author: LBROWN, C.J. |, CARAWAY, J., hGASKINS, J.,

text:
    Bobby Ray JARRELL, Plaintiff-Appellee v. Leo A. MILLER, Jr., et al., Defendants-Appellants.
    No. 38,360-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 9, 2004.

      Hayes, Harkey, Smith & Cascio, L.L.P., by Joseph D. Cascio, Jr., John C. Roa, The Boles Firm, by Robert W. Kostelka, Monroe, for Defendants-Appellants, Leo A. Miller and Westport Insurance Co.
    Crawford & Anzelmo, by Brian E. Crawford, McLeod Verlander, by David E. Verlander, III, Monroe, for Plaintiff-Ap-pellee Bobby Ray Jarrell.
    Before BROWN, WILLIAMS, GASKINS, CARAWAY, and DREW, JJ.
   LBROWN, C.J.

This is an attorney malpractice action. Plaintiff, Bobby Ray Jarrell, argued that he “suffered immense economic harm as a result of Miller’s misconduct and negligence in handling the broad scope of duties accepted by [Miller] as Mr. Jarrell’s attorney.” Jarrell claimed special damages for the loss of his job and stock in the company he and his wife of 27 years founded and operated. He also sought general damages for emotional distress. A jury-agreed with plaintiff and awarded him a total of $1,350,285. Defendants, the attorney, and his malpractice insurer have appealed. For the reasons set forth below, we reverse and render judgment in favor of defendants.

Facts

Plaintiff and his wife, Maxine Ford Jar-rell, were the sole shareholders and officers of Jarrell Transport, Inc. (“JTI”), a commercial trucking business located in Bastrop, Louisiana. Both husband and wife were personally responsible for most of the debts of the corporation. In 1997, the business was in financial trouble. In April of 1997, a deal was made with a larger trucking business out of Florida, Montgomery Tank Lines, Inc. (“Montgomery Tank”). JTI was made an affiliate of Montgomery Tank. In early July 1998, plaintiff got drunk, telephoned Montgomery Tank, cursed its representative, and threatened to bomb its facility. On July 15, 1998, Montgomery Tank terminated its agreement with JTI. The loss of affiliation with Montgomery Tank, together with IRS tax liens and cash flow problems worsened JTI’s already desperate state.

|?In late July 1998, JTI retained a local attorney, Leo A. Miller. Plaintiff testified that as president of JTI he instructed Miller to file suit against Montgomery Tank and to seek the protection and reorganization of Chapter 11 Bankruptcy for JTI; however, within two weeks, by early August 1998, plaintiff was admitted into Doctors Hospital in Shreveport for detoxification and treatment of his severe alcohol problem. He remained in Shreveport under treatment until November 19, 1998.

During the time plaintiff was in Shreveport, the company was left in the hands of his wife. In October 1998, Miller prepared an act of partial partition of community property, transferring all of JTI’s stock to Mrs. Jarrell as her separate property. Until this time, the stock had been community property, with the Jarrells each owning 50 % of the shares. Plaintiff testified that he signed the document without reading it; he conceded that he was not prevented from reading it and that he was not under the influence of alcohol or drugs at the time. He claimed that his intent was to donate two percent of his 50% share in the corporation to give his wife 52% ownership so that she could effectively operate the company in his absence and compete for minority preference contracts and loans. Miller testified that the document he prepared was only a draft and that he gave it to Mrs. Jarrell to take to plaintiff in Shreveport for review and discussion and was surprised when the document was returned to him signed by plaintiff. Miller told Mrs. Jarrell to return to Shreveport and discuss the matter again with her husband; she later informed him that she had done so and that plaintiff understood the document.

|3On November 19, 1998, plaintiff left Shreveport, driving the 200 miles to Bas-trop and along the way drinking a couple of fifths of vodka. When he got to Bas-trop, he was intoxicated; he threatened his wife, broke windows in the office and company trucks using a tire iron, and generally wreaked havoc on JTI’s property.

Plaintiff was arrested and jailed. The next day, Miller filed for divorce on behalf of Mrs. Jarrell and obtained restraining orders against plaintiff. Following his arrest, plaintiff engaged the law firm of McLeod & Verlander to respond to the divorce action filed by his wife, attempt to recover his shares of stock, and sue Miller. In early 1999, while exploring the possibility of a reconciliation, both plaintiff and his wife consulted another attorney, Joseph Lebeau, to address the corporation’s ongoing problems. Lebeau advised that - the best course of action was to seek a loan rather than to sue Montgomery Tank or file Chapter 11 Bankruptcy.

Plaintiff claims that in February 1999, he and his wife had reached an agreement as to their domestic action. Plaintiff would receive 49% of JTI’s stock and his wife, with 51% of the stock, would remain as president of the company. Miller, however, inserted a release of professional liability in the settlement proposal which plaintiff rejected. Later, plaintiff agreed to sign, but Mrs. Jarrell then refused to sign the agreement. Without the settlement, stock ownership of the corporation was in question, which, according to plaintiff,. caused the loan to be denied in Der cember of 1999 and led .to the company’s failure. As stated above, the financial restructuring of JTI was handled by attorney Joseph Lebeau, not Miller.

14PIaintiff filed suit against Miller on November 17, 1999. Subsequently, Miller’s legal malpractice insurer, Coregis Insurance Company, was added as a party. In May 2000, plaintiff filed a separate suit against Mrs. Jarrell, who had divorced him, to recover his shares of JTI stock; however, he unilaterally dismissed that suit with prejudice in June 2001.

Exceptions of no right of action were filed by defendants asserting plaintiffs inability to seek damages on behalf of the corporate entity. On January 28, 2003, the trial court issued a ruling denying the exceptions. However, the trial, court directed that, pursuant to the representation of plaintiffs counsel at the hearing on the exceptions, the only damages being sought were those applicable to the plaintiff and not the corporation.

Defendants filed a motion in limine which sought to limit evidence on several matters, including plaintiffs request for lost wages of earning capacity. This was based on the allegation that plaintiff had sustained an unrelated physical injury in March 1999, as a result of which he was permanently and totally disabled. For the same reason, defendants also filed a motion for partial summary judgment which was denied by the trial court. On the issue of the loss of stock, defendant asserted preclusion by judgment due to plaintiffs voluntary dismissal with prejudice of his suit against Mrs. Jarrell, concerning JTI’s stock.

A jury trial was held in the Spring of 2003. The jury found for plaintiff. Damages totaling $1,350,285 were awarded as follows: $500,000 |Bin general damages;, $623,110 in lost wages; and $227,175 for lost value of stock. The jury did not assess any fault to plaintiff. Judgment in conformity with the jury’s verdict was rendered and signed.

Defendants filed a motion for new trial or, alternatively, JNOV. The trial court denied the motion in June 2003. It is from this judgment ■ that defendants have appealed.

Discussion

Legal Malpractice

At trial, plaintiff presented expert testimony from attorney Robert Contois, who identified certain Rules of Professional Conduct which he believed Miller violated, particularly Rule 1.4 — failure to communicate; Rule 1.2 — failure to follow client’s directions; and Rule 1.7 — conflict of interest.

Because JTI was a closely held family corporation, with Mr. and Mrs. Jarrell personally obligated for extensive corporate debt, Contois asserted that Miller’s engagement in July 1998 was as attorney for the corporation and both Mr. and Mrs. Jarrell individually. Contois claimed that Miller violated Rule 1.2 in not carrying out the directives of Jarrell as president of JTI to sue Montgomery Tank and seek the protection of the bankruptcy court. According to Contois, Miller’s breach of this ethical duty allegedly not only harmed the corporation, but also potentially exposed plaintiff to personal liability for the corporation’s debt. Next, according to Contois, Miller breached his duties under Rules 1.7 and 1.4 in failing to recognize the inherent conflict between the spouses in the execution of the act of partial partition of the JTI stock in October 1998, and in neglecting to communicate | f;and explain the consequences of that act to plaintiff. Mrs. Jarrell received the entire stock ownership of JTI by virtue of that transaction. Finally, Contois discussed Miller’s breach of the conflict of interest rule in acting as Mrs. Jarrell’s divorce attorney against plaintiff and in the settlement actions thereafter. All of these alleged ethical violations were not seriously disputed by Miller’s insurer or their legal expert.

Whether based upon breach of contract or tort, an attorney malpractice claim has well-defined elements. To establish a claim for legal malpractice, a plaintiff must prove: 1) a duty arising from an attorney-client relationship; 2) breach of this duty by failure to exercise a reasonable degree of skill in counseling or representing a client; and 8) damages or loss arising out of the breach. Generally, a plaintiff can have no greater right against his attorney for negligent handling of a claim than is available in the underlying claim itself; that is, damages are typically measured by that amount which the client would have recovered but for the attorney’s negligence. Costello v. Hardy, 03-1146 (La.01/21/04), 864 So.2d 129. This necessarily requires proof of the viability and worth of the claim lost because of the attorney’s negligence.

Damages in this case have been divided into specific or economic damages for plaintiffs loss of his job and stock, and general damages for emotional distress.

Economic Damages

Plaintiffs attempt to connect the loss of his stock and job to the failure of Miller to carry out his instructions to sue Montgomery Tank and file for |7Chapter 11 protection must fail. In addition to the fact that these actions belonged to the corporation and not plaintiff as a shareholder individually, there was no showing of the viability or worth of either of these proposed causes of action. In fact, in early 1999, the Jarrells hired a second attorney, Joseph Lebeau, who specifically advised against pursuing this line of action in favor of restructuring with a long term loan.

Mr. and Mrs. Jarrell started the business and incorporated it in 1985. The stock was community property, even though the parties were issued equal shares. The October 1998 stock transfer prepared by Miller was, in fact, a partial partition of community property. Miller prepared a draft and had Mrs. Jarrell take it to her husband in Shreveport for his review. By his own testimony, plaintiff stated that he instructed Miller to transfer a majority (52%) interest to Mrs. Jarrell so that she could operate the company and take advantage of certain minority owner benefits. Plaintiff claimed that he did not read the document, which in fact transferred 100% of the stock to his wife, but that he simply signed it.

When Mrs. Jarrell returned to Miller with the executed draft, she told Miller that plaintiff had signed but had not read the document. Miller expressed his concerns about plaintiffs understanding of the partition. He asked Mrs. Jarrell to return to Shreveport to discuss the contents of the draft with her husband. Mrs. Jarrell spoke again with plaintiff and then told Miller that plaintiff understood the contents and ramifications of the document. We note that Mrs. Jarrell, who has a separate action pending against Miller, was not called to testify at trial by either party.

| sPlaintiffs claim that Miller was deceitful in the presentment of the partition is seriously undermined by the clear language of the document and his admission that he did not read it. A person who signs a written contract is presumed to know its contents and cannot avoid its obligations by contending he did not read the document, or that it was not explained, or that he did not understand it, barring misrepresentation, fraud, or violence. Tweedel v. Brasseaux, 433 So.2d 133 (La.1983); Griffin v. Lago Espanol, L.L.C., 00-2544 (La.App. 1st Cir.02/15/02), 808 So.2d 833; Sonnier v. Boudreaux, 95-2127 (La.App. 1st Cir.05/10/96), 673 So.2d 713; Smith v. Leger, 439 So.2d 1203 (La.App. 1st Cir.1983).

If Mr. Jarrell had read the contract, he could have insisted on corrections to reflect his intent. We recognize, however, that because Miller might, at this point, have been considered plaintiffs attorney, there is some merit in the proposition that a client might sign a document prepared by his attorney without reading it. Con-tois, plaintiffs legal expert, opined that because plaintiff was obligated for the corporate debts, Miller was both his and JTI’s attorney. This conclusion applies equally to Mrs. Jarrell, who owned half of JTI and was also obligated for the corporate debts. Accordingly, Miller would have been acting as both Mr. and Mrs. Jarrell’s counsel.

Even so, plaintiffs claim for damages in an amount equal to the value of the stock he transferred to his wife is precluded by his own actions. In an effort to recover his stock, plaintiff brought suit against his ex-wife, but later dismissed the suit with prejudice, as he decided that the stock no longer had Lvalue. At trial, the jury awarded plaintiff damages for the value of this stock based on , the presumption that his stock was stolen from him through the actions of Miller and Mrs. Jarrell.

Plaintiff first transferred all of the shares of stock to his wife in the partial community property settlement, then sued her to get back the shares; however, he dismissed that action with prejudice. Plaintiff is not a shareholder in the company and never again can be.

As stated by the supreme court in Costello v. Hardy, supra at 139, “[Bjecause Mrs. Costello asserts claims for damages against the attorneys in this malpractice action that were discharged in the settlement'of the suit against the succession, the defendants are entitled to judgment as a matter of law dismissing the plaintiffs malpractice claim.” In the present case, defendants are also entitled to a dismissal of the claim for the value of stock that plaintiff gave away.

In addition, plaintiffs CPA expert, Harry Kenneth Lefoldt, Jr., based his valuation of the stock on the assumption that the long term loan being pursued by Le-beau would be funded. He also valued the stock as of December 1999, the date that the loan commitment was withdrawn. Because Lefoldt based his testimony upon erronedus assumptions, defendants’ motion to exclude this evidence should have been granted.

In a personal injury lawsuit, plaintiff bears the burden of proving the causal relationship between the negligent act and any lost earnings. Avant v. Illinois National Ins. Co., 82,680 (La.App.2d Cir.01/26/00), 750 So.2d 394. To recover for actual wage loss, plaintiff must prove that he would | inhave earned wages but for the legal malpractice in question. Boyette v. United Services Automobile Association, 00-1918 (La.04/03/01), 788 So.2d 1276.

Plaintiff testified that in March 1999, after Mrs. Jarrell agreed to allow him to return to JTI as an employee, he sustained a severe head injury. Plaintiff testified that he tried unsuccessfully to return to work but was disabled as a result of this injury. Dr. Tom Gulick, the neurologist who treated plaintiff, indicated that depression and anxiety were factors in this disability. Plaintiffs medical records reflected that his depression and stress existed several years before Miller’s legal services were engaged. Lefoldt, plaintiffs CPA expert, who computed lost wages, admitted that he was unaware of the disabling head injury, sustained by plaintiff. Lefoldt conceded that if plaintiff had suffered a total disability there would be no basis for the recovery of lost income. Without such a basis, there could be no recovery. Therefore, the trial court erred in denying defendants’ motion for partial summary judgment on this issue.

General Damages

We next turn our attention to the jury’s award of $500,000 in general damages to plaintiff for emotional distress. Our supreme court has not yet explicated or developed a theory concerning mental anguish damages in an attorney malpractice case. In Costello v. Hardy, supra at 139, without any analysis, the supreme court rejected plaintiffs general damage request, stating only that “[N]o evidence of mental anguish or emotional distress was offered.”

h-[Damages for pain, suffering, anxiety, and humiliation caused by negligence are generally not recoverable in a legal malpractice action. This is because the foreseeable result of an attorney’s negligence typically extends only to an economic loss. Obviously, a client will be annoyed and inconvenienced by an attorney’s failure, for example, to file suit within the applicable time limits; however, the client can be fully compensated by recovery of the value of the claim the attorney allowed to prescribe. This suffices to return the client to his prior circumstances. The primary interest protected by the general rule is a property right which can be economically measured. Serious emotional distress is not believed to be an inevitable consequence of a purely monetary loss. Richards v. Cousins, 550 So.2d 1273 (La.App. 4th Cir.1989), writ denied, 552 So.2d 397 (La.1989); Douglas v. Delp, 987 S.W.2d 879 (Tex.1999).

Recovery for such an economic loss requires proof of the viability and worth of the negligently lost claim. This methodology has been characterized as a “suit within a suit.” Chatelain v. Rabalais, 04-28 (La.App. 3d Cir.07/07/04), 877 So.2d 324; Beis v. Bowers, 94-0178 (La.App. 4th Cir.01/19/95), 649 So.2d 1094, writ denied, 95-0429 (La.03/30/95), 651 So.2d 847; Richards, supra. Some courts, however, that follow the general rule that mental anguish is not compensable would permit such damages when the attorney has acted reprehensibly or with heightened culpability. See Douglas, supra; Caddel v. Gates, 284 S.C. 481, 327 S.E.2d 351 (App.1984) (in which the court noted “though regrettable the overlooking of an encumbrance by an attorney examining title” is not outrageous conduct); Cummings v. Pinder, 574 A.2d 843 (Del.1990) (in which attorney conduct in failing to |12advise client of right to sue her own insurer, unilaterally increasing his contingency fee and stopping payment on a settlement check was found to be intentional and outrageous misconduct). ■

There are cases in which the original claim negligently handled by the attorney will not be predicated upon an economic loss, such as cases involving issues of contested child custody or visitation, confinement to a mental hospital, imprisonment, adoption, etc. Not to allow mental anguish damages under these limited circumstances would leave such a client without a remedy and virtually immunize the negligent attorney. This would certainly be contrary to public interest and would not constitute sound public policy.

The focus should shift from the nature of the attorney’s conduct, i.e., extreme and outrageous behavior, to the nature of the plaintiffs loss. This line of cases recognizes a mental anguish claim when plaintiffs damage is the loss of a personal interest such as liberty or child custody. See Chatelain, supra; Richards, supra; Wehringer v. Powers & Hall, P.C., 874 F.Supp. 425 (D.Mass.1995).

In the instant case, plaintiff sought specific or economic damages as well as gen-, eral damages. He has now been denied these economic damages, leaving only his claim for emotional distress. While the outer boundaries of the law are not yet visible in Louisiana when dealing with emotional distress in legal malpractice cases, we find that under the circumstances of this case such damages are not warranted.

From August until November 19, 1998, plaintiff was in treatment some 200 miles away and was out-of-touch with the operations of the business. |1sHis wife was left to conduct the business and. according to Miller, agreed with Miller’s view that suing Montgomery Tank, which held a mortgage on JTI’s property, and filing bankruptcy was unwise. We note that Mrs. Jarrell owned half of the stock and like plaintiff, was also personally liable for JTI’s debts. Following plaintiffs reasoning, Mrs. Jar-rell was also Miller’s client. Plaintiff expressed to Miller his desire to transfer majority ownership of JTI to his wife. Clearly, Miller should have personally explained to plaintiff the ramifications of the document he drafted, but the record is devoid of any showing of an intent to deceive. Miller also should not have filed the divorce action; however, it is likely that if he had not, another attorney would have. It is clear that injunctive relief was necessary to protect JTI’s property from plaintiffs drunken rampage. It is difficult to see any damages in filing for divorce on behalf of Mrs. Jarrell and obtaining restraining orders. Accordingly, we find there to be no cause of action for plaintiffs claim for mental anguish and emotional distress and conclude that the trial court erred in ruling otherwise. La. C.C.P. art. 927 provides that a failure to disclose a cause of action may be noticed by either the trial court or appellate court on its own motion.

Scope of Appellate Review

Plaintiff argues that it is beyond the province of this court to consider issues of causation and damages because defendants did not appeal the jury’s verdict on these questions.

Defendants, however, assigned as error rulings on the admissibility of evidence and motions which they contend tainted the jury process and resulted in a verdict which was manifestly erroneous and clearly wrong.

| uFor the reasons already discussed, we agree with defendants’ argument.

For the reasons set forth above, the judgment is reversed.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that judgment is rendered in favor of defendants, dismissing all of the claims of plaintiff. Each party, however, is to bear the expense of their own experts.

REVERSED and RENDERED.

CARAWAY, J., concurs with written reasons.

GASKINS, J., concurs in part and dissents in part with reasons.

WILLIAMS, J., concurs in part and dissents in part for the reasons assigned by J. GASKINS.

|, CARAWAY, J.,

concurring.

While I agree with the majority opinion in all other rulings, I respectfully concur with the dismissal of the award for general damages for the following reasons.

Malpractice and ethical violations in the attorney/client relationship may be considered in terms of both contract and tort law. This co'ntract/tort dichotomy, arising out of the professional/client relationship, causes difficult questions which courts might interpret differently under tort or contract theory, leading to unsettled law. For the following reasons, I believe the issue of mental anguish damages for the breach of the attorney’s duties and ethics violations should be settled under our law governing damages for conventional obligations.

To bring this issue into proper focus in this case, a sizeable portion of the jury’s $500,000 award for aggravation and mental anguish no doubt resulted from Miller’s filing of Mrs. Jarrell’s divorce and injunction proceedings against Mr. Jarrell. Miller had been both spouses’ attorney regarding their business endeavors. Yet, despite the conflicting interests, Miller filed the divorce suit. At trial, Mr. Jarrell asserted this ethical breach; his expert witness explained the conflict of interest and ethics violation to the jury; and the jury awarded mental anguish damages for this breach of the duty of client loyalty, among the many other ethical violations asserted by plaintiff. Nevertheless, there was no pecuniary loss attributable to Mr. Jarrell because of Miller’s filing of the divorce suit.

In the traditional tort setting involving personal injury, non-pecuniary damage awards for mental anguish and pain are made under the general | ^authority of La. C.C. art. 2315. Depending upon the nature of physical injury, Louisiana courts allow discretion to the trier-of-fact for a range of non-pecuniary awards recognizing that such damages for emotional distress and pain and suffering are insusceptible of precise measurement. La. C.C. art. 1999; Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Nevertheless, when no ancillary personal injury is involved, the courts and the legislature have crafted strict rules for the measure of mental anguish standing alone. See Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La.1990) and La. C.C. art. 2315.6 (requiring severe, debilitating and foreseeable emotional distress for awards to persons who witness the injury of a relative); White v. Monsanto Co., 585 So.2d 1205 (La.1991) (awards for the tort of intentional infliction of emotional distress require proof that the conduct of defendant was extreme and outrageous and the emotional distress suffered by plaintiff was severe); La. R.S. 23:1021(7)(b) (provides for special proof in worker’s compensation cases for so-called mental/mental injury); Atwood v. Hylan, 28,971 (La.App.2d Cir.12/11/96), 685 So.2d 450, 454 (damages for mental anguish may be awarded to persons whose property was damaged by intentional or illegal acts, by acts giving rise to strict liability, by acts amounting to a continuing nuisance, or where the property owner was present at the time or shortly after the damage was negligently inflicted and suffered a psychic trauma similar to a physical injury as a direct result of the accident).

The use of tort theory for recovery of the mental anguish caused by the breach of an ethical duty of an attorney or mere negligent representation is ^fraught with problems. How should juries grade the mental anguish distinctions between a client in an emotional family law dispute, whose attorney does not return telephone calls, and a client whose attorney makes a procedural or tactical error placing a claim in jeopardy for an extended time period of worry and anxiety? One client experiences a breach of an ethical duty; the other a negligent breach of a competency duty. Yet, neither client under those circumstances may experience any economic or pecuniary damage. Even if they do experience economic damages, which are recoverable from the attorney, the mental anguish may be the same or greater in the case without concomitant economic loss. In which of these circumstances should a client be awarded damages for his mental anguish, and how extensive must that anguish be? I am reluctant to open these damage assessments to tort theory because of the difficulties and inconsistencies which can be expected to result in making awards for mental anguish damages in settings where no physical injury is experienced by the plaintiff/client.

I am also reluctant to venture into this new realm for purposes of deterring attorney misconduct because of our existing law regulating attorneys. Our Louisiana Constitution provides in Article 5, Section 5, that the Louisiana Supreme Coürt has exclusive original jurisdiction of disciplinary proceedings against a member of the bar. Under that jurisdiction and its inherent judicial power, the supreme court has exclusive authority to regulate the practice of law. O’Rourke v. Cairns, 95-3054 (La.11/25/96), 683 So.2d 697. In bar disciplinary matters, the court acts as triers-of-fact and conducts an independent review of the record to determine whether the Lalleged misconduct has been proven by clear and convincing evidence. In re Pinkston, 02-3251 (La.5/20/03), 852 So.2d 966, cert. denied, — U.S. -, 124 S.Ct. 1413, 158 L.Ed.2d 81 (2004). Despite this authority, the jury in this case served as the trier-of-fact of the multiple ethics violations alleged by plaintiff, and the jury’s deterrent of the $500,000 award would have a new regulatory effect on the practice of law.

In contrast, under our law for conventional obligations, • the Civil Code contains specific provisions limiting awards for non-pecuniary damages. La. C.C. art. 1998 provides:

Damages for nonpecuniary loss may be recovered when the contract, because of its nature, is intended to gratify a non-pecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss.

In addition to Article 1998, Article 1997 provides for contractual damages, whether “foreseeable or not,” in the event of a bad faith breach of a contract. Nevertheless, as reviewed by this court on two occasions, Article 1997’s allowance for damages for a bad faith breach of contract applies only to unforeseeable, pecuniary losses, and not non-pecuniary losses. Nolan v. Commonwealth Nat’l. Life Ins. Co., 28,777 (La.App.2d Cir.11/1/96), 688 So.2d 581, writ denied, 97-0490 (La.4/18/97), 692 So.2d 449; Simpson v. Restructure Petroleum Mktg. Services, Inc., 36,508 (La.App.2d Cir.10/23/02), 830 So.2d 480.

Accordingly, when the professional service relationship between the attorney and client is viewed as contractual, the $500,000 non-pecuniary award for Mr. Jar-rell’s emotional distress from Miller’s multiple ethics [^violations is inappropriate. It is not that mental anguish does not exist after a breach of a contractual relationship. Such damage is simply not recoverable in most cases.

This conclusion that contract law applies to govern such damages has apparently been the prevailing understanding of the nature of the malpractice action in Louisiana. Despite the many such actions and ethical duty violations by members of the bar, who have been disciplined in reported cases, a general damage award for mental anguish caused by an attorney has never been awarded by our highest court.

In conclusion, I believe the award of $500,000 for mental anguish in this case should be reversed because of our law of conventional obligations. In the early 1970’s, before the passage of special laws concerning medical malpractice, Justices Tate and Barham in a dual concurrence made the following statement concerning medical malpractice in a 1975 case:

Plaintiffs’ suit for medical malpractice can only be said to arise out of their contractual relationship with their doctor. The surgery which is alleged to have caused permanent disability to plaintiffs’ minor child came about under the doctor’s contract to perform that surgery. This contract can be breached by negligent acts as well as intentional acts. A part of the doctor’s contractual obligation was to use care, prudence and skill in his performance. Here it is alleged that the performance of the obligation was done in a negligent manner and that it caused damage to the plaintiffs and their minor child. This constitutes a suit for breach of contract. Any other conclusion is difficult to reach intellectually.

Steel v. Aetna Life and Casualty, 315 So.2d 144 (La.1975). This insightful argument has much greater application for legal malpractice, which, unlike medical malpractice, involves no physical injury from which mental anguish, | fipain and suffering can be measured. Accordingly, I concur in the reversal of the $500,000 general damage award.

GASKINS, J., concurs in part and dissents in part with reasons.

hGASKINS, J.,

concurring in part and dissenting in part.

I respectfully concur and dissent from the majority’s opinion.

I concur in the reversal of damages for lost wages. However, I dissent from the reversal of the defendants’ remaining assignments of error. Unless justice requires otherwise, a court of appeal reviews only issues contained in the assignments of error on appeal. Accordingly, I will address only those areas of complaint brought before this court.

The manifest error rule mandates that we affirm a jury’s verdict if reasonable, based upon the evidence. While members of this court might have reached different conclusions had we been sitting as the trier of fact, the instant judgment was rendered by jurors who had evidence presented to them upon which they could reasonably make findings. While I might have made the same determinations as the majority had I been the trier of fact, I must now respect those findings made on evidence presented to the jury.

Among their assignments of error, the defendants maintained that the trial court erred in denying their .exception of no right of action and motion in limine and in allowing the plaintiff, an individual, to present evidence pertaining to legal malpractice in Miller’s representation of JTI, a corporate entity which was not a party to the suit.

A great deal of the evidence presented at trial concerned Miller’s representation of JTI, not his limited representation of the plaintiff as an individual. In particular, there was evidence that Miller did not file a lawsuit against Montgomery Tank on JTI’s behalf, he did not file for bankruptcy for JTI, and he did not properly account for fees paid by JTI. The plaintiff lacked the capacity to seek damages for these alleged wrongs against the | ¡>corporate entity of JTI. However, I do not find that this additional evidence was necessarily confusing to the jury. Also, presentation of some of this evidence was necessary to give the jury an accurate overview of how the situation between the plaintiff and Miller arose. Consequently, I would not have granted relief on this issue.

The defendants also complained that the trial court erred in denying their motion in limine and in overruling their objections to the testimony of the plaintiffs legal expert, Robert Contois. In particular, the defendants objected to Contois being allowed to testify about Miller’s alleged violations of the Code of Professional Responsibility in his representation of the corporate entity of JTI. They argued that this blurred the legal distinction between the claims of the plaintiff and those of JTI. However, the trial court has considerable discretion in ruling on the admissibility of expert testimony. After reviewing Contois’ testimony, I do not believe that the court abused its discretion. Although Contois’ testimony about JTI was only of marginal assistance to the jury, it does not appear to have been unduly confusing' or prejudicial.

The defendants further claimed’ that the trial court erred in allowing the testimony of Harry Kenneth Lefoldt, Jr., the plaintiffs CPA, when his computations for lost wages and lost value of stock were supposedly based on unreliable information. Since the testimony of the plaintiffs CPA was based upon several erroneous assumptions, the defendants -argue that it should have been excluded. The trial court denied the defendants’ motion to exclude, stating that their complaints went to the weight, not admissibility. I would agree, noting that counsel for the defendants vigorously challenged |sLefoldt’s testimony on cross-examination and pointed.out its various weaknesses for the jury’s benefit.

The defendants maintained that the trial court erred in denying the defendants’ motion in limine and partial motion for summary judgment which were based on preclusion by judgment. Although the plaintiff made a passing reference to the alleged fraudulent conduct of Miller in the suit against Mrs. Jarrell, the 'gist of that suit was to rescind the partial partition and obtain the return of the stock. The interests of justice do not mandate that the plaintiff be compelled to bring his legal malpractice claim against the lawyer involved in the partition in the same suit, especially when the plaintiff had additional allegations of malpractice against the attorney.

Because of its reversal, the majority opinion did not address the assignment of error regarding prescription. In this assignment, the defendants argued that the trial court erred in denying the defendants’ exception of prescription regarding the act of partial partition when the plaintiffs malpractice suit was filed 13 months after the document was executed. The jury concluded that Miller represented the plaintiff as an individual. The evidence supports such a conclusion; it further substantiates a finding that this representation continued until the divorce suit was filed on November 20, 1998. Thus, under the continuing representation rule, the plaintiffs claims as to the partial partition did not prescribe prior to the filing of his malpractice action against Miller.

As previously stated, I would affirm the judgment of the trial court as to all of the defendants’ assignments of error except the one pertaining to lost wages. Accordingly, I concur in part and dissent in part.

WILLIAMS, J., concurs in part and dissents in part for the reasons assigned by J. GASKINS.

      . The Jarrells are now divorced.

      . The policy insuring Miller was actually issued by Westport Insurance Company, the successor to the professional liability section of Coregis.

      . The total fees for the two legal experts of $54,000 appear excessive.


source: Caselaw Access Project

author: I ¶WILLIAMS, Judge.

license: Public Domain

text:
    ENTERPRISE PROPERTY GROCERY, INC., Plaintiff-Appellee v. SELMA, INC., Defendant-Appellant.
    No. 38,747-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      Billy R. Pesnell, Shreveport, for Appellant.
    F. Michael Carmody, Shreveport, for Appellee.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   I ¶WILLIAMS, Judge.

The defendant, Selma, Inc. (“Selma”), appeals a judgment of eviction in favor of the plaintiff, Enterprise Property Grocery, Inc. (“Enterprise”). The trial court ordered defendant to vacate the premises and denied its motion to reopen the case. For the following reasons, we reverse and render.

FACTS

By written lease dated February 28, 1997, Enterprise leased to , Selma the premises located at 7727 Linwood Ave., Shreveport, Louisiana, for a term of five years ending on March 1, 2002. The lease provided that the monthly rental amount would be $1,400" and that Selma would have the option to twice renew the lease for an additional term of five years upon written notice. Selma operated a Jiffy Pak convenience store on the leased premises.-

Selma failed to exercise its option to renew the lease, which expired on March 1, 2002. After the lease termination was discovered in June 2002, Dr. Neil Halim, vice president of Selma, contacted Wajeh Shihadeh, the owner of Enterprise, to request a new lease. Shortly thereafter, Shihadeh traveled out of the country and Selma continued to occupy the leased premises at the rent of $1,400 per month.

After Shihadeh’s return to Shreveport in August 2002, Lutfi Abdulhalim, president of Selma, contacted him a number of times seeking a new lease. In response, Shiha-deh prepared a document titled “Commercial Lease.” The proposed lease was for a term of five years without an option to renew and required a rental payment of $2,000 per month. The record Lshows the following chronology:

• September 2002-Abdulhalim picked up the draft of the lease, objected that the new lease was unacceptable because of the increased rent and lack of a renewal option.
• October 22, 2002-Shihadeh mailed a certified letter stating that Selma was occupying the property on a month-to-month basis and Shihadeh was terminating Selma’s right to occupy the premises for non-payment of rent.
• October 24, 2002-certified letter received by Abdulhalim (lease signed between 10/24/02 and 11/1/02).
• November 1, 2002-Halim met with Shihadeh and paid the October 2002 rent.
• November 22, 2002-Selma paid rent for November 2002.
• July 22, 2003-Enterprise mailed written demand that Selma vacate premises.
• August 4, 2003-Selma mailed written response to Enterprise stating that Selma was occupying premises under a valid lease.
• August 15, 2003-Enterprise mailed written notice terminating Selma’s right of occupancy.
• August 29, 2003-Selma mailed written response to Enterprise refusing to vacate premises before expiration of the five-year lease term.
• September 4, 2003-Notice to vacate premises mailed to Selma.

Abdulhalim signed the new lease, which was not dated, and his signature was not witnessed or notarized. The parties gave conflicting testimony regarding what took place at the November 1, 2002 meeting at Shihadeh’s business office. According to Halim, he delivered to Shihadeh the partially executed lease, along with a personal check of $2,000 for the October rent and another check of $1,000 for an installment payment for purchase of the Jiffy Pak business. In contrast, Shihadeh testified that he [ .¡received the rent and installment checks, but denied that Halim had delivered the lease with Abdulhalim’s signature at that time. In November 2002, Halim personally paid the rent of $2,000. In that same month, Abdulhalim was killed in an auto accident. Enterprise continued to accept the monthly rent paid by Selma through July 2003, when it made written demand that Selma vacate the premises by the end of the following month. In September 2003, Enterprise mailed Selma notice to vacate the premises.

Subsequently, the plaintiff, Enterprise, filed a rule to evict the defendant, Selma, from the premises. After a hearing, the trial court issued a written ruling finding that the purported lease signed by Abdul-halim was ineffectual because it was never signed by anyone on behalf of the plaintiff. The court found that the evidence showed the parties intended a written long-term lease signed by both plaintiff and defendant that never came into fruition and that absent such an agreement, the lease arrangement continued on a month-to-month basis until Abdulhalim received the October 2002 letter from Shihadeh. The court concluded that proper notice had been given and that plaintiff was entitled to a judgment of eviction. Defendant’s motion to reopen the case for additional evidence was denied. The court rendered judgment ordering defendant to vacate the premises within 24 hours. Defendant appeals the judgment.

DISCUSSION

The defendant contends the trial court erred in rendering a judgment of eviction ordering defendant to vacate the premises. Defendant argues that because plaintiff prepared the lease and Abdulhalim signed on behalf of |4defendant, the lease is valid and binding on the parties despite plaintiffs failure to sign.

The essential elements of a contract of lease are the thing, the price and consent. LSA-C.C. art. 2670. Leases may be made either by written or verbal contract. LSA-C.C. art. 2688. A contract is formed by consent of the parties through offer and acceptance. Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing or by action or inaction that under the circumstances clearly indicates consent. LSA-C.C. art. 1927. When, in the absence of a legal requirement, the parties have contemplated a certain form, it is presumed they do not intend to be bound until the contract is executed in that form. LSA-C.C. art.1947. A party claiming the existence of a contract has the burden of proving that the contract was perfected between himself and his opponent. Pennington Construction, Inc. v. R A Eagle Corp., 94-0575 (La.App. 1st Cir.3/3/95), 652 So.2d 637. The trial court’s conclusion that there was no lease with a term between the parties because they envisioned a written contract signed by each party is a finding of fact that may not be disturbed on appeal unless clearly wrong. Baldwin v. Bass, 28,984 (La.App.2d Cir.12/11/96), 685 So.2d 436.

In the present case, Shihadeh testified that after termination of the 1997 lease on March 1, 2002, Abdulhalim repeatedly contacted him about a new lease. Shihadeh stated that he did not want to do business with defendant because of various problems, but told his assistant to prepare a “draft” lease in an attempt to placate Ab-dulhalim. The draft lease provided | Bfor a term of five years with rent of $2,000 per month. Shihadeh testified that a short time later, Abdulhalim telephoned to complain about the rent increase and said he would not agree to the lease. Defendant paid to plaintiff rent of $2,000 for the month of September 2002. Shihadeh testified that on October 22, 2002, he mailed a letter notifying defendant that its month-to-month occupancy of the premises would be terminated because the October 2002 rent had not been paid. Shihadeh stated that he spoke about the letter to Halim, who said he would pay the rent, but that they did not discuss the lease. Shihadeh testified that approximately two weeks after the letter was mailed he met with Halim, who hand delivered a check of $2,000 for the rent and a check of $1,000 as an installment payment for the business. Shihadeh denied that Halim delivered a copy of the new lease with Abdulhalim’s signature at the time and stated that he did not see such a document until July 2003.

Halim testified that in June 2002, he discovered that the lease term had expired on March 1, 2002, and that defendant had not exercised its option to renew the lease. Halim stated that he contacted Shihadeh and was assured they would have a new lease when he returned from overseas. Halim testified that his father, Abdulhalim, picked up the new lease in the first week of September 2002 and was upset about the increased rent amount and the lack of a renewal option. Halim stated that he told Shihadeh that some of the lease provisions were unreasonable, but he would not make changes. Halim testified that he showed the lease to an attorney and then told his father to sign, but he did not sign the lease at the time. Halim stated | Bthat in October 2002, his mother said Shihadeh was sending a letter of eviction, so Halim convinced Abdulhalim to sign the lease. Halim testified that Shihadeh said that if the October rent was paid and the lease was signed, they could forget about the certified letter he had mailed. Halim stated that on November 1, 2002, he made copies of the lease signed by Abdulhalim and met with Shihadeh at his office. Hal-im testified that he gave Shihadeh the October rent check and a signed copy of the new lease. Halim stated that Shiha-deh signed the lease and said everything would be fine if the rent was paid on time.

Despite Shihadeh’s testimony that he no longer wanted to do business with defendant, Shihadeh acknowledged telling Abdulhalim" that if he would be a good tenant, “I’d be glad to give you a lease.” Consistent with this statement, plaintiff prepared a lease with provisions of its choice and presented the written lease to defendant for review. Where a lessor drafts a lease and presents it to the lessee for signing, the lease is valid and binding upon lessee’s acceptance, even if lessor fails to sign. City of New Orleans v. Cheramie, 509 So.2d 58 (La.App. 1st Cir.1987), writ denied, 512 So.2d 463 (La.1987),

Plaintiff argues that defendant could not have believed it was accepting the lease because the October 22, 2002 letter notified defendant there was no valid lease. However, Halim testified that after the letter was sent he contacted Shihadeh, who said that if the October rent was paid and the lease signed, defendant could disregard the certified letter. The subsequent acts of the parties support Halim’s statement, since Abdulhalim |7signed the lease, plaintiff accepted the October" and November 2002 rental payments and did not take any follow-up action on its October letter. Thus, defendant could have reasonably believed that the parties were performing under the lease.

Plaintiff further argues that Enterprise was entitled to a presumption that the parties did not intend to be bound until the lease was executed in authentic form. In support of its position, plaintiff pointed out that the parties’ prior agreements, the 1997 lease and the 1995 purchase of the business, were authentic acts: However, the testimony shows that after the 1997 lease was signed, the parties developed an informal practice of business dealings. Halim testified that he conducted a number of business conversations by telephone with Shihadeh that were not documented. Shihadeh acknowledged speaking with Halim over the phone regarding his father’s efforts to obtain a new lease, about the October 2002 letter and about the possible sale of the business. Thus, the parties’ interactions were not defined solely by the written and signed documents.

In addition, Shihadeh testified that his custom and practice as a businessman was to require leases to be signed in the presence of witnesses and a notary public. After the trial, defendant filed a motion to reopen the case to introduce evidence that a lease between plaintiff and a third party was not witnessed or notarized. The trial court erred in denying defendant’s motion because that evidence was admissible as impeachment of Shihadeh’s testimony that he required leases to be witnessed and notarized.

The record shows that defendant paid rental payments of $2,000 from IsNovember 2002 through July 2003 consistent with the new lease provisions. Plaintiff accepted those rental payments during that time period with an awareness of defendant’s expectation of a lease with a term. Thus, any presumption that the parties needed to sign the lease to be bound was rebutted by their subsequent performance. Based upon this record, we find that there was agreement between plaintiff and defendant with respect to the terms of the written lease as of November 1, 2002, and the trial court was clearly wrong in finding that the lease did not take effect without the plaintiffs signature. Consequently, we conclude that the trial court erred' in ordering the defendant to vacate the premises and we shall reverse that judgment.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is reversed and judgment is hereby rendered in favor of Selma, Inc., which is entitled to' occupy the premises pursuant to the valid and binding written lease. Costs of this appeal are assessed to the appellee, Enterprise Property Grocery, Inc.

REVERSED AND RENDERED.


author: 11MOORE, J.

text:
    STATE of Louisiana, Appellee v. Javiro COOPER, Appellant.
    No. 38,743-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.
    Indigent Defender Board by William Rick Warren, for Appellant.

      Louisiana Appellate Project by Paula C. Marx J., Schuyler Marvin, District Attorney, C. Sherburne Sentell, III, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before PEATROSS, MOORE and LOLLEY, JJ.
   11MOORE, J.

The defendant entered a guilty plea to distribution of a Schedule II controlled dangerous substance, cocaine. He was sentenced to serve eight years imprisonment at hard labor to run concurrent with the sentence he is serving for probation revocation for another offense. The defendant now appeals. We affirm.

FACTS

The state initially charged the defendant with distribution of a Schedule II controlled dangerous substance, cocaine, second offense in violation of La. R.S. 40:967, punishable by not less than 2 nor more than 30 years, the first 2 years to be served without' benefits. His maximum prison exposure as a second offender was twice the term of imprisonment authorized for the first offense. La. R.S. 40:982 A. As part of a plea-bargain agreement, the state agreed to accept a guilty plea to the reduced charge of distribution of cocaine, first offense, and to a sentencing cap of 15 years. The terms of the plea agreement, including the sentencing cap, were recited in the record when the guilty plea was entered.

The defendant was' advised of his Boy-kin rights and indicated that he understood and waived those rights. The state set forth the factual basis for the plea into the record, stating: “On or about April 2, 2003, this defendant, Javiro Cooper, did knowingly and intentionally distribute a Schedule II controlled dangerous substance, namely, cocaine, in Webster Parish. The substance was subsequently tested by the Northwest Louisiana Crime Lab and determined to be cocaine.” The trial court accepted the defendant’s guilty plea as freely and voluntarily given.

LA pre-sentence investigation report was ordered. Defendant was scheduled to be sentenced on Nov. 17, 2003. On that date, one Danedrius Cooper, who was also in jail at the same time with the defendant and possibly related to him, was mistakenly brought to court in the sentencing proceeding docketed for Javiro Cooper. Although the correct defendant’s counsel, Rick Warren of the Indigent Defender Board, was present at this sentencing, the sentencing transcript does not reflect that he was aware at the time that the wrong defendant was being sentenced. The court imposed a sentence of eight years at hard labor, concurrent with the sentence already being served for probation revocation in another matter, with credit for time served.

The trial court gave extensive reasons for sentence. It reviewed the defendant’s PSI and the sentencing guidelines set forth in La. C. Cr. P. art. 894.1. The court set forth the facts of the crime, which included the defendant’s sale of two rocks of cocaine in exchange for $40.00 to a confidential informant. The sale was recorded by a concealed audio-video device. The defendant’s prior criminal history was related, including the fact that the defendant had been released on good time parole for only two weeks when the instant crime was committed. The defendant was also advised of the time delays within which to file for post-conviction relief.

Subsequently, it was discovered that Javiro Cooper was not present in the courtroom when the court imposed the above sentence, although his attorney was present. ■

|,.¡Following discovery of the error, on January 26, 2004 Javiro Cooper was sentenced with his counsel, Rick Warren present. The same sentence was imposed— eight years imprisonment at hard labor, to run concurrent with the previously probated sentence. The trial court noted for the record that the mistake in sentencing the wrong defendant was apparently through no fault of Javiro Cooper. It also noted for the record to the clerk and court reporter that sentencing would be for the same reasons stated on November 17, 2003, which would not be recited again. The trial court questioned Javiro Cooper as to whether he had any objections or complaints regarding anything that occurred at the sentencing. Cooper indicated that he did not. Subsequently, he perfected the instant appeal.

DISCUSSION

By his first assignment, defendant alleges that the trial court was mandated by Code of Criminal Procedure article 835 to recite its reasons for sentencing in the presence of Javiro Cooper and erred when it failed to do so. As a result of the sentencing error, defendant argues that remand for re-sentencing is required so that the court can state the reasons for sentencing on the record in the presence of Javiro Cooper.

La. C. Cr. P. art. 835 states, in pertinent part:

In felony cases the defendant shall always be present when sentence is pronounced. ... If a sentence is improperly pronounced in the defendant’s absence, he shall be resentenced |4when his presence is secured.

Defendant cites State v. Bradford, 29,-654 (La.App. 2 Cir. 9/24/97), 700 So.2d 1046, which stated in part:

Defendant’s presence was not necessary for the ruling on the motion to reconsider; however, sentencing is a distinct matter governed by La. C. Cr. P. art. 835. Defendant’s presence cannot be waived and the resentencing was invalid and must be set aside.

The defendant argues that sentencing is more than a statement of the number of years a defendant must be incarcerated, and that the trial court is required to state for the record the considerations taken into account and the factual basis in imposing sentence. The defendant states that this was done in the presence of Danedrius Cooper, but not in the presence of the defendant herein, Javiro Cooper. Since a defendant’s presence at sentencing cannot be waived, he argues, the omission of recitation of the reasons for sentencing requires a remand for resentencing citing La. C. Cr. P. art. 894.1, 835; State v. Bradford, supra.

We disagree. First, the defendant was sentenced to eight years in accordance with a plea agreement stated on the record. Under La. C. Cr. P. art. 881.2(A)(2), “a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This rule applies to sentences within an agreed-to sentencing cap. State v. Rice, 648 So.2d 426 (La.App. 2 Cir.1994). The defendant agreed to enter a guilty plea in exchange for a sentencing cap of 15 years as shown in the guilty plea transcript in the record. He was sentenced to eight years to run concurrent with a previously ^probated sentence he was currently serving. The sentence is within the cap under the plea agreement. Therefore defendant cannot appeal his sentence.

Moreover, La. C. Cr. P. art. 835 requires that the defendant be present only when the sentence is pronounced. State v. Causey, 450 So.2d 1071 (La.App. 1st Cir.1984). La. C. Cr. P. art. 894.1(C) requires the court to state for the record the considerations taken into account and the factual basis for imposing sentence. We believe this requirement was met when the court stated that it was imposing the sentence for the reasons it stated in the prior sentencing, inasmuch as the sentencing in which Danedrius Cooper stood in the place the defendant was, in fact, docketed correctly in this proceeding and remains a part of this record. Cf. State v. Causey, supra: It is well-settled that where a trial judge has failed to fully comply with the sentencing requirements of La. C. Cr. P. art. 894.1, the sentence need not be vacated if the reasons for the sentence given by the trial judge and supplemented by evidence found elsewhere in the record “clearly illuminates the sentencing choice” and reflects, upon appellate review, that the sentence given is not excessive. State v. Green, 409 So.2d 563 (La.1982).

The defendant was present when the sentence was imposed and he had no objections to the circumstances under which the court “resentenced” him. Moreover, the sentence was imposed by the trial court in conformity with the plea agreement sentence cap, and that the defendant has no right to appeal a sentence imposed pursuant to a sentencing cap. State v. Rice, supra.

1 fiThis assignment of error is therefore without merit.

By his sécond assignment of error, defendant claims there are deficiencies in the record regarding the motion to reconsider sentence, and the record did not reflect that a hearing had been held. These deficiencies were corrected on our previous remand of this case. Defense counsel was given an opportunity to file any supplemental brief and declined. Thus, this assignment of error is moot.

ERROR PATENT

The trial court failed to state at sentencing that two years of imprisonment are to be served without benefits. When a district court fails to order service of sentence without benefits in a case in which a determinate time period to be so served is mandated by the statute of conviction, the sentence automatically will be served without benefits for the required time period. La. R.S. 15:301.1(A); State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 799.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The appellate record reflected that a motion to reconsider sentence was timely filed by defense counsel on November 20, 2003, but has not been ruled upon. The appellate record also lacked the motion to reconsider sentence, and pertinent court minutes, which had been filed in the record of a related matter (NO. 38,742-KA), and which were designated for filing under both docket numbers. Upon remand from this court, a hearing on the motion to reconsider sentence was held on April 19, 2004, and the motion was denied. Also, the record was supplemented with the motion to reconsider sentence, the ruling thereon, and the pertinent court minutes.

      . See text accompanying note 1.


author: |,WILLIAMS, Judge.

text:
    ENTRADA COMPANY, Plaintiff-Appellee v. UNOPENED SUCCESSION and Unknown Heirs and/or Legatees of John Doe, et al, Defendant-Appellant.
    No. 38,800-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.
    Stephen T. Sylvester, Monroe, for Appellant.
    Douglas L. Stokes, Jr., Jonesboro, for Appellee.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   |,WILLIAMS, Judge.

The defendants appeal a judgment in favor of the plaintiff, Entrada Company, L.L.C. (“Entrada”). The trial court found that Entrada owned a two-sevenths interest in the property with the remaining five-sevenths owned by defendants. The court ordered that the 125-acre tract of land be partitioned by licitation. For the following reasons, we affirm. ■

FACTS

In November 2001, Entrada filed a petition to partition by licitation a tract of land containing approximately 125 acres located in Lincoln Parish, Louisiana, described as follows:

The Westfé of the NE 1/4 and the NE 1/4 of the NE 1/4 of Section 24, Township 18 North, Range 4 West; and Lots 6,7,8,14 and 15 in the West 3/8 of the NE 1/4 of SE 1/4 of Section 24.

Attorney Gina Jones was appointed as curator to represent the unopened successions and absentee defendants,

In February 2002, Erik Jackson, who was acting pursuant to powers of attorney, filed on behalf of defendants an answer and exceptions of no causé of action, prematurity and non-joinder of an indispensable party. After a hearing, the trial court denied the defendants’ exceptions. At a pre-trial conference in December 2002, the court advised Erik Jackson that he would not be permitted to represent defendants. In May 2003, attorney |2Steven Sylvester was allowed to enroll as counsel for the defendants and the curator was relieved of her duties.

After a trial, the court issued written reasons for judgment finding that Entrada owned an undivided two-sevenths interest in the land and that the remainder was owned by the successions of Jackson, Giles, Younger, Rentz and Griffith and their heirs. The court stated that the land consisted of rolling hills with an uneven distribution of timber, that an electrical transmission line'extended from the northeast to the southwest across the property and that only a 40-acre tract in the northwest corner of the property was suitable for home building. Finding that the land could not be divided in kind without a diminution of value, the court rendered judgment ordering that the property be partitioned by licitation. Defendants appeal.

DISCUSSION

In two assignments of error, the defendants contend the trial court erred in determining the plaintiffs ownership interest in the land. Defendants argue that the evidence concerning the chain of title does not support a finding that plaintiff acquired a 35-acre interest in the property.

A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Dept. of Transp. & Development, 617 So.2d 880 (La.1993). The task of a reviewing court is to assess whether the fact finder’s resolution of a factual issue was reasonable in light of the record as a whole. Fowler v. Wal-Mart Stores, Inc., 30,843 (La.App.2d Cir.8/19/98), 716 So.2d 511.

In the present case, attorney Mike Toft was accepted as an expert in |3title examination of Louisiana immovable property. Toft testified that he reviewed the public records of Lincoln Parish, where the land is located, to determine the ownership of the property. Toft explained that plaintiffs predecessor in title, Mary Ellen Ben-net Lewis, had acquired a nine-acre interest in the land by deed from her father, Aaron Bennett. Later, as his only child, Lewis obtained the remainder of Bennett’s undivided interest in the land by judgment of possession rendered on August 12,1999, in the succession of Aaron Bennett. Lewis conveyed all of her interest to John and Alana Belton. Toft stated that the public records showed that in September 2001, plaintiff had acquired an undivided two-ninths interest in the property from the Beltons. Toft testified that he later learned of an affidavit of death and heir-ship indicating that Harlee Miller and Sadie Woodards had died without marrying or having children, and that their interests had passed to the other heirs. As a result, plaintiff owned a two-sevenths interest.

The plaintiff introduced into evidence the documents in the chain of title. Based upon this record, we cannot say the trial court erred in accepting Toft’s testimony based on the public records of the parish and in concluding that plaintiff owns an undivided two-sevenths interest in the property. The assignment of error lacks merit.

Defendants contend the trial court should not have reached a decision in this case prior to a ruling in the pending Arkansas probate proceeding which involved a purported will of Aaron Bennett. LSA-R.S. 9:5630 provides that an action to assert an interest in immovable property against a third party who has acquired an interest from an heir recognized in the | ¿judgment of possession, or his successors, prescribes two years from the date the judgment of possession becomes final.

Here, the record shows that a judgment of possession in the succession of Aaron Bennett was rendered in August 1999, recognizing Lewis as Bennett’s only child and granting to her all of his undivided interest in the subject land. In a sworn affidavit of death and heirship, Clifton Jackson, one of the defendants, stated that Aaron Bennett had died intestate. Lewis conveyed all of her undivided interest to the Beltons, from whom plaintiff acquired its undivided ownership interest.

Toft opined that the Arkansas proceeding could not affect the plaintiffs ownership interest in this land because more than two years had passed since the judgment of possession became final and under the statute, any action to challenge the ownership interest granted in the judgment of possession had prescribed. Defendants failed to show that the outcome of probate proceedings pending in another state would have any impact on the interests of the co-owners of this land. Thus, the trial court did not err in rendering judgment in this case. The assignment of error lacks merit.

Partition of Property

In the remaining three assignments of error, defendants contend the trial court erred in ordering partition by licitation. Defendants argue that the evidence did not support partition by licitation because plaintiff failed to satisfy its burden of proving that the property could not be divided in kind.

Unless otherwise provided by law or juridical act, no one may be compelled to hold a thing in indivisión with another and a co-owner has a bright to demand partition of a thing held in indivision. LSA-C.C. art. 807; Ark-La-Miss Timber Co., Inc. v. Wilkins, 36,485 (La.App.2d Cir.12/11/02), 833 So.2d 1154. The law generally favors partition in kind unless the property is indivisible by nature or cannot be conveniently divided. LSA-C.C.P. art. 4606; Tri-State Concrete Co. v. Stephens, 406 So.2d 205 (La.1981). Property cannot be conveniently divided when the division would result in a diminution of its value, or loss or inconvenience to one of the owners. Tri-State Concrete v. Stephens, supra; Ark-La-Miss Timber v. Wilkins, supra.

LSA-C.C. art. 810 provides that the court shall order partition in kind when the thing held in indivisión is susceptible to division into as many lots of nearly equal value as there are shares and the aggregate value of all lots is not significantly lower than the value of the property in indivisión. When a thing held in indivisión is not susceptible to partition in kind, the court shall order partition by licitation or private sale with proceeds to be distributed to the co-owners in proportion to- their shares. LSA-C.C. art. 811.

The party seeking partition by licitation bears the burden of proving that the property cannot be divided in kind. Ark-La-Miss Timber, supra. Whether immovable property should be divided in kind or by licitation is a question of fact to be decided by the trial court. Marsh Cattle Farms v. Vining, 30,156 (La.App.2d Cir.1/23/98), 707 So.2d 111.

In the.present case, James Steele and Charles Smith were accepted, as experts in the valuation of undivided interests in real property. Steele, an owner of the plaintiff, Entrada, testified he had visited the property and | ^observed that some areas of the land held more timber than others and that a large power line extended diagonally across the center of the jointly-owned land with a right of way approximately 250 feet wide. Steele stated that he was unable to agree on a voluntary partition with the other co-owners. Steele testified that there was a public road along the southern end of the property, but that the northern part of the tract did not have public road access. Considering the land’s topography, lack of road access, uneven timber distribution and the utility right of way, Steele opined the property could not be divided in kind because the individual lots would not be of equal value.

Smith, a real estate investor, testified that he was hired by plaintiff to determine whether the co-owned land could be divided without diminished value. Smith stated he had visited, the property and observed that the topography is varied with a drop in elevation of 50 feet from the highest to the lowest point of the land. He testified that some portions of the tract would drain better than others and that the power line cut across approximately fifteen acres of the property. Smith stated that if the land was divided, the creek bed and the power line would reduce the value of the affected lots. Smith explained that a parcel in the south, with frontage on the public road, would be worth more than a lot without such road access. Smith testified that even assuming there was a road servitude, one parcel would benefit while another would be burdened and the cost of building the road would offset any increased value. Smith opined that dividing the land without a diminution in value would be “impossible,” because of the ^characteristics of the land such as the topography, scattered timber, the power line and limited road access.

James Wooten, defendants’ expert surveyor, testified that the tract of land contained 125.72 acres and that the utility right of way was 200 feet wide “running right through the property.” Wooten stated that he had prepared a survey plat dividing the tract into seven lots with each containing 17.96 acres. He acknowledged that with this plan, road access for some of the lots would require a servitude across other lots and that road construction would be expensive. Wooten testified that he had drawn a proposed servitude on his plat running along the west and north boundaries of the tract to address the access issue. Wooten stated that without the suggested servitude, lots three through seven would not have access to a public road. Wooten testified that there was no timber on the utility right of way, so that a person with a lot affected by the power line would have less timber than other lots.

The plaintiff presented evidence to establish its undivided ownership interest in the land. In addition, plaintiff produced expert testimony demonstrating that the property could not be divided into lots of equal value due to certain characteristics of the land, such as the uneven distribution of timber, the significant utility right of way running through the center of the property and the inadequate vehicular access. Thus, plaintiff submitted evidence to satisfy its burden of proving that the land was not susceptible to partition in kind and that partition by licitation was necessary.

Although defendants produced a survey plat depicting a division of |sthe land into seven lots of equal acreage, defendants failed to rebut the testimony that the lots would not be of equal value. As drawn on the plat, lot three includes a long narrow corridor less than 300 feet wide that is of doubtful desirability or utility. Further, Wooten acknowledged that because of inadequate access to the property, the owners of some lots would be compelled to grant a right of passage servitude to owners of other lots. However, as this court pointed out in Ark-La-Miss Timber, supra, furnishing a right of passage would not necessarily alleviate the inconvenience of access associated with a partition in kind where, as here, some owners would acquire lots not readily accessible except by crossing another’s land, with the added expense of building and maintaining the road.

Defendants also argue that the trial court erred in ordering partition by licitation because plaintiff failed to present an appraisal of the land to determine the property value. The authority cited by defendants does not support their position that an appraisal of the property must be submitted into evidence before the court may order partition by licitation. Although plaintiffs experts did not refer to a specific monetary value of the property, both Steele and Smith testified that based on their observations of the land and their experience, the relative value of the lots would not be equal in a partition in kind. This conclusion was based on a number of factors, such as the variation in topography and timber across the tract, its limited amount of frontage on the public road and the utility right of way.

The trial court weighed the credibility of the expert witnesses and considered the evidence presented. Based upon this record, we cannot say |9the trial court was clearly wrong in finding that the plaintiff satisfied its burden of proving by a preponderance of evidence that the property could not be conveniently divided without a diminution of value or loss or inconvenience to one of the owners. Consequently, the trial court correctly ordered partition by licitation. The assignments of error lack merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the defendants.

AFFIRMED.

      . Named as defendants were Clifton Jackson, “John Doe” as a representative for any unknown owners of the jointly-owned property, the unopened successions of Nevada Jackson, Harlee Miller, Sadie Woodards, Pruella Giles, Callie Younger, Magnolia Rentz, Nicy Griffin and their absentee heirs, including Jennifer Jackson, Eunice Tillis, Paul Younger, Linda Carter, Michael Younger, Paula Younger, Atti-lá Martin, John Q. Younger, Claudie Mae San-tifer, Coydell Pleasant, Elnora Green, Jewella Rentz, Zambia Orocso, Karina Washabaush, Jewel Rentz, Clotil Shelby, Sinatra Griffin and Oscar Griffin and adjoining landowners allegedly without any interest in the property, Lance Jackson, Rosetta Bowden, Florese Hunt and LaRuth Wilson.


author: |,BROWN, C.J.

text:
    Chester AUSBERRY, Plaintiff-Appellee v. OUACHITA FERTILIZER COMPANY, Defendant-Appellant.
    No. 38,833-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      Mayer, Smith & Roberts, by Dalton Roberts Ross, Walter 0. Hunter, Jr., Shreveport, for Appellant.
    Anita Tennant-Maek, for Appellee.
    Before BROWN, DREW, and LOLLEY, JJ.
   |,BROWN, C.J.

Defendant, Ouachita Fertilizer Company (“Ouachita”), has appealed from an adverse judgment rendered by the Workers’ Compensation Judge (“WCJ”) in favor of claimant, Chester Ausberry, awarding him supplemental earnings benefits (“SEB”), medical benefits, pharmacy and mileage costs, and penalties and attorney fees. For the reasons set forth below, we affirm in part, reverse in part, and render.

Procedural Background

On June 5, 2001, claimant, Chester Aus-berry, a seasonal contract employee of Ouachita Fertilizer Company, alleged that he fell and was injured while in the course and scope of his employment. Claimant was initially paid benefits; however, they were terminated on February 7, 2002. He filed a claim with the Office of Workers’ Compensation seeking further benefits, medical benefits, penalties, and attorney fees. Defendant disputed that an on-the-job accident occurred; and contended that claimant was committing fraud by receiving both wages and temporary total disability (“TTD”) benefits at the same time. Ouachita alternatively sought a credit or reimbursement for the wages and/or benefits paid to claimant.

The WCJ found that claimant suffered a compensable work injury. The WCJ further found that Ausberry did not commit fraud by receiving wages contemporaneously with TTD benefits and that claimant was entitled to SEB from February 10, 2002, until his release to return to full duty work, as well as mileage expenses, drug costs, and continued medical treatment. I ¿The WCJ awarded claimant a $2,000 penalty, as well as $5,000 in attorney fees. It is from this judgment that defendant has appealed.

Discussion

A Compensable Work Injury

Claimant and an eyewitness, Elbert Wallace, testified regarding the accident. Wallace testified that he saw claimant slip and fall. Claimant testified that he was standing on a pipe attached to the lower part of a trailer and, while tightening a strap, he slipped from the pipe and fell. Ouachita points out that claimant waited more than a month before mentioning the accident to his doctor and did not report the accident to Dwain Traylor, comptroller for Ouachita, until three weeks after it allegedly occurred. Defendant claims that the evidence is inconsistent, and therefore the WCJ erred in finding that an on-the-job injury occurred.

When findings are based on determinations regarding the credibility of witnesses, the manifest error-elearly wrong standard demands great deference to the trier of fact. Ragland v. Hodge, 32,438 (La.App.2d Cir.12/08/99), 748 So.2d 567. We can not say that the WCJ’s conclusion on whether a compensable accident occurred was manifestly erroneous or clearly wrong.

Supplemental Earning Benefit (SEB)

Ouachita discontinued benefits only after a light-duty job, which complied with his physician’s restrictions, was offered to claimant and rejected.

13At trial, defendant produced five separate witnesses who detailed the measures taken to locate claimant and offer him a modified position. Gary Parker, a manager for Ouachita, testified that, following meetings and conversations with Ann Block, the independent medical case manager, Ouachita created a position for claimant which met the light-duty restrictions imposed by Dr. Bailey. Parker testified that he spoke with claimant on February 1, 2002, and advised Ausberry that they were going to give him work within his restrictions, and that he should come in that day to discuss the specifies. Claimant told Parker that he would come in, but he failed to do so.

Ms. Block testified that she spoke with claimant on February 4, 2002. She advised him that his employer needed to speak with him about a new position. She testified that she explained to claimant that the position had been modified to fit his doctor’s restrictions.

Dwain Traylor, defendant’s comptroller, testified that he personally spoke with claimant on February 4, 2002, and asked Ohim to come in so that they could discuss the new position. According to Traylor, claimant agreed to come in that day, but never did so. Claimant was terminated three days later, on February 7, 2002, pursuant to company policy.

Levy Lord, an employee of Ouachita, stated that Gary Parker asked him to make contact with Ausberry. Lord went, on several occasions, to the residence and farm of claimant, as well as to claimant’s mother’s house. Lord asked claimant’s brother, Edward Ausberry, for assistance in locating claimant. Lord also attempted to contact claimant by telephone and pager, 14but claimant never responded. Willie Estis, another employee of defendant, testified as to his efforts to locate claimant. Estis stated that he went by claimant’s house on one occasion, but failed to find him.

Notwithstanding the above testimony, the WCJ found that “not one shred of evidence was presented showing correspondence or other documentation” that a job offer was made.

It is clear from the record that claimant’s treating physician released him to light-duty work as of December 18, 2001, and that defendant offered claimant work within those restrictions. Defendant attempted to make contact with claimant by reasonable means in January 2002, and did in fact contact him on three occasions in early February 2002. Ausberry agreed to come in on the day of each contact, but failed to do so. Claimant’s refusal to come in to discuss the position was seen as an abandonment of his job. We agree. Accordingly, we reverse the award of SEB as well as the award of all medical treatment, mileage and pharmacy costs after February 7, 2002, the date of claimant’s termination.

Because we find that Ouachita’s actions in discontinuing benefits and terminating claimant were reasonable in light of his release to return to light duty employment and his failure to respond to the offer of a modified position, we also reverse the WCJ’s award of penalties and attorney fees.

Double Recovery

Defendant’s last complaint is that claimant was allowed double recovery by receiving both contract wages and TTD benefits for the time period of September 1, 2001, through February 7, 2002. Oua-chita asserts |fithat this double recovery constitutes fraud pursuant to La. R.S. 23:1208. In her ruling, the WCJ found that claimant did not commit fraud by receiving both wages and TTD benefits at the same time. The WCJ was apparently impressed by the fact that claimant had asked Traylor, defendant’s comptroller, whether he would be allowed to make a double recovery, and that Traylor advised claimant that he would have to think about it. The record also contains testimony by Traylor that he thereafter spoke twice with Ausberry and advised him that, after thinking about claimant’s question, he determined that double recovery would not be appropriate. The manifest error standard of review mandates that the WCJ’s finding on this issue will not be overturned unless it is clearly wrong. See Houston v. Blue Cross Blue Shield of Louisiana, 37,-097 (La.App.2d Cir.04/09/03), 843 So.2d 542. Based on the record, it appears that there was evidence from which the WCJ could have found that claimant was not intentionally deceiving his employer.

The analysis does not end there, however, inasmuch as we find that the WCJ erred by not awarding reimbursement to Ouachita for amounts it overpaid claimant. See Al Johnson Construction Company and Liga v. Pitre, 98-2564 (La.05/18/99), 734 So.2d 623.

According to the record, claimant was receiving both wages and TTD benefits from September 1, 2001, the beginning of the contract “on call” period, until the time he was terminated on February 7, 2002. From a review of the record, it appears that claimant was not classified as disabled by his doctor until November 7, 2001. Accordingly, claimant should have ^received his regular salary until that time, but not TTD benefits. Therefore, defendant is entitled to reimbursement of the TTD benefits it paid to claimant from September 1, 2001, until November 7, 2001. Thereafter, claimant was entitled to receive the TTD benefits, but not his salary. Accordingly, defendant is entitled to a reimbursement of the salary it paid to claimant from November 7, 2001, until his termination on February 7, 2002.

The parties stipulated that claimant’s weekly wage was $400.91, and his weekly TTD benefits were $267.28. For the period beginning September 1, 2001, and ending November 7, 2001, Ouachita is due reimbursement in the amount of $2,539.16. For the period beginning November 7, 2001, and ending February 7, 2002, defendant is due reimbursement in the amount of $5,211.83. The total reimbursement due Ouachita is $7,750.99.

There is no dispute that claimant was entitled to mileage and pharmacy costs from the date of the accident through the date of his termination. The record shows that claimant documented 930 miles from June 5, 2001, to February 7, 2002. Accordingly, he is entitled to mileage expenses totaling $328.65. The record also contains evidence of pharmacy costs incurred by claimant in the amount of $382.63. These amounts are to be subtracted from the reimbursement owed by claimant to his employer. Deducting the total of mileage and pharmacy expenses, $711.28, from $7,750.99, results in Ouachita being owed reimbursement in the amount of $7,039.71.

| Conclusion

That portion of the WCJ’s judgment finding a compensable accident is affirmed. The award of SEB is reversed, as are the penalty and attorney fee awards. Finding that defendant is entitled to a reimbursement of TTD benefits -and wages paid as set forth above, subject to amounts due to claimant for unpaid mileage and pharmacy costs from the date of the accident until the date of termination, we render judgment in favor of defendant, Ouachita Fertilizer Company, ordering claimant, Chester Ausberry, to reimburse Ouachita Fertilizer Company in the amount of $7,039.71. Costs of this appeal are to be split by the parties.

      . According to the terms of his contract, claimant was to be paid a base salary of $1,297.91 per month, plus overtime. He was to work February 1 through August 31 each year, and be on call, as needed, from September 1 through January 31.