts Isopined that the new bridge structures caused increased flooding and erosion of the Taylors’ property. According to Mr. Kreinborg, prior to the construction of the new bridges, the wooden bridge pilings and other restrictions along La. 8 dissipated high velocity flows from the hill country. After the construction, the concrete structures allowed the water to flow with less impediment, and the Yellow Branch bridge, instead of serving as a relief structure, became a main conduit for the flow. According to Mr. Kreinborg, the additional flow through the Yellow Branch bridge, together with the straightening of the Yellow Branch stream south of La. 8, caused more water than had previously occurred to be directed toward the Tay-lors’ property over a shorter period of time. In his opinion, this caused the flood waters to flow directly onto the Taylors’ property without reentering Bushley Creek. In explaining his opinion, Mr. Kreinborg stated:

[B]y opening the spans, the water doesn’t collect north of the highway, and consequently it gets down to the Taylor property quicker .... but it doesn’t go through the Taylor property, because nothing was done south of the Taylor property to alleviate the water. So it ponds, collects more on the Taylor property than it use[d] to.

Mr. Kreinborg opined that DOTD could have avoided the effect of this flow onto the Taylors’ property by placing some energy dissipaters on the downstream side of the new bridges, in order to compensate for the energy dissipation that had been taken up by the old embankment and structures. He described a dissipater as a concrete slab with raised concrete blocks on it.

Dr. Jerry Rogers echoed Mr. Krein-borg’s opinion that the construction changes caused water to move more quickly downstream to the Taylors’ property. He further asserted that the highly erodible soil on the Taylors’ property exacerbated the erosion | ^problem. He also agreed with Mr. Kreinborg that energy dissipa-ters were needed to decrease the velocity.

In response to the testimony of Mr. Kreinborg and Dr. Rogers, DOTD presented the testimony of Frederick Cifreo and Francis H. Wyble, both experts in the field of civil engineering. Mr. Cifreo worked on the replacement project as a DOTD employee. He testified that nothing really changed as a result of the project other than the redistribution of the backwater. Although he acknowledged that DOTD did nothing to evaluate the effect that the redistribution would have on the property south of La. 8, he suggested that the water velocity would dissipate 500 to 600 feet south of the Yellow Creek bridge, or long before it reached the Tay-lors’ property. In his opinion, dissipaters were not necessary.

Mr. Wyble first examined the Taylors’ property in mid-April of 2001, although he had visited the area in the summer of 1998. On his first trip, he observed no erosion immediately below the bridges — the place where he expected to see the most effects from the redistributed flow. He opined that the increased velocity of the Yellow Branch channel would dissipate approximately 400 feet below La. 8, given its winding channel, and even if it left its banks, the trees along the banks would act as a barrier. In his opinion, the Taylors’ property floods strictly on the intensity and duration of the rain and the saturation and moisture content of the soil. He did acknowledge that a significant ox-bow in the Yellow Branch channel had been straightened out, providing a straight flow to the Taylors’ property.

DOTD also presented testimony from several local landowners, concerning the effect of the new bridges. However, their overall testimony was not particularly helpful to DOTD’s position. This included: Lamar D. Cruse, whose property lies on |7the south side of La. 8, immediately adjacent to the highway and approximately 500 yards west of the Yellow Creek bridge; Ily C. Ewing, who resided on the Taylors’ property from 1931 to 1953, and who now owns the property adjacent to it; Dewitt Lee Carpenter, whose father owned the Taylors’ property between 1979 and 1989; Shelby Beasley, who owned the property before Mr. Carpenter; and Huey Womack, whose father-in-law owned the Taylors’ property at one time, and who now owns the property immediately east of the Tay-lors’ property. All of these witnesses recalled that prior to the bridges being replaced, the property below La. 8 would only flood in times of excessive rainfall (two times per year according to Mr. Ewing, three times per year according to Mr. Cruse, two to five times per year according to Mr. Carpenter, during the spring according to Mr. Beasley, and anytime the water would flow over the top of La. 8 according to Mr. Womack). All of the witnesses agreed that the flooding caused a certain amount of erosion damage to the property.

Only Mr. Womack testified that he found no difference in the flood frequency since the bridges were replaced. However, he acknowledged that he had little contact with the Taylors’ property since 1994. Mr. Cruse suggested that, in one year, the flooding occurred at least five times, but when questioned more closely, he could not remember if this occurred before or after 1994. Mr. Ewing testified that the property now floods more often and with less rain. Additionally, he testified that the more recent floods required twenty-four hours to drain, and the property has suffered more significant erosion in the years since the replacement project. Mr. Carpenter testified that his father took numerous steps to alleviate erosion damage, including building a dam on the property to control the flow. Despite the erosion problem, his father farmed the property for approximately four years and raised cattle for six years | ^thereafter. Neither Mr. Carpenter nor Mr. Beasley could speak to the current status of the property, as both acknowledged that neither had been on the property since, at least, 1994.

After a trial on the merits, the trial court took the matter under advisement and ultimately issued written reasons for judgment, concluding that the Taylors were entitled to eminent domain compensation. From this judgment, DOTD appeals, asserting four different assignments of error.

OPINION

In its first two assignments of error, DOTD asserts that the trial court erred in finding that its activities constituted an inverse condemnation or appropriation of the Taylors’ property and, in doing so, erred in awarding attorney fees. Secondly, DOTD argues that the trial court erred in finding that the improvements to La. 8 resulted in actionable damage to the plaintiffs’ property. The consideration of these two assignments of error requires an analysis of the same facts and legal issues. Therefore, we will address them together on appeal.

The state’s eminent domain power is set forth in La. Const, art. I, § 4, which provides in pertinent part:

(A) Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
(B) Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. ... In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss.

When property is damaged by the state and expropriation proceedings have not been instituted to compensate the landowner, the landowner may bring an inverse | condemnation suit under La. Const. art. I, § 4. Ardoin v. State, Dep’t. of Transp. & Dev., 96-63 (La.App. 3 Cir. 8/14/96), 679 So.2d 928, writ denied, 96-2280 (La.11/15/96), 682 So.2d 775. “There is a three-prong analysis to determine whether a claimant is entitled to eminent domain compensation, namely: (1) whether property rights have been affected; (2) whether the property has been taken or damaged in a constitutional sense; and (3) whether the taking or damage is for a public purpose.” Id. at 932 (citing Constance v. State, Dep’t. of Transp. & Dev., 626 So.2d 1151 (La.1993), cert. denied, 512 U.S. 1219, 114 S.Ct. 2706, 129 L.Ed.2d 834 (1994)).

Clearly, the re-construction of the two bridges and the elevation of La. 8 was for a public purpose, and, therefore, the third element is not at issue. Concerning the first element, the Taylors placed 248.13 acres of the land at issue in the Federal Wetlands Reserve Program (Wetlands Program) by Warranty Easement Deed dated August 23, 2001. According to Mark Taylor, they did so after concluding that it constituted their only option since they could no longer raise cattle or hay on the property. By placing the land in the Wetlands Program, the Taylors continued to own the property but retained only limited rights to the use of their property for a period of thirty years. Basically, the Taylors were left with the right of quiet enjoyment, control of access, and recreational use of the property.. In exchange, the Taylors received $135,107.00 or seventy-five percent of the property’s appraised value, based on the government’s appraisal. Only ninety-two acres .remained unencumbered by the Wetlands Program. According to Mr. Taylor, it was rejected as being scrub land which had no useful purpose.

In its reasons for judgment, the trial court recognized that the Taylors owned the property from the time activity began on the re-construction project until they hnplaced part of the land into the Wetlands Program. Additionally, the trial court recognized that the Taylors maintain an interest in the property despite the Wetlands Program encumbrance. Thus, we find no error in the trial court’s conclusion that the Taylors’ property rights have been affected by the actions of DOTD.

Concerning the final element, the trial court concluded in its reasons for judgment that the increased flooding and erosion caused by the construction of the new bridges “eonstitute[d] an inverse condemnation of [the Taylors’] property.” The trial court recognized that the purpose of the new bridges was to relieve backwater pressure on La. 8 and concluded that DOTD .knew this would “cause an increased velocity of water under [the] Yellow Creek Bridge.” Despite this knowledge and the known presence of erodible Guyton soil on the Taylors’ property, DOTD took no action to ascertain the effect these changes would have on the land below La. 8. The trial court further concluded that, in addition to the increased flooding and erosion of the property, the Taylors had to terminate their cattle and hay operations.

The trial court’s factual determinations will not be disturbed absent manifest error. Stobart v. State, through Dep’t. of Transp. and Dev., 617 So.2d 880 (La.1993). If the trial court’s findings' are reasonable in light of the record reviewed in its entirety, the reviewing court may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. Considering the record in its entirety, we find no manifest error in the trial court’s factual determinations.

In addressing the legal issue arising from the trial court’s factual determinations, we first note that La.Civ.Code art. 655 provides that “[a]n estate situated below is bound to receive the surface waters that flow naturally from an | nestate situated above unless an act of man has created the flow.” Additionally, La.Civ.Code art. 656 provides in part that “[t]he owner of the dominant estate may not do anything to render the servitude more burdensome.” Furthermore, the owner of the dominant -estate “cannot stop [water running through it] or give it another direction and is bound to return it to its ordinary channel where it leaves his estate.” La.Civ.Code art. 658. (Emphasis added.)

In brief, DOTD cites Gaharan v. State, Through Dep’t. of Transp. and Dev., 579 So.2d 420 (La.1991), in support of its position that the changes to La. 8 did not constitute a taking. We do not find that Gaharan addresses this issue. The plaintiffs in Gaharan sought an injunction to prevent the state’s interference with natural drainage and to recover the damages sustained as a result of the interference. The supreme court was called upon only to determine whether the request for injunc-tive relief had prescribed and, if it had not, whether the trial court could effect a com-pensative damage remedy rather than require the state to remove the obstruction. The supreme court concluded that prescription had not run and that the trial court had the discretion to effect a remedy other than strict injunctive relief. The issue of injunctive relief to the Taylors is not before us.

DOTD also directs us to the supreme court’s decision in Petite Anse Coteau Drainage Dist. v. Youngsville Drainage Dist., 83 So. 445, 446, 146 La. 161, 165 (1919), for the long-standing rule that:

‘The owner of the lower lands of two adjacent estates can do no act which would impede the natural flow of waters on his lands, from those of the higher estate. The owner of the superior estate may make all drainage works which are necessary to the proper cultivation and to the agricultural development of his estate. To that end, he may cut ditches and canals by which the waters running on his estate may be concentrated, and their flow increased beyond the slow process by which they would ultimately reach the same destination.’
| Ti>,‘But the owner of the superior estate cannot improve his lands to the injury of his neighbor, and thus he will not be allowed to cut ditches or canals, or to do other drainage works by which the waters running on his lands will be diverted from their natural flow, and concentrated so as to flow on the lower lands of the adjacent estate at a point which would not be their natural destination, thus increasing the volume of water which would by natural flow run over or reach any portion of the lower adjacent estate, or to drain over his neighbor’s lands stagnant waters from his, and to thus render the servitude due by the estate below more burdensome/

DOTD suggests that because it did not increase the volume of water ultimately reaching the Taylors’ property, the Tay-lors must accept the water now flowing through the Yellow Branch bridge pursuant to La.Civ.Code art. 655.

We agree that DOTD has not increased the total volume flowing through the Tay-lors’ property. The same total volume flows through the two structures as before the reconstruction process. However, DOTD has changed the natural course of the 'flow by redirecting the water such that it has increased the total volume flowing through the Yellow Branch bridge. Formally, it was an escape valve for Bushley Creek’s excess water. Now it is a primary conduit for that excess water. The trial court concluded that this redirection of the excess water increased the erosion effect and severely limited the Taylors’ use of their property. We find no manifest or legal error in that conclusion.

While DOTD returned the water to its ordinary channel, DOTD did not comply with the mandate of La.Civ.Code art. 658 in that it returned the water to its ordinary channel some 400 feet south of its property and not before the water left its property. While the total volume flowing through the Taylors’ property remains the same, the water arrives at the Taylors’ property much more quickly than before. This increased haflow causes the water to back up on the property in instances of less rainfall. Additionally, the water that now flows through the Yellow Branch bridge no longer dissipates in volume or velocity as it did when flowing through the Bushley Creek bridge and then along that creek’s meandering course to the Taylors’ property. Instead, it flows directly to the Taylors’ property with minimal impediments to slow its velocity or disburse its volume.

We find no error in the trial court’s conclusion that the Taylors are entitled to eminent domain compensation.

Concerning the issue of attorney fees, we first note that attorney fee awards are available only when authorized by statute or contract. Eubanks v. State, Through Dep’t. of Transp. and Dev., 620 So.2d 954 (La.App. 3 Cir.), writs denied, 629 So.2d 351, 629 So.2d 353 (La.1993). In that regard, La.R.S. 13:5111(A) provides in pertinent part:

A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as a part of the costs of court, such sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceedings.

(Emphasis added.)

Counsel for the Taylors provided the trial court with an exhibit itemizing the time spent in the litigation and the charges to his clients. This exhibit reflected a total of 201.1 hours and $31,310.50 in legal fees charged. The trial court awarded $26,000.00 in attorney fees. Considering the adequacy or excessiveness of that award, we recognize that before we can disturb that award, the record must clearly reveal that the trial court abused its discretion in making the award. Ardoin, 679 So.2d 928. Factors considered in determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the extent and character of work performed; (3) the responsibility incurred; (4) the number of court appearances made; (5) intricacies of the facts involved; (6) the importance of the litigation; (7) legal knowledge and skill of attorneys; and (8) diligence and skill of the attorneys. Id.

Considering the statutory authority for attorney fees, the factors to be considered, and the record of these proceedings, we find no abuse of discretion in the trial court’s attorney fee award. Additionally, considering the evidence, the determination of no manifest error in the trial court’s factual determinations, we find no merit in DOTD’s first two assignments of error.

In its third assignment of error, DOTD contends that the trial court erred in restricting and giving no weight to Mr. Wyble’s testimony. The trial court recognized Mr. Wyble as an expert civil engineer but refused to recognize him as an expert in the area of hydrology as it had done with Mr. Rogers. In its reasons for judgment, the trial court stated that it gave no weight to Mr. Wyble’s testimony “because he lacks the experience and expertise to evaluate how the redesign of these two bridges would affect increased velocity and the affect of this increase on the Taylor property.”

Experience, as well as education, may form the basis of expertise for a witness. State v. Guidry, 94-678 (La.App. 3 Cir. 12/7/94), 647 So.2d 502. Generally, the determination of whether to qualify a witness as an expert is within the sound discretion of the trial judge, who is afforded great latitude in deciding whether a prospective expert has competence, background and experience to testify as an expert. State v. Brossette, 93-1036 (La.App. 3 Cir. 3/2/94), 634 So.2d 1309, writ denied, 94-0802 (La.6/24/94), 640 So.2d 1344.

|1BWe find that the trial court did err in concluding that the study of hydrology is not a part of a civil engineer’s training. The evidence presented by the other expert witnesses, including the Tay-lors’ experts, clearly establishes that hydrology constitutes a part of the field of civil engineering. This does not mean to say, however, that one expert may have much more expertise in hydrology than another civil engineer. Such a conclusion is within the sound discretion of the trial court. Additionally, the trial record reflects that Mr. Wyble was allowed to testify extensively concerning his views of how hydrology factors affected the litigation now before us. Thus, we find that the trial court’s failure to specifically recognize Mr. Wyble as an expert in the field of hydrology is harmless error.

Concerning the trial court’s statement that it gave no weight to Mr. Wyble’s testimony, we note that a trial court is not bound by expert testimony and remains free to accept or reject an expert’s conclusions. State v. Smith, 96-261 (La.App. 3 Cir. 12/30/96), 687 So.2d 529, writ denied, 97-0314 (La.6/30/97), 696 So.2d 1004. In situations where the testimony of expert witnesses differs, it is the responsibility of the trier of fact to determine which evidence is most credible. Schlesinger v. Herzog, 95-1127 (La.App. 4 Cir. 4/3/96), 672 So.2d 701, writ denied, 96-1328 (La.10/4/96), 679 So.2d 1381. ‘When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If “a factfin-der’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.” Rosell, 549 So.2d at 845.

hfiDOTD’s basic argument in this regard evolves around Mr. Wyble’s testimony that he found no erosion immediately south of the new bridges and would expect to find no erosion further south on the Taylors’ property and that the cause of the erosion was solely based on the nature of the soil. Given the complete record, we find that the trial court was free to accept or reject Mr. Wyble’s testimony on this point. The trial court rejected this testimony, and we find no manifest error in this regard. Thus, we find no merit in this assignment of error.

Finally, the state asserts that the damage award is excessive. In considering this assignment of error, we first note that the owner of property taken by inverse condemnation is entitled to be compensated to the full extent of his loss. La. Const, art. I, § 4.

In estimating the value of the property to be expropriated, the basis of assessment shall be the value which the property possessed before the contemplated improvement was proposed, without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work.

La.R.S. 19:9(A).

Additionally,

Severance damage may result from a partial taking and is any depreciation in the market value of the remainder of the landowner’s property caused by such taking. Such damages are recoverable and are ordinarily calculated as the difference between the value of the remaining property immediately before and after the taking.

Mathis v. City of DeRidder, 599 So.2d 378, 386 (La.App. 3 Cir.1992).

The landowner in an inverse condemnation has the burden of proving severance damage by a preponderance of the evidence. Id.

The Taylors purchased the property in 1989 for $350.00 per acre. Earl Waltman, a real estate appraiser, testified that before the excessive flooding began, |17the property was worth $750.00 per acre. Thereafter, it decreased in value to $350.00 per acre. Using these values, Mr. Walt-man testified that the Taylors had suffered a $136,000.00 diminution in value of their property as a result of DOTD’s actions. The trial court accepted Mr. Waltman’s testimony in setting the Taylors’ damages at $136,000.00. In doing so, the trial court mentioned the Taylors’ losses from the cattle and hay operation but awarded no amount for these losses.

DOTD asserts that because the appraisal for the Wetlands Program established the value of the property at $726.00 per acre ($544.50 4- 0.75), the trial court erred in relying upon Mr. Waltman’s expert opinion. We find no merit in this assertion. The Wetlands Program transaction occurred in August of 2001. The value for expropriation purposes is established at the time immediately before the contemplated improvement and taking. La.R.S. 19:9(A). DOTD presented no evidence to establish how, if at all, the property’s value changed between 1994 and 2001. Therefore, we do not know what value an appraisal for the Wetlands Program would have established if prepared in 1994.

“In an expropriation proceeding, a trial judge’s factual determinations as to value of property and entitlement to any other types of damages will not be disturbed on review in the absence of manifest error.” W. Jefferson Levee Dist. v. Coast Quality Const. Corp., 93-1718, p. 23 (La.5/23/94), 640 So.2d 1258, 1277 (citing State, through Dep’t. of Transp. and Dev. v. Estate of Davis, 572 So.2d 39, 45 (La.1990)), cert. denied, 513 U.S. 1083, 115 S.Ct. 736, 130 L.Ed.2d 639 (1995). We find no manifest error in the acceptance of Mr. Waltman’s testimony. We further find no manifest error in the trial court’s failure to award damages for the cattle and hay operation losses as no evidence was presented to establish these losses.

|1sHowever, we do find that the award must be reduced. The trial court awarded damages based on the assumption that all 340 acres suffered a diminution in value. This assumption is not supported by the record as Drewitt Taylor testified that only 280 acres out of the 340 were affected by the flooding. Therefore, we reduce the award to $112,000.00.

DISPOSITION

We affirm the trial court’s award of damages and attorney fees. However, we amend the damage award by reducing it from $136,000.00 to $112,000.00. We assess costs of this appeal to the State of Louisiana, through the Department of Transportation and Development, and set the costs at $5,859.35 pursuant to La.R.S. 13:5112(A).

AFFIRMED AS AMENDED.

WOODARD, J., dissents and assigns written reasons.

PLANCHARD, J., dissents.

| WOODARD, J.,

dissenting.

Respectfully, I must dissent from the majority’s opinion, as I do not find sufficient evidence in the record to prove a taking — in fact or at law. All we have are the Taylors’ unsupported impressions.

The testimony established that the Tay-lors’ property had a history of flooding before the improvements, and the photographs in evidence demonstrate that it had suffered erosion before the constructions on Highway 8. Further, the previous owners of the property testified to the history of flooding and erosion on the property.

The Plaintiffs do not dispute that it has a history of flooding; rather, Mr. Mark Taylor and Mr. Drewitt Taylor testified that, since the improvements, the flooding was more frequent and occurred with less rainfall. However, the only evidence they offered to support this contention were photographs of the property which were taken after a flood in January of 2001. (The new bridges were constructed in 1994 and the old bridges were taken out in April of 1995.) Neither offered any verification that flooding increased after the improvements in 1995. In fact, Mr. Drew-itt Taylor ^testified that in October of 1995, he could not tell whether the improvements had affected the property. Likewise, Mr. Mark Taylor stated:

A. That’s six years ago, I can’t tell you. I can’t answer that.
Q. From 1995 to present, and again, approximately how many times do you think that it flooded?
A. What is it, six years about?
Q. About.
A. Really, I don’t know. It could have flooded 30 times.
Q. And your brother indicated ten, maybe more?
A. He’s just guessing, I guess. I’m just saying it could have. I don’t know. I guess we’d have to get data to — I don’t know.

However, Mr. Dewitt Carpenter, whose father owned the property from 1979 to 1989, explained that during that time, Bushley Creek would overflow and flood the property “anywhere from two to five times a year, just depending on what kind of rainy season that you had.” Further, Mr. Mark Taylor conceded that Mr. Lamar Cruse’s and Mr. Huey Womack’s neighboring properties, likely, flooded every time the Taylors’ property flooded. Both, Mr. Womack and Mr. Cruse testified that they had experienced no noticeable difference in the flooding of their properties after DOTD’s improvements.

The Taylors point, specifically, to two areas in which the Bushley Creek overflows and causes greater erosion to their property. One area is dubbed the “big washout,” which is the most prominent bend in Bushley creek once it reaches the Taylors’ property. The other area is the next bend of the Creek. However, all of the previous owners of the property stated that these areas had always been areas of primary concern due to flooding and erosion.

For example, Mr. Ily Ewing grew up on the property and has been familiar with it since 1931. He said that, when he was raised there, about 100 acres were cleared and that in the early 1970’s, Mr. Shelby Beasley cleared more of it, resulting in the amount that is cleared now. Mr. Beasley, who owned the property from the early 1970’s until 1979 or 1980, testified that he had cleared 180-200 acres of it. Regarding | othe “washout” area, which the Tay-lors claim DOTD’s improvements has damaged, Mr. Beasley testified:

A. We didn’t put any debris in the Bushley at that point. We did have trouble with erosion. When the creek got out of it’s banks, and I had cleared it, and I had plowed it, and invariably, when it would rain in the spring, we had problems to the extent that I decided to build up the road going in and make sort of a levee effect.
Q. And you built it up, you built up the road, how did you do that, you’d scrape dirt up?
A. I had a backhoe and a cat come in, Mr. David I. Patten built it for me.
Q. And after you did that, did that prevent the water from coming over it?
A. No, it didn’t. That very fall, I had the worst blowout ever.
Q. That’s where we have big wash out?
A. Right.
Q. That was the first time it blew out there, or did you have problems with that?
A. Heretofore, before that, this wasn’t the first year I had it. This was getting on up to the very latter part of the time I had it. I kept trying to raise the road and do this and do that to keep the water from coming, and that was possibly a mistake, because had it been in grass and it would come over without the head that it got when it went over the little old levee, it might not have washed as bad, but by building it up and then it fresh, too, well, it washed out pretty bad.
Q. Had you had other wash outs besides this big was out area?
A. Yeah. There [sic] had several areas that went out.

Further, Mr. Dewitt Carpenter, whose father owned the property from 1979 to 1989, testified:

14Q. Is that — was the big wash out there when you got there?
A. Yes ... And then I put a dam along the creek bank, I stopped that off right there.
Q. In other words, you put a dam between the big wash out and Bushley?
A. Right.
Q. In other words, it was traveling through there?
A. Oh yeah.
Q. And it was coming down, once it travels through the big wash out, it would go all the way south to — [Mill Creek]?
A. Right.
Q. So, you had trouble from the big washout all the way down to the property — during the time that y’all had it?
A. Oh yeah absolutely.
A. That area up there had just started to, the trees was sliding down the bank and going in the creek.
Q. Okay. Was that something that occurred all the way down?
A. Oh, yeah. Just different areas, it just depends on — something might start it, even if the cattle start going down and watering in one spot, and then you get a big flood rain, it might start it to washing right there.
Q. Okay. So it’s fair to say that this eroded all during the period of time that you had it at a fairly regular pace?
A. Yes, I would work on it, keep patching it back, but it did it.

Further, the parties entered in evidence aerial photographs taken of the area in 1989, 1990, 1995, 1998, and 2001. In trying to establish that the DOTD’s improvements caused the increased erosion, the Taylors pointed out the differences and the increase in the erosion by comparing the 1989 photograph with the photograph taken in 2001. However, the testimony regarding the history of flooding and erosion on the property supports that there would be noticeable differences in the | ^property over an eleven-year period, regardless of DOTD’s actions. In support of their assertions that DOTD’s actions caused increased erosion, the Taylors compared the 1989 photograph with one taken in 1995. However, when the 1995 photograph was taken, the old bridges were still in place. Accordingly, any of the variables that Plaintiffs’ experts had attributed to the existence of the older bridges, were still in place, and playing the same role in restricting or slowing the water in 1995 as they had in 1989. For example, if the wooden piers slowed the water in 1989, they were still slowing the waters in 1995, even though the new bridge, with fewer and smoother piers, was fully constructed by then. And as one of the Plaintiffs’ own experts admitted, had he known that the old bridges were still there in 1995, it may have affected his study.

Therefore, I cannot agree that the Plaintiffs’ testimony in this case was sufficient to establish that they experienced more flooding or erosion after DOTD’s improvements than they did before the improvements. Moreover, even accepting such a factual finding, I do not believe the Tay-lors have shown, as a matter of law, “damage in a constitutional sense.”

In the instant ease, determining whether there has been “damage in a constitutional sense” involves an examination of whether DOTD’s actions frustrate servitude laws. The trial court committed a legal error by omitting an analysis under the natural servitude drainage articles. Such analysis is mandated in order to determine whether property has been “damaged in a constitutional sense.” The majority supplies this analysis and supports the trial court’s ultimate conclusion that DOTD’s actions constituted a taking. However, as I appreciate the majority’s analysis, DOTD’s only impermissible action was failing to return the water to its ordinary channel before it left DOTD’s property, as La.Civ.Code art. 658 requires; rather, it returns to its ordinary channel some 400 feet south of DOTD’s property. Significantly, however, it resumes its ordinary channel before it reaches the Taylors’ property.

Additionally, while I subscribe to the majority’s proposition that an increased flow that causes the water to back up in instances of less rainfall can constitute a | ^taking, even absent an increase in the total volume of water traversing the property, for the reasons I already stated, I do not believe the Plaintiffs proved this fact by a preponderance of the evidence.

Furthermore, because I believe this to be the sole potential basis for finding a taking in the instant case, I disagree that the trial court’s error concerning DOTD’s expert, Mr. Wyble, can be dismissed as “harmless.” The failure to recognize Mr. Wyble as a hydrology expert and, consequently, giving no weight to his testimony unfairly prejudiced DOTD.

      . Drewitt and Mark Taylor are brothers.

      . While Mr. Taylor could not remember any specific flooding incident, he was emphatic that anytime after as little as a three-inch rain, the property would flood.

      . See Chambers, 595 So.2d 598. See also Stagni v. State ex rel. DOTD, 01-374 (La.App. 5 Cir. 3/13/02), 812 So.2d 867, writ denied, 02-1469 (La.9/20/02), 825 So.2d 1173.


source: Caselaw Access Project

author: JjLEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    Dwayne J. LOCKETT v. Garey FORSTER, Administrator of the Louisiana Office of Employment Security, and Crescent City Toyota.
    No. 2004-CA-0171.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 23, 2004.

      Dwayne J. Lockett, New Orleans, LA, In Proper Person, Plaintiff/Appellant, Dwayne J. Lockett.
    J. Jerome Burden, Louisiana Department of Labor, Legal Division, Baton Rouge, LA, for Defendant/Appellee, Louisiana Department of Labor.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR.).
   JjLEON A. CANNIZZARO, JR., Judge.

This is an unemployment compensation case. The plaintiff, Dwayne J. Lockett, appeals the judgment of the district court upholding the decision of the Louisiana Board of Review disqualifying him from unemployment compensation benefits. We affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Mr. Lockett had been employed by Cre-sent City Toyota (Toyota) as a full-time, new car salesman for eight weeks when he was discharged from his employment due to his unauthorized overnight use of a company vehicle.

Shortly thereafter, Mr. Lockett filed an Unemployment Insurance Claim form with the Louisiana Department of Labor, Office of Regulatory Services, requesting unemployment compensation benefits. In response to his claim, Toyota filed with the Department of Labor a Separation Notice Alleging Disqualification form, asserting that Mr. Lockett was fired for “failure to follow company policy.” After evaluating the claim, the Department of Labor determined that Mr. Lockett | ¡yras not eligible to receive unemployment compensation benefits and sent him a Notice of Claim Determination, which stated:

You were discharged from your employment because of your failure to abide by company rules/policies. You were aware of these rules/policies. Your discharge was for misconduct connected with the employment.

Thereafter, Mr. Lockett appealed the Department of Labor’s denial of his claim to the Appeals Tribunal for the Office of Regulatory Services. A hearing was held before an Administrative Law Judge (ALJ), at which Mr. Lockett and Joseph Nugent, the General Administrative Manager for Toyota, testified. The ALJ made the following factual findings:

Only managers were authorized to take home one of the company vehicles overnight. The claimant admittedly was never authorized to use a company vehicle for that reason. If he needed to use a company vehicle for business or other reasons while at work, he had to ask permission.

According to the employer’s policy manual and employee handbook, the unauthorized possession or use of company property, including vehicles for sale, was cause for disciplinary action including discharge. Although the claimant alleged that he was not given a copy of the policy, he admittedly understood that using a company vehicle without permission or authorization was not permitted. On the night of Saturday, February 2, 2002, the claimant made a late delivery of a vehicle to a customer at approximately midnight. The only other personnel on duty at the time was a security officer. The claimant admittedly left the facility between midnight and 12:30 a.m. with one of the vehicles from the employer’s used car lot. He admittedly understood that the employer kept control records of the vehicles which were off the lot overnight, but the claimant left no note nor made any record that he took the vehicle for any reason.

The claimant kept the vehicle off the lot and in his possession all day and all night, Sunday, February 3, |s2002. When he reported to work for approximately 9:00 a.m. on Monday, February 4, 2002, he returned the company vehicle. However, he made no attempt to notify his supervisor, nor anyone else about his personal use of the vehicle. When questioned by the general administrative manager, Joseph Nugent, the claimant admitted that he had taken the vehicle home two nights before. He maintained at the time that he did so because he worked late and because his wife allegedly was ill and unable to pick him up from work. The claimant was discharged immediately for the unauthorized use of a company vehicle.

When the claimant later filed for unemployment insurance benefits, he gave a statement indicating that he took the company vehicle home without permission because he alleged his wife got a flat tire on the way to pick him up and that he needed to help her. However, he gave no reason why he did not return the company vehicle right after the alleged emergency

The ALJ rendered the following decision: In this case, the claimant was discharged from the employment because he used a company vehicle without authorization or permission. Regardless of which reason the claimant gave for his admitted unauthorized use of the company vehicle, the facts are clear that he knew that such use was inappropriate and potentially detrimental to the employer’s interest. He also made no attempt to record his unauthorized use of the vehicle when he took it home nor to give notice of its use when he returned the vehicle until his misuse of the vehicle was discovered. Under the circumstances, it must be determined that the claimant was discharged from the employment due to misconduct connected with the employment. He should be disqualified.

Mr. Lockett appealed the ALJ’s decision to the Louisiana Board of Review, which affirmed the decision. Mr. Lockett thereafter filed a Petition for Judicial Review with the Civil District Court for the Parish of Orleans, who rendered a judgment affirming the board’s decision, denying Mr. Lockett unemployment compensation benefits. Mr. Lockett appealed.

| STANDARD OF REVIEW

Judicial review in unemployment proceedings is limited by La. R.S. 23:1634, which provides that “findings of the Board of Review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court (on appeal) shall be confined to questions of law.” La. R.S. 23:1634(B). Based on this statutory provision, the jurisprudence has defined judicial review, in cases such as this one, as requiring the following two-step process: “first, determination of whether the facts are supported by competent evidence, and second, whether the facts, as a matter of law, justify the action taken.” Harris v. Houston, 97-2847 (La.App. 4 Cir. 11/14/98), 722 So.2d 1042, citing Butler v. Gerace, 506 So.2d 619 (La.App. 4 Cir.1987).

Judicial review “does not entail the weighing of evidence, drawing of inferences, re-evaluation of evidence or substituting the views of this court for those of the Board of Review as to the correctness of the facts.” Dipol v. Administrator, Office of Employment Sec. of Louisiana Dep’t. of Labor, 526 So.2d 393, 394 (La.App. 4 Cir.1988). Nonetheless, “there must be legal and competent evidence to support the factual findings on which the administrative determination turns.” Id. Simply stated, the Board of Review’s findings “are conclusive if supported by sufficient evidence, since sufficiency of the evidence is always a question of law.” Charbonnet v. Gerace, 457 So.2d 676, 679 (La.1984).

ARGUMENT

Mr. Lockett argues that the trial court erred in affirming the Board of Review’s decision that the single unauthorized use of a company vehicle | ^constituted misconduct under La. R.S..23:1601(2)(a). Additionally, Mr. Lockett asserts that the trial court erred in accepting hearsay testimony in contradiction to his own testimony.

In opposition to the appeal, the Department of Labor argues that Mr. Lockett’s admitted unauthorized use of his employer’s vehicle constituted misconduct and was not the result of an emergency situation as he initially claimed. The department points out that Mr. Lockett’s only explanation for not returning the vehicle after he fixed his wife’s fiat tire was that he was tired.

DISCUSSION

In this case, Mr. Lockett was disqualified from receiving unemployment benefits pursuant to La. R.S. 23:1601(2)(a), as amended in 1990, which defines disqualifying misconduct as: “[Mjismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others.”

Prior to the 1990 amendment, the Louisiana Supreme Court, in Charbonnet, strictly construed the definition of misconduct within La. R.S. 23:1601 as that resulting from “willful or wanton disregard of the employer’s interest, from deliberate violation of the employer’s rules, or from a direct disregard of standards of behavior which the employer has the right to expect from his employees.”

Since the 1990 amendment to La. R.S. 23:1601, the Second, Third, Fourth, and Fifth Circuits have addressed the legislative definition of misconduct in unemployment compensation matters. All have concluded that “misconduct” still requires either intentional wrongdoing or negligence to such an extent as to [ (¡manifest culpability or a showing of intentional and substantial disregard of the employer’s interest. See Emke v. Mouton, 617 So.2d 31 (La.App. 4 Cir.1993); Wood v. Department of Employment Security, 25,545 (La.App. 2 Cir.2/23/94), 632 So.2d 899; Gobert v. Louisiana Department of Employment Security, 94-1018 (La.App. 3 Cir. 3/8/95), 651 So.2d 508; and Taco Bell v. Perkins, 95-225 (La.App. 5 Cir. 9/26/95), 662 So.2d 34.

Because of the beneficial purpose of unemployment compensation, the term “misconduct” should be construed so as to favor the awarding of benefits rather than disqualification. Charbonnet, supra. Furthermore, in cases where the employer seeks to deny unemployment compensation benefits to an employee because of misconduct, the burden of proof as to such misconduct is upon the employer. Harris, supra. The misconduct must be proven by a preponderance of evidence. Id. The evidence supporting the disqualification must be legal and competent. Holmes v. Forster, 00-0632 (La.App. 4 Cir. 2/14/01), 781 So.2d 656.

The pertinent facts in the present case are not in dispute. Mr. Lockett admitted that he took the vehicle home overnight without authority to do so. He further acknowledged that he should have left a note but did not. Moreover, it is clear from the testimony that upon returning the vehicle, Mr. Lockett still did not notify his employer of his actions until he was questioned.

The issue in this case is whether Mr. Lockett’s actions constituted misconduct pursuant to La. R.S. 23:1601(2)(a). After reviewing the transcript and considering the factors surrounding Mr. Lockett’s discharge, we find that the employer in this case fulfilled its burden of showing misconduct. Toyota presented sufficient evidence that Mr. Lockett intentionally failed to comply with its policies, and that his actions were potentially detrimental to its interests. Accordingly, we |7find that the evidence was sufficient to support the finding that Mr. Lockett’s unauthorized use of Toyota’s vehicle falls within the definition of misconduct.

Finally, we find no merit in Mr. Lock-ett’s argument regarding the admission of hearsay evidence. Other than stating the above as an issue for review, Mr. Lockett has not briefed the issue.

CONCLUSION

For the foregoing reasons, we find that competent evidence supports the findings of the ALJ, which were affirmed by the Board of Review. Therefore, the judgment of the district court upholding the Board of Review’s denial of unemployment compensation benefits to Mr. Lockett is affirmed.

AFFIRMED.

      . The statutory provisions governing unemployment compensation are found in La. R.S. 23:1471 et seq., collectively referred to as the Louisiana Employment Security Law.


author: I JAMES F. McKAY III, Judge.

text:
    Barbara WEST v. NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a Amtrak.
    No. 2003-CA-1707.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 23, 2004.

      James R. Dugan II, David L. Browne Dugan & Browne, A PLC, Metairie, LA, for Plaintiff/Appellant.
    Dow Michael Edwards, Timothy F. Daniels, Lemle & Kelleher, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR., Judge LEON A. CANNIZZARO JR.).
   I JAMES F. McKAY III, Judge.

The plaintiff, Barbara West, appeals the trial court’s judgment finding that the plaintiff failed to establish that the defendant, National Railroad Passenger Corporation, d/b/a Amtrak was negligent.

The instant suit was filed alleging that Amtrak was negligent and caused an unreasonably dangerous working condition, which resulted in the plaintiffs injury. The alleged injury occurred while she was employed at the Union Passenger Terminal in New Orleans with Amtrak. The plaintiff asserts that the injury occurred during the course and within the scope of her employment as a coach cleaner. She was turning passenger seat No.17/18 in car No.34019, when it suddenly shifted and broke off of its pedestal before it reached its locked position. This caused the seat to rock back and forth causing her body to twist and resulting in injuries to her neck and shoulders.

| ¡After a trial on the merits the jury returned a verdict in favor of Amtrak finding that the evidence did not support a finding of negligence against Amtrak. The trial court rendered judgment in accordance with the jury verdict. The plaintiffs post verdict motion for new trial was denied.

In the plaintiffs first assignment of error, she argues that there was a trial procedural error that occurred during jury deliberations, specifically, the trial court’s failure to return the jury to the courtroom as dictated by La. C.C.P. art. 1796. In conjunction with this issue, the plaintiff argues that the trial court failed to properly clarify the jury’s question concerning the definition of negligence, thereby affecting the outcome of the jury verdict. The plaintiff asserts that during the course of deliberation the jury sent a hand written note to the trial court with a question concerning the definition of negligence. At that point the trial court summoned the parties to the courtroom and read the jury’s note into the record. The jury question was “may we please have the definition of negligence?.” The trial court addressed this question as follows:

THE COURT:
My statement is going to be — I'm not going to give them a page, I’m just going to tell them to re-read the closing instructions. I’m not going to say reread, because they haven’t read it yet.
MR. SADIN [Ms. West’s trial counsel]:
IsThey don’t have the instructions yet?
THE COURT:
They do.
THE CLERK:
Yes.
THE COURT:
Where is the one they had?
THE CLERK:
I gave it to Stan [the trial court’s crier],
THE CLERK:
The ones you told us to update, I gave him a copy.
THE COURT:
And where is the one that you had? I want it. Go get it.
THE CLERK:
Okay.
THE COURT:
Go get it and say, Stan, where is the one that the Judge gave you? Put it in my hand so I can bring it back upstairs, so there will be no misunderstanding or confusion.
Hold on so I can give you this. And I’ll date it and sign it. All right. Just bring back up that document.
That’s it.

The plaintiff argues that it is unknown what actual communication transpired between the court crier or clerk and the jurors when he was delivering the document. The plaintiff also argues that the precise document given to the jury during their deliberations is indiscernible from the record. Furthermore, the court’s closing instructions were not transcribed by the court reporter and are not found anywhere in the record although there is a reference to the instructions having been given. Finally, the plaintiff argues that the trial court failed to return the jurors to the courtroom for re-instruction which runs contrary to the mandates of La. C.C. P. art. 1796(A).

| ¿Conversely, the defendant argues that the trial court conducted an in depth and thorough jury charge conference, where the parties accepted the proposed closing instructions without objection. Prior to sending the jury to the deliberation room the trial court instructed the jury as follows:

All right. You have already something to write with and something' to write on. If you have any questions, you don’t talk to Mr. Jolly. You write it down and you knock on the door, he’ll be sitting right outside. You pass the note to Mr. Jolly and then he will bring it to the Judge, and then I will, along with the lawyers attempt to answer any questions, if any.
This is the jury interrogatories which I’m going to send with you. This is the closing instruction which I’m going to send with you. Mr. Jolly give that to the jury — not right now — when they are going into the deliberation room.

The defendant further asserts that the trial court informed the parties that he would write a note to the jury advising them to read the closing instructions, and that the trial court signed and dated that note in the presence of both parties. . The defendant also maintains that there were no objections by either side concerning this procedure. The defendant, contends that the trial court’s response which was, “Just bring back up that document. That’s it.” specifically indicates that there was to be no verbal communication with the jury.

The result was that the jury continued to deliberate for less than an hour and returned a unanimous verdict finding that Amtrak was not negligent.

No objections to the above described proceedings were made by either party. The right-to attack on appeal an allegedly impropér instruction given after that case has been submitted to the jury must be preserved by an objection made at the time |ñthe supplemental instruction is given. Berrera v. Hyundai Motor America Corp., 92-2108, (La.App. 4 Cir.1993), 620 So.2d 890, 893. The plaintiff, in the instant matter, did not object to the trial court’s decision to refrain from giving additional instructions to the jury, nor did she raise the alleged ex parte communication at the time of the communication with the jury or even at the hearing on the motion for new trial. In fact the plaintiff only raises this, issue on appeal with this Court. In Berrera, this Court stated:

The policy considerations underlying these rules are obvious. As the court stated in Renz, “Counsel may not permit or acquiesce in an easily corrected procedural error and then, after an adverse verdict, urge such error for the first as a ground for setting aside a jury verdict reached by the expensive and cumbersome method of a jury trial.”

Id.

In the absence of any record or objection concerning the procedural irregularity, no error, if there was any, was preserved on the record for appeal. Furthermore, although La. C.C.P. art. 1796 explicitly says that the jury shall be returned to , the courtroom that statement is specifically to address an additional instruction issue. We are not convinced that this particular instance involves an additional instruction but merely a clarification of instructions already given to the jurors "without objection. Nevertheless, we find that without the plaintiffs objection being lodged into the record it may not be reviewed on appeal. Therefore, plaintiffs argument is without merit.

In plaintiffs second assignment of error, she asserts that the trial court improperly denied her motion for a new trial based on the misconduct of an official [fiof the court and further that the jury verdict was contrary to the law and evidence presented at trial.

Specifically, the plaintiff argues that the trial court clerk’s ex parte communications with the jury, as per the trial court’s order, constitutes grounds for a new trial. We disagree based on the jurisprudence cited above in Berrera and note the plaintiffs failure to timely object to the trial procedure.

In specific reference to the plaintiffs motion for a new trial, La. C.C.P. art.1973 provides that “[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” La. C.C.P. art.1972 (3) provides that: “A new trial shall be granted, upon contradictory motion of any party in the following cases: (3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.” Though the grant or denial of a motion for a new trial rests within the discretion of the trial judge, the reviewing court must still evaluate the trial court’s decision under an abuse of discretion standard of review. Uriegas v. Gainsco, 94-1400 (La.App. 3 Cir. 9/13/95), 663 So.2d 162, 170. Improper behavior by a juror or jury is not defined; therefore, the facts and circumstances of each particular case must be reviewed to determine whether said behavior was improper, and the trial courts as well as the reviewing courts must not overlook the behavior as being insignificant. Id.; cf. Zatarain v. WDSU-Television, Inc., 95-2600 (La.App. 4 Cir. 4/24/96), 673 So.2d 1181. A new trial is mandated only upon a showing of jury misconduct which is of such a grievous nature as to preclude the impartial administration of justice. Bossier v. DeSoto General Hosp., 442 So.2d 485, 493 (La.App. 2d Cir.1983). Otherwise, the granting of a new trial is left to the sound discretion of the trial court. Id. Not every instance of jury misconduct necessitates the granting of a new l7trial. Gormley v. Grand Lodge of State of La., 503 So.2d 181, 186 (La.App. 4 Cir.1987). The burden falls upon the one who is moving for a mistrial to prove that the level of the behavior was of such a grievous nature as to preclude the impartial administration of justice. Brown v. Hudson, 96-2087 (La.App. 1 Cir.9/19/97), 700 So.2d 932. This is a heavy burden on the mover. The courts of this state have been reluctant to set aside jury verdicts based upon allegations of improper behavior. Brown, supra. Contact between jurors and court personnel during deliberations has been found insufficient to grant a new trial. See Parker v. Centenary Heritage Manor Nursing Home, 28,401 (La.App. 2 Cir. 6/26/96), 677 So.2d 568; Gormley, supra. It is clear that not every instance of alleged jury misconduct necessitates the granting of a new trial.

The jury may well have misunderstood the elements of negligence; nevertheless, the appellant failed once again to object. Furthermore, L.C.C.P. art.1972, unfortunately gives us a rule without a specific remedy to rely on. We believe that under the appropriate circumstances reversal and remand for a new trial might be justified. However, in the instant matter neither a motion for a mistrial nor a contemporaneous objection was made on the issue of the alleged misconduct or procedural infraction; only after the jury returned an unfavorable verdict did the plaintiff protest. Therefore, we find that this procedural flaw did not rise to the level of reversible error, nor was it of such a grievous nature as to preclude the impartial administration of justice. Furthermore, it is counsel’s affirmative duty to place an objection on the record; the record is void of any objection thereby waiving the appellant’s right to further consideration of this issue on appeal. This assignment of error is without merit.

|sIn plaintiffs second argument on the issue of the trial court’s denial of her motion for a new trial, she asserts that the jury verdict was contrary to the law and evidence presented at trial. She maintains that the jury did not understand the negligence standard that the trial court directed them to apply and as such a new trial is warranted. The crux of plaintiffs argument is that the jury misapplied the Federal Employers’ Liability Act (FELA) negligence standard.

In order to recover under FELA, the plaintiff must establish that (1) he was injured within the scope of his employment; (2) the employment was in furtherance of the railroad’s commerce in interstate transportation; (3) his employer was negligent; and (4) this negligence played a part in causing his injury. Williams v. Southern Pacific Transp. Co., 813 F.Supp. 1227 (S.D.Miss.1992). The standard for reviewing jury awards in FELA cases has been explained by this Court in E’Teif v. National R.R. Passenger Corp., 98-2503, (La.App. 4 Cir. 4/22/99), 733 So.2d 155, 157 as follows:

In FELA actions brought in state court, federal substantive law applies. However, state rules of procedure apply in state court. St. Louis Southwestern Ry. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985). Accordingly, state courts are governed by federal law in determining whether the evidence is sufficient to support a jury’s verdict. Dufour v. Union Pacific R.R., 610 So.2d 843-846 (La.App. 1 Cir.1992), aff'd, 614 So.2d 1263 (La.1993) citing Trahan v. Gulf Crews, Inc., 260 La. 29, 255 So.2d 63, 66-67 (1971). Ellender v. Texaco, Inc., 425 So.2d 291, 294 (La.App. 3 Cir.1982). The United States Supreme Court has stated that the standard for reviewing whether a FELA plaintiffs evidence is sufficient to support the jury’s verdict is whether, viewing the evidence in the light most favorable to the plaintiff, there is a “complete absence of probative facts to support the conclusion reached by the jury.” Dennis v. Denver & Rio Grande Western R.R. Co., 375 U.S. 208, 210, 84 S.Ct. 291, 11 L.Ed.2d 256 (1963). Brady v. Southern R.R., 320 U.S. 476, 479, 64 S.Ct. 232, 88 L.Ed. 239 (1943). Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957).
|/The appellate courts of this state have afforded great weight to jury verdicts in FELA cases. The First and Second Circuits have required a “complete absence of probative facts” before disturbing a jury’s award. Dufour, 610 So.2d at 846. Broussard v. Union Pacific R.R., 29,769, 29,770, and 29,768 (La.App. 2 Cir. 8/28/97), 700 So.2d 542, 548. Our own Court has required that there be clear abuse of .the jury’s “much discretion.” Jackson v. CSX Transp., Inc., 97-0109 (La.App. 4 Cir. 12/23/97) 712 So.2d 514, 522.

Unlike Louisiana workers’ compensation law, which grants an employer tort immunity in exchange for fixed statutory benefits payable regardless of fault, FELA allows recovery only if the worker can prove that his employer was negligent. To prove negligence, the appellant was required to show that the railroad, acting through its agents or employees, breached one of its well-established duties. 45 U.S.C. § 51. Negligence is a federal question, which is not substantially different than what state and local laws define as being negligent. Alabama Great Southern R. Co. v. Jackson, 587 So.2d 959 (Ala.1991). A railroad has a duty to provide a safe workplace. Following the passage of FELA, the emergence and wide acceptance of workers’ compensation statutes raised questions that FELA imposed an unfair burden upon the railroad workers by predicating recovery on the employer’s negligence; however, in practice, liberal construction has diminished the impact of the negligence requirement. Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). In a series of decisions, the U.S. Supreme Court broadened and liberalized the definition of fault and causation under FELA. Most recently in Consolidated Rail Corp., supra, Justice Thomas wrote for the court:

We have liberally construed FELA to further Congress’ remedial goal. For example, we held in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), that a relaxed standard of causation applies under FELA. We stated that “[u]nder this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the | inslightest, in producing the injury or death for which damages are sought.” Id., at 506, 77 S.Ct., at 448. In Kernan [v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958)], supra, we extended the reach of the principle of negligence per se to cover injuries suffered by employees as a result of their employers’ statutory violations, even if the injuries sustained were not of a type that the relevant statute sought to prevent. See id., 355 U.S., at 432-436, 78 S.Ct. at 398-400. And in Urie [v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949)], supra, we held that occupational diseases such a silicosis constitute compensable physical injuries under FELA, thereby rejecting the argument that the statute covered only injuries and deaths caused by accidents. See id., 337 U.S. at 181, 69 S.Ct. at 1030.

In the instant matter the plaintiff has failed to provide any proof that the seat was broken prior to her attempt to turn the seat into a forward position. The only evidence presented to the jury was the plaintiffs personal opinion of what occurred. During the course of cross-examination the following exchange occurred:

Q... .My question is, at the time that you began to turn the seats, it felt pretty much the same as the others had felt; isn’t that right?
A. Yes.
Q. And you didn’t notice any problems until the incident happened?
A. Correct.
Q. And at the time you had almost gotten the seat back to the locked position when it happened; isn’t the right?
A. Yes.
Q. In fact, that being the case, before this accident happened, you had no warning that there was any kind of problem?
A. Correct.

Upon examination of the evidence presented at trial, just prior to the alleged accident, Freddie Jones, a carman working in Amtrak’s mechanical department, had inspected the subject seat as part of his regularly assigned duties as a carman. Additionally, it was clear from the position of the seats, facing the window as 11T opposed to a forward position, that the night shift had inspected the car and the seats. In fact, Ms. West admitted that she relied on the carmen inspecting and fixing broken seats. Ms. West stated, “I went on the coach car to turn the seats, and as I was turning the seat, the seat came off the pedestal and it rocked back and forth, my body went along with it, and I got injured. And I had pain in my neck, shoulders.... ” She also said, “It turned the way it was suppose to, but it came off the pedestal.”

The fact that this incident happened, without notice, does not necessarily indicate that there was some negligence on the part of the defendant. Our application of FELA standards does not consist of a negligence per se rule nor does it dictate a strict liability interpretation. For this Court to apply either of these standards would be contrary to the applicable law and jurisprudence. Furthermore, the plaintiff has not raised any statutory violation by Amtrak. It is therefore reasonable to conclude that Amtrak had neither notice nor forseeability of the problem until Ms. West was injured. Given the extensive medical evidence and testimony, there is no doubt that Ms. West was severely injured by this unfortunate accident but to correlate this injury with any negligence on the part of Amtrak is a stretch.

Therefore, we find that the jury verdict, finding no negligence on the part of Amtrak, is supported by a fair interpretation of the law and evidence presented at trial. Accordingly, the judgment is affirmed.

AFFIRMED.

      . As a railroad worker, Mrs. West is not covered by workers' compensation law. Thus, Mrs. West filed her suit against Amtrak pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq, which provides the exclusion remedy for railroad employees injured on the job.

      . Apparently, the two seats are connected.

      . Art. 1796. Additional instructions
      A. If the jury, after retiring for deliberation, desires to receive information on any point of law, they shall be conducted to the courtroom.
      B. After giving notice to the parties, the court may give the appropriate instructions.

        C. The court, after giving notice to the parties, may recall the jury after they have retired:
      (1) To correct or withdraw an erroneous instruction.
      (2) To clarify an ambiguous instruction.
      (3) To inform the jury on a point of law which should have been covered in the original instructions.
      (4)To give such further instructions as may be appropriate.
      (emphasis added)

      . Copies of the proposed jury instruction are in the record.

      . Renz v. Texas & Pacific Railway Co., 138 So.2d 114 (La.App. 3 Cir.1962).


author: hEDWIN A. LOMBARD, Judge.

text:
    Gena Marie McKENZIE v. Jay Christopher CUCCIA.
    No. 2004-CA-0112.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 23, 2004.

      Daniel Becnel, III, The Law Office of Daniel E. Becnel, Jr., LaPlace, LA, for Plaintiff/Appellee.
    Christine F. Remy, Lantz Savage, Christine Remy and Associates, Gretna, LA, for Defendant/Appellant.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO JR.).
   hEDWIN A. LOMBARD, Judge.

This is an appeal of a custody matter, wherein the trial court ordered joint custody of two-year old, Michael, denying the father’s request for shared custody. For the reasons assigned, we affirm.

Statement of Facts and Procedural History

On January 9, 2002, appellee, Gena McKenzie (“Ms. McKenzie”), filed a Petition to Establish Custody and Child Support for the minor child. On March 28, 2002, appellant, Jay Cuccia (“Mr. Cuccia”), filed a Motion for Joint Custody and Interim Visitation. On July 15, 2002, the trial court awarded the parties joint custody and designated Ms. McKenzie as the domiciliary parent. On August 6, 2003, the trial court appointed Dr. William Janzen (Dr. Janzen) to conduct a custody evaluation and make a recommendation to the court.

On August 8, 2003, Mr. Cuccia filed a Motion to Increase Visitation, for Right of First Refusal and to Claim Minor Child on Taxes. Pending the full custody hearing set for October 13, 2003, an interim Consent Judgment was rendered on September 16, 2003, in which the parties agreed to increase Mr. Cuccia’s visitation to an alternating schedule of Thursday evening to Monday morning and Thursday evening to Friday evening.

DA three-day trial of the entire matter commenced on October 13, 2003. Judgment was rendered on November 10, 2003. The trial court maintained domiciliary status with Ms. McKenzie and adopted the same weekly visitation schedule as set forth in the Consent Judgment of September 16, 2003. The judgment further implemented holiday and summer visitation schedules. The trial court ordered that the issue of visitation would be revisited in six months and the issue of the Right of First Refusal would be revisited at a later date.

Mr. Cuccia has filed this devolutive appeal, raising the following assignments of error: 1) the trial court erred in not awarding shared custody of the child; 2) the trial court erred in refusing to follow the recommendation of the court appointed expert; and 3) the trial court erred in not granting him the Right of First Refusal for visitation over a third-party caregiver.

The record before the trial court revealed the following pertinent information: Ms. McKenzie and Mr. Cuccia were never married. They had an intimate relationship, which produced the child, Michael, while Mr. Cuccia was engaged to his now present wife. Mr. Cuccia and his wife were expecting a baby within a few weeks following the trial. Mr. Cuccia also has an 18 year-old daughter from his first marriage. Adultery on the part of Mr. Cuccia was alleged in the break-up of that marriage. Mr. Cuccia has worked for the same company as a medical salesman for thirteen years. His work schedule is flexible but the job does require regular out of town travel. At the time of the trial, Mr. Cuccia was in the process of renovating a home and was planning a move in the near future.

Ms. McKenzie has never been married. She has worked as a nurse anesthetist at various hospitals. Ms. McKenzie normally works two twelve-hour shifts and one sixteen-hour shift per week. Ms. McKenzie testified that she tries to |3work most of her shifts when Michael is with his father. Otherwise, a nanny comes into the home to care for Michael. Ms. McKenzie revealed that she suffered with anorexia and depression as a teenager and that she currently takes a number of prescribed anti-anxiety and anti-depression medications.

Ms. McKenzie and Mr. Cuccia have not always enjoyed a civil relationship. There was one instance where police were called to resolve a domestic dispute. That incident occurred in the presence of the child.

Dr. William Bradford Janzen, the court-appointed psychologist, testified that it would be in the child’s best interest to have a shared custody arrangement with a eo-domieiliary status. Regarding the visitation schedule, Dr. Janzen suggested that one parent have the child on Monday and Tuesday; the other parent would have Wednesday and Thursday, with alternating weekends.

Dr. Beverly Howze, the clinical psychologist hired by Ms. McKenzie when Michael was six months old, testified that after spending approximately fifteen hours on the case, she was of the opinion that shared custody was not in Michael’s best interest. Specifically, she was concerned with the anxiety Michael displayed, difficulty separating from his mother, and the fact that he was non-verbal at age two. Dr. Howze further opined that Michael needed the stability of a primary residence and a primary caregiver at the present time. Dr. Howze recommended that Mr. Cuccia have Michael for only one overnight visit every other weekend until Michael developed further.

Discussion

An appellate court may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). The trial court’s determination in establishing or modifying 14custody is entitled to great weight and will not be disturbed by an appellate court absent a clear showing of abuse of discretion. Thompson v. Thompson, 532 So.2d 101 (La.1988); Gill v. Dufrene, 97-0777 (La.App. 1 Cir.12/29/97), 706 So.2d 518, 521.

Assignment of Error No. 1

Mr. Cuccia argues that the trial court’s refusal to implement a shared custody arrangement should be reversed because the evidence showed that shared custody was both feasible and in the child’s best interest.

In any determination of child custody, the paramount consideration is the best interest of the child. La. Civ. Code art. 131. Pursuant to La. Civ.Code 134, the court shall consider all relevant factors in determining the child’s best interest, including:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

Once joint custody has been found to be in the best interest of the child, a joint custody implementation order shall allocate the time periods during which each |sparent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents, and to the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally. La. Rev.Stat. 9:335. The trial court’s finding that joint custody is in the best interest of the child does not necessarily require an equal sharing of physical custody. Collins v. Collins, 36,629 (La.App. 2 Cir. 10/23/02), 830 So.2d 448. Substantial time rather than strict equality of time is mandated by the legislative scheme providing for joint custody of children. Nichols v. Nichols, 32,219 (La.App. 2 Cir. 9/22/99), 747 So.2d 120. Every child custody case is to be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision that is in the best interest of the child. Id

In this case, the trial court determined that it was in the child’s best interest to continue Ms. McKenzie as the domiciliary parent based on his finding that Michael needed a fixed schedule of physical custody and a primary residence. The trial court further found that Mr. Cuccia’s life was in a state of flux, in that he was-preparing to have a new baby and move from one house to another and, accordingly, it was in Michael’s best interest to keep the custody and visitation schedule in place and revisit the issue in six months after Mr. Cuccia was settled with his new baby and new house. After a thorough review of the record, we are not persuaded that the trial court erred in finding that equal sharing of physical custody between the two parents was not in the best interest of Michael at this particular time.

Assignment of Error No. 2

Mr. Cuccia maintains that the court appointed expert recommended shared physical custody; and that the trial court committed legal error by not adopting that 1 ¿recommendation. The great discretion and deference granted to the fact-finder on appellate review extends to its assessment of expert testimony. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990). After weighing and evaluating expert and lay testimony, the trial court may accept or reject the opinion expressed by any expert. It is within the trial court’s discretion to substitute common sense and judgment when such a substitution appears warranted upon the record as a whole. Verret v. Verret, 34,982 (La.App. 2 Cir. 5/9/01), 786 So.2d 944. Further, a trial judge may substitute his/her own common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole. Raney v. Wren, 98-0869, 722 So.2d 54 (La.App. 1 Cir. 11/6/98); Goodwin v. Goodwin, 618 So.2d 579, 586 (La.App. 2 Cir.1993).

In the present case, the trial court exercised its great discretion in evaluating the experts’ information along with the other evidence and deciding it was in the child’s best interests to continue the status quo of joint custody with the mother as domiciliary parent. We find no evidence of any legal error on the part of the trial court in failing to implement Dr. Janzen’s custody plan.

The trial judge stated on the record that he did not agree with Dr. Janzen’s plan to switch the child between the parents every two or three days, finding instead that the child needed more stability. We find it significant to note that the trial court granted Mr. Cuccia more frequent visitation than recommended by Dr. Howze. After our own review or the evidence, we cannot say that the trial court’s evaluation of the expert testimony and subsequent ruling was an abuse of its great discretion. Accordingly, we find no merit in Mr. Cuc-cia’s second assignment of error.

| TAssignment of Error No. 3

Finally, Mr. Cuccia asserts that the law favors the Right of First Refusal, in allowing visitation of a non-custodial parent over a third party caregiver. Specifically, Cuccia submits that the trial court erred in not allowing him to care for Michael instead of the nanny.

At the outset, we note that Mr. Cuccia has not presented this court with any jurisprudence in support of his third assignment of error, other than reiterating the law that generally recognizes the non-custodial parent’s entitlement to reasonable visitation. The trial court recognized Mr. Cuccia’s right to visitation and even encouraged the parents to be more cooperative and flexible in that respect. The trial court ruled, however, that the issue of Right of First Refusal would be revisited in the future. Given the trial court’s finding and concern regarding the pending changes in Mr. Cuccia’s life, as well as the developmental problems that Michael is experiencing, we find no manifest error or abuse of discretion in the trial court’s decision to revisit this issue in the future.

Conclusion

For the foregoing reasons, the November 10, 2003, judgment of the trial court is affirmed.

AFFIRMED.


author: J^LEON A. CANNIZZARO, JR., Judge.

text:
    HENNESSEY CONSTRUCTION CORPORATION v. Alvin K. HALPERN and SJD-CC, LLC.
    No. 2003-CA-1935.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 23, 2004.

      Edward C. Vocke, IV, Brian T. Carr, Carr & Associates, Metairie, LA, for Plaintiff/Appellee.
    Jeffrey K. Warwick, Michael J. Gautier, Jr., Miranda, Warwick, Milazzo, Giordano & Hebbler, Metairie, LA, for Zurich American Insurance Co./Appellee.
    Richard B. Levin, Levin Law Offices, and Francis X. deBlane, III, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   J^LEON A. CANNIZZARO, JR., Judge.

Defendant and plaintiff in reconvention, SJD-CC, L.L.C. (“SJD”), appeals from a trial court judgment maintaining an exception of prescription filed by third party defendant, Zurich American Insurance Company (“Zurich”). We affirm the trial court judgment.

FACTS AND PROCEDURAL HISTORY

SJD, owner of the building located at 1050 South Jefferson Davis Parkway, entered into a written contract with the plaintiff, Hennessey Construction Corporation (“Hennessey”), for repairs to the building. Pursuant to the contract, Hen-nessey was to erect a new, pre-engineered metal building with a sloped roof that adjoined the existing building. The work was completed in August 2000. On November 13, 2000, Hennessey filed suit against SJD, alleging breach of contract for failure to pay the outstanding balance of $34,784.00 due on the contract. Hen-nessey also asserted a claim for defamation, alleging SJD made defamatory statements about Hennessey in a letter it sent to various material suppliers, who were Hennessey’s business associates. SJD answered the petition on January 22, |?2001, admitting that the amount was unpaid but denied it was due until a certificate of occupancy was issued.

On May 4, 2001, SJD filed a reconven-tional demand against Hennessey and “ABC Insurance Company,” alleging that Hennessey failed to deliver materials, failed to timely complete the job, and failed to timely pay subcontractors. SJD later filed a supplemental and amending reconventional/third party demand on October 29, 2002, adding Zurich, Hennessey’s insurer, as a defendant. For the first time, SJD alleged claims against Hennes-sey for faulty workmanship and negligence in the construction of the new roof and sought damages in the amount of $18,747.00 as a result of rainwater leaking through the roof.

During discovery, Zurich learned that SJD was aware of the alleged roof leak as early as June, 2001. Specifically, Zurich-obtained a copy of a letter SJD’s attorney had sent to Hennessey’s attorney on June 19, 2001, advising him that the roof constructed by Hennessey was causing problems and needed repair. The letter also requested that Hennessey notify its insurer and file a claim for the repairs. In light of the discovery, Zurich filed an exception of prescription arguing that SJD’s claim for damages as a result of the leaking roof had prescribed one year from the date that it discovered the leak or in June 2002.

Following a hearing, the trial court rendered judgment in favor of Zurich holding that SJD’s tort and/or delictual claims had prescribed. SJD appealed.

| JLAW AND DISCUSSION

Delictual actions are subject to a liberative prescription of one year, which commences to run from the day injury or damage is sustained. La. C.C. art. 3492. In general, the burden of proving that a suit has prescribed rests with the party pleading prescription. Eastin v. Entergy Corporation, 2003-1030, p. 5 (La.2/6/04), 865 So.2d 49, 55. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Id.

As previously mentioned, SJD first asserted its claims for damages as a result of Hennessey’s alleged faulty workmanship and the alleged defective roof in October 2002. In arguing that those claims had prescribed, Zurich submitted the deposition testimony of Alvin Halpern of SJD, as well as documentary evidence, that indicated that SJD knew of the leaking roof in June 2001 and had contracted with Hy-Tech Roofing Services, Inc., to have the roof repaired shortly thereafter. Once Zurich demonstrated that more than one year had elapsed between the time SJD discovered the leak in the roof and the date it asserted its claim for the resulting damages in the amended reconventional demand, the burden shifted to SJD, the plaintiff in reconvention, to show that its delictual claims had not prescribed.

On appeal, SJD argues that the delictual claims asserted in its supplemental and amending reconventional/third party demand relate directly back to the claims made against Hennessey in its original reconventional demand. In other words, it contends that the defects in the newly erected roof are a direct result of Hennes-sey’s failure to perform its contractual obligations, i.e., failure to deliver the appropriate manpower and materials in a timely manner.

| ¿Louisiana Code of Civil Procedure article 1153 provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing of the original pleading.

Pursuant to this article, if a comparison of the amended petition to the original petition shows that the original petition gave fair notice of the factual situation out of which the amended petition arises, the amended petition will relate back to the date of the filing of the original petition. Reese v. State, Department of Public Safety and Corrections, 2003-1615, p. 6. (La.2/20/04), 866 So.2d 244, 248; Giroir v. South Louisiana Medical Center, 475 So.2d 1040 (La.1985).

We have reviewed the original and amended reconventional demands in this case. SJD’s original reconventional demand filed on May 4, 2001 against Hennes-sey pled a cause of action for breach of contract based on an alleged failure to deliver materials, to timely complete the job, and to timely pay subcontractors. Nothing in that pleading gives “fair notice” to either Hennessey or Zurich that SJD sustained damages due to the intrusion of rainwater as a result of a poorly constructed or defective roof. Furthermore, SJD’s cause of action for damages as a result of the leaking roof did not exist at the time it asserted its contractual claims against Hennessey; rather, it arose after the filing of the original reconventional demand. In light of that fact, Hennessey and Zurich could not have had fair notice of SJD’s tort claims. Thus, we find that the delictual claims asserted by SJD in its amended reconventional demand do not relate back to the filing of the original reconventional demand so as to interrupt the running of prescription on those claims.

|fiSJD also argues Hennessey did not identify Zurich as its insurer until October 21, 2002, and, thus, it was unable to assert any claim against the insurer prior to that date. It contends that the naming of Hen-nessey and “ABC Insurance Company,” a fictitious insurer, as defendants in the original reconventional demand with the allegation that they were solidarily liable for any damages resulting from Hennessey’s acts and omissions was sufficient to interrupt the running of prescription against Zurich for the delictual claims raised in the amended reconventional demand.

SJD is correct that the interruption of prescription against one solidary obligor is effective against all solidary obligors. See La. C.C. art. 1799. Also, prescription may be interrupted as to an actual defendant when only a fictitious defendant is named in a petition provided prescription is interrupted by some other means. See Gallina v. Hero Lands Co., 2003-0331, p. 14, fn. 6 (La.App. 4 Cir. 10/07/03), 859 So.2d 758, 767.

SJD’s naming of a fictitious insurer as a third party defendant in the original reconventional demand would have interrupted prescription as to the claims against Zurich in the later amended recon-ventional demand only if SJD had amended its original reconventional demand against Hennessey to assert a cause of action for damages as a result of the defective roof within one year of discovering the leak. SJD did not timely amend its original reconventional demand to assert its delictual claims against Hennessey, thus, the naming of the fictitious defendant is without effect and SJD’s delictual claims raised against Zurich in the amended re-conventional demand are prescribed.

^CONCLUSION

Accordingly, the judgment of the trial court in favor of Zurich American Insurance Company dismissing SJD’s delictual claims is affirmed.

AFFIRMED.

      . SJD asserts repeatedly in its appeal brief that it filed an answer and reconventional demand on January 21, 2001. The record, however, indicates that SJD filed its answer to Hennessey's original petition on January 22, 2001, and its reconventional demand on May 4, 2001.

      . The record reflects that Zurich also filed a motion for summary judgment seeking dismissal of SJD's contractual claims against it, arguing that it issued a commercial general liability policy to Hennessey that provided coverage for claims involving property damage and bodily injury but not claims arising from contractual disputes with Hennessey. The trial court has not yet ruled on the motion, and we express no opinion on the issue as it not before us in this appeal.