author: | PATRICIA RIVET MURRAY, Judge.

text:
    Roy W. HALL and Helen Hall v. The FOLGER COFFEE COMPANY and XYZ Insurance Company. Folger Coffee Company v. Roy W. Hall and Helen Hall.
    Nos. 2002-CA-0920, 2002-CA-0921.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2003.
    Writ Denied Oct. 17, 2003.
    Rehearing Denied Nov. 14, 2003.
    See also 781 So.2d 620, 799 So.2d 1140.

      Dominic J. Gianna, John D. Person, Marianne Garvey, Jennifer Caulfield, Jeffrey A. Raines, Middleberg, Riddle & Gi-anna, New Orleans, LA, for Appellee, The Folger Coffee Company.
    Ford J. Dieth, Marsha B. Martin, Dieth and Martin, Metairie, LA, for Appellants, Roy and Helen Hall.
    Isaac H. Soileau, Jr., Logan & Soileau, LLC, New Orleans, LA, for Intervenor-Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   OPINION ON DEFAULT JUDGMENT APPEAL

| PATRICIA RIVET MURRAY, Judge.

In this personal injury case, the plaintiffs, Roy and Helen Hall, obtained a default judgment against the defendant, Fol-ger Coffee Company, awarding special damages of $510,572.79, general damages of $400,000, and loss of consortium damages of $45,000. Upon receiving notice of the default judgment, Folger filed both a timely appeal and a nullity action. In Hall v. Folger Coffee Co., 2002-0920, 2002-0921 (La.App. 4 Cir. 4/9/03), 843 So.2d 623 (“Hall”), we reversed the trial court’s judgment nullifying the default judgment and gave Folger the opportunity to brief the preserved issues pertaining to its timely filed default judgment appeal. In its brief, Folger argues that the trial court erred in confirming the default judgment because it was Mr. Hall’s statutory employer and thus immune from tort liability. Alternatively, Folger argues that the Halls failed to establish a prima facie case of liability or damages against it. Finding neither argument persuasive, we affirm.

I «FACTS

On November 15, 1994, Mr. Hall was employed by Larry Vasser Leasing Trucking Company (“LVL”) as a truck driver. LVL had a contract with a can manufacturer to deliver empty coffee cans imprinted with the Folger’s logo and label to Folger’s warehouse located at 14601 Old Gentilly Boulevard, New Orleans. Mr. Hall’s job included making several daily deliveries of such empty cans to Folger’s warehouse.

For delivery purposes, the empty coffee cans were packaged in layers on pallets with cardboard between the layers. The cans were secured to the pallets by industrial plastic straps. Each pallet measured about four and one half feet square, and the cans were stacked on the pallets about eight feet high. The pallets were placed in LVL’s trailers in rows of two with about eleven pallets on each side, making each load consist of about twenty-two pallets. There were manual rollers in the trailer, underneath the two rows of pallets, to assist in unloading.

Upon arrival at Folger’s warehouse, the LVL drivers were required to perform certain tasks. First, the driver had to back the trailer into a designated bay and align it so that the two rows of pallets in the trailer lined up with a two-lined, automated conveyor belt system in Folger’s plant. Second, the driver had to pull the pallets out of the trailer onto the automated conveyor belt. Finally, the driver had to cut the plastic straps off the pallets to free up the cans for the next step in the manufacturing-filling process. Because Folger kept the shears used to cut the straps affixed to its plant, the driver was required to cut the straps after moving the pallets onto the automated conveyor belt. The driver would cut the straps off on | ¡¡one side of the conveyor belt and then cross over the conveyor to cut the straps on the other side.

Explaining why the driver had to climb onto the conveyor belt to get to the other side to perform this task, the Hall’s expert, Charles Prewitt, a mechanical engineer, stated in his affidavit that “[t]he only way for the driver to cross the conveyor was to climb a set of stairs about 2' high to get on the conveyor, then step on a small fold-down ‘kickplate’ to walk across. When the truck was empty and all the pallets were pushed out, the ‘kickplate’ was blocked and could not be lowered, requiring the individual to step on the conveyor.” Likewise, Mr. Hall’s co-worker, Mr. Pearson stated in his affidavit that the kick plate “was a small plate of metal or wood which could be kicked down to assist in walking over the rollers.” He further stated that “when the pallets were on the conveyor, they effectively blocked the use of this largely ineffective device — and it was when the pallets were fully unloaded from the truck and on the conveyor rollers that the driver was required to climb over the rollers from one side of the conveyor to the other to cut the straps on the pallets.” Hence, Mr. Pearson stated that the drivers’ final task at Folger’s plant was to climb “on the conveyor superstructure and over the steel rollers to the other side, cut the straps on that side of the conveyor (a different set of pallets), climb back up on the conveyor superstructure and cross to the original side and return to the door, pick up his paperwork and exit the plant.”

At the time of the accident, Mr. Hall had unloaded his trailer and was in the process of performing the final task of crossing the conveyor belt to cut the straps when he was thrown to the ground. According to Mr. Hall, no one witnessed his 14fall. Mr. Hall attributed his fall to the sudden, unexpected movement of the conveyor belt. He further attributed the movement of the conveyor belt to the Folger’s operator starting it. That operator, who was stationed at a distance from the unloading area, was the only Folger employee in the unloading area. A cement column that measured about eighteen inches by two feet blocked the operator’s view of the area. The operator’s view was also blocked when there were pallets on the adjoining conveyor belt system. The operator also could not hear a driver’s call for help given the loud noise in the warehouse.

Mr. Hall testified that there were times in the past when the operators started the conveyor rollers without him knowing they were going to do so and that both he and other drivers had slipped on the conveyor system. He also indicated that Folger was aware that people had fallen off of this conveyor system during the offloading process and that Folger previously had a paper posted near the conveyor belt that instructed the drivers regarding their tasks.

Mr. Hall’s testimony was corroborated by an affidavit of his co-worker, Mr. Pearson, who attested that the operator’s view of the drivers was “obliterated by a pillar and stacks of cans on other conveyors.” Mr. Pearson further attested that the conveyor area was not well lighted and that the noise level was so high that “a yell for help by a driver would not have been heard by the distant human operator.” He still further attested that “the off button for the conveyors was in a position on a wall at a distance too remote for a person on the conveyor superstructure and in distress to reach it.” Mr. Pearson also attested that when a driver was climbing over the conveyor system, there were times when “the entire line would, without | ¿warning, begin to move of its own accord;” he indicated that he himself was caught in the rollers on one occasion due to such sudden, unforeseen movement of the conveyor belt. Mr. Pearson attested that he “was not surprised when Mr. Hall told [him] of his injury as he is not the only driver who has been injured in conjunction with delivery of cans at the Fol-ger plant.”

Mr. Prewitt, the Halls’ safety engineer expert, likewise noted in his affidavit that the conveyor system was operated intermittently without warning by a Folger’s operator who has limited visibility of the unloading area. Mr. Prewitt stated that “[w]hen the can pallets are in place, they block [the operator’s] view of the area and of personnel that may be present.” He further stated that there was (1) no warning alarms signaling that the automatic portion was about to run, (2) no emergency shutdown switch available to the drivers, and (3) no instruction given to Mr. Hall regarding the system or its proper operation. Based on the information available to him and the American Safety for Conveyors and Related Equipment standards, Mr. Prewitt opined that:

• Mr. Hall’s fall was the result of his stepping onto the conveyor rollers.
• Requiring workers routinely to walk across a roller conveyor is an unsafe practice.
• The conveyor system was unsafe because of no warning of impending operations was available and no emergency stops were on the conveyor. Furthermore, the Folger’s operator’s view of the area was obstructed, making it difficult to determine if personnel were in danger around the convey- or.
• The lack of instruction to Mr. Hall may have contributed to his fall because of unfamiliarity of the equipment or its operating characteristics.

Mrs. Hall’s testimony corroborated her husband’s regarding his injuries and his course of treatment from the date of the accident through the date of trial. At | fitrial, the Halls also introduced an abundance of medical records and bills. Briefly, Mr. Hall’s medical treatment during the interval between the November 1994 accident and the July 1996 confirmation hearing can be summarized as follows.

On the date of the accident, Mr. Hall was transported by ambulance from the Folger’s warehouse to Pendleton Memorial Methodist Hospital emergency room. In the emergency room, his primary complaints were back and left leg pain. After taking x-rays and finding no fractures or dislocations, the emergency room doctor released him and referred him to an orthopedist, Dr. Alain Cracco After seeing the company doctor, Dr. Donald Berry, on November 17, 1994, Mr. Hall obtained LVL’s approval to see Dr. Cracco.

On November 21, 1994, Dr. Cracco first saw Mr. Hall and ordered that he remain on complete bed rest. Although Dr. Crac-co ordered an MRI, Mr. Hall was unable to have one due to the presence of metal in his head from a Viet Nam shrapnel injury. Instead, on December 22, 1994, he had a CAT scan at Slidell Memorial Hospital, which showed multi-level disc abnormalities. Given the results of the CAT scan, Dr. Cracco referred Mr. Hall to Dr. Bryant George, a neurosurgeon.

On January 16, 1995, Dr. George first saw Mr. Hall and prescribed medication and physical therapy. He also ordered a mylegram and CT scan, which were performed at Pendleton Memorial Hospital on February 2, 1995. These tests revealed three level disc herniations. Dr. George thus recommended that Mr. Hall undergo a multi-level discectomy.

On May 1, 1995, Dr. John Schuhmacher, an orthopedic surgeon, saw Mr. Hall for a second opinion regarding the recommended surgery. Dr. Schuhmacher l7concurred in Dr. George’s recommendation that the surgery was necessary given Mr. Hall’s multi-level disc disease.

On May 23, 1995, Dr. George, assisted by Dr. Joseph Epps, Jr., performed the surgery. Mr. Hall’s improvement following the surgery, according to the Halls’ testimony, only lasted two weeks. Thereafter, his pain returned to its pre-operative level. On July 11, 1995, he was treated at Methodist Hospital emergency room for an episode of severe back pain. On July 25, 1995, a CAT scan was done, and on August 14, 1995, another CAT scan and a myle-gram were done. Given Mr. Hall’s persistent pain, Dr. George referred Mr. Hall to Dr. Christopher Lew, an anesthesiologist with Gulf Coast Pain Institute.

On September 1,1995, Dr. Lew first saw Mr. Hall. Dr. Lew treated Mr. Hall for post-lumbar laminectomy pain by giving him two caudal epidural injections on September 18, 1995, and October 16, 1995; however, Mr. Hall did not obtain relief from his pain. Dr. Lew recommended a spinal cord stimulator or morphine pump/spinal opioid modes of pain management. Dr. Lew also noted Mr. Hall was depressed and recommended possible psychological care.

On January 30, 1996, Dr. James Butler, an orthopedic surgeon with Tulane Medical School, saw Mr. Hall at the request of the workers’ compensation (“WC”) carrier. Dr. Butler recommended that Mr. Hall have a surgical fusion of the spine. Although Dr. George concurred in Mr. Hall’s choice to have that surgery and although that surgery was scheduled, it was can-celled, apparently due to the WC carrier refusal to pay for it.

In May 1996, Mr. Hall was admitted on two separate occasions to the Crosby Memorial Hospital emergency room for treatment. On May 8th, he was admitted with complaints of a possible heart attack, but diagnosed with an anxiety | «attack. On May 13th, he was admitted with complaints of excruciating back pain. At trial, Mr. Hall also listed the prescription drugs he has taken and testified he filled his prescriptions at Wal-Mart and Picayune pharmacies. He also testified that the medical devices he has been prescribed included a TENs device, a back brace, a cane, and a walker.

PROCEDURAL BACKGROUND

On October 10, 1995, Mr. and Mrs. Hall filed the instant suit against Folger (the “Hall Suit”). Their petition alleged that Mr. Hall was injured on November 15, 1994, when he fell from the conveyor belt system platform at Folger’s New Orleans warehouse while delivering coffee cans for his employer. As discussed elsewhere in this opinion, the petition alleges negligence on the part of Folger. Their petition requested that Folger be served through its registered agent for service of process, CT Corporation System (“CT”) at its Baton Rouge office. Thereafter, Folger neither answered nor filed other responsive pleadings.

Armed with the sheriffs return reflecting CT was served on November 1, 1995, the Halls obtained a preliminary default against Folger on January 24, 1996. On June 18, 1996, the trial court conducted a confirmation hearing. On July 15, 1996, the trial court confirmed the default and entered judgment against Folger, awarding Mr. Hall damages totaling $910,572.79, which it itemized as follows:

Past medical expenses $ 70,627.79
Future medical expenses $100,000.00
Past lost wages $ 42,054.00
Future loss of wages $297,891.00
| gPast and present physical and mental pain and anguish $400,000.00

The trial court also awarded Mrs. Hall $45,000 in loss of consortium damages.

As noted, Folger responded by filing both an appeal from the default judgment and a nullity action.

POSTURE OF DEFAULT JUDGMENT APPEAL

The procedural events that transpired in the seven-year interval between the Halls’ confirmation of the default judgment in July 1996 and the instant decision on Fol-ger’s default judgment appeal present a procedural morass that would be a law professor’s dream and a law student’s nightmare. Summarizing that procedural history, we stated in Hall:

Folgers [sic] initially filed a motion for suspensive appeal and posted the required appeal bond on August 21, 1996. (No. 96-CA-2146). On November 12, 1996, Folger filed in this court a motion to stay the appeal and filed in the district court the instant nullity action (CDC No. 96-18775)(the “Nullity Action”). In the Nullity Action, Folger asserted that it was never served with the citation and petition in the Hall Suit, never waived service, and never made a general appearance. The trial court consolidated the Nullity Action with the Hall Suit.
On January 16, 1997, this court granted Folger’s motion and ordered that the default judgment appeal be stayed “until appellant’s action of nullity is final.” ... [W]e subsequently dismissed that default judgment appeal with the caveat that all the issues in that appeal were preserved for the appeal of the nullity judgment.
Meanwhile, on May 1, 1997, TTC filed a Petition of Intervention into the Hall Suit seeking to assert its rights under the Workers’ Compensation Law in the Halls’ tort recovery. Subsequently, TTC also intervened into Folger’s nullity suit. Although the trial court granted Folger’s exceptions to TTC’s intervention in the nullity action, this court reversed, finding the employer had a right to intervene. Hall v. Folger Coffee Co., 2000-0668 c/w 2000-0669 (La.App. 4 Cir. 2/7/01), 781 So.2d 620. In so doing, we expressly noted the then pending, yet stayed, default judgment appeal....
On June 9, 1997, the trial court granted Folger’s motion for summary judgment, reasoning that although the return was presumed correct, Folger rebutted the presumption by introducing affidavits establishing |inthat CT was not served and that Folger never received the service documents. From that decision, the Halls appealed. Framing the pivotal issue presented as whether service of process was effected on Folger through CT and finding a genuine issue of material fact remained on that pivotal issue, we reversed. Folger [Coffee Co. v. Hall, 97-2472, p. 5 (La.App. 4 Cir. 6/24/98), 715 So.2d 1224, 1226 (Folger I)] ... Meanwhile, on July 25, 2001, the Halls filed peremptory exceptions of no cause of action and no right of action in Fol-ger’s nullity suit. They argued that Fol-ger was precluded from filing its nullity suit because it made a general appearance on August 21, 1996 when it filed its Motion for Suspensive Appeal seeking review of “all aspects” of the default judgment. On September 17, 2001, TTC likewise filed the same exceptions and asserted the same arguments. On September 28, 2001, the trial court overruled the exceptions.
That ruling was the subject of writ applications to both this court and the Louisiana Supreme Court. On October 10, 2001, this court denied the Hall’s writ (2001-C-1899), stating that “[o]n the showing made, the district court has not abused its vast discretion in ... overruling their Exceptions of No Cause of Action and No Right of Action.” On October 12, 2001, this court granted in part TTC’s writ (2001-C-1901), ordering the district court to provide TTC with the judgment of September 28, 2001, but otherwise denying the writ, stating that “[o]n the showing made, the district court has not abused its vast discretion in ... overruling their Exceptions of No Cause of Action and No Right of Action.” On October 17, 2001, the Louisiana Supreme Court denied the Hall’s and TTC’s request for a stay and writ application. Folger Coffee Co. v. Hall, 2001-2784 (La.10/17/01), 799 So.2d 1140.

Hall, 2002-0920, 2002-0921 at pp. 3-4, 843 So.2d at 625-26.

Following the bench trial on remand, which was held on October 17, 2001, the trial court again annulled the default judgment. Finding Folger failed to meet its burden of proving the invalidity of the presumptively valid sheriffs return, we again reversed. Hall, supra. Stressing the “unique, complex procedural history of this case,” we determined that it was appropriate to allow Folger an opportunity to brief the issues that were preserved by this court when we dismissed Folger’s timely filed default judgment appeal. Hall, 2002-920, 2002-921 at p. 20, 843 So.2d at 635. Although the Halls and TTC again assert in this appeal that such issues are Innot properly before us, we find the above summary of the procedural history of this case adequately addresses and disposes of that contention. We now review Folger’s default judgment appeal.

DEFAULT JUDGMENT PRECEPTS

“A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” La. C.C.P. art. 1702(A). Construing the prima facie case requirement of Article 1702, the Louisiana Supreme Court in Sessions & Fishman v. Liquid, Air Corp., 616 So.2d 1254 (La.1993), stated:

In order for a plaintiff to obtain a default judgment, “he must establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant.” Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989); Blue Bonnet Creamery, Inc. v. Simon, 243 La. 683, 146 So.2d 162, 166 (1962). “In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits.” Thibodeaux, 538 So.2d at 1004. A plaintiff seeking to confirm a default must prove both the existence and the validity of his claim.

616 So.2d at 1258.

In reviewing a default judgment, an appellate court is restricted to determining whether the record contains sufficient evidence to prove a prima facie case. Rhodes v. All Star Ford, Inc., 599 So.2d 812, 813 (La.App. 1 Cir.1992). Although there is a presumption that the judgment confirming a default is supported by competent evidence, it does not apply when, as in this case, there is a transcript of the confirmation proceeding. Hickman v. Wm. Wrigley, Jr., Co., 33,896 (La.App. 2 Cir. 10/4/00), 768 So.2d 812. In reviewing a default judgment in such a case, “the reviewing court is able to determine from the record whether the evidence upon which the judgment was based was sufficient and competent.” Id.

112Confirming a default judgment is akin to a trial at which only the plaintiff is present. 1 Frank L. Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise:Civil Procedure § 12.3 (1999). At such trial, the unopposed plaintiff must comply with a set of special, somewhat strict rules in proving his claim. 19 Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof § 2.9 (1999). The following special rules are pertinent to the present case.

First, the plaintiff is confined to the facts and the theories pled in his petition; he may not expand his pleadings by introducing evidence at the confirmation hearing. Thus, the plaintiff is precluded from obtaining a default judgment “different in kind from that demanded in the petition.” La. C.C.P. art. 1703; see Spear v. Tran, 96-1490 (La.App. 4 Cir. 9/18/96), 682 So.2d 267. However, the Louisiana Supreme Court has held that “the pleadings which lead up to the demand, or prayer, upon which a default judgment is based are to be construed no more restrictively than pleadings suggestive of other judgments.” Royal Furniture Co. of Baton Rouge, Inc. v. Benton, 260 La. 527, 532, 256 So.2d 614, 616 (1972).

Second, “[bjecause at a default confirmation there is no objecting party, to prevent reversal on appeal, both plaintiff and the trial judge should be vigilant to assure that the judgment rests on admissible evidence” that establishes a prima facie case. George W. Pugh, Robert Force, Gerald A. Rault, Jr., and Kerry Triche, Handbook on Louisiana Evidence Law 639 (2003 ed.). As a corollary, “[ejxcept as authorized by the Code of Civil Procedure Article 1702, or evidence that fits within one of the exceptions provided by [the Louisiana Evidence] Code, hearsay evidence is inadmissible to confirm a default.” Id.; see La. C.E. art. 1101(A)(providing that “[ejxcept as otherwise provided by legislation, the 113provisions of this Code shall be applicable to the determination of fact ... in proceedings to confirm a default.”)

Third, depending on the nature of the plaintiffs demand, Article 1702 sets forth several exceptions to the rule against the use of hearsay evidence at the confirmation hearing. One of those pertinent exceptions is that “[w]hen a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such [delictual] demand.” La. C.C.P. art. 1702(B)(2). Another pertinent exception is that “[w]hen the demand is based upon a claim for personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony.” La. C.C.P. art. 1702(D); see Smith v. Lewis, 597 So.2d 1267 (La.App. 3 Cir.l992)(construing this provision to mean that a treating physician’s affidavit that incorporates an attached narrative report is a “sworn narrative report of the treating physician” sufficient to establish a prima facie case).

Finally, a defendant against whom a default judgment is confirmed may not assert an affirmative defense on appeal. Having failed to answer or defend the suit, a defendant cannot defeat the default judgment against it by asserting the statutory immunity defense on appeal. Galland v. National Union Fire Ins. Co. of Pittsburg, Pennsylvania, 452 So.2d 397, 398-99 (La.App. 3 Cir.1984); Romero v. Sunseri, 359 So.2d 305, 308 (La.App. 4 Cir.1978).

Applying the latter rule, we readily dispose of Folger’s first argument that the trial court erred in failing to find it was Mr. Hall’s statutory employer and thus immune from tort liability. Statutory employer immunity is an affirmative defense 114that a defendant must plead in its answer. Davis v. Kreutzer, 633 So.2d 796, 800 (La.App. 4 Cir.1994). Although Fol-ger acknowledged at oral argument before this court the jurisprudence holding that affirmative defenses, such as statutory employer immunity, must be plead in the answer, it argued this issue was raised by the Halls at the default judgment confirmation hearing. Particularly, Folger relies upon the statement in the affidavit of Jimmy Pearson, Mr. Hall’s co-worker, that the truck drivers who made deliveries to Folger’s warehouse were required to perform certain tasks involving the coffee cans “in furtherance of the business of Folger.” As the Halls and TTC point out, this statement by Mr. Pearson was merely a legal conclusion, which had no binding effect. Given its failure to answer or defend the suit, Folger cannot defeat the default judgment against it by asserting the statutory immunity defense on appeal. Galland, supra.

Folger’s second argument is that the trial court erred in confirming the default judgment because the Halls failed to establish a prima facie case of liability or damages as required to confirm the default judgment.

FOLGER’S LIABILITY

A prima facie case is established “when the evidence proves the essential allegations of the petition to the same extent required as if those allegations had been specifically denied.” In re Justice of the Peace Landry, 2001-0657, p. 12 (La.6/29/01), 789 So.2d 1271, 1279. Stated otherwise, a “prima facie case” is one that will entitle a party to recover if no evidence to the contrary is offered by the opposing party. Black’s Law Dictionary (5th ed.1979).

|1fiIn confirming the default judgment, the Halls introduced both their own testimony and documentary evidence to establish the allegations of their petition. The petition alleged that the accident occurred as Mr. Hall made his way across the “very unstable conveyor roller device approximately three feet off of the floor.” It further alleged that “one of the rollers slipped and sent him crashing to the floor crushing his lower spine, back, causing immediate and excruciating pain as well as permanent low back injury.” Still further, the petition alleged that “the design, configuration and setup of this area around the conveyor roller device dictated the methodology of Mr. Hall and other drivers who made deliveries to Folger’s plant.” And still further, the petition alleged the following enumerated negligent acts of Folger and/or its employees in the “erroneous and faulty and dangerous design and set-up of the configuration of the conveyor-roller device and surrounding area”:

• Design of a conveyor system which required a human being to cut straps binding the unfilled cans to the pallets before moving further into the manufacturing chain;
• Requiring that human being to climb or clamber over the conveyor roller device without properly designed or through-out protection or maneuvering assistance, or easily, a pathway clear of obstruction from one side of the conveyor roller device to the other side of said device;
• Requiring that he delivering truck drive[r], and not a Folger employee, or two employees, one of each side, accomplish this erroneous and dangerous task;
• Any and all other acts of negligence which will be proven at the trial of this case.

Citing the above allegations and La. C.C. art. 1703’s prohibition against expanding the pleadings at the confirmation hearing, Folger contends that the Halls |1tipled only a negligence theory, not a strict liability theory against Folger as premise owner. As a result, Folger contends that the Halls in their brief improperly rely on a strict liability theory to support the trial court’s finding of liability. Folger further contends that the Halls’ negligence claim is not supported by competent evidence. The Halls’ only evidence of negligence, Folger contends, was Mr. Hall’s hearsay statement that Folger “required” him to use the procedure he used to offload his trailer. Folger still further contends that Mr. Hall’s own negligent actions caused his accident; particularly, Folger cites Mr. Hall’s actions in (1) overloading the conveyor belt with all the pallets thus blocking the use of the kick plate, (2) failing to use the kick plate to safety cross the conveyor belt, and (3) standing directly on the conveyor rollers knowing from his own past experiences and observations that injury could occur. Hence, Folger argues that Mr. Hall was either solely or substantially at fault for his accident.

We find the record establishes that Mr. Hall’s accident was the direct result of Folger’s employee’s actions in operating the conveyor belt and thus governed solely by La. C.C. art. 2315. See Taylor v. Entergy Corp., 2001-0805, p. 12 (La.App. 4 Cir. 4/17/02), 816 So.2d 933, 939-40 (citing Fontenot v. Fontenot, 635 So.2d 219 (La.1994) and finding defendant’s acknowledgement that hole was created by its personnel resulted in case being governed solely by La. C.C. art. 2315). As the Louisiana Supreme Court explained in Fontenot, “[w]here plaintiffs prove that a defendant is the actor directly responsible for the creation of an unreasonable risk of harm which causes injury, regardless of the location, that defendant may, depending on the results of a duty-risk analysis, be held liable as the tortfeasor.” Fontenot, 635 So.2d at 222, n. 8 (emphasis in original).

|17The duty-risk analysis Louisiana courts apply in determining whether a defendant is liable for negligence under La. C.C. art. 2315 requires a plaintiff establish four elements by a preponderance of the evidence; namely:

(1) The conduct in question was a cause in fact of the resultant harm;
(2) The defendant owed a duty to plaintiff;
(3) The duty owed was breached; and
(4) The risk or harm caused was within the scope of the breached duty.

Fontenot, 635 So.2d at 223.

Folger’s negligent act that was the cause-in-fact of Mr. Hall’s injuries was its operator’s starting the conveyor belt without finding out if someone was standing on it and without issuing any warning. Stated another way, the negligence was Fol-ger’s operator running the conveyor belt without regard to the safety of the drivers who were in the unloading area delivering the pallets. The Halls’ proof of Folger’s negligence included Mr. Hall’s testimony, especially his answers to the trial judge’s specific questions on this issue. In particular, we note the following colloquy between the trial court and Mr. Hall:

THE COURT:
To your knowledge, someone turned the conveyor belt on?
THE WITNESS;
I think so, yes, ma'am.
It had to be the operator on the top, you know, that brought the cans as — as she needed them or he needed them, whatever. Anyway, the next thing I knew, I was sitting on the floor.
THE COURT
Did you see the conveyor belt move at ah?
THE WITNESS:
|1sYes, ma'am, because a pallet of cans was starting to move, so it had to move. It was automated, you know.
THE COURT:
When the pallet with the cans on it started to move, what happened to you?
THE WITNESS:
That’s what I’m saying, I fell.

Applying the other duty-risk factors, Folger clearly owed a duty to Mr. Hall, as well as anyone else that mounted its conveyor belt structure, not to turn on the conveyor belt without ensuring that no one was standing on it or without warning. This duty stems simply from the traditional tort principle that “one person owes a duty to another if he can ‘foresee’ an unreasonable risk of harm to the other arising from his conduct.” Frank L. Maraist and Thomas C. Galligan, Louisiana Tort Law § 3-2 (1996). The Halls established through the testimony of Mr. Hall as well as the affidavits of his co-worker, Mr. Pearson, and their expert, Mr. Prewitt, that Folger breached this duty. Finally, there is an ease of association between the duty not to operate a conveyor belt system without making sure no one is standing on it or without warning and the risk that one who is standing on it when it is unexpectedly started will be thrown down and sustain injuries. See Fontenot, 635 So.2d at 223 (citing Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620, 622 (1972)).

We thus find the duty-risk analysis establishes that under the facts proven at trial, liability for the injuries and damages sustained by the Halls should be imposed on Folger. Our finding renders it unnecessary to address the other issue Folger raised regarding the Halls’ failure to plead a strict liability claim against Folger as premise owner.

| ^COMPARATIVE FAULT

As noted above, Folger alternatively contends that the trial court erred in failing to assess all — or substantially all — the fault to Mr. Hall. In addressing this issue, we find insightful our analysis of a similar issue in a similar procedural setting in Jackson v. Tyson, 526 So.2d 398 (La.App. 4 Cir.1988). In Tyson, the defendant-landlord’s attorney failed to appear on a scheduled trial date, and the case was tried without the defendant. On appeal from a judgment in favor of the plaintiff-tenant, the defendant asserted the defense of comparative fault. Rejecting that defense, we reasoned that the plaintiffs’ use of the stairs on which she fell was not negligence because it was her only access to her second floor apartment. We further noted that the plaintiff testified when the injury occurred she was walking slowly and being very careful and that there was nothing in the record to suggest otherwise. We still further noted that the trial court obviously believed the plaintiffs testimony.

By analogy, we find that Mr. Hall’s stepping onto the conveyor belt to get across to cut the straps on the other side was not negligent. The record establishes there was no other way for him to get across. Folger’s counterargument regarding the kick plate is not supported by the record. Rather, the record establishes the kick plate was blocked when the drivers were unloading the pallets. Our finding is buttressed by Mr. Hall’s testimony that he had been delivering these pallets to Folger’s warehouse for a year and a half and that he was being careful when he l?,nwas thrown off the conveyor belt. The trial court obviously believed Mr. Hall’s testimony, and we cannot say that the trial court was manifestly erroneous.

DAMAGES

Folger also argues that the Halls failed to establish a prima facie case of damages. More particularly, Folger challenges three categories of the trial court’s damage award: (1) past medical expenses, (2) future medical expenses, and (3) general damages. We separately address each of these.

PAST MEDICAL EXPENSES

Folger acknowledges in its brief that some of the medical evidence the Halls introduced at trial complied with the special rule set forth in La. C.C.P. art. 1702(D), which permits a plaintiff in a personal injury action to introduce a sworn narrative report of his treating physician in lieu of live testimony. Particularly, it acknowledged that the Halls properly introduced sworn affidavits incorporating and identifying the reports and bills from Dr. Cracco ($318 in bills), Dr. George ($12,559 in bills), and Dr. Lew ($1,747 in bills). The crux of Folger’s argument on past medical expenses is its claim that the Halls thus only introduced competent evidence establishing $14,624 (the sum of that trio of doctors medical bills) of the $70,627.79 past medical expense award. This argument, however, confuses the separate inquiries of medical causation and quantum.

A plaintiff is required to establish both the causal connection between his injuries and the accident and the quantum of his damages. To establish the causal connection between the injuries and the accident, the plaintiff must introduce competent evidence establishing that it is more probable than not that the injuries were caused by the trauma suffered in the accident. Each of the trio of doctors attested in their affidavits that Mr. Hall’s injuries were consistent with the reported | ¡.i accident’s mechanism of injury. At oral argument before this court, Folger’s counsel emphasized the doctors’ failure to recite that it is more probable than not that Mr. Hall’s injuries were caused by the trauma suffered in the accident. However, the Louisiana Supreme Court has held that “it is not necessary for the plaintiffs medical witness to recite the proper legal jargon verbatim before the trial court can properly rely on his testimony.” Housley v. Cerise, 579 So.2d 973, 980 (La.1991). Continuing, the Supreme Court instructed that “[ajppellate courts should look to the substance of a witness’s testimony to determine whether the trial court was manifestly erroneous in finding that it establishes causation by a preponderance of the evidence.” Id.

Looking at the substance of the affidavits and attachments from this trio of doctors, we find sufficient evidence establishing the causative link between Mr. Hall’s injuries and the accident at Folger’s warehouse. We further find additional support for this causative link in the Halls’ testimony at trial and in the certified report of Dr. Cornelius Gorman, a vocational rehabilitation specialist who reviewed Mr. Hall’s medical records. See La. C.C.P. art. 1702(B)(2)(providing that a plaintiffs testimony along with corroborating evidence may be sufficient to establish a pri-ma facie case of liability on a delictual obligation.)

We further note, as the Halls contend, that the presumption of causation adopted in Housley likewise supports a finding of causation. That presumption applies when the plaintiff establishes that (1) before the accident, he was in good health, (2) commencing with the accident the symptoms of a disability condition appeared, (3) which continuously manifested themselves thereafter, and (4) medical testimony establishes a reasonable possibility of a causal connection between the accident and the disabling condition. Galligan, supra at § 4-4(a). |22 Here, Mr. Hall testified that he was in good health before the accident. Although he indicated that he had heart surgery in 1990, he further indicated that eight months after that surgery he was fully recovered and returned to work. He still further indicated that he worked steadily from that time until the date of the accident at Folger’s plant. He testified that on the date of the accident he was in good health and that since the date of the accident he has been unable to work. Moreover, Mr. Hall’s treating physician, Dr. George, opined that he is permanently disabled from work. Mr. Hall’s symptoms appeared immediately after the accident and continued through the date of trial. Finally, as noted above, the medical evidence presented by the trio of doctors established a causal connection between the accident and his injuries. Thus, all four Housley presumption requirements are satisfied in this case.

In sum, the competent evidence introduced at trial supports the trial court’s finding that the Halls established a prima facie case of damage causation. We now turn to the separate inquiry of the quantum of past medical expenses.

Some of the medical records and bills the Halls introduced were neither properly certified nor accompanied by a treating physician’s sworn narrative report. Those medical records and bills thus were not admissible to prove that the medical services were necessary or that the expenses incurred were reasonable. Nonetheless, the jurisprudence has recognized that such medical records and bills are admissible to support the plaintiffs testimony as to the fact that the plaintiff incurred these medical expenses and the costs incurred. See Campbell v. Kendrick, 556 So.2d 140, 142 (La.App. 5 Cir.1990). This view is consistent with the principle that “[w]hen a plaintiff claims to have incurred medical expenses and those claims are supported by a bill, the proof is sufficient, unless there is | ^contradictory evidence or reasonable suspicion that the bill is unrelated to the accident.” Smith v. Clement, 2001-87, p. 7 (La.App. 3 Cir. 10/3/01), 797 So.2d 151, 157. Although Folger contends that the failure of the Halls to separately identify at trial each of Mr. Hall’s medical bills by amount distinguishes this case from the jurisprudence, we find that a distinction without a difference. In his testimony, Mr. Hall recounted in detail all his medical treatment from the date of the accident through the date of the trial. We thus find the Halls’ introduction of those medical records and bills for such services at the end of the Halls’ testimony sufficiently established the differential amount between the certified and sworn bills of the trio of doctors (Drs. Cracco, George, and Lew) and the total past medical expense award. We thus find no error in the trial court’s award of past medical expenses.

FUTURE MEDICAL EXPENSES

Folger also challenges the award of $100,000 in future medical expenses. Future medical expenses, like other damages, must be established with some degree of certainty. The proper standard for determining whether a plaintiff is entitled to an award of future medical expenses is “proof by a preponderance of the evidence that the future medical expenses will be medically necessary.” Hoskin v. Plaquemines Parish Government, 97-0061, pp. 4-6 (La.App. 4 Cir. 12/1/97), 703 So.2d 207, 210-11. Addressing the issue of future medical expenses, the Louisiana Supreme Court has stated:

When the record establishes that future medical expenses will be necessary and inevitable, the court should not reject an award of future medical expenses on the basis that the record does not provide the exact value of the necessary expenses, if the court can examine the record and determine from evidence of past medical expenses and other evidence a minimum amount that reasonable minds could not disagree will be required.

Stiles v. K Mart Corp., 597 So.2d 1012, 1013 (La.1992).

Recovery of future medical expenses thus requires proof, by a preponderance of the evidence, that such expenses will be medically necessary. Lacy v. ABC Ins. Co., 97-1182, p. 13 (La.App. 4 Cir. 4/1/98), 712 So.2d 189, 196. When the record sufficiently establishes the need for future medical care, but not the exact cost of such care, “the factfinder may make a reasonable award.” Lacy, 97-1182 at p. 13, 712 So.2d at 196. Such is the case here.

Contrary to Folger’s contention, the record reflects Mr. Hall’s need for future medical expenses. Folger’s argument to the contrary overlooks the fact that Mr. Hall was scheduled for a second surgery, and it was cancelled only because of his WC carrier’s refusal to pay for it. The medical evidence set forth in the properly introduced records of Drs. George and Lew establishes Mr. Hall’s need for a second surgery, a spinal cord stimulator, or both. Specifically, Dr. Lew’s reports indicate that even assuming Mr. Hall undergoes the second surgery he may still require a spinal cord stimulator to alleviate his pain. Dr. Lew also recommended future psychological care.

Considering Mr. Hall’s $70,627.79 in past medical bills, including physical therapy and medication, which we found supported by the record, we cannot say that the $100,000 future medical expenses award was not reasonable.

GENERAL DAMAGES AWARD

Folger’s final contention is that the $400,000 general damage award was excessive. When the trier of fact (in this case, the trial judge) has made a general damage award and the defendant is contending that award is excessive, the “abuse of discretion” standard of appellate review applies. This standard is both hard to | ¡¡.¡¡articúlate and necessarily “non-specific.” Cone v. National Emergency Services, Inc., 99-0934, p. 8 (La.10/29/99), 747 So.2d 1085, 1089 (citing Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993)).

In reviewing such an award, an appellate court’s initial inquiry is whether the particular effects of the particular injuries on the particular plaintiff are such that there has been an abuse of the “much discretion” vested in the trier of fact (here the judge). Youn, 623 So.2d at 1260. The rationale behind the application of the “much discretion” standard in review of general damage quantum awards is that “awards of general damages, at least as to the amount awarded for injuries proved to have been caused by the tort, cannot be calculated with mathematical certainty.” Guillory v. Insurance Co. of North America, 96-1084, p. 1 (La.4/8/97), 692 So.2d 1029, 1036 (Lemmon, J., concurring)(citing Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968)). For that reason, general damage awards are reviewed under the “much discretion” standard of La. Civ. Code art. 1999, which provides: “[w]hen damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages.” La. C.C. art. 1999; see also La.C.C. art. 2324.1 (providing “[i]n the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury”). The jurisprudential theme that has emerged is that “the discretion vested in the trier of fact is ‘great,’ and even vast, so that an appellate court should rarely disturb an award of general damages.” Youn, 623 So.2d at 1261.

Applying that standard to the facts of this case, we cannot find the trial court abused its vast discretion in awarding $400,000 to Mr. Hall. At the time of trial, Mr. Hall was forty-seven years old and was receiving WC benefits. He was still launder the care of his treating physician, Dr. George. As noted, Dr. George’s opinion was that Mr. Hall was permanently disabled from work.

We find instructive on the issue of general damages the following extensive listing Mr. Hall’s present symptoms set forth in Dr. Gorman’s report:

1. Low back pain, constant.
2. Left leg failure.
3. Burning sensation in toes, back of left calf.
4. Headaches.
5. “Nerve” problems.
6. Minor trouble with right leg.
7. Sleep disruption due to pain.
8. Weather intolerance and stiffness.
9. Muscle cramping and spasms to left lower extremity.
10. Tension in neck and shoulders.
11. Ill-tempered.
12. Depression (does not feel like taking care of himself, shaving, etc.)
13. Weight gain.

We further find instructive the Halls’ testimony regarding the general effects Mr. Halls’ injuries have had on their life and their marriage. We also note Mr. Hall’s testimony that he was forced to get rid of his hunting dogs because he was no longer able to take care of them. Lastly, we note that Mr. Hall has undergone one back surgery and is in need of a second one.

Given these particular circumstances and these particular injuries, we cannot find the trial court abused its much discretion in awarding $400,000 in general damages to this particular plaintiff.

DECREE

For the reasons assigned, we affirm the judgment of the trial court confirming the default judgment against Folger Coffee Company.

AFFIRMED.

      . Although LVL was his actual employer, he was paid by T.T.C. Illinois ("TTC”). TTC intervened in both the Halls' personal injury suit and their nullity action, seeking to recover the workers’ compensation payments it has paid. TTC is a party to the instant appeals.

      . At oral argument before this court, Folger’s counsel suggested that Mr. Hall stepped onto a moving conveyor belt. This suggestion is not supported by the record. Rather, Mr. Hall testified that in order to cut the straps he would first stop the conveyor belt. Moreover, the record reflects that what caused him to fall was the sudden, unexpected movement of the conveyor belt.

      . The petition also named as a defendant the ficticiously named "XYZ Insurance Company" as Folger's liability insurer; however, no actual insurer was ever substituted for XYZ as a defendant.

      . The only other witness called at the hearing was an employee from the City of New Orleans who identified various official documents establishing that Folger was the owner of the warehouse located at 14601 Old Gentilly Road and that it had obtained a building permit to operate as a coffee manufacturer at that location.

      . Although we recognize that comparative fault, like statutory employer immunity, is an affirmative defense that may not be raised on a default judgment appeal, we nonetheless address this issue because Folger argues that Mr. Hall was solely at fault.

      . Although Folger argues that the kick plate was only blocked when the entire load of pallets was unloaded at once and that it was Mr. Hall's hurried approach that precluded him from being able to access the kick plate, this is only argument. We decline to speculate regarding how many pallets could be offloaded without blocking the use of the kick plate.


source: Caselaw Access Project

author: h WOODARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Arthur MAJOR, III.
    No. CR03-249.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 2003.
    Rehearing Denied Nov. 19, 2003.
    J. Phillip Haney, District Attorney, Thomas C. Sennette, Jr., Assistant District Attorney, Franklin, LA, for State/Appel-lee.
    Carey J. Ellis, Rayville, LA, for Defendant/Appellant, Arthur Major, III.
    Court composed of NED E. DOUCET, JR., Chief Judge, BILLIE COLOMBARO WOODARD, and JIMMIE C. PETERS, Judges.
   h WOODARD, Judge.

On appeal, we considered whether the evidence presented at trial was sufficient to support the Defendant’s conviction for possession of cocaine in excess of 400 grams. We determined that a rational factfinder could not have concluded beyond a reasonable doubt that the Defendant was aware of the cocaine hidden inside the vehicle he was driving. Thus, we reverse.

On June 9, 1997, a state trooper stopped Mr. Arthur Major, III, for a traffic violation. He was driving a rental vehicle which three passengers occupied.

Soon after he exited the vehicle, the trooper noticed that he seemed nervous. When the trooper attempted to question the passengers still sitting in the car, immediately, he smelled marijuana. When he asked them where they were coming from and where they were going, the Defendant and the passengers gave conflicting stories.

The trooper then asked Mr. Major for his consent to search the rental vehicle. He gave it in writing. The search revealed more than a pound of cocaine under the dashboard above the glove box.

The State charged Mr. Major with possession of cocaine with the intent to distribute. Thereafter, an amended bill of information was filed, charging him with possession of more than 400 grams of cocaine.

On March 12, 2002, a jury found him guilty. On June 21, 2002, he was sentenced to forty years in prison at hard labor.

He appeals, asserting that: (1) there was insufficient evidence to legally convict him of possessing more than 400 grams of cocaine; (2) the sentence is unduly harsh and excessive under the circumstances of this case; and (3) his Sixth Amendment right to a speedy trial was violated.

* * *

Insufficient Evidence

To support a defendant’s conviction, we must assess the sufficiency of evidence by determining whether any rational trier of fact could have found proof beyond a reasonable doubt for each of the essential elements of the crime, while examining the evidence in the light most favorable to the prosecution.

[W]hen circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. La.R.S 15:438 is not a separate test ... but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt.

To prove that a defendant was in possession of cocaine, the prosecution must establish that he was in possession of the cocaine and that he knowingly or intentionally possessed it. “Guilty knowledge is an essential element of the crime of possession of cocaine.” The State is also required to prove that the amount possessed was “four hundred grams or more of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule 11(A)(4) of R.S. 40:964.”

The Defendant asserts that no rational juror could have found him guilty of possessing 400 grams of cocaine or more.

13Guilty Knowledge and Proof of Possession

In State v. Newberry, this court explained:

The prosecution is not required to show actual possession in order to convict. The State need only show that the defendant exercised dominion and control over the illegal substance. The mere presence of the defendant in the area where narcotics are discovered is insufficient to support a finding of possession. What must be shown is that the defendant had a direct right and ability to exercise control. Additionally, the prosecution must show guilty knowledge.

(Emphasis added.) These factors are considered to determine whether a defendant exercised enough dominion and control to constitute constructive possession: his knowledge that drugs were in the area; his relationship with the person in actual possession; his access to the area where the drugs were found; evidence of recent drug use; his proximity to the drugs; and any evidence that drug users frequented the area.

In the instant case, to prove guilty knowledge, the State produced evidence that Mr. Major was the driver and claimed to be the renter of the car. At the time of the stop, the rental agreement was approximately six months old; however, it bore neither his name nor the name of any of the passengers. More than 400 grams of cocaine were found hidden under the dashboard, above the glove compartment. The car also contained a box of dryer sheets. One of the State’s witnesses testified that such sheets are sometimes carried in an attempt to throw drug-detection dogs off the scent.

One of the three passengers in the car possessed marijuana. During the initial stop, the Defendant acknowledged that marijuana had been smoked in the car. However, he was not charged in connection with the marijuana.

The Defendant gave no direct testimony establishing that he knew of the cocaine under the dashboard, and the authorities did not develop any fingerprints. Thus, the State exclusively relied upon circumstantial evidence.

In State v. LeBlanc, the court found insufficient evidence to support a conviction of possession when the State relied, solely, upon circumstantial evidence. The LeBlanc court stated:

[T]he testimony and evidence in this case established that the Defendant was spotted at a location being investigated for drug trafficking. The Defendant was the owner and driver of the car on the premises. Inside the vehicle on the front passenger side was a closed knapsack, which contained twenty-one Ziploc bags of marijuana, weighing nearly one and one-half pounds. This location was easily within the reach of and accessible to the driver. These facts support a finding that the Defendant could have exercised dominion and control over the illegal substance.
On the other side of the question, there was no evidence presented at trial that the Defendant knew about the presence of drugs at the house or drug trafficking at the residence. There was no evidence introduced at trial that the Defendant had drugs or drug paraphernalia on his person at the time of arrest, nor was there evidence introduced at trial that he knew the contents of the knapsack. The knapsack had no identification or other indicia of ownership. A passenger in the vehicle claimed, both at the scene and at trial, to be the owner of the knapsack. There was no evidence that the Defendant had a history of drug distribution. Defendant’s mere presence at the ... house is not enough to convict.

The LeBlanc court further acknowledged:

The credibility determination takes [the witness’] direct testimony out of the picture, leaving the case one of circumstantial evidence against the Defendant regarding possession of the marijuana. The only circumstance that was proved that weighs against the Defendant is that marijuana was found in a closed knapsack on the passenger side of his car. There was simply no other evidence presented in this short trial-The record evidence is simply insufficient for an inference of actual or constructive possession.
We find that Defendant’s hypothesis of innocence was reasonable and not sufficiently negated and thus, a rational fact finder could not |Rconclude beyond a reasonable doubt that the Defendant was aware of the contents of the knapsack and exercised dominion and control over it.

Perhaps the strongest evidence in the instant case is the trooper’s testimony, establishing that Mr. Major claimed himself to be the renter of the vehicle. However, apparently, the LeBlanc court gave little weight to the Defendant being the owner of the car, even though the knapsack of marijuana was within an arm’s length.

The presence of the dryer sheets in the rented vehicle is also subject to an innocent interpretation. The State never established where the dryer sheets were originally found; thus, it is not clear whether the Defendant would have known they were in the car. Moreover, even if they were being used for concealment and he knew this, the intended drug-scent being concealed could have been the marijuana the passengers used.

Another possible indication of guilty knowledge is the evidence that Mr. Major and his passengers gave conflicting accounts regarding the origin and destination of their trip. However, the State never established that the Defendant’s account was false; further, the presence of marijuana, which he clearly knew about, could easily explain any deceit on his part regarding this matter.

Also, the apparent discrepancy regarding the rental agreement, which was six months old and did not bear the name of any of the vehicle’s occupants, stands in a similar posture. The evidence on this matter is ambiguous; the State made a point of establishing the fact that the Defendant claimed to be the renter of the vehicle and, merely, introduced the rental agreement without further clarification. Although odd, the status of the rental agreement was not indicative that he knew about the concealed cocaine under the dashboard.

Similar to our recent holding in Le-Blanc, we find that the State failed to establish that Mr. Major had guilty knowledge of the cocaine. The record evidence is simply insufficient for an inference of actual or constructive possession. Thus, a rational factfinder could not have concluded beyond a reasonable doubt that he was aware of the cocaine and that he exercised dominion and control over it.

Un a more recent case, State v. Odle, this court found that the State had proved guilty knowledge, concerning a defendant driver of a vehicle. However, Odie is easily distinguishable, given that the driver substantially modified the subject vehicle. He hid cocaine in the gas tank and modified the gas gauge. Also, the car contained an overabundance of different types of air fresheners.

Thus, in light of LeBlanc, we reverse Mr. Major’s conviction and sentence and order an acquittal. Our finding that there was insufficient evidence to sustain a conviction of possession renders it unnecessary for us to discuss the Defendant’s remaining assignments of error.

CONCLUSION

We reverse the Defendant’s conviction and sentence and order an acquittal.

REVERSED.

DOUCET, C. J., dissents and would affirm the conviction.

      . State v. Magee, 98-1325 (La.App. 4 Cir. 12/15/99), 749 So.2d 874, writ denied, 99-3587 (La.6/2/00), 763 So.2d 593.

      . Id. at 876 (citations omitted).

      . State v. Drummer, 99-858 (La.App. 4 Cir. 12/22/99), 750 So.2d 360, writ denied, 00-0514 (La.1/26/01), 781 So.2d 1257.

      . Id. at 363.

      . La.R.S. 40:967(F)(l)(c).

      . 89-735, p. 4, 560 So.2d 121, 123 (La.App. 3 Cir.1990) (citations omitted).

      . State v. Laws, 95-593, p. 4 (La.App. 3 Cir. 12/6/95), 666 So.2d 1118, 1121, writ denied, 96-89 (La.9/13/96), 679 So.2d 102.

      . 01-1503 (La.App. 3 Cir. 6/5/02), 819 So.2d 424.

      . Id. at 427.

      . Id. at 428-29.

      . 02-226 (La.App. 3 Cir. 11/13/02), 834 So.2d 483, writ denied, 03-625 (La.6/20/03), 847 So.2d 1219.


author: 1PETERS, J. 11WOODARD, J.,

text:
    DAN RHODES ENTERPRISES, INC. v. CITY OF LAKE CHARLES.
    No. 03-0195.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 2003.
    Rehearing Denied Nov. 19, 2003.

      Charles Schrumpf, Sulphur, LA, for Plaintiff/Applicant, Dan Rhodes Enterprises, Inc.
    Christopher E. John, Assistant City Attorney, Lake Charles, LA, for Defendant/Respondent, City of Lake Charles.
    Court composed of BILLIE COLOMBARO WOODARD, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   1PETERS, J.

The plaintiff, Dan Rhodes Enterprises, Inc. (DRE), appeals the trial court’s grant of a summary judgment dismissing his suit against the City of Lake Charles, Louisiana (the City). For the following reasons, we affirm the trial court’s judgment.

This litigation arises because, in the year 2000, the City annexed certain immovable property into its corporate limits. Prior to the annexation, DRE had leased parts of the property to operate seasonal fireworks sales establishments. When the property became a part of the City, it also became subject to the City’s ordinance prohibiting the sale of fireworks within the corporate limits. The ordinance’s application to the annexed property had the effect of preventing DRE from continuing its fireworks sales on the leased property. DRE brought this suit to recover its lost profits from the City, asserting that the annexation constituted an unconstitutional taking of its property.

The City answered DRE’s suit, asserting a number of defenses, including the assertion that the annexation did not constitute an unconstitutional taking of the corporation’s property. Thereafter, the City filed a motion for summary judgment, which is the subject of this appeal.

In support of its motion for summary judgment, the City offered the following:

(1) The deposition testimony of Daniel Dwayne Rhodes, the owner and sole shareholder of DRE.
(2) A copy of a lease of a parcel of land measuring 100 feet by 200 feet fronting Country Club Road in Calcasieu Parish, Louisiana, entered into between Joseph A. Natali as lessor and DRE as lessee, dated March 16, 2000, having a primary term of May 2, 2000, to May 1, 2001, with nine options to renew on a yearly basis.
(8) A copy of a letter to Mr. Natali from Mr. Rhodes, acting on behalf of DRE, exercising the option to renew the March 16, 2000 lease.
|2(4) A copy of a lease of a trapezoid-shaped parcel of land with one side measuring 105 feet and fronting Nelson Road entered into between Jodie D. Dorsey as lessor and DRE as lessee, dated March 6, 2001, covering a one-month period from June 16, 2001, through July 15, 2001, but limiting the sale of fireworks to the period from June 25, 2001, through July 5, 2001.
(5) The affidavit of Ernest Broussard, the director of planning and economic development for the City of Lake Charles.

In opposition to the motion for summary judgment, DRE offered the following:

(1) The deposition testimony of Mr. Rhodes.
(2) The deposition testimony of Mr. Dorsey.
(3) Copies of the following leases of a trapezoid-shaped parcel of land with one side measuring 105 feet and fronting Nelson Road entered into between Mr. Dorsey as lessor and DRE as lessee.
Lease dated May 9,1994, covering the period from May 10, 1994, through May 9, 1995, but limiting the sale of fireworks to the period from June 25 through July 4, 1994, and from December 15, 1994, through January 1, 1995.
Lease dated May 6,1995, covering the period from May 10, 1995, through May 9, 1996, but limiting the sale of fireworks to the period from June 25 through July 4, 1995, and from December 15, 1995, through January 1, 1996.
Lease dated March 22, 1996, covering the period from May 10,1996, through May 9, 1997, but limiting the sale of fireworks to the period from June 25 through July 4, 1996, and from December 15, 1996, through January 1, 1997.
Lease dated April 7, 1997, covering a two-month period from May 20, 1997, through July 20,1997, but limiting the sale of fireworks to the period from June 25, 1997, through July 5, 1997. Lease dated September 10, 1997, covering the period from October 1,1997, through September 30, 1998, but limiting the sale of fireworks to the period from December 15, 1997, through January 1, 1998, and from June 25, 1998. through July 5, 1998. This particular lease provided for two one-year options to renew.
Lease dated September 29, 2000, covering a two-month period from November 10, 2000, through January 9, 2001, but limiting the sale of fireworks to the period from December 15, 2000, | -¡through January 1, 2001.
Lease dated November 17, 2001, covering a fifty-day period between November 17, 2001, through January 5, 2002, but limiting the period of actual sales to thirty days.
Lease dated March 6, 2001, covering a one-month period from June 16, 2001, through July 15, 2001, and being the same lease submitted by the City in support of the motion for summary judgment.

The leases described above differ in some respects, but all contain the same basic provisions. None of the leases were placed of public record in Calcasieu Parish.

After a hearing, the trial court granted the City’s motion for summary judgment and dismissed the corporation’s suit. DRE timely perfected this appeal, asserting three assignments of error.

A. The trial court erred in finding that both the Natalie [sic] and Dorsey leases terminated under the provisions of Civil Code Articles 1966 and 1968 without any loss or damage to the plaintiff being recoverable.
B. The trial court erred in failing to find that this was not a unique damage suffered by the plaintiff in this case unlike that suffered by others in the normal exercise of the police powers.
C. The trial court erred in not finding that a material issue of fact precluded summary judgment, since Rhodes was told that the Lake Charles City Planner said the sites would be grandfathered in and he relied upon this statement to his detriment.

OPINION

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether or not summary judgment is appropriate in any given case. Cormier v. Albear, 99-1206 (La.App. 3 Cir. 2/2/00), 758 So.2d 250. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to | Judgment as a matter of law. La.Code Civ.P. art. 966(B).

In this case, the record establishes little factual dispute. The seasonal sale of fireworks at various Calcasieu Parish locations is only one of DRE’s business activities. The two locations at issue in this litigation were leased from Mr. Dorsey and Mr. Natali. The Dorsey property is located on Nelson Road and was annexed into the City on July 29, 2000. The Natali property is located on Country Club Road and was annexed into the City on December 5, 2000. Upon being annexed, the properties became subject to the City’s ordinance which prohibits the sale of fireworks within the city limits. DRE terminated its fireworks sales at both locations and brought this suit to recover its loss of profits caused by the annexation.

The Natali lease in effect on December 5, 2000, contained the following language:

If fireworks sales from this location ever become illegal due to a change in the laws, then the lease shall be terminated and any unearned rent will be returned as follows: If sales should become illegal before the New Year’s Season, LESSOR will refund the entire rent for the year.

The trial court concluded that this provision terminated the lease effective December 5, 2000, and that DRE’s remedy was limited by this provision.

The Dorsey property was not subject to any written lease on July 29, 2000, but it is not disputed that DRE and Mr. Dorsey had an oral agreement concerning the property. The trial court relied on La.Civ. Code arts.1966 and 1968 to conclude that any lease with Mr. Dorsey was terminated by the annexation. Louisiana Civil Code Article 1966 provides that “[a]n obligation cannot exist without a lawful cause.” Additionally, La.Civ.Code art.1968 provides that “[t]he cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy.”

IfiWhile we agree with DRE that the contract provisions and the Louisiana Civil Code Articles relied upon by the trial court relate to the relationship between lessor and lessee, and not to the relationship between DRE and the City, for other reasons we find no error in the trial court’s grant of the summary judgment.

DRE contends on appeal that the trial court erred in failing to find that “the annexation by the City of Lake Charles [was] a taking under Louisiana Constitution Article 1, Section 4, and [that DRE] is ... entitled to inverse condemnation damages.” Louisiana Constitution Article I, § 4, provides in part:

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.
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 determining whether a claimant is entitled to eminent domain compensation, “the court must (1) determine if a right with respect to a thing or an object has been affected; (2) if it is determined that property is involved, decide whether the property has been taken or damaged in a constitutional sense; and (3) determine whether the taking or damaging is for a public purpose under Article I, § 4.” Constance v. State, Through Dep’t of Transp. & Dev., 626 So.2d 1151, 1157 (La.1993), cert. denied, 512 U.S. 1219, 114 S.Ct. 2706, 129 L.Ed.2d 834 (1994).

Importantly, “the courts of this State have long recognized a lessee’s status under law to require compensation for expropriation of lease property.” State, Dep’t of Transp. & Dev. v. Jacob, 483 So.2d 592, 594 (La.1986). Nevertheless, under the undisputed facts of this case, as a matter of law, the “property” was not “taken or damaged” by the annexation for purposes of eminent domain compensation. In Annison v. Hoover, 517 So.2d 420, 423 (La.App. 1 Cir.1987), writ denied, 519 So.2d 148 (La.1988), the first circuit held that “a regulatory program that adversely affects property values does not constitute a taking unless it destroys a major portion of the property’s value.” The annexation did not prohibit DRE from leasing the properties at issue; it simply prohibited the corporation from selling fireworks within corporate limits.

We find Cheshire v. City of Minden, 83 So.2d 526 (La.App. 2 Cir.1955), instructive in this regard. In Cheshire, residents and/or owners of property situated in an area which the City of Minden purposed to annex sought to have annulled the ordinance allowing for such annexation. The plaintiffs contended, among other things, that (1) the inclusion of their property within the corporate limits under the terms of the ordinance constituted a taking or a damaging of their property in that the property would be subject to future municipal taxes for the retirement of bond issues, the funds of which were of no value or benefit to their property, and (2) their drive-in theater on their property would be subject to the Sunday closing ordinance with the consequent loss of revenue in its operation. The second circuit found these contentions to be without merit. In so holding, the court stated:

The fact that the property in the territory proposed to be annexed will become subject to additional taxes and to the regulations provided by the existing municipal ordinances, with the possible loss of revenue from the operation of the business establishment located therein, does not in our opinion constitute a taking of such property for a public purpose within the intent and meaning of [La. Const, art. I, § 2 (1921), currently incorporated into La. Const, art. I, § 4 (1974), and U.S. Const, amends. V and XIV]. It has been held that the legislature has the power to enlarge the limits of towns and cities. The contrary wishes of the inhabitants and the imposition of taxes on the annexed territory to pay the existing debts of the city do not render the Act unconstitutional.
Moreover, in Angelle v. State, 212 La. 1069, 34 So.2d 321, 323, 29[2] A.L.R.2d 666 [(1948)], it was held that the constitutional provisions |7prohibiting the taking or damaging of private property, except for public purposes, refers exclusively to the power of eminent domain, that is, the intentional or purposeful expropriation or appropriation of private property for a public use or convenience.
We are likewise of the opinion there is no merit in plaintiffs’ contention that their property interest in the drive-in theatre will be adversely affected by its inclusion in the extension of the City limits. That such theatre might be regulated by appropriate ordinances of the City is not one of the grounds provided in LSA-R.S. 33:174 [regarding suits to contest the reasonableness of proposed extensions of corporate limits] for attacking the ordinance or the extension of the municipal corporate limits. No constitutional question is there presented. Property is acquired and held subject to the regulation of its use by the governing authorities under the exercise of their police power.

Id. at 527-28 (citations omitted).

In looking with favor on the rationale of the Cheshire decision, we recognize that it was decided when the 1921 Louisiana Constitution was in effect. However, for purposes of the specific facts and issue in this case we do not find this to present a meaningful distinction. We agree with the holding in Cheshire that the fact that property in the territory proposed to be annexed will become subject to regulations provided by the existing municipal ordinances, with the possible loss of revenue from the operation of a business establishment located therein, does not constitute a taking of such property for a public purpose. As provided in current La. Const, art. I, § 4, and as suggested in Cheshire, while a 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. To conclude otherwise would have a chilling effect on any proposed municipal annexation.

Finally, we reject DRE’s contention that the trial court erred in not finding a ^material issue of fact precluded summary judgment regarding whether the City planner informed DRE that the property in question would be “grandfathered in,” causing him to rely on this statement to his detriment.

In his deposition, Mr. Rhodes stated that Mr. Natali told him that Mr. Brous-sard had told Mr. Natali that DRE would be grandfathered in and would not have to comply with the City ordinance. However, he also testified that when he communicated directly with Mr. Broussard, he was told that the issue would have to be addressed by the Lake Charles City Council. Additionally, even assuming that Mr. Broussard communicated the possibility of being grandfathered in to Mr. Natali, there exists no evidence that Mr. Brous-sard had the authority to make such a representation.

Louisiana Civil Code Article 1967 provides in part that “[a] party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying.” However, it further states that “[r]eliance on a gratuitous promise made without required formalities is not reasonable.” DRE acknowledges that the authority to grant it the right to continue in business lies with the governing body of the City, and not with Mr. Broussard. Thus, his reliance on Mr. Broussard’s comments, if such comments were actually made, is unreasonable given the need of formal action from the Lake Charles City Council. See Andrus v. Andrus, 93-856 (La.App. 3 Cir. 3/2/94), 634 So.2d 1254. Thus, we find no merit in this argument.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of the City of Lake Charles, Louisiana, dismissing the claims of |9Pan Rhodes Enterprises, Inc. We assess all costs of this appeal to Dan Rhodes Enterprises, Inc.

AFFIRMED.

WOODARD, J., dissents with reasons.

11WOODARD, J.,

dissenting.

I respectfully dissent from the majority’s opinion because I do not believe that Cheshire, the basis for the majority’s ruling, is applicable to this case.

In Cheshire, the Plaintiff was challenging the constitutionality of the ordinance, itself. As I appreciate it, DRE is not attempting to challenge the ordinance. Rather, it alleges that the City’s refusal to deny it a variance constituted a taking, at least, as far as the sums it had already invested in anticipation of sales for the next season. The City’s actions deprived it of the income it expected to realize and relied on generating for the next season. The United States Supreme Court has recognized this deprivation of an investment-backed expectation to be a taking.

Often, in cases in which zoning results in a nonconforming use of property, the governing body will permit variances that allow the property owner to continue the business for a short period of time, specifically, so that he has an opportunity to recoup resources that he invested before the use became illegal. This time period, which serves as a grace period for the property owner, either, to conform his business to comply with the new zoning restrictions or to apply for rezoning of the property is | ^called an amortization period. The amortization period for the nonconforming use gives the business operator time to recoup funds s/he put towards the property’s use before the use is terminated.

Louisiana Revised Statutes 33:4725.1(A) supports this proposition and provides:

Except as provided by Subsection B of this Section, if after August 15, 1999, a municipality annexes property the use of which is governed by a parish zoning ordinance at the time of annexation, and the annexation causes a change in the zoning classification, the parish zoning classification shall remain in effect until the owner of the property has applied for rezoning with the appropriate municipal governing authority, hoard or commission or for a period of six months, whichever occurs first....

Thus, the above provision expressly addresses instances in which an annexation of property, which effectively rezones it, adversely affects the landowner. Particularly, in cases such as the instant one, in which neither the ordinance nor the annexation is unconstitutional, the property owner is left without a remedy for the adverse effects of the annexation. Thus, the above provision intends to provide a remedy in such cases; that being to allow the property owner a six-month amortization period to recoup any sums s/he has already invested in the non-conforming use of the property.

Unfortunately, because DRE’s business operated, only, seasonally, it was unable to utilize this amortization period. Notwithstanding, it exercised the alternative of applying for a variance from the City, the appropriate governing authority. Indeed, DRE’s cause of action would not have been ripe for court action without the City’s prior denial of a variance. The question for the court, then, becomes whether the municipal board or authority’s denial of the variance was reasonable under all the circumstances.

Initially, the City denied the variance. However, a special meeting was called to revote on the issue, at which time, not enough council members were present to |3grant the variance. While the ordinance prohibiting fireworks sales within city limits is an important ordinance contained in the City’s Life Code and is a valid exercise of its police power, this is not determinative of the “takings” issue. Rather, the determinative question is whether the City’s denial of the variance was reasonable under all the circumstances. This is a factual inquiry which was inappropriately determined on summary judgment.

Furthermore, we should not dispose of DRE’s detrimental reliance theory on summary judgment. DRE claims that it invested money based upon its reliance on licenses the State and the Parish granted it after the annexation, as well as on Mr. Broussard’s assurance to Mr. Natali that DRE’s business would be “grandfathered in.” If these facts can be proved, they could support a remedy under detrimental reliance. Thus, it is counter-intuitive to grant summary judgment on this basis.

Accordingly, summary judgment was inappropriate under either theory of recovery, and I would reverse.

      . Louisiana Constitution Article I, § 2 (1921) provided: "No person shall be deprived of life, liberty or property, except by due process of law. Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.”

      . Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).

      . Jay M. Zitter, Annotation, Validity of Provisions for Amortization of Nonconforming Uses, 8 A.L.R. 5th 391 (1992); see also State ex rel. Dema Realty Co. v. Jacoby, 168 La. 752, 123 So. 314 (1929).

      . Id.

      . King v. Caddo Parish Comm’n, 97-1873 (La.10/20/98); 719 So.2d 410.

      . Id.

      . King, 719 So.2d 410.


author: 1EZELL, Judge. 1SAUNDERS, J.,

text:
    Shauna SOILEAU v. ALLSTATE INS. CO.
    No. 03-0120.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 15, 2003.

      Larry Lane Roy, Preis, Kraft & Roy, Lafayette, LA, for Defendant/Appellee Allstate Ins. Co.
    Aaron Frank McGee, Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellant Shauna Soileau.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   1EZELL, Judge.

The case on appeal to this court is a separate suit against an insurer based on its handling of a third-party claim that was the subject of an earlier suit filed against both the insurer and the insured.

Statement of the Case

On November 11, 1996, Shauna Soileau, was a passenger in a vehicle struck by a driver insured by Allstate Insurance Company. Soileau suffered ankle injuries as a result of the accident. On November 10, 1997, Soileau filed a suit for damages against the insured driver and insurer Allstate. Between December 16, 1998, and November 3, 1999, Soileau’s counsel sent five letters to Allstate offering to settle the claim. Soileau’s attorney received no response to any of the settlement offers until November 10, 1999. In his response of November 10, 1999, the attorney for Allstate sent the following facsimile (hereinafter “fax”) to Soileau’s attorney: “My client has agreed to your settlement demand of November 3,1999. I am ordering a settlement check and will forward it with settlement documents.”

Whether the communication of November 10, 1999, confected a valid settlement agreement is in dispute. On November 12, 1999, Soileau’s attorney was contacted by the office of Allstate’s counsel requesting his tax identification number. The date on which the tax identification number was provided to the attorney for Allstate is disputed. On or about December .23, 1999, Soileau’s counsel received a packet from Allstate’s counsel containing the Receipt and Release, Joint Motion and Order of Dismissal and a settlement check dated December 8, 1999. Between January 10, 2000, and March 30, 2000, the attorneys for Soileau and Allstate were in communication regarding the precise wording of the Receipt and Release, the Joint Motion and Order for Dismissal, and the negotiability of the settlement check.

1 .PROCEDURAL HISTORY

On November 9, 2000, Soileau filed a separate suit against Allstate alleging that Allstate had breached its duties under La. R.S. 51:1401, La.R.S. 22:1220 and La.R.S. 22:658. Allstate filed a motion for summary judgment and exceptions to all of Soileau’s claims. Soileau responded with a memorandum in opposition and counter affidavits. Hearing on Allstate’s motion for summary judgment and exceptions occurred on September 19, 2001. On September 24, 2001, the district court found that the Soileau was not entitled to penalties under La.R.S. 51:1401 or La.R.S. 22:658 but awarded $2,500 in penalties for Allstate’s violation of La.R.S. 22:1220. As agreed to by both parties, this award was in error.

On January 17, 2002, the district court issued its judgment and held: Soileau had no cause of action under La.R.S. 51:1401-1419 and dismissed these claims with prejudice; granted summary judgment in favor of Allstate on all of Soileau’s claims under La.R.S. 22:1220(A) and (B)(5), La. R.S. 22:658(A)(2) and (A)(3); but denied Allstate’s motion for summary judgment regarding Soileau’s claim pursuant to La. R.S. 22:1220(B)(2).

After hearing the evidence and reviewing the documents, the court took the matter of penalties, claimed by Soileau pursuant to La.R.S. 22:1220(B)(2), under advisement. On August 30, 2002, the court issued its reasons for judgment and held that Soileau was not entitled to penalties under La.R.S. 22:1220(B)(2), giving as the reason for judgment the failure of the parties to the dispute to reach “a meeting of the minds” and that, therefore, the parties had failed to reach a valid compromise. On October 10, 2002, the court dismissed with prejudice Soileau’s claim under La.R.S. 22:1220(B)(2).

1 aSoileau appeals the trial court’s judgment claiming that the trial court erred when it found the parties had not confect-ed a compromise. Errors are also asserted concerning penalties and attorney’s fees pursuant to La.R.S. 22:1220(B)(2) and La. R.S. 22:658(A)(2).

STANDARD OF REVIEW

The standard of review for findings of the trial court has been clearly established in this circuit. A court of appeal may not set aside a trial court’s factual finding unless that finding was manifestly erroneous or clearly wrong. Stobart v. State, through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). Absent “manifest error” or unless it is “clearly wrong,” the jury or trial court’s findings of fact may not be disturbed on appeal. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112. However, when appellate courts find that a reversible error of law or manifest error of material fact was made in the lower court, appellate courts are required to redetermine the facts de novo from the entire record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d 840 (La.1989).

BINDING COMPROMISE

In the instant case, the trial court held that no valid compromise was reached between the parties because the parties had not reached a “meeting of the minds” as required by La.Civ.Code art. 3073 and therefore, no penalties were available under La.R.S. 22:1220(B)(2).

|40n November 3, 1999, the attorney for Soileau delivered a signed letter to the attorney for Allstate. The last paragraph of the letter declared (emphasis supplied):

I again offer to settle my client’s claim against Allstate and the insured for the full amount of the policy limits (minimum policy — $20,000/$10,000 per person for bodily injury) and in return my client will release the insured from any further liability for the damages she has suffered.

On November 10, 1999, the attorney for Allstate delivered a signed fax to Soileau’s attorney. The fax message declared: “My client has agreed to your settlement demand of November 3,1999. I am ordering a settlement check and will forward it with settlement documents.”

According to La.Civ.Code art. 3071, a compromise is:

[A]n agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding.

A compromise is a contract. Stern v. Williams, 365 So.2d 1128 (La.App. 4 Cir.1978), writ denied 368 So.2d 143 (La.1979). A contract is formed by the consent of the parties established through offer and acceptance. La.Civ.Code art. 1927. The compromise agreement need not be contained in one document to be enforceable. Sweet v. Iberia Parish Sch. Bd., 99-483 (La.App. 3 Cir. 11/3/99), 746 So.2d 256, writ denied, 99-3414 (La.2/4/00), 754 So.2d 237. The only formal essential for a compromise is a writing, and there is no sacrosanct form which must be followed; it is not necessary that everything intended to be compromised be contained in one document. Walk Haydel & Assocs., Inc. v. Coastal Power Prod. Co., 98-0193 (La.App. 4 Cir. 9/30/98), 720 So.2d 372. “[W]here two instruments, when read together, outline the obligations each party has to the other and evidence each party’s | ^acquiescence in the agreement, a written compromise agreement, as contemplated by [La.Civ.Code art.] 3071, has been perfected.” Doiron v. La. Farm Bureau Mut. Ins. Co., 98-2818, pp. 5-6 (La.App. 1 Cir. 2/18/00), 753 So.2d 357, 361. Compromises are favored in the law and the burden of proving the invalidity of such an agreement is on the party attacking it. Bridges v. State, DOTD, 32,018 (La.App. 2 Cir. 6/16/99), 738 So.2d 1149. Furthermore, “[C]ourts will not declare a settlement void without a clear showing that it violates good morals or public interest. Compromise settlements are not invalidated lightly in absence of bad faith, error or fraud.” Middlebrooks v. Int’l Indem., 95-1364, p. 7 (La.App. 3 Cir. 3/6/96), 670 So.2d 740, 744 (quoting Herrington v. Skinner, 93-1556, p. 4 (La.App. 3 Cir. 6/1/94), 640 So.2d 748, 751).

We find that the terms as outlined in the November 3,1999, letter are confusing and find no manifest error in the trial court's conclusion that there was never a “meeting of the minds.” When reading the letter dated November 3, 1999, from Soileau’s attorney one can see how the offer is confusing. Soileau initially offers to settle the claim against both “Allstate and the insured.” However, the paragraph is ended by saying that the client “will release the insured” and does not mention Allstate. Allstate could have understood this language to mean that the insured would be released from any potential excess liability because Allstate would have no further liability since it would tender its policy limits.

We find that no valid compromise was reached between the parties. Agreeing with the trial court on this matter, there is no need for us to address La.R.S. 22:1220(B)(2) regarding a penalty for failure to pay a settlement within thirty days of a settlement being reduced to writing. There is also no need to discuss Soileau’s assignments of error regarding La.R.S. 22:658(A)(2) regarding the failure to pay a | ,;claim for reasonable medical expenses due to a bonafide third party within thirty days after written agreement of settlement.

Therefore, for the above reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Shauna Soileau.

AFFIRMED.

SAUNDERS, J., Dissents and Assigns Written Reasons.

1SAUNDERS, J.,

Dissenting.

I respectfully dissent from the opinion of the majority of the court for the following reasons. On November 3, 1999, the attorney for Plaintifi/Appellant delivered a signed letter to the attorney for Allstate. The last paragraph of the letter declared:

I again offer to settle my client’s claim against Allstate and the insured for the full amount of the policy limits (minimum policy — $20,000/$10,000 per person for bodily injury) and in return my client will release the insured from any further liability for the damages she has suffered.

On November 10, 1999, the attorney for Allstate delivered a signed facsimile to the attorney for Plaintifi/Appellant. The Fax message declared:

My client has agreed to your settlement demand of November 3, 1999. I am ordering a settlement check and will forward it with settlement documents.

[A] compromise is a contract. Stern v. Williams, 365 So.2d 1128 (La.App. 4 Cir.1978), writ denied, 368 So.2d 143 (La.1979). A contract is formed by the consent of the parties established through offer and acceptance. La.Civ.Code art. 1927. According to La.Civ.Code art. 2046: “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be li>made in search of the parties’ intent.”

The majority of the court held that, “one can see how the offer is confusing,” because the letter dated November 3, 1999, in its final paragraph, began by offering to settle, “my client’s claim against Allstate and the insured for the full amount of the policy limits,” then ends by saying the client “will release the insured” but does not mention Allstate. In my view the terms of the offer and acceptance could not be more clear in this instance.

The terms of the offer clearly state that in exchange for Allstate and the insured agreeing to settle the claim with the Plain-tifi/Appellant, for the full amount of the policy limits, the Plaintifi/Appellant would then release the insured from further liability. Allstate, in its letter dated November 10, 1999, unequivocally agreed to these terms. The terms of the offer at no time can be construed to imply that the Plain-tifi/Appellant offered to release Allstate from any further liability. In fact, the offer, by its language, clearly indicates that any future liability of Allstate would not be relinquished by the Plaintiff/Appellant.

The letter of November 3, 1999, contained an offer. The letter of November 10, 1999,. contained and acceptance. A contract is formed through offer and acceptance. La.Civ.Code art. 1927. Thus a contract was formed and should be enforced. Accordingly, I respectfully dissent.