author: hDREW, J.

text:
    Deborah Charlene Harris Costa and Michael COSTA, Plaintiffs-Appellees, v. Carter J. BOYD, M.D. and Family Practice Clinic, Defendants-Appellants.
    No. 36,584-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 31, 2003.

      Rountree, Cox, Guin & Achee, By: Gordon E. Rountree, for Appellants.
    Donald R. Miller, Shreveport, for Appel-lees.
    Before BROWN, PEATROSS and DREW, JJ.
   hDREW, J.

In this suit to recover damages for medical malpractice, Dr. Carter Boyd appeals a judgment awarding plaintiffs a total of $36,150 in general and special damages sustained as the result of Dr. Boyd’s failure to timely order a blood test which would have detected Debra Costa’s declining renal function and ultimately, her chronic renal failure.

We amend the judgment to reduce the award of special damages, and as amended, the judgment is affirmed.

FACTS

Dr. Boyd, a family medicine practitioner, first began treating Mrs. Costa on a regular basis on June 15, 1993. On that date, he took Mrs. Costa’s history and performed a physical examination. Mrs. Cos-ta told Dr. Boyd that she suffered from hypertension and was taking Lopressor, a medication used to treat hypertension. Based upon the examination and history given, Dr. Boyd diagnosed hypertension and prescribed 100 mg of Lopressor, which was the same dosage prescribed by her previous physician. Dr. Boyd did not order any lab work at this time. A booklet regarding the complications of hypertension was provided to Mrs. Costa during this visit.

The record reveals that over the next 15 months, Mrs. Costa had the following contact with Dr. Boyd or his office personnel:

1?• July 27, 1993: Dr. Boyd treated Mrs. Costa for her complaints of headaches, stomach cramps and knee pain from a fall. His diagnosis was acute gastritis. Her blood pressure continued to be elevated.
• November 10, 1993: A prescription for Ru-Tuss medication was called in for Mrs. Costa.
• November 15, 1993: Mrs. Costa went to Dr. Boyd’s office with complaints of congestion in the lungs, coughing, a pain between her shoulders and an odd reaction from Ru-Tuss and Sel-dane medicines. Dr. Boyd diagnosed pleurisy, for which he prescribed a cough syrup and antibiotics. Mrs. Costa also received two injections containing an antibiotic and medication to treat her congestion.
• November 22, 1993: A prescription for Lopressor was called in for Mrs. Cos-ta.
• December 9,1993: Dr. Boyd examined Mrs. Costa. Mrs. Costa remained hypertensive, so Dr. Boyd prescribed Procardia, a blood pressure medication compatible with Lopressor. A neuro-vascular exam, which included a fundo-scopic examination of the eyes, was normal. Her blood pressure was taken by a nurse the next day.
• December 23, 1993: A prescription for an antibiotic was called in for Mrs. Costa. Her blood pressure was checked by a nurse four days later, when Mrs. Costa was given samples and a prescription for Procardia. Her blood pressure was beginning to show improvement.
• January 11, 1994: A prescription for Procardia was called in for Mrs. Costa.
1February 7, 1994: Mrs. Costa was examined by Dr. Boyd. A pregnancy test was done during this visit because Mrs. Costa’s medicines would have to be changed if she had been pregnant. The pregnancy test was negative.
• April 21, 1994, and August 10, 1994: Prescriptions for Lopressor were called in for Mrs. Costa.
• September 29, 1994: Mrs. Costa’s blood pressure was checked by Dr. Costa’s nurse.

Medication to treat congestion was called in for Mrs. Boyd on October 27, 1994. Mrs. Costa was examined by Dr. Boyd for the first time in nearly nine months on November 3, 1994. She complained at the time of coughing, nausea, vomiting and shakiness. Her face was swollen and her eyes were “matting.” Dr. Boyd’s impression was an upper respiratory infection, so he prescribed the antihistamine Seldane, the antibiotic Keflex, and eye drops, and gave her an injection of antibiotics and an injection of medicine to treat the congestion. A fundoseopic examination of her eyes did not reveal any deterioration of the blood vessels in her eyes.

Mrs. Costa was treated by Dr. Roy Fleniken on November 4, 1994. Dr. Flen-iken’s diagnosis was sinusitis ethmoid, for which he gave her Claritin and Yantin. Mrs. Costa testified that Dr. Boyd felt she had a sinus infection and he wanted to send her to a specialist. Dr. Boyd could not recall referring Mrs. Costa to Dr. Fleniken. Mrs. Costa apparently chose Dr. Fleniken because he treated her husband.

|4Pr. Boyd increased Mrs. Costa’s Pro-cardia dosage on November 8, 1994. Prescriptions for Lopressor and a medication for dizziness were also called in on this date. A prescription for Xanax was called in three days later. Mrs. Costa stated that she had told Dr. Boyd that she was shaking from being weak, felt fatigued and was unable to keep food down. A prescription for Vistaril, used to treat nausea and vomiting, was called in on November 18.

Dr. Boyd examined Mrs. Costa again on November 21, 1994. Mrs. Costa continued to complain of nausea and vomiting. A physical examination showed that her cardiovascular system was clear, her chest was clear, her abdomen was soft and her vital signs were positive. Mrs. Costa had lost 10 pounds since her prior visit. For the first time, Dr. Boyd ordered a lab work-up on Mrs. Costa. He explained that he did this because he could not determine what was causing her continued symptoms.

The lab tests showed that Mrs. Costa was in renal failure. The BUN (Blood Urea Nitrogen) test is an assessment of kidney function. The normal BUN range is between 7 and 25. Mrs. Costa’s BUN measured 207. A creatinine test is also used to measure kidney function. Normal range on a creatinine test is 0.7 to 1.4. Mrs. Costa’s creatinine level was 26.6.

Mrs. Costa met with Dr. Boyd at his office the next day. She continued to complain of nausea, and she stated that her vision was bright. Dr. Boyd reviewed Mrs. Costa’s lab results with her and told her that she needed to go to the hospital. He suggested Bossier Medical Center, but when she reminded him that she did not have insurance, he told her to go to | BLSU Medical Center (“LSUMC”). This was the last time that Dr. Boyd treated Mrs. Cos-ta.

When Mrs. Costa was examined at LSUMC on November 22, 1994, it was discovered through a renal ultrasound that her Mdneys had shrunken to one-half of their normal size, which was consistent with chronic renal failure. Damage to the retinal vessels in her eyes, consistent with hypertensive retinopathy, was also discovered.

Upon her admission to LSUMC, she received stat hemodialysis through a venous catheter in her groin. Her creatinine was reduced to 18.4. A catheter was placed in a right neck vein for hemodialy-sis on November 28, 1994. Mrs. Costa was discharged from LSUMC on November 30, 1994. A Tenckhoff catheter, used for peritoneal dialysis, was surgically placed in Mrs. Costa on December 9, 1994. Mrs. Costa preferred peritoneal dialysis, but occasionally she would have to rely on hemodialysis due to recurring problems with the Tenckhoff catheter and staph infections. Mrs. Costa remained on dialysis in either form for the remainder of her life. Mrs. Costa died on April 1, 1999, at the age of 42 of a heart attack.

PROCEDURAL HISTORY

A petition to impanel a Medical Review Panel filed by Mrs. Costa and her husband, Michael Costa, was received by the Patients’ Compensation Fund on August 10, 1995. It was alleged by the Costas that Mrs. Costa had suffered acute renal failure due to Dr. Boyd’s medical malpractice. The Medical Review Panel rendered an opinion on October 8, 1997, concluding that Dr. Boyd failed to meet the applicable standard of |ficare. However, the panel also concluded that Dr. Boyd’s conduct was not a factor in the “alleged resultant damages.” The panel stated in its written reasons for its opinion:

A delay in diagnosis does not breach the standard of care in every case. However, it is our conclusion that the standard of care was not met solely for the following reason:
All hypertensive patients should receive baseline renal function and periodic laboratory follow-up examination. Dr. Boyd failed to obtain baseline or follow-up laboratory studies in a hypertensive patient on medication.
The conduct complained of was not a factor in the alleged resultant damages for the following reasons:
1. We find that this is a case of chronic renal failure and not acute renal failure.
2. Dr. Boyd’s treatment of her hypertension is appropriate and, as recorded in the record from LSUMC Nephrologists, has been continued in exactly the same dosage.
3. Although the diagnosis of chronic renal failure was delayed, it is not a contributing factor. in the eventual outcome of this case.

Deborah and Michael Costa filed suit on November 10, 1997, against Dr. Boyd and his place of employment, the Family Practice Clinic in Bossier City. In their answer, defendants pled Debra Costa’s own fault in failing to comply with treatment and, in the alternative, the fault of third parties. Mrs. Costa’s surviving spouse, Michael Costa, was substituted as party plaintiff upon Mrs. Costa’s death on April 1, 1999.

Trial was held in this matter on August 31, 2001. Numerous depositions, including that of Mrs. Costa, and medical records were admitted into evidence. The trial court issued written reasons for judgment on April 11, 2002. The trial court agreed with the Medical Review Panel pthat Dr. Boyd failed the meet the standard of care. The trial court concluded that the evidence established, more likely than not, that: (1) if Dr. Boyd had performed the lab tests sooner, then he would have been in a better position to treat Mrs. Costa and she would not have suffered the abrupt critical situation that she experienced from early November through the date of her release from LSUMC; (2) although Mrs. Costa would have suffered renal failure regardless of when she was tested and her condition would have worsened, her condition would not have worsened in the manner and time frame that it did; (3) Mrs. Costa suffered significantly more than she would have suffered had her condition been properly diagnosed earlier; and (4) although Mrs. Costa may have ultimately needed dialysis treatment, it would not have been in the manner and way in which she received it on or about November 22, 1994. The court awarded $30,000 in general damages and $6,150 in special damages representing the medical expenses incurred from November 22 through November 30, 1994. A claim for loss of consortium was denied. Judgment in accordance with the reasons for judgment was rendered on April 25, 2002. Dr. Boyd and the Family Practice Clinic appeal the judgment.

DISCUSSION

In order to recover against Dr. Boyd and the Family Practice Clinic, plaintiffs were required to establish, pursuant to La. R.S. 9:2794:

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

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

Breach of Standard of Care

Dr. Boyd and the Family Practice Clinic argue in their first assignment of error that the trial court was clearly wrong in finding that Dr. Boyd breached the applicable standard of care. As noted above, the Medical Review Panel declared that Dr. Boyd did not meet the standard of care when he failed to obtain baseline renal function and periodic follow-up lab studies, which should be received by all hypertensive patients.

Dr. Russell Roberts, who was on the Medical Review Panel, testified as an expert in family medicine. He stated that at some point during the course of diagnosis and treatment, Dr. Boyd should have ordered a baseline lab study. Dr. George Risinger, a family medicine practitioner, was also a | amember of the Medical Review Panel. Dr. Risinger agreed that it is important to get a baseline study and periodic lab work when treating a hypertensive patient in order to monitor changes in renal function, which permits the physician to determine if the treatment is preserving renal function. Dr. Risinger considered Dr. Boyd’s failure to order these lab tests to be a breach of the standard of care as Dr. Boyd was left unaware of the status of Mrs. Costa’s failing kidneys.

Appellants point to what occurred during the June 15, 1993, office visit as justification for why Dr. Boyd did not order baseline or periodic lab work to monitor the effects of Mrs. Costa’s hypertension. There is a notation from Dr. Boyd’s nurse on Mrs. Costa’s chart for that visit that reads, “Speak with you only.” Dr. Boyd recalled that when they were alone, Mrs. Costa told him that because she wanted expenses kept to a minimum, “she did not want a lot of tests done” and wanted medication samples. He believed her focus was more on economics than on her hypertension.

Dr. Boyd agreed that the standard of care with hypertension patients is to do a baseline lab profile. He also admitted that with a new patient who is hypertensive, he would normally order baseline lab work. However, Dr. Boyd stated that he did not do so in Mrs. Costa’s case because he believed that she did not want him to order it due to her financial situation.

Dr. Boyd remarked that his discussion with Mrs. Costa on June 15, 1993, and what he understood she wanted done changed the way he normally would have treated her, and he felt that she was aware of the potential consequences. He also alleged that he mentioned getting the lab |instudies done at LSUMC to Mrs. Costa. When questioned about the findings of the Medical Review Panel on the standard of care, Dr. Boyd stated that due to Mrs. Costa’ financial concerns, he disagreed with the conclusion because he felt some treatment was better than no treatment and he tried to control her blood pressure.

Dr. Roberts testified that Dr. Boyd should have documented Mrs. Costa’s financial concerns somewhere in the chart. The phrase “speak only” could have meant to Dr. Roberts that Mrs. Costa did not want a normal appointment and evaluation. Dr. Roberts opined that assuming Mrs. Costa told Dr. Boyd that she didn’t want the test, then he felt Dr. Boyd met the standard of care.

Mrs. Costa denied telling Dr. Boyd that she was having financial problems and could not afford her medication and office visits. In 1994, Mr. Costa had health insurance through his employer but his wife was not covered under this plan. Our review of the medical bills shows that Mrs. Costa paid for the services rendered by Dr. Boyd at least through November of 1994. We particularly note that the total cost of the blood tests (SMA Panel 14, CBC and SED Rate) amounted to a relatively inexpensive $80.

Dr. Boyd testified that the lab work was done in November 1994 at his suggestion, in spite of Mrs. Costa’s earlier financial concerns, because he felt he needed to determine what was causing her continued symptoms. This was contradicted by Mrs. Costa’s testimony that when Dr. Boyd suggested on November 21, 1994, that he give her additional injections and h Jet her wait a week to see if her condition improved, she asked him if he could do a blood test because she had been sick for so long.

It does not appear from the record whether or not Mrs. Costa’s financial situation improved between June 1993 and November 1994. Thus, it can be presumed that she still had the same concerns about the costs of lab work on the latter date. Yet, despite the financial considerations, Dr. Boyd now felt the test was important enough to override financial concerns.

If Dr. Boyd believed that Mrs. Costa could only afford incomplete treatment, then he should have refused treatment when she first voiced concerns about spending money on lab work. Mrs. Costa did not present him with an emergency situation in June of 1993, so he should have referred her to LSUMC for complete treatment of her hypertension at that time, regardless of any complaints that she may have had about waiting in line at LSUMC.

This assignment of error is without merit. Dr. Boyd clearly breached the applicable standard of care.

Causation

Appellants next contend that the trial court erred in finding that Dr. Boyd’s conduct caused damages to Mrs. Costa. We note that it is not alleged by plaintiffs that Dr. Boyd was responsible for Mrs. Costa’s end stage renal disease. Rather, it is alleged that had Dr. Boyd diagnosed Mrs. Costa’s progressive renal insufficiency or renal failure earlier, then she would have been able to start dialysis sooner and would not have | ^experienced the pain and suffering that she primarily endured in November of 1994.

The Medical Review Panel determined that Dr. Boyd’s conduct was not a factor in the “alleged resultant damages.” However, it is apparent the Medical Review Panel was referring to the chronic renal failure when it mentioned “resultant damages.” Dr. Risinger and Dr. Roberts each testified that the phrase “alleged resultant damages” in the panel’s opinion was a reference to the renal failure.

Expert testimony clarified why the delay in diagnosis did not cause the renal failure. Dr. Roberts concluded that the renal disease was progressive and the renal failure was inevitable. Controlling the blood pressure would have only prevented the damage from occurring as quickly. Dr. Roberts believed that although dialysis probably would have started sooner if the lab tests had been ordered- earlier, the delay in diagnosis did not affect the outcome of the kidneys. He conceded that in chronic renal failure due to hypertension, what renal function that is preserved depends on how well the blood pressure is controlled. Both Dr. Roberts and Dr. Ri-singer thought Dr. Boyd treated the hypertension appropriately, and both noted that her high blood-pressure medications, and their respective dosages, remained the same after her discharge from LSUMC as had been earlier prescribed by Dr. Boyd.

Dr. Roberts testified that for most individuals, dialysis will be considered once the creatinine level climbs to about four or five. He stated that for a patient Mrs. Costa’s age, the purpose of dialysis is to keep the Impatient alive until they can receive a kidney transplant. He agreed that dialysis for chronic renal failure could preserve renal function, but he added that there would not be enough kidney function left to be effective or otherwise the patient would not have needed dialysis in the first place. Thus, in patients with irreversible end-stage kidney disease, the renal function left when the patient enters dialysis is generally inconsequential. Dr. Roberts also explained that once a patient is placed on dialysis, he is probably going to receive a similar course of dialysis regardless of what kidney function he has remaining.

Dr. Risinger stated that Mrs. Costa’s end-stage renal failure due to hypertension would have happened regardless of when it was detected. He also stated that even though there was a delay in diagnosing the renal failure, the delay in commencing dialysis did not make a difference because the ultimate outcome was the same.

Dr. Risinger declared that all that can be done for declining renal function due to hypertension is to lower the blood pressure in order to prevent further damage to the kidneys. Dr. Risinger added that once the kidneys begin to fail due to long-standing high blood pressure, the only courses of treatment are dialysis and transplant. Dr. Risinger could not answer whether there was ever a time in which Mrs. Cos-ta’s kidney disease was reversible.

The trial court granted recovery to Mrs. Costa for the pain and suffering she experienced in November of 1994, which the court considered to be “extremely severe.” The court concluded that this pain and suffering |ucould have been alleviated or greatly minimized had Mrs. Costa’s declining renal function been diagnosed in a more timely manner.

Appellants contend that plaintiffs cannot prevail because there was no expert testimony presented establishing that Mrs. Costa would have suffered less had she commenced dialysis earlier. However, this contention is not supported by Dr. Rising-er’s testimony:

Q: And isn’t it a fact that had you sought an opinion, or this doctor sought an opinion, had he known of her end stage renal failure and her increase in BUN and creatinine, that more probably than not she would not have had the condition as she got on November 22nd, '94?
A: She would have not had the level of the BUN and creatinine.

Dr. Roberts testified that some signs of renal failure include nausea, vomiting, fatigue and general malaise. Mrs. Costa reported having these symptoms. Dr. Roberts stated that in a chronic renal failure case, if the patient was otherwise functioning well, the increase in creatinine was probably slow and tolerated by the patient. He noted that Mrs. Costa was still able to function even with her elevated BUN and creatinine levels. He also noted that without detection and dialysis, Mrs. Costa would have become progressively sicker. Dr. Risinger testified that there are no symptoms of renal failure until it gets very far along, but the patient generally doesn’t feel well.

Mr. Costa recalled that in October of 1994, his wife was complaining of backaches, problems with her eyes, vomiting and her nerves. He stated that in early November, Mrs. Costa was unable to keep her food down. Mrs. Costa was examined by Dr. Boyd on November 3, 1994, when she |1Bcomplained of coughing, nausea, vomiting and shakiness. On that date, her face was swollen and her eyes were “matting.” Mrs. Costa remembered also being fatigued and having diarrhea. Dr. Boyd thought her symptoms were caused by an upper respiratory infection. Mrs. Costa recalled Dr. Boyd telling her that she had the flu. Over approximately the next two weeks, Dr. Boyd prescribed medications for dizziness, anxiety, nausea and vomiting.

Mrs. Costa was next examined by Dr. Boyd on November 21, 1994. Mrs. Costa was very fearful because she felt weak and as if she was dying. She testified that Dr. Boyd still thought she had the flu and wanted to wait another week to see what happened. She also testified that she requested a blood test because she had been sick for so long. Mrs. Costa stated that she continued vomiting that night.

Mrs. Costa testified that she felt even worse the next day, November 22. Her hands, feet and face were swollen; her vision was blurred; and she felt like her bones were aching. When she called Dr. Boyd’s office to inquire about the test results, she was told to come to the office and that afterwards she would need to go to the hospital. “When her mother, Eleanor McConaha, arrived to drive her to Dr. Boyd’s office, Mrs. Costa was sitting on her bed, unable to move or dress herself. Her sister-in-law, Carol Harris, recalled finding Mrs. Costa weak and unable to walk.

Mrs. Costa testified that when Dr. Boyd showed her the lab results, he told her that she was a “walking dead woman.” Mrs. McConaha and Mrs. Harris corroborated this, although Dr. Boyd did not recall making this statement. He testified that he would have said that Mrs. Costa was very 11fisick. Dr. Boyd did not consider Mrs. Costa to be so critical on this date that she needed to be transported by ambulance. Her vital signs were stable and she had a normal blood pressure, respiratory rate and pulse. In any event, she needed to be hospitalized and receive dialysis for her kidneys.

Appellants further argue that any suffering Mrs. Costa experienced due to the delayed diagnosis was offset by the suffering she would have experienced had she commenced dialysis earlier.

According to Dr. Roberts, dialysis is a difficult treatment for the patient, with some patients putting it off for as long as possible. While Dr. Roberts felt that dialysis would make a person having many of the signs of renal failure feel a little bit better, it would be a “wash out” as to how they would feel. He added that most people don’t see much improvement because they start it before they begin feeling ill. Dr. Risinger agreed that doctors do not like to place patients on dialysis unless they have to, and they try to delay it as much as possible if they can keep the patient’s condition under control.

Hemodialysis is done directly through a blood vessel, and it involves filtration of the blood. Peritoneal dialysis is done through the abdominal wall, and involves filtration through the peritoneal cavity. Dr. Roberts thought most patients preferred peritoneal dialysis because it allowed more freedom, could be done at home and was less of a shock to the system.

When Mrs. Costa was admitted to LSUMC in November 1994, she underwent hemodialysis at first through a catheter in a vein in her groin and then through a catheter in a neck vein. A Tenckhoff catheter to be used for |17peritoneal dialysis was surgically placed in her abdomen on December 9, 1994. The Tenckhoff catheter was surgically redirected on December 22, 1994, because it was not functioning. Her hemodialysis was moved to the Shreveport Dialysis Clinic that month.

Mrs. Costa began peritoneal dialysis in early 1995. In April of 1995, Mrs. Costa was hospitalized overnight with staph peritonitis due to the peritoneal dialysis. That July, she suffered a staph infection at the Tenckhoff catheter exit site and was hospitalized. Another staph infection was diagnosed in October. The Tenckhoff catheter was surgically removed at LSUMC on December 7, 1995, due to recurrent peritonitis, and a catheter for temporary hemodial-ysis was placed in a vein in her neck on December 11, 1995. On December 29, 1995, a Permacath catheter was placed in a vein in the right side of her neck. The Permacath catheter was replaced on January 22, 1996, because it was not functioning.

A Tenckhoff catheter was surgically placed in Mrs. Costa’s abdomen on February 1, 1996. A lab report from February 6, 1996, showed a light growth of staphylococcus at the exit site. The Tenckhoff catheter was redirected on February 23, 1996, because it was not functioning properly and the flow needed to be reestablished. Peritoneal dialysis was resumed in March of 1996. The Permacath catheter in the neck vein used for hemodialysis was removed on March 8, 1996. In July of 1996, Mrs. Costa was diagnosed with peritonitis and was again hospitalized. In September of 1997, there was a light growth of staph aureus in her peritoneal fluid. Mrs. Costa apparently remained on peritoneal dialysis until her death.

11RMrs. Costa preferred peritoneal dialysis because she could do it at home while in bed, which made it more convenient, and she felt that it left her with more energy. She was on the peritoneal dialysis machine each night for approximately eight hours and 45 minutes, and during this time she kept a bathroom chair in her bedroom. Mrs. Costa testified that the dialysis was not something that she would want anyone to experience. She stated during her April 1996 deposition that she felt improvement since returning to peritoneal dialysis a month earlier.

Dialysis was clearly not a pleasant experience for Mrs. Costa. However, the record is clear that Mrs. Costa endured pain and suffering in November of 1994 due to the elevated BUN and creatinine levels. It is gross speculation to suggest that if Mrs. Costa had started dialysis earlier, then the aforementioned pain and suffering would have been simply replaced by the discomfort of dialysis that Mrs. Costa may have experienced with earlier dialysis. The trial court was not clearly wrong in assessing damages against Dr. Boyd in this matter. This assignment of error is also without merit.

Award of Medical Expenses

Appellants argue in their penultimate assignment of error that the trial court erred in awarding $6,150 in medical expenses incurred by Mrs. Costa at LSUMC in November of 1994. They assert that Mrs. Costa would have had these expenses regardless of when she began dialysis.

Dr. Boyd testified that a patient needs to be hospitalized initially for hemodialysis in order for vascular access to be obtained and for the 11 filtration to be monitored. A catheter is inserted into an artery to obtain the access, which is usually done by a vascular surgeon.

Dr. Roberts testified that a patient is usually admitted to a hospital for the first few dialysis treatments and to obtain catheter access. He testified that for hemo-dialysis, a surgeon generally puts in permanent access while a nephrologist would generally put in only temporary access. Dr. Roberts stated that a hospital setting was the only place to safely gain vascular access for hemodialysis.

A plaintiff may ordinarily recover reasonable medical expenses, past and future, which he incurs as a result of an injury. Whitthorne v. Food Lion, Inc., 30,105 (La.App.2d Cir.1/21/98), 706 So.2d 193. Regarding the standard of review for special damages, this court has stated:

The discretion afforded the trier of fact to assess special damages is narrower or more limited than the discretion to assess general damages. Some special damages, such as medical and related expenses, cost to repair or replace damaged property, loss of wages, etc., are easily measured. A plaintiff pleading a special damage must produce some evidence by which that loss can be reasonably measured. Proof of a potential special damage or loss does not meet a plaintiffs burden of proof.

Eddy v. Litton, 586 So.2d 670 (La.App. 2d Cir.1991), writ denied, 590 So.2d 1203 (La.1992). See also, White v. Wal-Mart Stores, Inc., 32,621 (La.App.2d Cir.3/3/00), 753 So.2d 995, writ denied, 00-1222 (La.6/23/00), 765 So.2d 1041; Moody v. Blanchard Place Apartments, 34,587 (La.App.2d Cir.6/20/01), 793 So.2d 281, writ denied, 01-2582 (La.12/14/01), 804 So.2d 647.

|anWe note from the outset that the total amount of all the medical expenses reflected in Plaintiffs Exhibit (“P-5”) is $6,150, the amount awarded by the trial court. This total amount includes expenses incurred from April 11, 1995, through July 14, 1995. The trial court clearly stated that the medical bills incurred from November 22 through November 30, 1994, were recoverable special damages. P-5 shows that medical expenses of only $4,610 were actually incurred during this period.

The uncontradicted testimony cited above was that Mrs. Costa would likely have been admitted to the hospital to begin dialysis regardless of when she was diagnosed with renal failure. Nevertheless, the record supports the finding that Mrs. Costa incurred additional expenses when she was admitted on November 22, 1994, due to her condition at that time. Mrs. Costa’s November 30,1994, discharge summary reads that she received “stat” hemodialysis on the date of admission.

It is clear that Mrs. Costa’s elevated creatinine and BUN levels caused her to incur medical expenses from medical treatment that more probably than not she would not have received had she commenced dialysis at an earlier time. Based upon our review of the record, we conclude that the following expenses from November 22, 1994, were incurred due to Dr. Boyd’s malpractice:

• $65 for X-rays of the chest and abdomen;
• $155 for renal scan ultrasound;
|21* $220 for EMS;
• $65 for an arterial puncture;
• $25 for an EKG rhythm;
• $275 for a complete echo;
• $165 for Doppler echocardiogram;
• $150 for Doppler color flow velocity; and
• $545 for acute hemodialysis catherization.

These total $1,665. The awarding of any additional medical expenses incurred at LSUMC in November of 1994 was an abuse of the trial court’s discretion as they were not incurred due to Dr. Boyd’s conduct. Therefore, we amend the award of special damages to reduce it to $1,665, and as amended, the award of special damages is affirmed.

Allocation of fault

Appellants contend in their final assignment of error that the trial court erred in not reducing Dr. Boyd’s fault due to the noncompliance of Mrs. Costa and the negligence of Dr. John Leopard, the first physician to treat her hypertension.

La. C.C. art. 2323 sets out Louisiana’s comparative fault scheme. Petre v. State ex rel. Dept. of Transp. and Development, 01-0876 (La.4/3/02), 817 So.2d 1107. In Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985), the supreme court provided guidelines for determining degrees of fault:

12?Iu determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.
In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Id., 469 So.2d at 974.

A trial court’s findings regarding percentages of fault are factual and will not be disturbed on appeal unless clearly wrong. Socorro v. City of New Orleans, 679 So.2d 931 (La.1991); Baughman v. State, Dept. of Transp. and Development, 28,369 (La.App.2d Cir.5/8/96), 674 So.2d 1063, writ denied, 96-1882 (La.11/1/96), 681 So.2d 1260.

Dr. John Leopard, who specialized in family practice, first treated Mrs. Costa on February 7, 1992, for complaints of headaches, nausea and diarrhea. Diagnosing hypertension, he prescribed 100 mg of Lopressor daily. Dr. Leopard prescribed the diuretic Lasix on April 16, 1992, because Mrs. Costa’s blood pressure remained elevated. He treated Mrs. Costa for an upper respiratory infection in June of 1992. On October 5, 1992, he prescribed Corgard, an anti-hypertension medication, to supplement the Lopressor. Dr. Leopard may have discontinued the Lopressor on Mrs. Costa’s next visit, December 2, 1992, although a refill of Lopres-sor was ^called in for her on December 9, 1993. Dr. Leopard was not aware that Dr. Boyd was treating Mrs. Costa at that time. Dr. Leopard last saw Mrs. Costa in December of 1992. He did not feel that her blood pressure was controlled when he was treating her.

Dr. Leopard did not order any baseline lab work on Mrs. Costa during the time he treated her. He stated that in 1992, the younger a hypertension patient was, the less likely he was to order lab work, although he felt he was remiss in not ordering lab work in Mrs. Costa’s case.

Appellants point to excerpts from Dr. Leopard’s deposition testimony where he seemingly admitted to breaching the standard of care. At first, during examination by plaintiffs counsel, Dr. Leopard agreed that the standard of care for a family practitioner in 1992 was to order lab work and get a baseline study for hypertension patients and to do periodic testing. However, later during examination by defendant’s counsel, Dr. Leopard stated that while such studies were “good medicine,” they would not have been required at the time, even though he felt that he fell below the standard of care. We refer to Dr. Leopard’s testimony on this point:

Q: You stated that based on your understanding, in '92 the standard of care required baseline lab for a hypertensive patient. Is that what your testimony is?
A: If that’s the way it came out, I don’t think that’s exactly what I said. I think that would be considered a good standard of care. Whether or not it was, quote, unquote, a “standard of care,” I don’t know.
Q: Okay. I’m trying to — Mr. Miller asked you the question two or three different times, and I was not quite sure of your answer. But do you feel — is it your opinion that back in '92 the standard of care for family practice | ^required or mandated baseline lab studies with all hypertensive patients?
A: I am not aware that it mandates or requires that. I think that would very much be a good standard of care, but whether or not it was mandated or required, I don’t have any idea.
Q: Back in '92, do you feel that the standard of care was and required baseline lab for a lady like this who was hypertensive?
A: Required, no.
Required, no. Good medicine, yes. <1
Okay. Do you feel that you fell below the standard of care yourself in not— <3?
By my own definition, yes. i>
You do? >0
Yes. t>
Do you feel that you fell below the standard of care by not ordering baseline lab on her? <0
A: Or getting any lab work on the lady in the entire time I treated her.
G: Okay. So your testimony is you feel that you fell below the standard by not doing that? And I’m not trying to—
A: If this other doctor did, yes, sir, I did. Now, again, if we’re speaking of requirement, neither of us did. Good medicine, yes. If he didn’t order it, as I didn’t order it, then we did.

Dr. Leopard added to the confusion by stating that he was referring to the standard of care in 1998 when questioned about his earlier testimony that he did not follow the standard of care in failing to get a baseline study. |{,K We believe that what Dr. Leopard meant was that his own conduct did not fall below what the law required in terms of a standard of care, but the standard of care by his own definition, which really meant what he felt was “good medicine.” We again turn to his testimony on this point:

Q: And I need to know why you wouldn’t do it, because if you’re on the stand in this case and' I’m ques-tiomng you in front of a jury, I need to know what your response is going to be.
A: I think the standard of care in all aspects of medicine has improved these last six years. I don’t think we held doctors as closely as we do now as relates to studies done on the patients for any particular disease. Now, that’s not to say it’s okay. I said I thought I was remiss by not ordering those studies. That wasn’t as good of medicine as I would like to practice, but I don’t think it was outside the realm of the standard of care. I hope that answers your question.
Q: It does. So I think what you’re telling me is that it’s going to be your testimony that when you treated this lady beginning in February of 1992, that it was not the standard of care for all hypertensive patients .to receive baseline renal function and periodic laboratory follow-up examinations?
A: Counselor, standard of care can mean many things. It can mean what’s good medicine but not necessarily a required standard of care. A standard of care to me relates to specific needs that have to be met, and I don’t think those things — that baseline lab work was thought of as being important in 1992 as it is in 1998.

Mrs. Costa was diagnosed with chronic renal failure. Dr. Boyd testified that chronic generally means that the condition existed for a period of at least two to three years. He thought Mrs. Costa was in chronic renal failure even when Dr. Leopard saw her in 1992. Dr. Roberts estimated that Mrs. Costa’s kidneys had been in failure for a number of years. Dr. Rising-er would not offer any opinion as to when Mrs. Costa’s kidneys first l^began to become damaged from the hypertension, partly due to the lack of lab work. Dr. Risinger stated that (without lab reports) it was impossible to pinpoint when the renal failure began, although the ultrasound of the kidneys showed it had been going on for a prolonged period, probably for a number of years. Thus, it is possible that Dr. Leopard would have diagnosed her kidney condition if he had ordered lab tests when he treated her.

Nevertheless, it must be kept in mind that the failure to order lab tests was not what caused Mrs. Costa’s renal failure. Instead, she recovered damages for the pain and suffering she mostly endured in November of 1994 due to the failure to perform baseline and periodic lab studies. Dr. Leopard last examined Mrs. Costa nearly two years before she suffered her damages. His failure to order lab tests is simply too attenuated from Mrs. Costa’s damages (symptoms of renal failure) to find causation. Moreover, had Dr. Boyd ordered lab work at any point over the almost 18 months that he treated her, he would have noticed the elevated BUN and creatinine levels, referred her to a nephrol-ogist and likely spared her from what she experienced in November of 1994.

Appellants next point to incidents of noncompliance by Mrs. Costa as support for their contention that Mrs. Costa should bear some fault for her damages. There are two instances prior to November of 1994 when Mrs. Costa was allegedly not taking her blood pressure medication. Mrs. Costa reported to Dr. Leopard on March 17, 1992, that she had been out of Lopressor for three days. Mrs. Costa testified that she took her Lopressor 1 ^every day, as prescribed by Dr. Leopard. Dr. Boyd’s medical records reflect that Mrs. Costa reported on November 15,1993, that she was not taking her Lopressor. Dr. Boyd stated that he considered placing Mrs. Costa on Procardia on this date, but he did not do so because she had not been taking her Lopressor. Mrs. Costa testified that she took her medications as prescribed while being treated by Dr. Boyd, and she added that if she could not afford her medications, then her mother would purchase them.

These were the only two incidents of medication non-compliance over a period of more than two years. Moreover, the medical testimony was consistent that the declining renal function was inevitable and that controlling the blood pressure (through medication) would have only preserved what little, inconsequential function remained. In addition, it must be remembered that Dr. Boyd was not held liable for causing her renal failure.

Appellants also direct this court’s attention to the severing of the doctor-patient relationship by Mrs. Costa’s orthopedist, Dr. Michael Acurio, who treated her for a knee injury in 1992. Dr. Acurio recalled that Mrs. Costa stopped going to physical therapy, and did not come back for an examination for seven months during her treatment. Except as possibly evidence of a habit of non-compliance, Mrs. Costa’s history with Dr. Acurio has no significance in this matter.

Finally, appellants point to Mrs. Costa’s weight gain, which ultimately excluded her from a position on the kidney transplant list, and her failure at times to appear for dialysis. Mrs. Costa was considered an 1 ^excellent candidate for transplant in February 1996, except she was moderately overweight. In June of 1998, she was still considered an excellent candidate, but she needed to lose 50 pounds. In March of 1999, she was no longer considered a transplant candidate due to her obesity. We note that all of this occurred ■ after November of 1994.

Based on our review of the record, we cannot conclude that the trial court was clearly wrong in assessing Dr. Boyd with 100% of the fault for the pain, suffering and mental anguish experienced by Mrs. Costa due to Dr. Boyd’s failure to order baseline blood tests.

DECREE

At appellants’ cost, the judgment is AMENDED to reduce the award of special damages, and as amended, the judgment is AFFIRMED.

      . Dr. Boyd had earlier treated Mrs. Costa on November 5, 1991, on a referral from her orthopedic surgeon. She was complaining of cough and congestion at the time, and was not well enough to undergo a scheduled knee surgery. Dr. Boyd diagnosed an upper respi-ratoiy infection.

      . "Stat” in. medical terminology is apparently short for the Latin word "statim,” which means immediately or at once.

      . Progress Notes from November 22, 1994, state: "[Right] femoral dialysis catheter procedure deemed emergent.” A catheter was placed in her groin for hemodialysis at that time. A catheter for hemodialysis was placed in her neck six days later.

      . The same is true for the report in the LSUMC records from 1996 that Mrs. Costa did not take her blood pressure medications because they made her ill when taken on an empty stomach.


source: Caselaw Access Project

author: | MAMES F. McKAY III, Judge.

license: Public Domain

text:
    SUCCESSIONS OF Elise Joynes Tanner, Wife of/and Clifford Chester TANNER.
    No. 2002-CA-1570.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 2003.
    Rehearing Denied Feb. 28, 2003.

      Charles B. Johnson, Coleman, Johnson, Artigues & Jurisich, L.L.C., New Orleans, LA, for Appellants, Sandra Tanner, Orey Tanner, Jr. and Joan Martin.
    Morris Hyman, New Orleans, LA, for Appellee, Jerald N. Andry, etc.
    Max Nathan, Jr., Glenn S. Newbauer, Sessions, Fishman & Nathan, L.L.P., New Orleans, LA, for Appellee, Jerald N. An-dry, as Executor of the Estate of Clifford Chester Tanner.
    (Court composed of Judge CHARLES R. JONES, Judge, JAMES F. McKAY III, Judge, MICHAEL E. KIRBY).
   | MAMES F. McKAY III, Judge.

The appellants, Sandra Tanner, Orey Tanner, Jr., and Joan Martin, appeal the judgment of the trial court dismissing their petition to nullify testamentary bequest with prejudice and granting appel-lee’s, Jerald N. Andry, motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

Clifford Chester Tanner died testate on April 25, 2001; his last will and testament was dated April 12, 2001. His wife, Elise Joynes Tanner, pre-deceased him and died intestate. There were no children born of their marriage. In Mr. Tanner’s last will and testament he bequeathed the following: His furniture and personal belongings to the Volunteers of America; an undivided one-half (1/2) interest in his estate, free of all taxes and administrative charges, to Jerald N. Andry; one-eighth (1/8) interest in his estate, free and clear of all taxes and charges, to Sandra Tanner and Orey Tanner, Jr.; one-eighth (1/8) interest to the Theodore Roosevelt Lodge, # 415, Free and Accepted Masons; one-eighth (1/8) of liJiis estate to the Eneircler Chapter, # 191, Order of Eastern Star; and the remaining one-eighth (1/8) of his estate to Mrs. Joan Martin.

On May 17, 2001, a succession proceeding was filed. The last will and testament of Clifford Chester Tanner was probated and letters’ testamentary were issued to Jerald N. Andry as executor of the succession. On August 9, 2001, the appellants, the only living relatives of the decedent, who are also particular legatees under Clifford Tanner’s will, filed a petition to nullify testamentary bequest. On November 2, 2001, the appellants amended their petition allegations to state that Jerald N. Andry violated the Louisiana Bar Association Rules of Professional Conduct, Rule 1.8(c), by preparing a testament for a non-relative in which he received a substantial gift. On April 9, 2002, Jerald N. Andry filed a motion for summary judgment requesting that appellants’ petition be dismissed with prejudice. The matter was heard on May 24, 2002. On June 11, 2002, the trial court signed the judgment granting the appellee’s motion for summary judgment and dismissed the appellants’ petition to nullify testamentary bequest.

The bequest to Jerald N. Andry is the prominent issue of dispute in this appeal with the appellants asserting an undue influence claim against Jerald Andry and a violation of the Louisiana Bar Association Rules of Professional Conduct, Rule 1.8(c).

STANDARD OF REVIEW

Appellate courts review summary judgments de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342, 345 (La.1991). Regardless of whether or not summary judgments are favored, the amended version of C.C.P. art. 966 does not change the law regarding the burden of proof in a summary judgment | ^proceeding. Moore v. Delta Waste System, Inc., 96-1984 (La.App. 4 Cir. 3/12/97), 690 So.2d 1108, 1109. The burden of proof remains on the mover to show “that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” Id. at 1110. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any issue of material fact, and whether the mover is entitled to judgment as a matter of law. Daniel v. Blaine Kern Artists, Inc., 96-1348 (La.App. 4 Cir. 9/11/96), 681 So.2d 19, 20. Procedurally, the court’s first task on a motion for summary judgment is determining whether the moving party’s supporting documents, pleadings, deposition, answers to interrogatories, admissions and affidavits, are sufficient to resolve all material factual issues. Id. At that point, the party opposing the motion must “make a showing sufficient to establish the existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial.” Oakley v. Thebault, XYZ, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. In determining whether an issue is “genuine”, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Daniel, 681 So.2d at 20.

DISCUSSION

Appellants assert that the trial court erred in granting the defendant’s motion for summary judgment arguing that they have satisfied the evidentiary burden of proof required under the provisions of La. C.C. Pro. art. 966 C(2) to prove that there is a genuine issue of material fact with respect to both undue influence and | violation of Rule 1.8(c) of the Louisiana State Bar Association Rules of Professional Conduct.

Appellants contend that Jerald Andry unduly influenced Clifford Tanner into changing his last will and testament to include Jerald Andry as the beneficiary of a one-half (1/2) interest in his estate, a bequest valued in excess of $500,000.00. The appellants claim that Jerald Andry was not related to the decedent nor was there a significant personal relationship between them, thereby casting aspersions upon Jerald Andry’s alleged actions concerning the redrafting of Clifford Tanner’s last will and testament. The appellee refutes these allegations and asserts that he indeed had a good relationship with the decedent that spanned a number of years. He also asserts that he attempted to dissuade Clifford Tanner from naming him a beneficiary. The alleged purpose for the change from the 1997 testament was at the behest of Clifford Tanner because a particular legatee, Clifford Prendergast his friend, had predeceased him. Appellee also asserts that he did not draft the final testament of Clifford Tanner but that it was prepared and notarized by attorney, Morris Hyman, and independently witnessed by Gilbert Andry and Newell An-dry.

Clifford Tanner was admitted to the hospital on April 9, 2001, apparently due to complications from terminal cancer. The decedent signed the last will and testament at issue in this appeal on April 12, 2001. Clifford Tanner was transferred and admitted to Canon Health Care, a hospice, on April 14, 2001, and died on April 25, 2001 at the age of 93.

| RArticle 1479 of the Louisiana Civil Code provides for the nullification of a donation that is procured through undue influence. It provides:

A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor.

Furthermore, Comment (b) to Article 1479 provides, in part:

[Ejveryone is more or less swayed by associations with other persons, so this Article attempts to describe the kind of influence that would cause the invalidity of a gift or disposition. Physical coercion and duress clearly fall within the proscription of the previous Article. The more subtle influences, such as creating resentment toward a natural object of a testator’s bounty by false statements, may constitute the kind of influence that is reprobated by this Article, but will still call for evaluation by the trier of fact. Since the ways of influencing another person are infinite, the definition given in this Article is used in an attempt to place a limit on the kind of influence that is deemed offensive. Mere advice, or persuasion, or kindness and assistance, should not constitute influence that would destroy the free agency of a donor and substitute someone else’s volition for his own.

La.Civ.Code art. 1483 states:

A person who challenges a donation because of fraud, duress, or undue influence, must prove it by clear and convincing evidence. However, if, at the time the donation was made or the testament executed, a relationship of confidence existed between the donor and wrongdoer and the wrongdoer was not then related to the donor by affinity, consanguinity or adoption, the person who challenges the donation need only prove the fraud, duress, or undue influence by a preponderance of the evidence.

When seeking to annul a donation on the basis of undue influence, this Court has held that it is not sufficient to merely show that the donee exercised some degree of influence over a donor; instead, the challenger must show that the donee’s influence was so substantial that the donnee substituted his or her volition for that of the donor. Succession of Cole, 618 So.2d 554, 558 (La.App. 4 Cir.1993). To annul a testamentary disposition on the basis of undue influence, the influence must be operative at the time the testament is executed. Succession of Deshotels, 98-1467 (La.App. 4 Cir. 5/12/99), 735 So.2d 826, 832. Undue influence may not be established by evidence of mere advice, or persuasion, or kindness and assistance. Succession of Cole, 618 So.2d at 558. Such advise, persuasion and assistance ‘does not destroy free agency of the donor and substitute someone else’s volition.’ Succession of Anderson, 26,947 (La.App. 2 Cir. 5/10/95), 656 So.2d 42, 45. When the evidence shows that the execution of a testament was well-within the discretion of the testator, the court should find that the testator’s volition has not been substituted by the volition of any donee. See Succession of Cole, at 558.

In this case, because Jerald Andry was the decedent’s attorney, and not related to the decedent by blood, the appellants had to prove undue influence by a preponderance of the evidence rather than the more strenuous burden of clear and convincing evidence. See Succession of Braud, 646 So.2d 1168.

The law of undue influence is “relatively new in Louisiana”. Prior to 1990, the code prohibited the admission of proof that a disposition had been made “through hatred, anger, suggestion or capitation.” La. C.C. art. 1492 (repealed). In light of this nearly insurmountable burden, courts considered evidence of influence only when it affected, or virtually destroyed, the mental capacity of the testator. See, e.g., Succession of Hamiter, 519 So.2d 341 (La.App. 2 Cir.1988). In 1989, however, the legislature repealed art. 1492, and in 1991 enacted art. 1479, which specifically allows evidence of undue influence to nullify a will. This change in the law shows a legislative intent to follow the guidance of common law | .¡.jurisprudence on undue influence. Succession of Dowling, 633 So.2d 846 (La.App. 4 Cir.1994); La. C.C. art. 1479, Revision Comment (b).

Appellants base this assertion on the lack of any blood relationship between Clifford Tanner and Jerald Andry; the bequest to Jerald Andry could only have occurred because of undue influence asserted on their uncle by Jerald Andry; and the fact that their uncle was a spendthrift and on his deep emotional ties to various Masonic organizations, There is no support for the appellants’ assertion that Jerald Andry influenced Clifford Tanner is such a way to replace his volition for that of Clifford Tanner. Appellants’ evidence indicates only that the appellants believe that Clifford Tanner’s will was in fact drawn up and executed by Jerald Andry and the execution thereof was witnessed only by Gilbert Andry, Jerald’s Andry brother and his wife Newell.

Jerald Andry testified that attorney Morris Hyman prepared and notarized Clifford Tanner’s last will and testament at Clifford Tanner’s behest. He also admits that it is a virtual duplication of the 1997 testament, which had been prepared by Clifford Tanner’s friend and then attorney, Fred Siegel, with a few major changes as to the particularized bequests. Furthermore, Jerald Andry was the named executor in the 1997 testament as well as the 2001 testament.

Morris Hymen testified that he drafted the testament using the 1997 will as a guide. He further testified that he read the proposed testament to Clifford Tanner in front of two witnesses and that Clifford Tanner indicated that the document reflected his own wishes and was in fact his last will and testament.

Appellants’ beliefs are clearly based on pure conjecture, not evidence and fall short of the factual support needed to establish that the appellants would be able to satisfy their evidentiary burden at trial. The evidence presented does not | ^support the appellants’ assertion of undue influence. They express no first hand knowledge of the occurrences nor do they establish any specific instances that can be linked to the allegations of undue influence.

Clifford Tanner’s bequest to Jerald An-dry is not invalid merely because Jerald Andry may have conducted transactions on Clifford Tanner’s behalf nor merely because the 2001 testament differs from the 1997 testament. See Succession of Braud, 646 So.2d at 1172-73. Furthermore, no proof whatsoever has been offered to suggest that Clifford Tanner’s “free agency was destroyed” and that Jerald Andry’s “volition” was substituted for that of his own. See Succession of Anderson, 656 So.2d 42, 45. Finally, pure speculation is insufficient factual support. Shelton v. Standard/700 Associates, 2001-0587 (La.10/16/01), 798 So.2d 60, 65. Appellants need to prove by a preponderance of the evidence that Jerald Andry unduly influenced Clifford Tanner such that the testamentary bequest ought be annulled. La. C.C. art. 1483. Albeit Jerald Andry was Clifford Tanner’s attorney, appellant retained the burden of proving by a preponderance of the evidence that Jerald Andry unduly influenced Clifford Tanner. After a review of the record before this Court, we do not find that the decedent’s donative intent was impaired to the extent that the volition of Jerald Andry was substituted for that of Clifford Tanner. Appellants have failed to meet the prescribed standard and have failed to provide supporting documentation sufficient to resolve all material issues. Accordingly, we find no error in the trial court’s judgment finding that there was no undue influence on the part of Jerald Andry and in granting his motion for summary judgment.

As for the alleged violation of Louisiana Bar Association Rules of Professional Conduct Rule 1.8(c), the evidence clearly shows that Morris Hyman 13was the attorney that prepared and notarized the April 12, 2001 last will and testament of Clifford Tanner. The original method of distribution was clearly established in the 1997 testament, which Fred Siegel prepared as Clifford Tanner’s attorney. Jerald Andry prepared neither of the testaments albeit he was named executor in both. The fact that he was Clifford Tanner’s attorney and that he contacted Morris Hyman to prepare the new testament for Clifford Tanner is not determinative that Jerald Andry prepared or assisted in the preparation of the testament. Innuendo is neither evidence nor fact but merely unsupported speculation. The record has testimony from both Jerald Andry and Morris Hy-man that clarify that it was Morris Hyman who prepared and notarized Clifford Tanner’s last will testament. Clearly, there is no violation of Rule 1.8(c).

The record supports the trial court’s judgment. Therefore, for the above and foregoing reasons we affirm the trial court.

AFFIRMED.

      . Rule 1.8. Conflict of interest; Prohibited transactions. As a general principle, all transactions between client and lawyer should be fair and reasonable to the client. Furthermore, a lawyer may not exploit his representation of a client or information relating to the representation of the client's disadvantage. Examples of violations include, but are not limited to, the following. § c. A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.

      . Mr. Prendergast had been bequeathed firearms in the 1997 testament.

      . There was a prior testament in 1997, which was prepared by Mr. Tanner's attorney and friend Mr. Fred Siegel. Mr. Andry had, at that time, shared office space with Mr. Siegel.

      . Fred Siegel retired sometime after he prepared the 1997 testament and moved to Texas. At that point it appears that Jerald Andry became Clifford Tanner's attorney.


author: hMAX N. TOBIAS JR., Judge. JONES, J.

text:
    Sheryl A. JENKINS v. Anthony T. CAPASSO, La Auto Insurance and State Farm Mutual Automobile Insurance Company. Anthony T. Capasso v. Sheryl A. Jenkins.
    Nos. 2002-CA-0625, 2002-CA-0626.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 2003.
    Rehearing Denied Feb. 28, 2003.
    Robert B. NcNEAL, Monica L. Lacks, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, for Appellee, Anthony T. Capasso.
    Michelle D. Robert, New Orleans, LA, for Appellant, Sheryl A. Jenkins.
    (Court Composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, and Judge MAX N. TOBIAS JR.)
   hMAX N. TOBIAS JR., Judge.

The plaintiff, Sheryl Jenkins (“Jenkins”), filed suit on 16 December 1996, seeking damages for injuries allegedly sustained in an automobile accident. She named Anthony T. Capasso (“Capasso”) as one of the defendants, alleging he was the person driving the vehicle that struck her vehicle and causing her injuries. Service of the citation and petition was not requested when the suit was filed. Jenkins requested service on Capasso on 28 January 1998. Personal service was allegedly obtained on Capasso at 4330 Lennox Boulevard in New Orleanson 18 February 1998 at 8;35 a.m. Capasso never answered the suit and Jenkins obtained a default on 1 September 2000. A judgment confirming the default was obtained against Capasso on 25 October 2000.

On 20 March 2001, Capasso filed a petition to annul the 25 October 2000 judgment alleging that he was not served with the citation and petition and he had no knowledge of the suit and judgment until January 2001. Capasso filed a motion for summary judgment arguing that the affidavits and documents produced by him prove by clear and convincing evidence that he was not in New Orleans on 18 February 1998 and he was not personally served with the citation and petition. After reviewing the affidavits and documents produced by the parties, the trial court rendered judgment on 14 December 2001, granting Capasso’s motion for ^summary judgment and declaring the judgment of 25 October 2000 an absolute nullity.

Jenkins now appeals arguing that the trial court erred in its ruling. Jenkins contends that Capasso has not met his burden of proof. Jenkins relies upon the sheriffs return from the service of the citation and petition. The sheriffs return indicates that Deputy Rodney Andry personally served Capasso with the citation and petition at 8:35 a.m. on 18 February 1998. Andry also stated in an affidavit that on 18 February 1998, he made service of the citation and petition on Capasso, personally, at 4430 Lennox Boulevard, New Orleans, Louisiana. Andry further stated in his affidavit that he would not have filed a return showing personal service on Capasso if in fact he did not make such service and only made domiciliary service. Andry indicated that he had been a deputy sheriff for twenty years and he has never had a service challenged in court that was declared invalid.

In support of his motion for summary judgment, Capasso produced documentation that he had purchased a house in New Jersey on 2 May 1997 and he and his ex-wife sold the residence on Lennox Boulevard on 16 September 1997. Capasso stated in his affidavit that he moved to New Jersey in May of 1997 when he purchased a house in Highlands, New Jersey. He asserts that he was domiciled in New Jersey on 18 February 1998.

Capasso also produced affidavits of two business associates and a neighbor who stated that Capasso lived in New Jersey in February of 1998. Patrick J. Mason stated in his affidavit that he lived at 6 South Peak Street, Highland, New Jersey since May 1993 and that from May 1997 to April 2000, Capasso was his neighbor and lived at 8 South Peak Street, Highlands, New Jersey. Mr. Mason further stated that he knew Capasso was recently divorced and lived alone. Mr. |sMason also indicated that he saw Capasso on a weekly basis and went inside Capasso’s residence at least twice a month.

Karen A. Conner, an inventory control manager for a bulk liquid storage facility in New Jersey, stated that on 18 February 1998, Capasso was a sales liaison/marine lubricant representative with Mobil Oil Corporation (“Mobil”) and often used her company’s services to store and transport Mobil’s petroleum products. Ms. Conner further stated that she knew Capasso’s home address to be 8 South Peak Street, Highlands, New Jersey, as she sent business correspondence to Capasso’s home. Conner recognized her business telephone number on Capasso’s telephone bill indicating that Capasso called her business number and did call her from his home at 7:45 a.m. and 7:47 a.m. on 18 February 1998.

Robert R. Roosevelt, vice-president of operations for River Associates, Inc., stated that his company delivered marine lubricants for Mobil. Mr. Roosevelt stated that he knew Capasso’s home phone number, as Capasso was the contact person for Mobil. He also stated that he recognized his business phone number on Capasso’s telephone bill indicating that Capasso called him on 18 February 1998 at 1:26 p.m.

Capasso produced his Bell Atlantic and AT & T telephone bills which reflect that telephone calls were made from his home in Highlands, New Jersey on 18 February 1998 at 7:45 a.m., 7:47 a.m., 10:48 a.m., 11:31 a.m., 1:16 p.m., 1:24 p.m., 1:26 p.m., 2:04 p.m., 2:10 p.m., 2:47 p.m., 8:31 p.m., 8:33 p.m., 8:34 p.m. and 9:49 p.m. Capasso also produced his American Express statement, which revealed that his credit card was in Falls Church, Virginia on 17 February 1998 and a purchase from a Sunoco gas station in Oldmans Township, New Jersey on the same date using his credit card. The statement also indicated that a purchase from ROfficeMax in Holmdel, New Jersey was made on his credit card on 19 February 1998.

Summary judgment is properly granted only 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. C.C.P. Art. 966. Appellate courts review summary judgments de novo using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.

A return of citation shall be considered prima facie evidence of service. La. C.C.P. art. 1292. The return of the officer on the citation is given great weight, and the burden rests on the party attacking it to establish otherwise by clear and convincing evidence. Veillon v. Veillon, 517 So.2d 936 (La.App. 3 Cir.1987). A return of citation cannot be impeached by the uncorroborated testimony of a single witness, and it cannot be impeached by the uncorroborated testimony of the party upon whom service is stated to have been made by the officer. Roper v. Dailey, 393 So.2d 85 (La.1980). It is also well settled that a judgment rendered against a party who has not been served and who has not appeared is an absolute nullity. See C.C.P. art.2002.

In Citibank (South Dakota) N.A. v. Keaty, 599 So.2d 500 (La.App. 3 Cir.1992), Keaty sought to annul a default judgment obtained against her by Citibank. Keaty alleged that she was not served with the citation and petition. However, the certificate of service executed by the deputy who handled the service indicated that Keaty was personally served at her home in Lafayette, Louisiana. At trial, the deputy sheriff who handled the service testified that he served Keaty personally at her home on 9 July 1987, as reflected on the sheriffs return. The officer admitted | Kthat because of the volume of citations he serves, he could not recall the service on Keaty with any particularity. Keaty testified at trial that she could not have been served at her home in Lafayette on 9 July 1987, because she was in New Orleans from the evening of 5 July 1987 to 11 July 1987, preparing to attend law school. She stated that she found an apartment in New Orleans on 8 July 1987, and entered into evidence a photocopy of a check dated 8 July 1987, by which she paid her deposit on the apartment. She further stated that she was given the apartment keys on 8 July 1987 so that she could take apartment measurements, but that she had to return them to the apartment manager on 9 July 1987. Two other witnesses testified on behalf of Keaty. Merrilee Albright, testified that she met Keaty on 9 July 1987 at her (Albright’s) apartment in New Orleans at approximately 11:00 a.m., and that the two of them ate lunch at Copeland’s Restaurant, remaining there until almost 5:00 p.m. The appellate court found that the testimony of Mrs. Albright and the can-celled check written 8 July 1987, by which Keaty paid her deposit on her apartment, corroborated Keaty’s testimony that she was in New Orleans on 8 July 1987 and concluded that Keaty carried her burden of proof.

In the present case, Capasso has produced evidence to support his allegations that he was not in New Orleans on 18 February 1998 and that he was working, living, and in New Jersey on that date. Jenkins has produced the affidavit of Deputy Andry to prove that the sheriffs return is correct and that Capasso was personally served on 18 February 1998. In order to reach the conclusion no genuine issues of material fact existed and that Capasso was entitled to a summary judgment, the trial court had to weigh the evidence produced by both parties and assess the credibility. This court has noted that, in determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, | fievaluate testimony, or weigh evidence. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. In this case, all of the evidence was presented by affidavit. The affidavits were supplemented by documents prepared by third parties, which corroborate, in part, the accuracy and truthfulness of the affidavits. The affidavits produced by Capasso establish that Capasso personally made the telephone calls and personally made the American Express credit card charges. The copy of the act of sale of Capasso’s dwelling at 4330 Lennox Boulevard months before service of the citation and petition by Deputy Andry and the copy of the deed for a dwelling dated months before the service showing that Capasso owned a home in New Jersey reinforces the affidavits or other documentation.

A trial court is given vast discretion to determine facts. The documentation of Capasso when viewed in light of and compared to the documentation of Jenkins rises to the level of establishing by clear and convincing evidence that the sheriffs return on the citation is erroneous and that Capasso was not personally served on 18 February 1998. No genuine issue of material fact is shown. Thus, the trial court did not err in granting summary judgment in favor of Capasso.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

JONES, J. dissents with reasons.

JONES, J.

dissenting with reasons.

I respectfully dissent from the majority opinion. In the present case, Mr. Capasso has produced evidence to support his argument that he was not in New Orleans on February 18, 1998, and that he was working and living in New Jersey on that date. However, Sheryl Jenkins has also produced documentation and the affidavit of Deputy Audry to prove that the sheriffs return is correct and that Mr. Capasso was personally served on February 18, 1998. In order to reach the conclusion there were no genuine issues of material fact, and that Mr. Capasso was entitled to a summary judgment, the district court had to weigh the evidence produced by both parties and assess the credibility of the affiants. This Court has noted that, in determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Oakley v. Thebault, 96-0937 (La.App. 4 Cir.1996), 684 So.2d 488, 490. Thus, the district court erred in granting summary judgment in favor of Capasso. The judgment of the district court should be reversed for the reasons stated above.


author: JgKOSTELKA, J.

text:
    KEN LAWLER BUILDERS, INC., Plaintiff-Appellee, v. Cynthia M. DELANEY and Sandra Richardson Kittler, Defendants.
    No. 36,263-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 14, 2002.
    Rehearing Denied Sept. 12, 2002.

      Rogers & Hearne, By W. Lake Hearne, Shreveport, for Appellee.
    English & Associates, By Larry English, Shreveport, for Defendants.
    Before NORRIS, STEWART and KOSTELKA, JJ.
   JgKOSTELKA, J.

From the summary judgment granted in favor of Ken Lawler Builders, Inc. (“Lawler”) against Cynthia Delaney (“Delaney”) and Sandra Richardson Kittler (“Kittler”), Access. 1 Communications Shreveport, LLC (“Access!”), Intervenor, appeals. We amend the judgment, and, as amended, affirm.

Facts

On June 10, 1998, Lawler and Delaney Broadcasting, Inc. (“DBI”), through its representative, Delaney, entered into an immovable property lease agreement in which DBI agreed to pay Lawler $350 per month for an initial ten-year term (“Lawler-DBI lease”). DBI operated a radio business and was leasing the land to erect a radio tower. The lease provisions allowed DBI to assign the lease at any time along with any transfer of ownership of the tower.

DBI subsequently sold its interest in the radio station to Ninety-Five Point Seven, Inc., which in turn sold the radio station to Access! on September 6, 2000. The sale and assignment of assets, sold, assigned, transferred and delivered to Access! all right, title and interest in the Lawler-DBI lease.

Previously, on July 5, 2000, Lawler sold the immovable property subject to the lease to Mary Elizabeth Hutches (“Hutches”). Although the sale conveyed the property “subject to” the Lawler-DBI lease, Lawler “retain[ed] all rights to rentals due under said lease, including any renewals or extensions thereof.” The deed also provided that the covenants contained | atherein “shall bind ... successors and assigns of the parties hereto.... ” The sale was recorded in the Caddo Parish public records on July 7, 2000. By undated cash sale deed, Hutches sold the immovable property to Access!. The cash sale deed mentioned neither the lease nor the reservation of rights by Lawler.

On April 18, 2001, Lawler instituted suit, pursuant to the Lawler-DBI lease, against Delaney and Kittler for unpaid lease payments from November, 2000 forward. The petition alleged that the named defendants dissolved DBI on December 6, 1999, and, as its shareholders, Delaney and Kittler were liable under the lease.

On April 25, 2001, Access! tendered $1,400 to Lawler representing rent payments from November, 2000 to February, 2001, which it refused.

On May 21, 2001, Delany and Kittler filed exceptions of no cause of action, failure to join an indispensable party and a motion for summary judgment which the trial court denied on June 25, 2001.

Lawler sought a summary judgment on September 7, 2001. On September 28, 2001, Access! filed a Petition for Intervention into the suit which the trial court granted on October 2, 2001. Thereafter, Access! filed a pleading entitled Answer to Motion for Summary Judgment and Defendants Exceptions of Reconventional Demand for Summary Judgment. Therein, Access! opposed Lawler’s summary judgment, pled exceptions of no cause and no right of action and sought a summary judgment in favor of RAccess.l. Delaney and Kittler also opposed Lawler’s motion for summary judgment. Both Lawler’s and Access.l’s motions for summary judgment and Access.l’s exceptions were submitted on briefs without oral argument.

The trial court granted summary judgment on October 31, 2001, in favor of Lawler and against Delaney and Kittler, in the amount of $36,750. This appeal by Access! of the October 31, 2001 judgment ensued.

Discussion

On appeal, Access! specifies four errors. Notably, however, the issues raised in the first two assignments of error, i.e., that the trial court erred in denying Delaney’s and Kittler’s exception of no cause of action and failure to join an indispensable party, were disposed of by the trial court in the June 25, 2001 judgment which has not been appealed. Accordingly, these issues are the subject of a final judgment which we are precluded from addressing on appeal. La. C.C.P. art.2082. Specifically, these issues include Access.l’s claims that the lease was extinguished by confusion and that Lawler had no right to collect rentals under the reservation clause.

Access! has raised two issues on appeal in support of its no cause of action claim that were not presented to the trial court by Delaney and Kittler. Access! claims Lawler failed to allege facts sufficient to establish the personal liability of Delaney and Kittler and that Lawler has no cause |Bof action against Delaney and Kittler due to the eventual assignment of the lease to Access!.

We find, however, that these issues are not properly before us for review. While it is proper for an appellate court to consider a peremptory exception presented for the first time on appeal, it is necessary that the exception be “pleaded prior to a submission of the case for a decision.... ” (Emphasis added). La. C.C.P. art. 2163. In this case, the arguments are raised in brief and not by pleading. Briefs are merely written arguments and are not part of the pleadings on appeal. City of New Orleans v. Di Benedetto, 144 So.2d 558 (La.App. 1st Cir.1962). Further, as In-tevenor, Access! is required to take the proceedings as it finds them and cannot urge matters which enlarge the issues or raise issues between defendant and plaintiff which they have not themselves raised. Rubion Transfer & Storage Co. v. Louisiana Public Service Commission, 240 La. 440, 123 So.2d 880 (1960); State ex rel. Pope v. Bunkie Coca Cola Bottling Co., 59 So.2d 393 (La.App. 2d Cir.952), judgment affirmed, 222 La. 603, 63 So.2d 13 (1953); State ex rel. Temple v. Vernon Parish School Bd., 178 So. 176 (La.App. 1st Cir.1938). Because Delaney and Kittler failed to raise these arguments in their own behalf, Access! is precluded from doing so.

Lawler’s Summary Judgment

In its next assignment of error, Access! urges that the trial court erred in granting Lawler’s summary judgment.

| (Appellate courts review summary judgments de novo under the same criteria which govern the district courts’ consideration of whether summary judgment is appropriate. Schroeder v. Board ofSup’rs of Louisiana State University, 591 So.2d 342 (La.991); Steier v. Heller, 31,733 (La.App.2d Cir.05/05/99), 732 So.2d 787. The law governing the summary judgment procedure is set forth in La. C.C.P. art. 966. As amended in 1996, Article 966 provides that the summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except those disallowed by Article 969. La. C.C.P. art. 966(A)(2); Steier, supra; Traweek v. Jackson, 30,248 (La.App.2d Cir.02/25/98), 709 So.2d 867. The motion for summary judgment shall be granted 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. C.C.P. art. 966(B).

La. C.C.P. art. 967 provides that the opposing party cannot rest on the mere allegations or denials of his pleadings but must present evidence which will establish that material facts are at issue. Id. Ultimately, however, the burden of proof remains with the mover who must meet the initial burden of making a prima facie showing of entitlement to summary judgment. See, Mark Tatum and Judge William Norris, III, Summary Judgment and Partial Judgment in Louisiana: The State We’re In, 59 La. L.Rev. 131, 141 (1998).

In the case sub judice, neither Delaney, Kittler nor Access! submitted any documentation in opposition to Lawler’s summary judgment |7motion nor presented any argument in attached memo-randa. Nevertheless, on appeal, Access! makes two arguments in support of its claim that the trial court erroneously granted Lawler’s summary judgment. Notably, however, Access.l’s argument that Lawler possessed no right of action to sue under the lease because the reservation of rights terminated upon its transfer of the property was not presented to the trial court in opposition to the summary judgment. On those grounds alone, Access! would be precluded from first raising it on appeal. URCA Rule 1-3; Builders Supply of Ruston, Inc. v. Qualls, 32,630 (La.App.2d Cir.01/26/00), 750 So.2d 427; Risinger v. State Farm Mut. Auto. Ins. Co., 29,023 (La.App.2d Cir.06/18/97), 711 So.2d 293. Additionally, it is clear that this issue was first raised by Delaney and Kittler and rejected by the trial court in the June 25, 2001 judgment which has not been appealed. Although the issue was raised by an exception of no cause of action, it is the substance rather than the caption of a pleading that determines its effect. Brown v. Harrel, 98-2931 (La.App.4th Cir.08/23/00), 774 So.2d 225, unit denied, 2000-2665 (La.11/17/00), 774 So.2d 981. As discussed above, Access! is precluded from reurging it now.

The remaining argument raised by Access! in support of its claim that the trial court erroneously granted Lawler’s summary judgment is more accurately a claim contesting the amount of the judgment. While this claim pis appropriately before us for review, we will reserve discussion of it until after our resolution of the propriety of the summary judgment.

Even without opposing argument and documentation being submitted by Access! or Delaney and Kittler, it is nevertheless necessary that we evaluate the propriety of Lawler’s summary judgment. La. C.C. art. 967. After de novo review of the case, we agree with the trial court’s determination that summary judgment in favor of Lawler is appropriate. Of course, with issues regarding Lawler’s right and cause of action resolved, the remaining inquiry on summary judgment is simply whether any genuine issues of material fact remain as to Lawler’s right to collect rentals under the lease.

In support of summary judgment, Lawler submitted certified copies of the Lawler-DBI lease, the deed which transferred the property from Lawler to Hutches and the affidavit of Kenneth Lawler, the President of Lawler. In his affidavit, Kenneth Lawler stated that Lawler entered into the lease with DBI for an initial term of ten years, beginning September 1, 1998, for the sum of $350 per month. The affidavit also indicated that the lease was recorded in the public records of Caddo Parish, Louisiana. The certified copy of the Lawler-DBI lease submitted in support of the summary judgment confirms these statements.

Kenneth Lawler further declared that although Lawler sold the property to Hutches, the sale reserved all rights to rents under the lease to Lawler; the deed was filed in the public records of Caddo Parish, Louisiana. The certified copy of this deed, submitted in support of the summary judgment, also affirms these statements.

laFinally, the affidavit of Kenneth Lawler disclosed that “[a]t no time did plaintiff release or otherwise excuse Delaney Broadcasting, Inc., its successors and assigns from any performance of the lessee’s obligations under the lease, and rent has not been paid when due.... ”

We find that the documentation submitted by Lawler in support of the motion for summary judgment as well as the pleadings which form a part of the record before us are adequate to establish Delaney’s and Kittler’s liability under the lease for accrued rental payments. Of course, Kenneth Lawler’s affidavit, which sets forth the terms of the agreement between Lawler and DBI, as well as the copy of the June 10, 1998 lease contained in the record, is sufficient to prove the agreement between Lawler and DBI. Additionally, without any contrary factual proof, the affidavit of Kenneth Lawler established the fact that DBI was not released from the lease despite its assignment to other parties. Finally, with no argument or documentation by Access! or Delaney and Kittler otherwise disputing Lawler’s allegations that despite amicable demand, payment was not made under the lease from November, 2000 forward, we find that Lawler has established a breach of the lease for nonpayment. Such proof is sufficient to eliminate any genuine issue of material fact regarding Delaney’s and Kittler’s liability under the lease. Accordingly, the summary judgment in Lawler’s favor was appropriately granted.

Judgment Amount

Access! argues that the trial court erred in applying doctrine of anticipatory breach to assess Delaney and Kittler with both past accrued and future accelerated rental payments. We agree. The judgment shows that the |intrial court awarded a sum ($86,750), apparently representing all accrued and unpaid rent remaining during the initial ten-year term of the lease.

Louisiana law affords two remedies to a lessor if a lessee fails to pay rent as it comes due. The lessor may hold the lessee liable for the rent due for the expired term of the lease and sue to dissolve the lease and evict the lessee. In the alternative, the lessor may sue to enforce the lease and to recover both accrued rentals and future accelerated rentals if the lease contains an acceleration clause. These remedies are mutually exclusive. Richard v. Broussard, 495 So.2d 1291 (La.1986); Huckabay v. Red River Waterway Com’n, 27,113 (La.App.2d Cir.10/12/95), 663 So.2d 414, writ denied, 95-3007 (La.03/08/96), 669 So.2d 403; Shreveport Plaza Associates Ltd. Partnership v. L.R. Resources II, 557 So.2d 1067 (La.App. 2d Cir.990). If the latter remedy is elected, the lessor’s obligation to maintain the lessee in peaceable possession of the premises continues. Shreveport Plaza Associates Ltd. Partnership, supra.

In this case, Lawler sued to enforce the lease. Additionally, Lawler’s petition alleged that DBI and its legal successors “repudiated” the lease terms. In support of its motion for summary judgment, Lawler argued that the repudiation of the lease gave rise to a cause of action for anticipatory breach. In awarding future rental payments due under the original term of the lease, the trial court obviously agreed.

The doctrine of anticipatory breach applies when an obligor announces he will not perform an obligation which is due sometime in the future. Gulf Coast Bank & Trust Co. v. Rick Granger Enterprises, 2001-0656 (La.App. 3d Cir.10/31/01), 800 So.2d 402, and cases cited therein. In Accordingly, in order for the doctrine of anticipatory breach to apply, evidence must be presented to show an express repudiation of the lease. In this case, despite Lawler’s allegations that a repudiation of the lease occurred, it has presented no proof or evidence to show that Delaney and Kittler, the only defendants, did anything more than passively breach the contract. Indeed, Kenneth Lawler’s affidavit states only that “the rent has not been paid for the month of November, 2000 and subsequent months.” This evidence is insufficient to support the remedy of acceleration of the rental payments under the doctrine of anticipatory breach of contract. In applying this doctrine and awarding accelerated rental payments, the trial court erred.

The record before us shows that the Lawler-DBI lease contains no acceleration clause. Accordingly, in a suit to enforce the lease such as this one, Lawler is limited to the rentals which had accrued at the time of judgment. Richard, supra. Because Lawler sought rental payments from November, 2000 and the judgment was rendered on October 31, 2001, we amend the judgment to award the sum of $4,200 to Lawler, representing twelve payments of $350.

Remaining Issues

In its final argument, Access! contends that the trial court erred in denying its motion for summary judgment and exceptions of no right and cause of action. In Access.l’s pleadings, which sought both the summary judgment and exception of no cause of action, it urged that Lawler’s I ^petition “fails to state a cause of action against Access.!” and that a summary judgment should be granted “dismissing the claims of the plaintiff against Access.! ....” (Emphasis added). These statements were the sum of Access.l’s claims and it provided no memorandum in support of its arguments. Because Lawler never filed any action against Access!, we find no error in the trial court’s rejection of these claims.

In its opposition to Lawler’s summary judgment, Access! additionally alleged that Lawler had “no right of action” against the defendants because it had “no interest in the thing leased, nor the lease itself, ... We read that pleading as asserting an exception of no right of action on behalf of Delaney and Kittler, which the trial court implicitly denied in the summary judgment. VaSalle v. Wal-Mart Stores, Inc., 2001-0462 (La.11/28/01), 801 So.2d 331. On appeal, Access! specifically reurges the claim that upon the transfer of the property, Lawler’s reservation of rentals terminated, thereby eliminating its right of action under the lease. As discussed above, this point of argument was previously rejected by the trial court in the June 25, 2001 judgment. Accordingly, the trial court did not err in rejecting a claim previously decided by it.

Conclusion

For the foregoing reasons, we amend the judgment of the trial court to award Lawler the sum of $4,200, together with legal interest as provided by law. In all other respects, the judgment is affirmed. Costs of this appeal are assessed equally to Access! and Lawler.

JUDGMENT AMENDED, AND, AS AMENDED, AFFIRMED.

NORRIS, C.J., concurs in the result.

APPLICATION FOR REHEARING

Before NORRIS, C.J., BROWN, STEWART, GASKINS and KOSTELKA, JJ.

Rehearing denied.

      . The lease also included three other ten-year renewal options.

      . The record contains no evidence that the sale was recorded in the public records.

      . This amount was offered because Access! claimed that upon the date it received ownership of the property, March 12, 2001, the lease terminated and Lawler lost its right to receive rental payments.

      . Of course, this claim was also mooted by Access, l's intervention into the suit.

      . Lawler's petition, which clearly alleges that Delaney and Kittler were "all of [DBIJ’s shareholders,” and submitted documentation showing the dissolution of DBI on December 6, 1999, state a cause of action against Delaney and Kittler, individually, under La. R.S. 12:142.1(A).

      .Additionally, Lawler's pleadings, which specifically allege that it had not released DBI from its obligation under the lease, are sufficient to state a cause of action notwithstanding an assignment of the lease. The original lessee remains obligated thereunder unless clearly and unequivocally discharged by the lessor. La. C.C. art. 1880; Grundmann v. Trocchiano, 13 La.App. 277, 127 So. 748 (La.App.Orleans 1930).

      . Moreover, Lawler has shown its right to recover rentals under the lease terms. When a subsequent purchaser of the leased property acquires it with knowledge that the seller was not possessed of the right, he acquires no right to receive such payments but only what may be likened to the naked ownership of the property during the term of the lease. Coyle v. Geoghegan, 187 La. 308, 174 So. 366 ers?). These grounds also arguably defeat Access, l’s claim that the lease terminated by confusion. Confusion occurs when the qualities of obligor and obligee unite in the same person. La. C.C. art.1903. Clearly, Access! never fully obtained all rights as obligee under the obligation due to the reservation of rights by Lawler.

      . Access. 1 inappropriately asserted the exceptions in an opposition to Lawler’s motion for summary judgment. We are nevertheless obligated to determine the substance of the pleading because the pleading caption is not controlling. Ford Motor Credit Co. v. Brown, 32-995 (La.App.2d Cir.04/05/00), 756 So.2d 654.


author: li>PER CURIAM.

text:
    CAMERON PARISH POLICE JURY and Earnestine T. Horn v. Honorable Fox McKEITHEN, in His Capacity as Secretary of State of Louisiana
    No. 2002 CM 2240.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 30, 2002.
    Glenn W. Alexander, Cameron Parish District Attorney, Cameron, Joseph A. De-lafield, Lake Charles, for Plaintiff/Appel-lee/Mover, Cameron Parish Police Jury.
    J.B. Jones, Jr., Jennifer A. Jones, Cameron, for Plaintiff/Appellee/Mover, Earnestine T. Horn.
    Michael H. Rubin, James Breaux, for DefendanVAppellant/ Respondent.
    Juston M. O’Brien, Fox McKeithen, Secretary of State, Baton Rouge, for the State of Louisiana.
    Before FOIL, FITZSIMMONS, PETTIGREW, JAMES, and PATTERSON, JJ.

      . Hon. A. Clayton James, retired, and Michael A. Patterson are serving as judges pro tem-pore by special appointment of the Louisiana Supreme Court.

   li>PER CURIAM.

Fox McKeithen, Secretary of State, has appealed the trial court’s order granting writs of mandamus and injunction. The mandamus orders him to take all steps to place propositions regarding riverboat gaming in Cameron Parish on the ballot for the election of November 5, 2002. The injunction restrains him from taking any steps or performing any acts that would cause those propositions to be removed from the ballot. Appellees, the Cameron Parish Police Jury and Earnestine T. Horn, have moved to dismiss this appeal on the ground that the appeal is moot.

Appellees rely on a line of cases developed in the 1960s and 1970s that held that as of the date on which the Secretary of State is required to furnish the absentee ballots, any election contest then undecided becomes moot and must be dismissed. Downs v. Pharis, 240 La. 580, 124 So.2d 553, 557 (1960); Plessala v. Landry, 244 So.2d 298, 300-301 (La.App. 1st Cir.), writ denied, 257 La. 853, 244 So.2d 608 (1970); Oliver v. Martin, 209 So.2d 611, 612 (La.App. 1st Cir.), writ denied, 251 La. 690, 205 So.2d 606 (1968); Zibilich v. Orleans Parish Democratic Exec. Comm., 129 So.2d 860, 863 (La.App. 4th Cir.1961); Fuselier v. Bertrand, 221 Ala. 445, 129 So. 2d 583, 586 (La.App. 3d Cir.1961). Under the old closed primary system, each political party held an election to determine its candidate for the general election. If the district court could not render a final judgment in a contest over the winner of the party primary in time to print absentee ballots for the general election, the political party committee was authorized by statute to “certify the name of the contes-tee.” At that point the court challenge became moot.

Those cases all relied on a statute which is no longer part of our election code, LSA-R.S. 18:362. The Legislature overruled those cases when it enacted LSA-R.S. 18:1405B in the current election code, which prohibits declaring moot an election contest “involving election to office” because of the performance or nonperformance of a ministerial function, including matters ‘relating to the printing of ballots for the general election.’ Thus, the line of cases relying on LSA-R.S. 18:362 no longer had validity under tlie current election code.

Appellees also cite two cases in which suits seeking to prevent elections from being held were declared moot because the elections had already taken place by the latime the case reached the appellate courts. Ponds v. Treen, 407 So.2d 671 (La.1981); Jones v. Natchitoches Parish Police Jury, 371 So.2d 1243 (La.App. 3rd Cir.1979). Those cases are inapplicable here .because the election on these riverboat gaming propositions has not been held.

Finally, appellees cite two cases on mootness, Silliman Private School Corp. v. Shareholder Group, 2000-0065 (La.App. 1st Cir.2/16/01), 789 So.2d 20, writ denied, 2001-0594 (La.3/30/01), 788 So.2d 1194, and Johnson v. Johnson, 599 So.2d 450 (La.App. 2d Cir.1992), which hold that where injunctive relief is sought to prevent specifically threatened future conduct and the act sought to be enjoined has been committed, there can be no ground for an injunction and the appeal is thus moot. According to the affidavit of the Cameron Parish registrar of voters attached to ap-pellees’ motion, these propositions are included on the absentee ballot. Appellant has not taken the action sought to be enjoined, the election has not been held, and the matter before us on appeal is not moot.

MOTION DENIED.