author: JJDENNIS R. BAGNERIS, SR., Judge.

text:
    Earl J. FRANZ v. FIRST BANK SYSTEM, INC., St. Paul Fire & Marine Insurance Company, Real Estate Management Corporation, Schindler Elevator Corporation, d/b/a Schindler Enterprises, and Westinghouse Electric Corporation. Vernon Christoff and Gilda Christoff v. First Bank System, Inc., Schindler Elevator Corporation, d/b/a Schindler Enterprises, Real Estate Management Corporation, Westinghouse Electric Corporation, Constitution State Insurance Company, and Travelers Insurance Company.
    No. 2003-CA-0448, 2003-CA-1470.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2004.

      Leonard J. Cline, Jr., Thomas G. Robbins, Metairie, LA, for Plaintiff/Appellee.
    Christopher J. Aubert, Tracy E. Gold, Aubert & Christensen, L.L.C., Covington, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., and Judge DAVID S. GORBATY).
   JJDENNIS R. BAGNERIS, SR., Judge.

Plaintiff, Earl J. Franz (“Plaintiff’) brought this action against First Bank Systems, Inc., St. Paul Fire & Marine Insurance Company, Real Estate Management Corporation, and Schindler Elevator Company (collectively referred to as “Defendants”), for injuries and damages he allegedly sustained in an elevator. After a bench trial, the trial court found that Plaintiff did in fact suffer a significant impact as a result of the elevator’s abrupt stop and entered judgment in favor of Plaintiff. Defendants appeal this final judgment. Plaintiff answered the appeal, urging that the judgment be modified to increase the amount of damages awarded. For the reasons discussed below, we affirm the decision of the trial court.

FACTS

Plaintiff filed this suit on March 6, 1996 to recover damages for personal injuries allegedly suffered by him on March 10, 1995, when an elevator, located at the Jefferson Bank Building on Causeway Boulevard in Metairie, Louisiana, 12malfunctioned and abruptly stopped. Partway through the trial, Defendants admitted liability for the accident, and proceeded to trial on the issues of causation and damages.

The record contains the following facts regarding the accident itself.

Plaintiffs Testimony

Plaintiff testified at trial that on March 10, 1995, he, along with two other couples, entered an elevator on the seventh floor of the Jefferson Bank building in Metairie, Louisiana, when “all of a sudden it seemed like the elevator was falling and it came to a hard, sudden, abrupt stop, and everybody in the elevator fell.” Plaintiff testified that he fell to his knees, and hit his shoulder, left elbow, and the left side of his head. Plaintiff testified that the elevator fell approximately two floors, and that he and the other two couples had to remain in the elevator for approximately thirty to forty-five minutes until they could be pried out.

Mr. Vernon Christoffs Testimony

Mr. Christoff testified that he was riding the elevator with Plaintiff at the time the elevator malfunctioned. Specifically, Mr. Christoff testified that he, along with his wife, Plaintiff, and another couple, got on the elevator on the seventh floor. Mr. Christoff testified that after the button was pushed to go down to floor No. 1, and after the elevator doors closed, “the elevator just dropped tremendously.” He further testified that the elevator “came to a sudden stop with a hard, hard jolt.” Mr. Christoff testified that he, along with the other passengers, were trapped in the elevator for twenty-five to thirty minutes, and that a man pried the door of the elevator open with a crowbar.

| ¡Mrs. Giova Christoffs Testimony

Mrs. Christoff testified that she was on the elevator with Plaintiff at the time the elevator stopped. Specifically, she testified that after Plaintiff pressed the button for the elevator to go down to floor No. 1, the elevator “went down and it made a real hard stop all of a sudden.” Mrs. Christoff further testified that after the elevator initially stopped, the elevator was “jerking and making little noises like it was about to move again.... ” She testified that she was stuck in the elevator for about twenty minutes, and that a crowbar was used to open the elevator doors. Mrs. Christoff testified that it “was a very frightening experience” and that she “didn’t know what was going to go on, what was going to happen once it stopped.... ”

The evidence regarding Plaintiffs injuries is as follows.

Plaintiffs Testimony

Plaintiff testified that following the accident he experienced pain in his lower back and neck, and his left arm and head. Plaintiff testified that after he got out of the elevator, he told either the manager or assistant manager of the building that he had hurt his back and neck. Plaintiff testified that on the day of the accident, he sought medical attention for his injuries at East Jefferson Hospital; however, after waiting an hour and a half in the emergency room, he got tired of waiting and went home. Plaintiff testified that he returned to the emergency room on April 4, 1995 with complaints of lower back, neck and head pain. Thereafter, Plaintiff testified that he received treatment from both Dr. Stewart Altman and Dr. John Watermeier for his neck and back pain.

Dr. Steivart Altman’s Testimony

|4Pr. Stewart Altman, an expert in general medicine, testified by deposition. Dr. Altman testified that he treated Plaintiff from April 6, 1995 to October 30, 1995, for back and neck pain. Dr. Altman’s physical examination revealed that Plaintiffs movements were stiff, and that Plaintiff would sit leaning to the right on the chair. Plaintiffs cervical spine exam showed spasm in the trapezius muscles, and his dorsal and lumbar spine exam showed spasm in the lumbosacral area with a range of motion of the back that was no greater than 20 to 30 percent of normal. Dr. Altman’s diagnosis was that Plaintiff had a “cervical spine sprain, trapezius muscle sprain, lumbosacral sprain, left elbow contusion, vertigo and headaches, preexisting, worsened by present accident.” Dr. Altman prescribed physical therapy, a cervical collar, a back brace, and pain medication for Plaintiff. In June 1995, Dr. Altman referred Plaintiff to an orthopedist. Thereafter, Dr. Altman ordered a cervical and lumbar MRI because of the persistent neck and back symptoms with suggestions of nerve root compression. Dr. Altman further testified that based on Plaintiffs past medical records, he related Plaintiffs neck injuries as a new injury to the elevator accident in March of 1995 and the low back injuries as an aggravation of a pre-existing degenerative condition.

Dr. John Watermeier’s Testimony

Dr. John Watermeier, an expert orthopedist, testified that he treated Plaintiff from July 1995 through December 1999. The results of Dr. Watermeier’s first physical examination of Plaintiff are as follows: Plaintiff had a fifty percent range of motion in his neck in flexion and rotation; moderate facet joint tenderness; mild to moderate pain on axial compression, indicating a possible nerve impingement; limitation of motion in the lower back, with his current bending, extension, and rotation only about twenty five to thirty percent normal; pain in straight leg raising latest, both sitting and lying down, with pain referred into the lower back. The neck x-rays revealed generalized mild to moderate arthritis consistent with his age and activity level, with no evidence of recent fractures or acute injuries. The low back x-rays showed a narrowing of the L5-S1 disc level, which is consistent with arthritis in his low back. Dr. Watermeier testified that based on his history and his physical exam and x-rays, it was his opinion that Plaintiff had symptoms consistent with both a cervical and lumbar disc herniation with a nerve root impingement. Dr. Wat-ermeier testified that he treated Plaintiff by prescribing physical therapy, injections for pain relief, and pain medication. Further, in October 1999, Dr. Watermeier recommended that Plaintiff have surgery for his low back and leg. Specifically, Dr. Watermeier recommended that Plaintiff have an anterior lumbar decompression fusion operation, which he testified would cost between $40,000.00-$50,000.00. In spite of Plaintiffs previous neck and back injuries and pain, Dr. Watermeier testified that the cause of Plaintiffs symptoms was the elevator accident.

Dr. Watermeier reviewed the June 1995 MRI reports of Plaintiffs neck and low back. Dr. Watermeier testified that the MRI report of the neck and low back showed that the disc at L5-S1 has lost its water content and is bulging slightly in the back. Dr. Watermeier further testified that L4-5 appeared to be a bulge of the disc.

Dr. Watermeier also reviewed the MRI of Plaintiffs cervical spine. Dr. Watermeier testified that in the back of the vertebra at C3-4, there’s a blackening of the disc and a bulge of the disc. Dr. Watermeier testified that this represents either a bulging disc or a bone spur or a combination of the two. Dr. Watermeier ^further testified that Plaintiff had a bulging disk at level C5-C6. Dr. Watermeier testified that these disk abnormalities are all part of the aging process of the human body and that this arthritic condition preexisted the trauma from the elevator accident.

Dr. Watermeier testified an electromyo- ■ gram (“EMG”) was performed on Plaintiff on August 2, 1995. The Plaintiff tested positive on the EMG, which meant that Plaintiff had in fact suffered some nerve injury. Thus, Dr. Watermeier testified that “in addition to his [Plaintiffs] disc abnormalities that we saw on the MRI, he [Plaintiff] had some nerve injury which I felt was secondary to his [Plaintiffs] vertebral or spinal abnormality.” Dr. Water-meier related Plaintiffs nerve injury to the elevator accident of March 10,1995.

Dr. Jonathon J. Rynning

Dr. Rynning, a psychiatrist, testified that he examined Plaintiff on September 18, 1996 for depression. Dr. Rynning testified that he believed Plaintiff had preexisting clinical depression before the elevator accident, and that the elevator accident exacerbated the depression. Dr. Rynning diagnosed Plaintiff with depression and chronic pain.

At the conclusion of the trial, the trial court found in favor of Plaintiff, and awarded damages totaling $301,838.00, broken down as follows:

1.Past and future medical $ 76,838.00
2. Past and future physical pain and suffering $200,000.00
3. Past and future mental anguish and distress $ 25,000.00

Defendants filed this appeal, urging six assignments of error. Specifically, Defendants allege the trial court erred when it: (1) found that Plaintiffs alleged ongoing back and neck injuries were causally related to the March 10, 1995 |7elevator incident; (2) found that Plaintiffs alleged ongoing psychiatric injuries were causally related to the March 10, 1995 elevator incident; (3) failed to admit into evidence the videotape surveillance of Plaintiff; (4) failed to admit into evidence the videotaped recreation of the elevator incident; (5) awarded excessive general damages to Plaintiff; and (6) denied Defendants a fair and expeditious trial.

Plaintiff, by way of his answer to the appeal, requests to have the November 4, 2002 judgment modified to increase the amount of damages and specials as follows: (1) additur of $50,000.00 for the cost of a required anterior cervical fusion operation; (2) additur of $200,000.00 to the general damage award of $200,000.00 for two future surgeries; (3) additur of $50,000.00 to general damage award for permanent future disabilities from the two additional surgeries; (4) additur for a past lost wage award to $133,467.00; (5) additur for future loss of earning capacity award to $162,174.00; and (6) additur of $125,000.00 to the $25,000.00 award for past and future mental anguish and distress.

Issue One: Whether the trial court committed reversible error when it found that Plaintiff’s alleged ongoing neck and back injuries were causally related to the March 10,1995 elevator incident.

At the outset, we address Defendants assertion that Plaintiffs testimony lacked credibility, thereby casting doubt on Plaintiffs version of the elevator incident and his claim that he injured his back and neck therein. Defendants insist that the trial court should have found Plaintiffs testimony to lack credibility, and was clearly wrong in finding that the elevator incident caused Plaintiff any injury. Apparently, Defendants seek to have this court find that the Plaintiffs testimony was so incredible that the trial court could not have believed that the Plaintiff did in fact suffer injuries as a result of the elevator incident.

lain support of this assertion, Defendants rely on the fact that Plaintiff testified at trial that when he was freed from the elevator, he was suffering from severe back pain, neck pain, headaches, a “hickey” on his left arm,- and a “hickey” on his head with swelling, whereas Ms. Karen Mitchell, the Senior Property Manager for Real Estate Management at Jefferson Bank Building, testified that she was present at the elevator when Plaintiff was extricated from it, and that she did not observe any outward manifestation of any injury, and that Plaintiff did not tell her that he was injured. Defendants also rely on (1) Ms. Jan Franz’s testimony that she did not observe any cuts, bruises, marks, “hickeys”, or swelling on Plaintiff the day of the accident, and (2) the fact that Plaintiff declined medical attention at the scene. Further evidence of the alleged lack of credibility, Defendants insist, is Plaintiffs failure to disclose to his treating physicians that Dr. V.J. Zeringue had treated him prior to the accident for neck and back pain.

After considering all of the evidence, the trial court ruled that the Plaintiff, as well as all of the passengers in the elevator at the time of the accident, suffered a significant impact as a result of the abrupt stop. The trial court also found that even though Plaintiff had in fact received treatment for neck and lower back pain for some years prior to the elevator accident, “the testimony of Dr. Altman, Dr. Watermeier, the diagnostic testing and the objective signs ,of injury [indicate] the [PJlaintiff sustained multiple injuries and abnormalities to both the cervical (C3-4, C4-5 and C5-6) and lumbar (L4-5 and L5-S1) discs as a result of the elevator accident of March 10, 1995.” The trial court specifically stated in its reasons for judgment that it had “considered all prior and subsequent medical treatment in reaching this conclusion.” In other words, the trial court refused to find that the 19discrepancies in Plaintiffs testimony, coupled with Plaintiffs failure to mention his prior treatment to his physicians, rendered Plaintiffs entire testimony regarding the incident and his complaint of back and neck pain beyond belief.

In matters of credibility, an appellate court gives great deference to the findings of the trier of fact. Rosell v. ESCO, 549 So.2d 840 (La.1989). The trial court is in the best position to view the demeanor and mannerisms of the witnesses. Id. After reviewing the record in its entirety, we cannot say that the trial court’s decision to credit Plaintiffs version of the events is manifestly erroneous, and we shall therefore defer to the trial court with respect to its finding that the elevator incident did indeed cause Plaintiff to experience back and neck pain.

Issue Two and Three: Whether the trial court erred by not admitting into evidence the videotape surveillance of Earl Franz, and the videotape recreation of the elevator incident.

The Videotape Surveillance

Defendants contend that the trial judge erred by excluding from evidence the surveillance video of Plaintiff taken on March 5 and March 8, 2001. Defendants allege that these tapes show Plaintiff lifting and moving heavy furniture, and repeatedly bending and ambulating without any apparent restrictive movement, pain or discomfort. Defendants argue that the surveillance videotapes completely contradict Plaintiffs complaints of injury, pain, and inability to work.

Admission of videotaped evidence is within the discretion of the trial court. Ibieta v. Star Casino, Inc., 98-0314, p. 8 (La.App. 4 Cir. 10/7/98) 720 So.2d 143, 147. In making its determination, the trial court should consider whether the tape accurately depicts what it purports to represent, tends to establish a relevant fact, and will aid the jury’s understanding. Id. The trial court may exclude the evidence |inif the factors favoring admission are substantially outweighed by the factors against admission. La.C.E. arts. 401-403.

We find no abuse of the trial court’s discretion in ruling the videotape to be inadmissible. The trial judge stated at trial that she did not think the “surveillance video would be of any aid to a trier of fact in this case.” In making her ruling to exclude the videotape, the trial judge specifically reasoned that there was “sufficient testimony regarding his [Plaintiffs] credibility,” and that “the issue is going to be the medical testimony.” We agree. Accordingly, we fail to find, after our review of the record, that the trial court abused its discretion in disallowing the tapes.

The Videotape Recreation of the Elevator Incident

Defendants allege that the trial judge erred by excluding from evidence the videotape reenactment of the elevator accident. Defendants argue that the videotape reenactment reconstructed the same condition that existed at the time and location of the accident. Further, Defendants allege that the videotape clearly shows that Plaintiff is exaggerating the amount of force with which the elevator stopped on March 10,1995.

As stated above, the admissibility of a videotape is within the discretion of the trial judge, and is determined on a case-by-case basis depending on the individual facts and circumstances of each case. Novosyolova v. Stephens, 2002-0711, p. 19 (La.App. 4 Cir. 6/11/03), 850 So.2d 29, 39. In this case, the trial judge gave oral reasons for excluding the videotape reenactment. Specifically, the trial stated:

The court believed that this is of no value in ... determining what occurred to those individuals on that date. The court had problems even understanding what was going on in the tape, but once I figured Inout what you’re attempting to do, I just think that the best evidence to determine what occurred in that elevator that day is the testimony of the parties, they listen to whatever experts you have, but I think to look at this and try to make some assumption of what occurred to those individuals is an inappropriate use.

We agree. The decision to exclude this videotape reenactment was not an abuse of the trial court’s great discretion in this bench trial.

Issue Four: Whether the trial court erred in awarding excessive general damages.

The Defendants contend that the $200,000.00 award to Plaintiff for past, present, and future pain and suffering, is excessive, considering the nature of his injuries. General damages cannot be fixed with pecuniary precision because they involve mental or physical pain or suffering, inconvenience, loss of intellectual gratification, or other losses of life or lifestyle that cannot be definitively measured in monetary terms. Hanson v. Benelli, 97-1467, p. 28 (La.App. 4 Cir. 9/30/98), 719 So.2d 627, 642. In reviewing awards for general damages, this court is not to decide what it thinks would have been an appropriate award under the circumstances but rather to decide whether the award represents an appropriate exercise of discretion by the fact finder. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). Each award must be analyzed on a case-by-case basis to determine whether it is adequate under the particular facts and circumstances presented by the case under review. Id. It should be noted that reasonable people will often differ on what they feel is a reasonable award for general damages. An appellate court should only raise or lower a general damages award when the award, in either direction, is beyond what a reasonable fact finder could assess for the effects of this particular injury on this particular victim under |12these particular circumstances. Id. With these legal precepts in mind, we now turn to the evaluation of the general damage award in the instant case.

The primary considerations in assessing damages are the severity and duration of the injured person’s pain and suffering. In re Medical Review Panel Bilello, 621 So.2d 6, 9 (La.App. 4 Cir. 5/27/93). The trial court, being the fact finder, had the opportunity to hear the testimony and evidence presented. A reasonable fact finder could conclude that Plaintiff sustained disabling injuries, having long-range implications. Given the great or vast discretion accorded to the fact finders’ decision on damages, we do not find that the trial court erred in awarding $200,000.00 to Plaintiff, and we therefore find no merit in this assignment of error.

ANSWER TO APPEAL

Although Plaintiff seeks to have his award for damages and specials be increased as follows:(l) additur of $50,000.00 for the cost of a required anterior cervical fusion operation; (2) additur of $200,000.00 to the general damage award of $200,000.00 for two future surgeries; (3) additur of $50,000.00 to general damage award for permanent future disabilities from the two additional surgeries; and (4) additur of $125,000.00 to the $25,000.00 award for past and future mental anguish and distress, we find no merit to his claims. Our review of the record indicates that the trial judge acted within her discretion in assessing the damages. Further, there is nothing in the record to indicate when and/or if Plaintiff will undergo the cervical disc surgery.

Additionally, we find no merit to Plaintiffs argument that the trial court erred when it failed to award Plaintiff damages for past lost wages and damages for loss of earning capacity. As stated by the trial court in her reasons for judgment:

113The Court finds Mr. Franz [Plaintiff] lacked credibility in his testimony relative to his past employment. Although plaintiff presented expert testimony regarding loss of earning capacity and wages, his lack of credibility diminished any value to those claims.

We agree. Accordingly, after our review of the record, we fail to find the trial court abused her discretion in declining to make an award for Plaintiffs past lost wages and loss of earning capacity.

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

AFFIRMED.

      . The trial continued intermittently over a three and one half year period.

      . This suit was consolidated with a companion case to this one, Christoff v. First Bank System, Inc., C.D.C. No. 96-1762, Div. C, Sec. 7, involving injuries to other passengers in the same elevator accident; however, the companion suit was settled prior to trial.

      . Plaintiff received between fifty to sixty injections during his treatment with Dr. Watermeier.

      . Ms. Jan Franz is Plaintiff’s wife.


source: Caselaw Access Project

author: JjMICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    Marvin LEBOVITZ v. SHERATON OPERATING CORPORATION d/b/a Sheraton New Orleans Hotes, et al.
    No. 2003-C-2174.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2004.
    Allain F. Hardin, Fransen & Hardin, New Orleans, LA, for Respondent, Marvin Lebovitz.
    John F. Olinde, Earl F. Sundmaker, III, Heather M. Valliant, Jason T. Spence, Chaffe, McCall, Phillips, Toler & Sarpy, L.L.P., New Orleans, LA, for Relator, Sheraton Operating Corp. d/b/a Sheraton New Orleans Hotel.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge Pro Tempore MOON LANDRIEU).
   JjMICHAEL E. KIRBY, Judge.

FACTS:

The plaintiff entered the Sheraton Hotel on Super Bowl Sunday, February 3, 2002 allegedly to get a shoeshine. The hotel was under the impression he was scalping tickets to the game. The hotel avers a security guard asked him to leave and that he refused. The plaintiff claims he agreed to leave but not until he could speak with a manager. He alleges he was dragged into the street with his pants legs still rolled up. The guard called NOPD, and the plaintiff was arrested and charged with trespassing. The plaintiff filed suit, essentially alleging false arrest, but specifically alleging that the hotel made false statements causing the arrest, failed to determine his purpose in the hotel, acted rashly and arbitrarily, and slandered him. The hotel filed a motion for summary judgment on the basis that Louisiana’s trespass laws allow the hotel to ask anyone to leave. The trial court denied the motion, and the hotel seeks this court’s supervisory jurisdiction.

DISCUSSION

Appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.App. 4 Cir. 4/11/94), 634 So.2d 1180. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. Two Feathers Enterprises v. First National Bank, 98-0465 (La.App. 4 Cir. 10/14/98), 720 So.2d 398, 400. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. 966(B). However, if the movant will not bear the burden of proof at trial on the matter that is before the court, the movant’s burden does not require him to negate all essential elements of the adverse party’s claim. Rather, he need only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. Art. 966 C(2).

Procedurally, the court’s first task on a motion for summary judgment is determining whether the moving party’s supporting documents are sufficient to resolve all material factual issues. LSA-C.C.P. Art. 966(B). To satisfy its burden, the party moving for the summary judgment must meet a strict standard by showing that it is quite clear as to what the truth is, and that excludes any real doubt as to the existence of material fact. Dibos v. Bill Watson Ford, Inc., 622 So.2d 677, 680 (La.App. 4 Cir.1993), writ denied, 629 So.2d 1178 (La.1993) citing Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981). If the court determines that the moving party has met this onerous burden, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain.

Previously the jurisprudence uniformly held that a motion for summary judgment is generally not appropriate for disposition of cases requiring a judicial determination of subjective facts, e.g., motive, intent, good faith, and/or knowledge. Smith v. Our Lady of the Lake Hosp. Inc., 93-2512 (La.7/5/94), 639 So.2d 730; Penalber v. Blount, 550 So.2d 577, 583 (La.1989); Jefferson Parish School Bd. v. Rowley Co., Inc., 305 So.2d 658, 663 (La.App. 4 Cir. 1974); Gorum v. Optimist Club of Glenmora, 99-1963 (La.App. 3 Cir 8/30/00), 771 So.2d 690.

Even after the summary judgment law was amended to specifically favor the grant of summary judgments, courts continued to state that the granting of summary judgment is rarely appropriate for cases involving the judicial determination of subjective facts. Thus, in Oaks v. Dupuy, 32,070, p. 3 (La.App. 2 Cir. 8/18/99), 740 So.2d 263, 266, the court held that even though summary judgment was favored, summary judgment was not appropriate in a ease where there was a dispute regarding knowledge. One reason given for the rule is that subjective facts call for credibility evaluations and the weighing of testimony. In determining whether an issue is genuine for purposes of a summary judgment, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Coto v. J. Ray McDermott, 99-1866 (La.App. 4 Cir. 10/31/00), 772 So.2d 828; Oakley v. Thebault, 684 So.2d 488, 490 (La.App. 4 Cir.1996); Helwick v. Montgomery Ventures Ltd., 95-0765 (La.App. 4 Cir. 12/14/95), 665 So.2d 1303, 1306.

Here, there are obvious facts in dispute about whether the hotel threw the plaintiff out on the street after he asked to see a manager, whether he refused to leave, and what statements the guard made to NOPD. The trespassing statute does |4not shield the hotel from potential civil liability. Even if the statute gives the hotel authority to ask persons to leave, it does not give it the authority to make false statements to the police leading to persons’ arrests.

We deny the writ application since the trial court did not err.

WRIT APPLICATION DENIED.


author: bDAVID S. GORBATY, Judge.

text:
    Ernest HUCKE, III v. NEW ORLEANS GLASS.
    No. 2003-CA-1709.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2004.

      Frank A. Bruno, New Orleans, LA, for Plaintiff/Appellee.
    J. Douglas Sunseri, Dawn Danna Marul-lo, James G. Washburn, Nicaud, Sunseri & Fradella, L.L.C., Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   bDAVID S. GORBATY, Judge.

In this appeal, defendants New Orleans Glass aver that the workers’ compensation judge erred in finding that plaintiff sustained a work-related accident and in finding that defendant arbitrarily and capriciously failed to pay benefits to the plaintiff, Ernest Hucke. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 26, 2002, plaintiff was doing lay-out work and welding at St. Charles Condominiums. At the end of the day, plaintiff was required to put his tools in what is called a gang box, which is located on the ninth floor of the building. On that particular day, the elevators were turned off, so plaintiff carried his gear, which included his tools, lunch box, tripod, plans, etc., which he estimated to weigh approximately seventy pounds, and walked up seven flights of stairs.

The following day, plaintiffs neck was sore. The pain allegedly worsened until plaintiff sought treatment at West Jefferson Hospital on April 28, 2002, and continued to treat with Drs. Patterson and Sel-zer, among others. Mr. Hucke was ^ultimately unable to continue his employment and only recently has been allowed by Dr. Selzer to perform some limited duty tasks.

According to plaintiff, there was no particular moment when he realized he was injured, but during this activity, he felt something happen. He did not tell his supervisor that he was injured, since initially he did not feel that he had suffered an injury.

In June 2002, plaintiff filed a Disputed Claim for Compensation with the Office of Workers’ Compensation against New Orleans Glass, Inc. Defendant filed a Motion for Summary Judgment, averring that no compensable accident occurred pursuant to the Louisiana Workers’ Compensation Act. The motion was denied. Defendant took a writ seeking -review of the denial. This court denied the writ. After a trial on the merits, the trial judge issued judgment in favor of the plaintiff, finding that claimant was involved in a compensable accident. The trial judge further decreed that defendant was arbitrary and capricious in failing to pay workers’ compensation benefits to plaintiff, and assessed attorneys’ fees of $15,000.00 and penalties of $10,000.00.

Defendant subsequently filed this appeal, which plaintiff has answered.

DISCUSSION

Defendant asserts that the trial judge erred in ruling that plaintiff sustained a work-related accident as defined by the Louisiana Worker’s Compensation Act. Defendant also avers that the trial judge erred in failing to rule that plaintiff did not submit the requisite evidence at trial to substantiate a work-related accident.

Defendant argues that plaintiff failed to prove that he suffered an “accident” as a result of walking up and down the stairs. La. R.S. 23:1021(1) defines an “accident” as “an unexpected or unforeseen actual, identifiable, precipitous event |3happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” Plaintiff did not establish an actual, identifiable, or precipitous event that occurred suddenly or violently, which produced, at that time, an objective finding of an injury, as required by R.S. 23:1021(1), or discussed in Thompson v. Orleans Parish School Board, 2000-1230 (La.App. 4 Cir. 3/21/01), 786 So.2d 128. Mere speculation is insufficient to conclude that plaintiffs neck pain on April 28, 2002 was caused by walking up a staircase at work on April 26, 2002, defendant argues. There was no objective manifestation indicating plaintiff sustained an injury while walking up a stairway. Mr. Hucke merely speculated that he injured his back while walking up a stairway.

An Office of Workers’ Compensation hearing officer’s findings are subject to the same standard of review, manifest error, as a trial court’s. Alexander v. Pellerin Marble Granite, 93-1698 (La.1/14/94), 630 So.2d 706. Under this standard, the reviewing court does not ask whether the factfinder is right or wrong, but whether its conclusion was reasonable. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993). The factual finding regarding whether a workers’ compensation claimant has met his burden of proving disability must be given great weight and will not be overturned on appeal absent manifest error. If there is evidence before the Workers’ Compensation judge that furnishes a reasonable factual basis for such a finding, the judge’s determination of facts will not be disturbed on appeal. Moreover, where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed upon review. Porter v. Gaylord Chemical Corp., 1998-0222 (La.App. 1 Cir. 9/25/98), 721 So.2d 27.

Sears v. Berg, 99-457 (La.App. 5 Cir. 9/28/99), 742 So.2d 760, dealt with a similar issue to the one at hand. In Sears, plaintiff was assigned to clean a cooling tower on Sunday. He began work at six o’clock in the morning and worked all day shoveling in a bent over position. At the end of the day, Mr. Sears was exhausted and almost numb. The next morning, he had pain in his lower back, but returned to work on Monday anyway. Thinking the pain might go away, he did not report it to his supervisor, but merely mentioned it to a coworker. The pain continued, and on Saturday, Mr. Sears was in such severe pain that he had to be taken to the emergency room. A CT scan revealed a ruptured disc. The Sears court addressed the issue of whether a compensable injury had occurred:

In Perilloux v. Brown Root, Inc., 96-321 (La.App. 5 Cir.10/1/96), 692 So.2d 1100, 1102-03, we addressed the identical issue in a factually-similar situation and held:
In the present case, we are asked to determine the correctness of the workmen’s compensation judge’s exclusion of Perilloux’s claim on the basis that his injuries were not compensable because they were the result of a gradual deterioration that occurred over a period of time. In Barrilleaux, a sedentary worker began to lift boxes and perform other such work. While this work was ongoing, she began to experience back pain which grew progressively worse over a period of six weeks. After working in pain for six weeks, the claimant stopped working. In Barrilleaux, this Court held as follows: In the instant case we find the evidence supports the finding that the claimant was injured by a series of small strains and sprains of her back over a relatively short and clearly definable period of time. There is a definite point in time at which the claimant’s job description changed and the injuries began which is sufficient to constitute the occurrence of an identifiable, work related event within the meaning of the statute.

Id. at 764-765.

The Fifth Circuit ultimately concluded that a compensable injury had occurred, holding, “We do not agree with any suggestion or case interpretation that the amendments to Section 1021(1) were meant to exclude from compensation | ^coverage people who are worn down by their work rather than immediately crippled by it.”

Likewise, in the matter before us, plaintiffs testimony at trial was that he carried approximately seventy pounds of tools up seven flights of stairs. This activity was not normally part of his job. The next morning, plaintiff experienced pain. His treating physicians causally related these actions to his injuries. Even though plaintiff did not know the exact moment of his injury, we find that he clearly suffered a work-related accident under La. R.S. 23:1021(1). There was a clearly defined incident that led to his injury, and this is sufficient to meet the statutory requirements. Further, the hearing officer' specifically found that plaintiff was credible. We cannot say that these findings are manifestly erroneous. These assignments of error are without merit.

Defendant next contends that the trial judge erred in ruling that it was arbitrary and capricious in failing to pay worker’s compensation benefits to the claimant. Further, the judge erred in concluding that defendant did not reasonably controvert the claim. Additionally, the penalties and attorneys’ fees assessed by the trial judge were not warranted and excessive.

Defendant asserts that a worker’s compensation claim is reasonably controverted, precluding imposition of penalties, if the employer has sufficient factual and medical information upon which to base a decision for worker’s compensation. Menard v. Winn Dixie Louisiana, Inc., 93-1497 (La.App. 3 Cir. 6/1/94), 640 So.2d 775. There is an issue as to whether an accident occurred, so defendant was -not arbitrary and capricious in failing to extend worker’s compensation benefits, defendant avers.

(¡Determination of whether the de nial of workers’ compensation beneffe is arbitrary, capricious, and without probable cause, so as to warrant award of attorney fees and penalties, depends primarily upon the facts existing and known to the employer at the time the employer denies benefits, and the determination is essentially a question of' fact. Mayo v. CASCO Const. Co., Inc., 30,343 (La.App. 2 Cir.4/8/98), 712 So.2d 169. As discussed earlier, the trial judges fact findings cannot be disturbed on appeal absent manifest error. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993).

In the case sub judice, defendant was well aware of Mr. Huckes injury since at least May 2, 2002, when he filled out a report of injury at the office. There has been no contrary evidence that he did not suffer an injury, or that plaintiff is not disabled. After Mr. Hucke reported the incident to his employer, the company sent him to their choice of physician, Dr. Patterson, who agreed plaintiff needed treatment and placed him off work. Defendant still refused to acknowledge the accident as compensable, solely because Mr. Hucke could not point to a specific moment in time when the injury occurred. In light of the facts and evidence presented at trial, we find that the trial judge was not manifestly erroneous in concluding that defendant acted arbitrarily and capriciously in denying plaintiff benefits. This assignment of error has no merit.

ANSWER TO THE APPEAL

Plaintiff has answered the appeal requesting additional attorneys’ fees for preparing for and defending the appeal. A workers’ compensation claimant who timely answers the appeal is entitled to increased attorney fees and penalties to reflect additional time incurred in defending against employer/insurer’s unsuccessful appeal, especially where the claimant makes a clear showing of the 17employer’s arbitrary and capricious refusal to pay the claim. Rapp v. City of New Orleans, 1998-1714 (La.App. 4 Cir. 12/29/99), 750 So.2d 1130. A workers’ compensation claimant was entitled to additional $3,000 in attorney fees for appeal, where employer appealed, obtained no relief, and appeal required additional work of the claimant’s counsel. Weiss v. Nikon, Inc., 1999-0111 (La.App. 4 Cir. 9/22/99), 745 So.2d 84. Accordingly, we award an additional $3,000.00 in attorneys’ fees to cover the cost of defending the appeal.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Barrilleaux v. Dryades Savings Loan Association, 94-956 (La.App. 5 Cir.3/28/95), 653 So.2d 690, writ denied, 95-1041 (La.6/2/95), 654 So.2d 1113.


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

text:
    Charles M. GRESHAM v. PRODUCTION MANAGEMENT, INC., Callon Offshore Production, Inc., and Preston Raigan.
    No. 2002-CA-1228.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2004.

      Robert Grant, Grant & Barrow, Gretna, LA, for Appellant.
    Darren D. Sumich, Philip F. Cossich, Jr., Cossich, Sumich & Parsiola, L.L.C., Belle Chasse, LA, for Appellee.
    James H. Gibson, Allen & Gooch, Lafayette, LA, for Defendant-Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR., Judge Pro Tempore MOON LANDRIEU).
   JjLEON A. CANNIZZARO, JR., Judge.

The defendant, Edius “Ed” Fontenot, appeals from a default judgment rendered in favor of the plaintiff, Charles M. Gresham.

FACTS AND PROCEDURAL HISTORY

The plaintiff, an employee of Production Management Industries, allegedly injured his back while working aboard a fixed platform owned by Callón Offshore Production, Inc. under the supervision of Preston Raigan. As a result of the work-related accident, the plaintiff filed a petition for damages, naming as defendants Production Management, Callón Offshore and Mr. Raigan. He later filed a first supplemental and amending petition, naming as additional defendants Facilities Consultants, Inc., which allegedly was doing contract work on the platform; two alleged Facilities Consultants employees, M.J. In-galls and Mr. Fontenot, the appellant herein; and American Empire Surplus Lines Insurance Company, Facilities Consultants’ alleged insurer. The trial court rendered a summary judgment, dismissing Callón Offshore as a defendant. Then, on the plaintiffs motion, the trial court rendered a judgment dismissing with prejudice the plaintiff sjjclaims against Production Management, Mr. Raigan, and Callón Offshore, notwithstanding its earlier dismissal on summary judgment. Shortly thereafter, the, trial court granted the plaintiffs motion to dismiss his claims against American Empire.

Meanwhile, Mr. Fontenot was personally served with Mr. Gresham’s supplemental and amending petition. He retained an attorney, Paul T. Landry, to represent him in the matter, but Mr. Landry failed to file either an answer or any other pleading into the record. Several months later, the plaintiffs counsel faxed Mr. Landry a letter stating that all extensions of time in which to plead were to expire and a default would be taken if he did not file an answer by the expiration date. Mr. Landry still did not file any responsive pleadings.

A preliminary default was entered against Mr. Fontenot, and the plaintiffs counsel notified Mr. Landry via fax that it had been entered. Again, Mr. Landry did not respond. The default was subsequently confirmed.

The default judgment cast Mr. Fontenot ninety percent (90%) at fault and awarded Mr. Gresham the following damages:

Past Medical Expenses $ 83,560.29
Past and Future Lost Wages/Earning Capacity $ 500,000.00
General Damages $ 500,000.00
laTotal $1,083,560.29

The trial court judgment assigned five percent (5%) of the fault to Production Management and the remaining five percent (5%) of fault to Callón Offshore, notwithstanding their earlier dismissal from the suit.

Mr. Fontenot filed alternative motions for a new trial or remittitur based on lack of notice of the confirmation of the preliminary default. The trial court denied the motions. He then timely filed this appeal.

Mr. Landry petitioned this Court to intervene in Mr. Fontenot’s appeal, asserting that he wished to pursue Mr. Fontenot’s rights to overturn the default judgment. Mr. Landry also had a personal interest in the successful outcome of this appeal in view of the fact that Mr. Fontenot had filed a legal malpractice claim against him arising out of the default. We granted Mr. Landry’s intervention.

The sole appellant assignment of error states that the trial court erred in its confirmation of the default judgment rendered against Mr. Fontenot.

STANDARD OF REVIEW

In reviewing a default judgment, an appellate court is restricted solely to determining whether the record contains sufficient evidence to support a prima facie case. Mossy Motors, Inc. v. Cameras America, 2002-1536, p. 3 (La.App. 4 Cir. 6/25/03) 851 So.2d 336, 339; Brasseaux v. Allstate Insurance Company, 97-0526 (La App. 1 Cir. 4/8/98), 710 So.2d 826.

LAW AND DISCUSSION

Pursuant to La. C.C.P. art. 1702(A), a default judgment must be supported with proof sufficient to establish a prima facie case. When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. La. C.C.P. art. 1702(B)(2). The court may require some oral testimony before rendering judgment. Id.

A judgment by default shall not be different in kind from that demanded in the petition. The amount of damages awarded shall be the amount proven to be properly due as a remedy. La. C.C.P. art. 1703.

All issues that might have been raised in defense to a suit in which a judgment of default has been rendered are forever foreclosed by the judgment. DeFrances v. Gauthier, 220 La. 145, 55 So.2d 896 (1951).

A plaintiff seeking to obtain a default judgment must establish the elements of a prima facie case with competent evidence, as fully as though each allegation in the petition had been denied. Gleason v. Palmieri, 97-0624, 97-0625, p. 3 (La.App. 4 Cir. 12/23/97), 707 So.2d 57, 58; Orleans Sheet Metal Works and Roofing, Inc. v. Landis Company, Inc., 96-0029 (La.App. 4 Cir. 7/24/96), 678 So.2d 73, 74. In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at a trial on the merits. Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254, 1258 (La.1993); Thibodeaux v. Burton, 538 So.2d 1001 (La.1989).

There is no requirement that a party confirming a default must have the testimony reduced to writing or that a note be made of the evidence introduced, and when a judgment has been rendered and no note of evidence has been made, it is incumbent on the party desiring to appeal to secure a narrative in accordance with Louisiana Code of Civil Procedure articles 2130 and 2131. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875, 877 (1972); Succession of Rock v. Allstate Life Insurance Company, 340 So.2d 1325 (La.1976). In order to obtain a reversal of a default judgment appealed from, or to obtain a remand, where the record does not contain a transcript of the confirmation hearing, the defendant must overcome the presumption that the judgment was rendered upon sufficient evidence and is correct. When the judgment recites that the plaintiff has produced due proof in support of his demand and that the law and evidence favor the plaintiff and are against the defendant, the presumption exists that the judgment was rendered upon sufficient evidence and that it is correct. Ascension Builders, supra; Massey v. Consumer’s Ice Co. of Shreveport, 223 La. 731, 66 So.2d 789 (La.1953). The presumption does not attach when the record upon which the judgment is rendered indicates otherwise. Ascension Builders, supra; Massey, supra.

| fiAt the outset, we note that the defendant claims that the default judgment is invalid because he did not receive notice of the entry of the default prior to confirmation thereof. In Mossy Motors, Inc. v. Cameras America, 2002-1536, pp. 10-11 (La.App. 4 Cir. 6/25/03), 851 So.2d 336, 344, this Court discussed as follows the standard for determining whether a default should be reversed because of the absence of notice to the defendant:

Thus, knowledge that the defendant has legal representation is not the standard for overturning a default. The proper standard is the clear, objective and reasonably predictable standard ... i.e., “an appearance of record” under La. C.C.P.art. 1702(A) and as defined by the 1997 Comment to La. C.C.P. art. 1671 must occur before prior notice of intent to confirm a default is required. The mere fact that a plaintiff may have knowledge that a defendant has representation is not sufficient to require notice of default. In Crump the defaulted defendant’s attorney filed answers to discovery requests prior to the time the plaintiff confirmed the default, but the Crump court found that this was insufficient to constitute an “appearance of record” under La. C.C.P. art. 1702(A), i.e., the filing of a discovery response is not equivalent to “filing a pleading, appearing at a hearing, and formally enrolling as counsel of record.”

This Court then found that the filing of a discovery response is not an appearance of record, because a discovery response is not a pleading within the scope of La. C.C.P. art. 852. See also Crump v. Bank One Corp., 35,990 (La.App. 2 Cir. 5/8/02), 817 So.2d 1187, 1191-1193.

In the instant case, nothing that Mr. Landry did constituted an appearance of record. Therefore, under the rationale of the Mossy Motors case, the plaintiffs counsel was under no obligation to notify Mr. Landry of his intent to confirm the preliminary default. Mr. Fontenot’s claim that the default judgment is invalid, |7because he was not notified of the entry of the default before it was confirmed is without merit.

The appeal of the default judgment herein presents a res nova issue, i.e., we are aware of no prior reported case in which fault was allocated among alleged co-tortfeasors via a default judgment. As previously mentioned, this case involved multiple defendants, who the plaintiff alleged were “indebted jointly, severally, and in solido with all defendants in this litigation unto petitioner ...” All of the defendants, with the exception of Mr. Fon-tenot, answered the plaintiffs petitions.

Rendering a default judgment in a case such as the instant one would not have posed a problem prior to the introduction of comparative fault in Louisiana with the amendment of La. C.C. arts. 2323-24 in 1979. Prior to the amendment of those articles, the entire delictual obligation could be enforced against any one of many solidary obligors, regardless of how small that obligor’s percentage of fault might have been. All that was required was a finding of fault to make a default judgment effective as to the whole obligation and then the condemned defendant could pursue his co-tortfeasors for contribution. However, under the current law a negligent joint tortfeasor cannot be liable for more than his degree of fault and cannot be solidarily liable with any other person for damages attributable to the fault of such other person. La. C.C. arts. 2323-24. Thus, in this case, Mr. Fontenot is liable for ninety percent (90%) of the damages awarded by the default judgment and cannot seek contribution from any of the co-tortfeasors.

To further complicate matters for Mr. Fontenot, the appeal record contains neither a written transcript of the testimony at the default hearing nor a note of |sevidence; thus, the presumption that the judgment was rendered upon sufficient evidence and is correct applies in this case. La. C.C.P. art. 2131 provides as follows:

If the testimony of the witnesses has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement as to this narrative or of refusal to join in it, at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive.

In the instant case the testimony taken at the hearing on the confirmation of the default was not recorded or transcribed by a court reporter. Therefore, Mr. Fonte-not’s appellate counsel should have followed the procedure set forth in La. C.C.P. art. 2131. Because he did not do so, however, all we can do on appeal is determine whether the plaintiffs evidence is sufficient to support a prima facie case.

In his First Supplemental and Amended Petition naming Mr. Fontenot as a defendant, the plaintiff alleged:

5.
Callón had contracted with Facilities to have Facilities operate and perform certain work on said structure on or about March 16,1999.
6.
On or about March 16, 1999, petitioner was injured working on the above referenced structure while physically removing a very heavy section of flow pipe. As petitioner was holding on to the pipe during its removal, it fell over on him, forcing him to the ground.
7.
At all times pertinent herein, and more particularly, on or about March 16, 1999, defendant, Ed Fontenot, was a 1supervisor employed by [Facilities Consultants] and responsible for the operations on which petitioner was injured. Ed Fontenot failed to take appropriate and reasonable measures to make certain that the job upon which petitioner was injured was performed in a safe and reasonable manner. Specifically, Ed Fontenot had personal knowledge, or should have had personal knowledge, of the dangers presented on this job, but failed to act reasonably and responsibly.
8.
At all times pertinent herein, and more particularly, on or about March 16, 1999, defendant, M.J. Ingalls, was a supervisor employed by Facilities and responsible for the operations on which petitioner was injured. M.J. Ingalls failed to take appropriate and reasonable measures to make certain that the job upon which petitioner was injured was performed in a safe and reasonable manner. Specifically, M.J. Ingalls had personal knowledge, or should have had personal knowledge, of the dangers presented on this job, but failed to act reasonably and responsibly.
9.
At all times pertinent herein, Ed Fonte-not and M.J. Ingalls were employees of Facilities acting in the course and scope of their employment.

The plaintiffs supplemental petition then enumerates six acts of negligence attributable to Fontenot.

At the hearing to confirm the default, the plaintiff introduced oral testimony and seven exhibits. The exhibits included a sworn narrative from the plaintiffs physician detailing his medical treatment in conformity with La. C.C.P. art. 1702(D), documentation of the plaintiffs medical expenses, and his wage information. The default judgment rendered by the trial court held that the plaintiff had produced proof of his demand and that the law and the evidence were in his favor.

In reviewing the default judgment in this appeal, in the absence of a written transcript and a note of evidence, the presumption that the judgment was rendered 1 mupon sufficient evidence and is correct applies to the trial court’s determination that Mr. Fontenot was negligent and his negligence obligated him to the plaintiff. To the extent the trial court determined that Production Management and Callón Offshore were also negligent and allocated fault among all three parties, even though the plaintiff had previously dismissed his claims against Production Management and Callón Offshore, the trial court was free to do so pursuant to La. C.C. art. 2323.. Thus, insofar as the default judgment casts Mr. Fontenot in judgment for ninety percent (90%) of the fault it must be upheld.

Regarding the award of special damages, we find that the plaintiffs evidence is sufficient to support a prima facie case of past medical expenses of $83,560.29. At the default hearing, the plaintiff introduced into evidence the sworn affidavit of Dr. Stuart I. Phillips, an orthopedic surgeon and his treating physician. Dr. Phillips averred that he performed surgery on the plaintiffs spine and also recommended that the plaintiff undergo additional spinal surgery. In his opinion, the plaintiffs back problems were more likely than not caused by the work-related accident. Attached to Dr. Phillips’ affidavit were copies of the plaintiffs medical bills totaling $83,560.29.

Furthermore, we find the plaintiffs evidence is sufficient to support a prima facie case of $500,000.00 in special damages for past and future lost wages and earning capacity. To obtain an award for future loss of wages and/or loss of earning capacity, a plaintiff must present medical evidence that indicates with reasonable certainty that there exists a residual disability causally related to the accident. Aisole v. Dean, 574 So.2d 1248 (La.1991). In the instant case, the plaintiff introduced into evidence his 1998 United States Income Tax Return Form 1040 A, which disclosed an adjusted gross income of $52,502.00, as well as his In 1998 and 1999 W-2 Forms, reflecting that his wages for those years were $52, 502.21 and $11,992.97, respectively. This evidence is sufficient to establish a prima facie case that the plaintiff sustained a loss of wages between 1998 and 1999 due to the work related accident. In addition to the income tax return and W-2 Forms, the plaintiff offered Dr. Phillips’ affidavit which stated that the plaintiff sustained permanent physical disabilities to the lumbar and cervical spines and a full body disability of 20%. Thus, we decline to disturb the award of special damages for past and future lost wages and loss of earning capacity.

As to general damages, it is well-settled that the trier of fact is granted much discretion in the award of general damages, i.e., those which may not be fixed with any degree of pecuniary exactitude but which, instead, involve mental or physical pain or suffering, inconvenience, the loss of gratification of intellectual or physical enjoyment, or other losses of life or life-style, which cannot be measured definitively in terms of money. Boswell v. Martin Lumber Co., Inc., 363 So.2d 506 (La.1978). The appellate review of awards for general damages is limited to determining whether the trier of fact abused his great discretion. The adequacy or inadequacy of an award should be determined on the basis of the facts and circumstances peculiar to the case under review, keeping in mind also that the trier of fact has the advantage of seeing the witnesses and evaluating their testimony, including that of residual pain. Id.

We reiterate that in the absence of both a transcript of the testimony at the default hearing and a note of evidence, the presumption that the judgment was rendered upon sufficient evidence and is correct applies in this case. Nothing in the record indicates otherwise. Thus, the trial court’s award of $500,000.00 in general damages must be affirmed.

| ^CONCLUSION

In conclusion, we sympathize with Mr. Fontenot, who acted as a reasonably prudent defendant by retaining legal counsel to represent him after being served with the plaintiffs petition. Although the default judgment procedure appears to be an awkward vehicle for disposing of such issues as general damages and fault, the Louisiana Code of Civil Procedure provides for it. The record reflects that the plaintiffs counsel fully complied with the procedural rules regarding default judgments. Unfortunately, Mr. Fontenot’s attorney failed to do what was necessary to protect his client’s interests. As difficult as it is to uphold the default judgment in this case, we are bound by both the Code of Civil Procedure and the jurisprudence, which require that we do so. Also, as harsh as it may seem, it is only fair that Mr. Fontenot, who chose the remiss attorney, rather than the plaintiff, should bear the consequences of that choice.

Accordingly, for the reasons stated herein, the default judgment rendered in favor of the plaintiff, Charles M. Gresham, and against the defendant, Edius Fontenot, is affirmed.

AFFIRMED.

      . Documents in the record indicate that following a mediation, the plaintiff agreed to settle any and all claims he may have had against Production Management and Callón Offshore arising out of the accident for the sum of $312,500.00, but the plaintiff reserved his right to proceed against any other parties not named in the agreement, including Facilities Consultants, Mr. Ingalls and Mr. Fonte-not. As a result of the settlement, Callón Offshore filed its motion for summary judgment to be dismissed from the suit and the plaintiff filed a motion to dismiss his claims against Production Management, The Gray Insurance Company (Production Management’s general liability insurer), Callón Offshore, and Mr. Raigan.

      . Mr. Fontenot averred that he received a notice of the trial but never received a notice of the scheduling of the confirmation of the default.

      . The appellant brief alleges that Mr. Fonte-not and his wife filed suit for damages, naming as defendants, Mr. Landry, and his insurer, Westport Insurance Company, alleging legal malpractice by Mr. Landry in his representation of Mr. Fontenot in Mr. Gresham’s suit. A copy of the Fontenots’ petition is annexed to the appellant brief, but it is not part of the record in this appeal.

      . The presumption that the default was rendered upon sufficient evidence and is correct does not apply if the testimony is transcribed and contained in the record. Band v. First Bankcard Center, 94-0601 (La.App. 4 Cir. 9/29/94), 644 So.2d 211; Skrantz v. Smith, 95-516 (La.App. 3 Cir. 12/11/96), 685 So.2d 492. The presumption that a default judgment is correct and rendered upon competent evidence when there is no transcript of the default confirmation hearing creates an anomaly in that the more incomplete the record, i.e., the lack of a transcript, the easier it is for the plaintiff to maintain his case on appeal. This creates an incentive for a plaintiff who obtains a default to forego having the court reporter record and transcribe the testimony at the confirmation hearing.

      . La. C.C.P. art. 852 provides that pleadings consist of petitions, exceptions, written motions, and answers.

      . The record reflects that a preliminary default was entered against Mr. Ingalls, also, but he filed an answer to the plaintiff's petition before the default against him could be confirmed.


author: JjMICHAEL E. KIRBY, Judge. 11ARMSTRONG, C.J., | ROBLAS, J.,

text:
    Erin Elizabeth BOH v. JAMES INDUSTRIAL CONTRACTORS, et al.
    No. 2003-C-1211.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2004.
    Writ Denied March 5, 2004.
    Glenn B. Adams, James R. Carter, Por-teous, Hankel & Johnson, L.L.P., New Orleans, LA, for Relator, Sewerage and Water Board of New Orleans.

      Linda S. Harang, Jefferson, LA, Stephen B. Murray, Justin I. Woods, Murray Law Firm, New Orleans, LA, for Respondents.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS JR.).
   JjMICHAEL E. KIRBY, Judge.

STATEMENT OF THE CASE

The relator, the Sewerage & Water Board of New Orleans (SWBNO), seeks review of an order granting the plaintiffs’ motions to transfer twenty-eight individual actions from various divisions of the Civil District Court for the Parish of Orleans (CDC) to Division C for consolidation with the instant case, Erin Boh v. James Industrial Contractors, et al. A hearing on the consolidation issue was held on May 8, 2003, and a judgment granting the motions was signed on June 2, 2003. The relator filed its notice of intention to apply for a supervisory writ on or about June 25, 2003. The trial court set July 2, 2003 as the return date for the filing of the writ. On July 1, 2003, the Board sought an extension of the deadline for filing its writ application, and, the court signed an order extending the deadline for the filing of the writ to July 3, 2003.

FACTS

The litigation forming the basis for this writ application stems from allegations of damage to property in the Broadmoor area of the city allegedly caused by a drainage project. According to the relator the project is a joint one |2involving the City of New Orleans, relator, and the United States Army Corps of Engineers. The project covers an area extending some miles in Uptown New Orleans. In addition to the instant lawsuits, approximately forty other lawsuits by individual or cumu-lated plaintiffs are currently pending in CDC. Twenty-eight of the lawsuits were filed by the Murray Law Firm and the others by other law firms. In the actions filed by other firms, there are additional defendants, but in the action filed by the Murray Law Firm, the relator is the only named defendant. The instant writ application arises from the granting of a motion to consolidate the twenty-eight lawsuits filed by the Murray Law Firm with a case that was initially filed on May 18, 2001, by pro se plaintiff Erin Elizabeth Boh. Ms. Boh filed a petition for. damages against the relator, SWBNO, James Industrial Contractors, L.L.C., the U.S. Army Corps of Engineers, and various insurance companies seeking damages arising out of property damage to her house caused by construction of a drainage system on the Napoleon Avenue area of her home. She alleged that work on the construction project began on May 18, 2000 and was still continuing and causing damage at the time her' petition was filed on May 18, 2001.

On October 15, 2001, Linda Harang of the Murray Law Firm filed twenty-eight lawsuits on behalf of various owners and residents whose properties were allegedly damaged by the same drainage construction project that allegedly caused damage to Mrs. Boh’s property. CDC Case# 2001-16964 was filed on behalf of Canard Properties, L.L.C., and Paul and Mario Calonje (owners of properties located on So. Tonti Street, Nashville Avenue, Joseph Street, So. Claiborne Avenue, Jena Street and So. Derbigny Street). The sole named defendant in that lawsuit is the relator, SWBNO. The plaintiffs alleged that they suffered damages attendant to activities related to a drainage improvement project referred to as the | aSoutheast Louisiana Drainage Improvement Project (SELA Project). The SELA Project, which was allegedly initiated and instituted by the relator, SWBNO, was a drainage improvement project covering the vicinity of So. Claiborne Avenue, Napoleon Avenue, Fontainebleau Drive, Nashville Avenue, and Louisiana Avenue (also referred to as the Broadmoor area of town). The plaintiffs alleged that they suffered damages as a result of pile driving, concrete breakage and removal, water drainage and dewatering, soil excavation and other activities attendant to the SELA project. The project allegedly was continuing at the time the lawsuit was filed.

CDC Case # 2001-16965 contains identical allegations as CDC Case # 2001-16964 and was filed on behalf of Kobie Guillory, Elizabeth Maifeld, Tina and Rahim Ebra-himpour, and Ernest O’Steen (owners and/or residents of properties located on Jena Street, Fontainebleau Street, or So. Salcedo Street).

CDC Case #2001-16966 was filed on behalf of Angeles P. Blalock, Percy Miller, Sr., Michael Acker, Annelle Barolak, and Marie and Paul Andrieu (owners and residents of properties located on Napoleon Avenue, Jena Street, or So. Prieur Street).

CDC Case #2001-16967 was filed on behalf of Dorothy and Bobbie Swain, Carmen Baham, Jeffrey Bordenave, and Victoria and Andrew Powell (owners and residents of properties located on So. Miro Street, So. Galvez Street, or So. Tonti Street).

CDC Case # 2001-16968 was filed on behalf of Kathlyn Broussard, Laurita Hy-mel, Adele and Cade London, Constance and Herman Scieneaux (owners and/or residents of properties located on Jena Street, Milan Street, or So. Miro Street).

| ¿CDC Case #2001-16969 was filed on behalf of Rita and Henry Holzenthal, III, Gretel Holzenthal, Cecilia and Henry Hol-zenthal, Patricia Stanley and George Thomas, and Monica and Luis Espinel (owners and residents of properties located on So. Dupre Street, So. Galvez Street, Gen. Pershing Street, or So. Johnson Street).

CDC Case # 2001-16972 was filed on behalf of Carlo Galan, Gwendolyn Redus, Billye Ber, and Maxine Miller (owners and/or residents of properties located on Napoleon Avenue, So. Miro Street, or So. Rocheblave Street).

CDC Case #2001-16973 was filed on behalf of Marcia and St. Clair Raymond, Marion Robinson, Jeanette Hunter, and Dianne Luckett on her own behalf and on behalf of her minor child, Monisha Wise (owners and/or residents of properties located on So. Miro Street, So. Galvez Street, or Delachaise Street).

CDC Case #2001-16974 was filed on behalf of Myron Sheen, Roland Lambert, Carol Daniels, Wesley Mauthe (owners and residents of properties located on So. Claiborne Avenue and Gen. Pershing Street), and Latonya Conerly (lessee of the building located at 2703 So. Broad Street).

CDC Case #2001-16975 was filed on behalf of Margaret and Patrick Shimon, Ernest Brumfield, Clara Leflore, and Maude Rome and Huery Pitts (owners and residents of properties located on Napoleon Avenue, Louisiana Avenue Parkway, and Gen. Pershing Street) and Bed and Breakfast-Beyond, a proprietorship with its principal place of business at 3115 Napoleon Avenue.

CDC Case #2001-16977 was filed on behalf of Angelique Strother, Beverly Katz, Celeste Bernard, Rudolphe Bit-chatch, Michelle Cox and Ryan Cox (owners and residents of properties located on Nashville Street, Octavia Street, or Robert Street).

| SCDC Case # 2001-16978 suit with identical allegations filed on same day by the same attorney on behalf of Barbara and David Snyder, Catherine Simoneaux, James Hagerty, Edna and Flora Fleming (owners and residents of properties located on Upperline Street.)

CDC Case #2001-16979 was filed on behalf of Marguerite and Charles Johnson, William Turner, Vicki Hirsch, John Snow and Kevin Caldwell (owners and residents of properties located on Gen. Pershing Street, So. Rocheblave Street, or So. Gayo-so Street).

CDC Case #2001-16980 was filed on behalf of Jose Sierra and Karen Allison-Davis and Curtis Davis on their own behalf and on behalf of their minor children, Melissa Allison-Davis and Curtis Davis, Jr. (owners and residents of property located on Napoleon Avenue) and Marian Rabb (owner and resident of property located on So. Tonti Street).

CDC Case # 2001-16981 was filed on behalf of Joseph Peychaud, Bonnie O’Rourke-Barr, Michele Barad, Mary Gnooch, and Willye Jackson (owners and/or residents of property located on Milan Street or Gen. Pershing Street).

CDC Case #2001-16982 was filed on behalf of Adelia Luscy, Mae Taylor, Martha Anderson, Randy Campbell, and Arlene Harrison (owners and/or residents of properties located on So. Miro Street, Napoleon Avenue, So. Derbigny Street, or Gen. Pershing Street).

CDC Case # 2001-16983 was filed on behalf of Poppy (Melissa) Brite, Cynthia Mary, Cornell and Walter Bell, Luzine Bickham, Lela and Marcos Blanco (owners and residents of properties located on Napoleon Avenue, Gen. Pershing Street, So. Tonti Street, or So. Roman Street).

IkCDC Case # 2001-16984 was filed on behalf of Jean and Fred Feran, Mary Hunt, Mary and Freddie Sharett, Penelope Sheffield, and Elise Boyer (owners and residents of properties located on Napoleon Avenue, So. Dorgenois Street, or Gen. Pershing Street).

CDC Case #2001-16985 was filed on behalf of Cynthia and Jay Gulledge, Pamela and Philip Wallace, Carey Herman and Paul Rogers on their own behalf and on behalf of their minor child Helen Rogers, and Rosnau Johnson, Jr. (owners and residents of properties located on So. Prieur or So. Derbigny Streets).

CDC Case #2001-16986 was filed on behalf of Marilyn and Rosemary Crump, Henry Crump, III and Paulette and Dawn Lewis (owners and/or residents of properties located on Walmsley Avenue).

CDC Case #2001-16987 was filed on behalf of Anne Hallock, Elizabeth and Robert Low, Beverly O’Hara, Maxine 01-idge and Theodore Flot (owners and/or residents of properties located on Upper-line Street, Jena Street, or So. Miro Street).

CDC Case #2001-16989 was filed on behalf of Doris Taylor, Patricia and Lisa Scott, Cornelius Edinburgh and Ethel Bethley (owners and residents of properties located on Gen. Pershing and/or Walmsley Streets).

CDC Case #2001-16990 was filed on behalf of plaintiffs Vincent Williams, Rose Bourgeois, Georgia P. Smith, Eloise Louis and Brenda Brown. Two of the plaintiffs allegedly owned property located at two separate addresses in the 3800 block of General Pershing Street. One plaintiff allegedly owned property located in the 4200 block of So. Rocheblave Street. One plaintiff owned property located at 4100 So. Tonti Street and the fifth plaintiff was a resident of the house located at 4100 So. Tonti Street.

|7CPC Case #2001-16991 was filed on behalf of Elizabeth and Kenneth Kuss-mann (owners of property located at 3844 Napoleon Avenue); Elisabeth Rareshide (owner and resident of property located at 3840 Napoleon Avenue and owner of property located at 3121-23 Jena Street); Joel Escamilla, Jr. (owner and resident of property located at 3852 Napoleon Avenue); Barbette Sneed (owner and resident of property located at 3827 Jena Street); and Misty M. Frye (owner and resident of the house located at 3823-25 Jena Street).

CDC Case # 2001-16992 was filed on behalf of Mona Lisa Crump Dogans and James Dogans (owners and residents ■ of property located at 2827 Gen. Pershing Street), James Dogans, Jr. and Kirel Do-gans, (residents of the house located at 2827 Gen. Pershing Street), Terry Crump (resident of the house located at 2829 Gen. Pershing Street), Claiborne Avenue Ventures, L.L.C. (a limited liability company with its principal place of business at 4235 So. Claiborne Avenue) and Crump Seafood & Sandwich Shop (a proprietorship with its principal place of business at 4235 So. Claiborne Avenue).

CDC Case # 2001-16993 was filed on behalf of Deporres Property Corporation (owner of the property located at 3407 Napoleon Avenue); Michele and Jerome Frazier, on their on behalf and on behalf of their minor children Jasmine and Jo Ann Frazier (owners and residents of property located at 3425 Gen. Pershing Street); Elizabeth Armstrong (owner and resident of property located at 4315 So. Johnson Street); and Hazel Stepter (owner and resident of property located at 4320-22 South Tonti Street).

CDC Case #2001-16994 was filed on behalf of Ruth and Theodore Smith, Adele Knatt, Richard Naquin, Joseph Schaub, Raymond Schaub and Caroline |sSchaub (owners and/or residents of property located on Willow Street, Clara Street, Jefferson Avenue, or So. Claiborne Avenue).

CDC Case # 2001-16995 was filed on behalf of Belinda LaCoste, Gloria Dei Luthern (sic) Church, Rosalind Brooks on her own behalf and on behalf of her minor child, Darrell Brooks, Brian Sennette, Jr., and Irvin Boudreaux, Sr. (owners and/or residents of property located on So. Gayo-so Street and/or So. Dupre Street).

Subsequent to the filing of the various lawsuits the plaintiffs filed a motion to transfer their cases for consolidation with the class action, Dudley Batchelor v. Sewerage & Water Board of New Orleans, CDC No.2001-9219, which was pending in Division B. The relator objected, allegedly stating that the Batchelor case was not the lowest-numbered DELA-related case. Accordingly, the hearing on that motion to transfer was cancelled. In April of 2003 the plaintiffs filed another motion to transfer and consolidate. This time the plaintiffs requested that their cases be transferred to Division C to be consolidated with the case, Erin Boh v. City of New Orleans, for pre-trial proceedings. The relator opposed the motion to transfer and consolidate the plaintiffs’ cases with Erin Boh v. City of New Orleans. Following a hearing, the trial court granted the motion to transfer and consolidate. The relator now seeks a review of that judgment.

DISCUSSION AND RECOMMENDATION:

The sole issue presented by this writ application is whether the trial court erred in granting the plaintiffs’ motion to transfer and consolidate the twenty-eight cases previously allotted to other divisions of court to Division C for consolidation with the Erin Boh case.

|flIn support of their motion to transfer their cases and consolidate them with the Erin Boh case, the plaintiffs alleged that the Erin Boh case was the lowest numbered case pending in the court that was related to the SELA drainage improvement project in the Broadmoor neighborhood. Plaintiffs requested the transfer and consolidation pursuant to Local Rule 3.2, 9.3, “Transfer and Consolidation”, of the Uniform Rules of District Court, which provides:

TRANSFER AND CONSOLIDATION
1.To facilitate the fair and expeditious resolution of cases, it is the policy of the court to transfer to the lower numbered suit and consolidate for trial those cases in which such consolidation is appropriate. The transfer and consolidation shall be by order of the judge to whom the case is being transferred, after contradictory hearing with all parties in each case, or with their written approval. It shall be the duty of any attorney in any case which ought to be consolidated to so move or call to the court’s attention the pendency of related cases that should be considered for consolidation. The following are examples of cases which ought to be consolidated:
1. Cases involving multiple claimants arising from a common casualty.
2. Claims for worker’s compensation and damages by a
claimant arising out of a single incident.
3. Cases involving multiple accidents to one person with injuries that overlap, whether in tort or compensation.
4. Multiple claims against a limited fund, such as an insurance policy or construction bond, where such claims are in conflict because they exceed the fund.
5. Multiple claims growing out of a single construction contract.
6. Multiple cases principally involving the same or similar legal issues, such as test cases with nominal parties.
7.Expropriations of properties in a single public development, where owned by the same owner in the Imsame neighborhood. Where separate parcels are owned by different owners, the cases need not be con- ■ solidated. (emphasis added)

DIST CT App. 3, (Rules 3.2 and 9.3).

The plaintiffs argued that subparts 1, 4, 5, and 6 of the above-cited rule mandated transfer and consolidation of their cases with the Boh case. More specifically, they argued that 1) the Boh plaintiff and the plaintiffs in the twenty-eight other actions all live in and/or owned property in the Broadmoor neighborhood; 2) the Boh plaintiff and the plaintiffs in the twenty-eight actions claimed damage to their property as a result of the same SELA drainage construction project; 3) in CDC Case #2001-16992 the plaintiffs are represented by the samé counsel as counsel in the other cases, and that case is already allotted to Division C; and 4) the relator did not challenge the jurisdiction or venue of the court.

The relator opposed the motion to transfer the twenty-eight cases arguing that none of the cases met the requirements needed for- transfer and consolidation. More specifically, the relator argued that the cases did not involve multiple claimants suffering injury from a common casualty. Rather, the relator noted that there were several separate SELA projects, numerous separate contracts and subcontracts spread over a number of years. Moreover, the ■ claims of the individual homeowners were separate, distinct and individual as noted by the fact that, the plaintiffs lived miles away from each other, had different, types of houses, different maintenance records, different soil subsidence, etc. Additionally, the relator noted that there had been no showing that this was a case wherein there were multiple claims against a limited fund. Moreover, the claims did not grow out of a single construction contract; rather, all the claims were tort claims. U Finally, as to the allegation of claims involving the same or similar legal issues, the relator noted that with the multiplicity of engineers, contractors, possible causes of damage, etc., there would be different legal and factual issues presented in the claims of each individual homeowner.

It does not appear that the plaintiffs’ claims fit under any of the cited subparts. Moreover, it does not appear that this court needs to address whether the cases fit under subparts 1, 4, 5, 6 because the trial court did not cite any of these sub-parts as authority for granting the plaintiffs’ motion to consolidate the twenty-eight cases with Erin Boh. Rather, the sole reason given for ordering the transfer and consolidation of the cases was a finding by the trial court that the matters should be consolidated “in the interest of judicial economy.”

Yet neither the court nor the plaintiffs have shown why it is in the interest of judicial economy to consolidate the instant case “for pre-trial purposes.” More importantly, as noted by the relator, the transfer and consolidation of the cases is in direct contravention of La. C.C.P. art. 253.2, which provides in relevant part as follows:

Art. 253.2. Transfer and reassignment of pending cases
After a case has been assigned to a particular section or division of the court, it may not be transferred from one section or division to another section or division within the same court, unless agreed to by all parties, or unless it is being transferred to effect a consolidation for purpose of trial pursuant to Article 1561. However, the Supreme Court, by rule, may establish uniform procedures for reassigning cases under circumstances where an expeditious disposition of cases may be effectuated, (emphasis added)

The relator argues that La. C.C.P. article 1561 only allows consolidation for trial in limited circumstances and the consolidation of the plaintiffs’ with Erinj^Boh does not fall within the requirements specified in La. C.C.P. art. 1561 which provides:

Art. 1561. Consolidation for trial
A. When two or more separate actions are pending in the same court, the section or division of the court in which the first filed action is pending may order consolidation of the actions for trial after a contradictory hearing, and upon a finding that common issues of fact and law predominate, (emphasis added)

Pursuant to the above-cited codal articles, cases may be consolidated “for trial purposes.” Yet, in the plaintiffs’ motion to transfer and consolidate, the plaintiffs merely request that the cases be transferred and consolidated “for pre-trial proceedings.”

The relator further argues that Uniform Rules of the District Court, Local Rules 3.2 and 9.3 do not require a transfer and consolidation of the plaintiffs’ separate actions to Erin Boh. Alternatively, it argues that if the Rules do allow such transfer and consolidation, they are in violation of La. C.C.P. arts. 253.2 and 1561. However Uniform Rules of the District Court, Local Rules 3.2 and 9.3 mirror the language of La. C.C.P. art. 1561 in that they also speak of transferring cases “for trial.” Accordingly, no need exists to address whether the Uniform Rules conflict with La. C.C.P. art. 1561.

In response to the relator’s argument, the respondents argue that to the extent that the rules do not specifically allow for transfer and consolidation, the court should not elevate form over substance by disallowing a procedure that will streamline this complex litigation. Citing La. C.C.P. art. 5051, they argue that the Rules of Civil Procedure mandate a liberal construction to promote efficiency . and | ^consistent results. While this may be true, the fact remains that neither the trial court nor the plaintiffs have demonstrated how consolidating these cases for pre-trial proceedings will promote judicial efficiency. By limiting their transfer and consolidation request to a request for eom solidation only for pre-trial purposes, the plaintiffs implicitly recognize that because of the nature of the plaintiffs’ claims, each of these case must be tried separate. Assuming arguendo that the rules allowed for consolidation for purposes other than trial, none of the parties specifies what benefit will be served by consolidating for pre-trial purposes. It certainly could not affect discovery in any way. The same attorney and/or firm represents- the twenty-eight plaintiffs, and the original pro se plaintiff in Erin Boh is now represented by counsel. Certainly these attorneys will be able to work out any discovery issues.' Moreover, if the cases are to be sent back to the individual divisions to which they were originally allotted for trial, it is difficult to see how the trial judge handling the matter pre-trial will be able to set definitive cut off dates and or make binding rulings on the various pre-trial matters that may arise. Additionally, this bifurcated matter of handling the case could severely hamper any settlement efforts between the parties. Accordingly, it is not apparent that judicial economy will be served by consolidating these cases.

As a general rule, a trial court has wide latitude with regard to the consolidation of suits pending in the same court. McGrail v. Sugar, 2000-2528, p. 7 (La.App. 4 Cir. 12/19/01), 804 So.2d 844, 848, citing S.K. Whitty & Co. v. Laurence L. Lambert & Associates, 632 So.2d 364 (La.App. 4 Cir. 12/30/93). |14 Consolidation of cases wherein the court finds that common issues and facts and law predominate and that judicial economy will be served by the consolidation has been allowed under La. C.C.P. art. 1561 A. See Johnson v. First Nat. Bank of Shreveport, 2000-870 (La.App. 3 Cir. 6/20/01), 792 So.2d 33. However, no cases have been cited by the plaintiffs wherein consolidation for “pre-trial” purposes has been allowed.- Nor can the undersigned envision why consolidation for this limited purpose would be needed or desirable in. the instant case, particularly where the consolidation would admittedly impact the random allotment procedure.

In State v. Sprint Communications Company, L.P., 96-3094, p. 3 (La.9/9/97), 699 So.2d 1058, 1062, the Louisiana Supreme Court noted the impact that the transfer of cases have on random assignment of eases and specifically noted that La. C.C.P. art. 253.1 expresses the legislative mandate to end the practice of nonrandom assignment. Significantly, in Sprint, the trial court transferred a case to another section for reasons very similar to the reasons given in the instant case. However, the Supreme Court criticized the 18th Judicial District Court’s interdivisional transfer of civil cases that had been made in the “best interest of judicial economy, and. .case management.” In Sprint two class action suits had been filed and randomly allotted to one judge, who transferred them to another judge who “was more experienced in class action lawsuits.” In concluding that the transfers were impermissible, the Court stated that La. C.C. art. 253.1 expressed “the legislative mandate to end the practice of non-random assignment.” Sprint Communications Company, 699 So.2d at 1062. The Court further articulated:

The statute is clear and unambiguous. The requirement to randomly assign must apply to the transfer as well as the initial allotment of cases to deter attempts to [^manipulate the assignment of lawsuits.... The words ‘random assignment’ necessitate the statute’s application beyond the initial procedures employed by the clerk of court.

The Court also noted the enactment of La. C.C.P. art. 253.2, effective August 15, 1997.

The Court found that the clear language of La. C.C.P. art. 253.2 left no doubt that the non-random interdivisional transfers at issue therein would be improper under the new article. Thus, the Court concluded that its decision was codified by the recent enactment of La. C.C.P. art. 253.2. Similarly, in the instant case, it does not appear that transfer and consolidation of these twenty-eight cases for reasons of “judicial economy” meets the criteria specified by the Legislature or the Supreme Court for the transfer and consolidation of cases.

In appropriate cases wherein judicial economy will be promoted and the cases fit the criteria specified in La. C.C.P. art. 1561, consolidation should be allowed. However, because neither the plaintiffs nor the trial court demonstrated that those criteria were met, it appears the trial court erred in granting the plaintiffs’ motion to transfer and consolidate the plaintiffs’ cases with the Erin Boh case.

Accordingly we grant the writ application and reverse the judgment of the trial court.

WRIT APPLICATION GRANTED; JUDGMENT REVERSED.

ARMSTRONG, C.J. — dissents.

TOBIAS, J. — concurs and assigns reasons.

11ARMSTRONG, C.J.,

dissents with reasons.

Finding no abuse of the trial court’s broad discretion in matters of consolidation, I would deny relator’s writ application. Therefore, I respectfully dissent.

The articles of the Code of Civil Procedure are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves. La. C.C.P. art. 5051. La. C.C.P. art. 1561 can have no possible purpose other than the promotion of judicial efficiency and judicial economy.

It is as much within the discretion of the trial court to consolidate for pre-trial purposes as it is to consolidate for discovery purposes. Therefore, the burden is not on the trial court or the plaintiff to establish that the consolidation was proper. The burden is on the relator to demonstrate otherwise. The record favors the trial judge in this regard.

My reading of State v. Sprint Communications Company, L.P., 96-3094, p. 3 (La. 9/9/97), 699 So.2d 1058, 1062, does not support the contention that the consolidation in the instant ease is in contravention of the rule against non-random assignment and transfer of cases. In the case sub judice, all of the consolidated cases were originally allotted randomly and then were • consolidated to the lowest 12numbered randomly allotted case. The Spyint case is totally inapposite. In that case the Supreme Court disparaged the practice of the 18th Judicial District Court of routinely non-randomly swapping cases in general and in that particular case struck down the non-random swapping based on the testimony of the judge to whom the cases were transferred that the transfer was “ ‘routine’ and done because he was more experienced in class action lawsuits.” Id., p. 2, 699 So.2d at 1061.

Additionally, I note that La. C.C.P. art. 253.1 and 253.2 do not support the contention that what was done in the instant case violates the random assignment of cases and the prohibition against the transfer of cases. Instead, La. C.C.P. art. 253.2 specifically authorizes transfers for consolidation purposes by prohibiting the transfer of a case “unless agreed to by all parties, or unless it is being transferred to effect a consolidation for purpose of trial pursuant to Article 1561.” [Emphasis added.] In other words, there is no random allotment problem and no non-random transfer problem when the transfer is done pursuant to a consolidation under La. C.C.P. art. 1561, as was done in the instant case. In re Dendinger, 99-1624, p. 4 (La.App. 4 Cir. 7/21/99), 766 So.2d 554, 556. In fact, even cases filed in different parishes may be consolidated when those parishes fall within the same judicial district. Johnson v. First Nat. Bank of Shreveport, 00-870 (La.App. 3 Cir. 6/20/01), 792 So.2d 33.

Based on the foregoing analysis I conclude that: (1) La. C.C.P. art. 1561 should be liberally construed to allow consolidations for pre-trial purposes; (2) the consolidation in the instant case to the lowest number of the randomly allotted cases to be consolidated violates neither the random allotment rule nor the prohibition against non-random transfers; (3) and there was no abuse of the trial court’s broad discretion.

For the foregoing reasons, I would deny the relator’s writ application. Accordingly, I respectfully dissent.

| ROBLAS, J.,

concurs and assigns reasons.

I respectfully concur. I agree with the majority. As a matter of technical law, La. C.C.P. arts. 253.2 and 1561 require a reversal of the trial court’s decision. Court rules are superseded by statute, except in those rare cases where certain matters clearly fall within the purview of Louisiana’s constitutional provisions that leave such matters to the regulation by the courts, not the legislature.

In a case such as the one at bar, our law should permit a trial court, in its discretion, to consolidate related cases for discovery purposes only. Our decision in the case at bar relegates the matter of consolidation for discovery to legislative directive. For the present, use of discovery between these multiple cases will have to be handled by agreement of the parties, subject to court regulation under La. C.C.P. art. 1420 B.

      . Art. 5051. Liberal construction of articles The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law arid are not an end in themselves.