source: Caselaw Access Project

author: .JjTERRI F. LOVE, Judge.

license: Public Domain

text:
    Geraldine ESTE v. Dennis J. ROUSSEL, Dawn M. Barilleaux, Jeremy Vigreaux, Allstate Insurance Company, and Arizona Premium Insurance Company.
    No. 2001-CA-1859.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 6, 2002.
    Rehearing Denied Dec. 12, 2002.

      Al M. Thompson, Jr., Berrigan, Litch-field, Schonekas, Mann, Traina and Thompson, L.L.C., New Orleans, LA, for PlaintiffiAppellant.
    Paul A. Tabary, III, Dysart & Tabary, L.L.P., Chalmette, LA, for Defendant/Ap-pellee, Dawn Barilleaux and Allstate Insurance Company.
    Kenneth Randall Evans, Derek M. Mer-cadal, Evans & Clesi, PLC, New Orleans, LA, for Defendant/Appellee, Dawn Baril-leaux and Statefarm Insurance Company.
    (Court composed of Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER, Judge TERRI F. LOVE).
   .JjTERRI F. LOVE, Judge.

Plaintiff-Appellant, Geraldine Este, appeals the adequacy of a judgment for damages awarded by a jury for injuries sustained in an automobile accident. The jury found defendant-appellee Dawn Bar-rilleaux was sixty percent at fault for the accident, and awarded the plaintiff $8,100 for past and future physical pain and suffering, mental anguish, permanent disability, and loss of enjoyment of life, $4,300 for past medical expenses, and $2,600 for past lost wages, for a total award of $15,000. Plaintiff appeals this judgment on the basis that jury award was unreasonably low and the apportionment of fault to defendant was incorrect.

FACTUAL HISTORY

On August 11, 1995, Dawn M. Barilleaux (“Barilleaux”) was driving a GMC pickup truck westbound on Genie Street in Chal-mette, Louisiana. She was stopped at a red light at the intersection of Genie Street and Paris Road. An ambulance with its siren and lights operating approached Barilleaux from the rear on Genie Street. Barilleaux was in the right lane on Genie Street and moved her vehicle into the left lane of Genie Street to allow the ambulance to pass her on the right. However, the front-end of Barilleaux’s truck protruded into the intersection and into the right lane of Paris Road. Geraldine Este (“Este”) was driving in a | ¡¡southbound direction in the left lane on Paris Road in her automobile approximately half a block away from the intersection. Este observed that the traffic light was green in her favor and on-coming traffic had come to a stop, but she did not see the ambulance.

Este proceeded through the intersection and crashed into the front end of Baril-leaux’s vehicle. Immediately after, Este’s car was rear-ended by Jeremy Vigreaux (“Vigreaux”), who followed Este through the intersection. The steering wheel of Este’s car struck her in the left breast. Este’s legs were pinned under the dashboard by the motor, which had been pushed backwards into the interior of Este’s car by the impact of the crash. Este’s head hit the windshield of the car. An emergency vehicle took Este from the accident to De La Ronde Hospital.

At the hospital, Este was treated for her injuries, and X-rays were taken. Este complained of pain all over her body, but specifically in her knees. She felt as though her legs had been crushed. She was given pain medication and braces for her knees.

After her release from the emergency room, Este continued to experience pain from the accident. Este returned to the hospital the next day, and was given an increased dosage of pain medication. Este then received medical treatment for her injuries from Dr. Melissa Craig Brammer (“Dr. Brammer”), her primary physician. Dr. Brammer was Este’s primary physician since September 28, 1994. Dr. Bram-mer scheduled an appointment for Este with Dr. John Less Moss (“Dr. Moss”), an orthopedist, on August 14, 1995.

Dr. Moss prescribed pain and anti-inflammatory medication for Este’s knee injuries. Dr. Moss also prescribed a course of physical therapy for Este. Este’s physical therapy included hot and cold compresses and eventually progressed to | ^therapy exercises. Dr. Moss diagnosed Este as having patellofermoral ehondro-malcia in her knees, which is a degeneration of cartilage. Este continued to see Dr. Moss and attend physical therapy sessions until her last appointment in December of 1995. At that appointment, Dr. Moss evaluated Este as having reached maximum medical improvement in her knees. Este testified that she also complained of lower back pain to Dr. Moss at this time, but these complaints are not noted in his medical records.

Este also continued to see Dr. Brammer during and after her treatment with Dr. Moss. Este testified she continued to experience pain in her knees and lower back, and she informed Dr. Brammer of this pain. Dr. Brammer continued to prescribe pain medication for Este’s condition. She ordered an MRI of Este’s cervical spine in February of 1997. The MRI indicated Este had degeneration of cartilage in the discs in her lower back and that discs L4-5 were slightly bulging. Este continued to complain of pain in her lower back and knees.

In 1998, Este was injured in another automobile accident where she suffered injuries to her upper back. She received treatment for those injuries from her primary physician, Dr. Brammer, and an associate in Dr. Moss’s office, Dr. Millet. Este testified that she recovered from those injuries, and that the pain she continues to experience to this day is in her lower back and knees that she attributes to this accident.

PROCEDURAL HISTORY

Este filed suit against Allstate Insurance Company and its insureds Dennis Roussel and Barilleaux, State Farm Insurance Company and its insured Baril-leaux, and Arizona Premium Insurance Company and its insured Vigreaux for |4damages and lost wages that resulted from injuries she incurred from the automobile accident involving Barilleaux and Vigreaux. After a two-day trial, the jury found in Este’s favor.

At the time of the accident Este was a 59 year-old employee of the First Parish Court. At trial, the parties stipulated that Este’s past medical expenses for the knee and back injuries were $4,300, and her lost wages for two months of missed work were $2,634.32.

Vigreaux was named as a defendant in the suit, but he failed to answer Este’s petition. A preliminary default judgment was entered against Vigreaux and Arizona Premium Insurance Company. The jury was allowed to hear testimony regarding Vigreaux’s actions in the accident, but he did not appear at trial.

The jury answered the interrogatories as follows:

1. Do you find by a preponderance of the evidence that Dawn Barilleaux, the defendant driver involved in the accident, was negligent?
YES / NO
2. Do you find by a preponderance of the evidence, that the negligence of Dawn Barilleaux was the legal cause of the plaintiffs injuries?
YES _J_ NO _
3. Do you find by a preponderance of the evidence that Jeremy Vigreaux, the second defendant driver involved in the accident, was negligent?
YES / NO
4. Do you find by a preponderance of the evidence, that the negligence of Jeremy Vigreaux was the legal cause of the plaintiffs injuries?
YES NO y
5. Do you find by a preponderance of the evidence that the plaintiff, Geraldine Este, was contributorily negligent as to the accident?
YES y NO
6. Was the negligence of plaintiff, Geraldine Este, a legal cause of the injuries?
YES y NO
|b7. What percentage of fault do you find attributable to each of the following parties?
Geraldine Este, plaintiff 30 %
Dawn Barilleaux, defendant 60 %
Jeremy Vigreaux, defendant 10 %
The jury found that Este’s award should be as follows in interrogatory 8:
Physical pain and suffering, Mental anguish, Permanent disability, And loss of enjoyment of life, past and future $ 8,100.00
Past Medical Expenses $ 4,300.00
Past Lost Wages $ 2,600.00
TOTAL $15,000.00

Este’s counsel objected to the inconsistent answers to the jury interrogatories regarding Vigreaux. The trial court corrected the inconsistencies on the record by finding Vigreaux was the legal cause of Este’s injuries.

LAW & DISCUSSION

On appeal, plaintiff alleges the jury abused its discretion by fixing the award for general damages at $8,100. Este further alleges the jury erred by finding Bar-illeaux was sixty percent at fault, and the jury’s answers to the interrogatories were inconsistent with respect to Vigreaux. Este also alleges the trial court erred by not correctly giving one of the jury charges, and further erred by not giving a requested jury charge. Este has requested that this Court conduct a de novo review of the evidence in this matter.

\cDe Novo Review

Este asserts that she is entitled to a de novo review of the facts. In support of her assertion, Este argues the jury instructions were improper and jury’s answers to the interrogatories were inconsistent.

First, Este alleges that the trial court improperly instructed the jury. The jury charges administered by the trial court are not in the record, nor were the charges transcribed by the court reporter. The jury charge, which was submitted by Este, was to be read to the jury as follows:

Plaintiffs are aided in proving the casual relationship between the accident and their injuries by the legal presumption that a claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of a casual connection between the accident and the disabling condition.

Este’s attorney objected on the record that the trial court said “probability” instead of “possibility” when reading the charge to the jury.

The mere discovery of an error in the trial judge’s instructions does not itself justify the appellate court conducting the equivalent of a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances as a whole. Wisner v. Illinois Central Gulf Railroad, 537 So.2d 740, 749 (La.App. 1st Cir.1988), citing, Simmons v. Hope Contractors, Inc., 517 So.2d 333, 337 (La.App. 1st Cir.1987). When deciding whether an error in a jury instruction constitutes reversible error, an appellate court must determine if there was a likelihood that the erroneous instruction probably contributed to the jury verdict. Roger v. Dufrene, 97-1946, p. 9 (La.App. 4 Cir. 9/9/98), 718 So.2d 592, 597, citing, Regional Transit Auth. v. Lemoine, 93-1896 (La.App. 4 Cir. 11/16/95), 664 So.2d 1303, 1308.

The charge Este submitted that was to be given by the court was taken from language in Housley v. Cerise, 579 So.2d 973 (La.1991). Upon, review of the Housley decision and others, we find that the standard requires a showing of a causal connection. The court need only give instructions that properly reflect the applicable law and adequately convey the issues to the jury, Luman v. Highlands Insurance Co., 25,445, p. 5-6, (La.App. 2 Cir. 2/23/94) 632 So.2d 910, 914, citing, Smith v. American Indemnity Insurance Co., 598 So.2d 486 (La.App. 2d Cir.1992). We do not find that if the word “probability” was used instead of “possibility” in describing the causal connection in the jury charge amounted to an egregious error. The substitution of this one word alone would not so mislead a jury that justice could not be rendered, because the charge still reflected and conveyed the applicable law to the jury.

The second error alleged with respect to the jury instructions is cause for greater concern. Este argues the trial court erred when it failed to include a requested jury charge about the responsibility of the motorist who has the right of way. The requested jury charge stated:

The primary responsibility of a motorist proceeding across an intersection on a favorable light is to traffic moving in the same or opposing directions and not to traffic approaching form his left and right.

The trial court denied the requested charge on the grounds that the charge could confuse the jurors.

The trial court must give all requested instructions which are material and relevant to the litigation. Wisner, 537 So.2d at 749. The trial judge is not required |sto give the precise instructions submitted by the litigants; he need only give instructions that properly reflect the applicable law and adequately convey the issues to the jury. Smith v. American Indemnity Insurance, Co., 598 So.2d 486, 491 (La.App. 2nd Cir.1992). To determine the sufficiency of a jury charge, all charges should be read together as a whole. Luman, 25,445, p. 6, 632 So.2d at 914, citing, Wisner v. Illinois Central Gulf Railroad, 537 So.2d 740 (La.App. 1st Cir.1988).

The record only contains the three sets of proposed jury charges submitted by counsel to the trial court, and the transcript of the conference between the attorneys and the trial court discussing which charges would be given. In the record, references are made to the general charges that the trial court had drafted prior to the conference and whether certain proposed charges were contained in the trial court’s general charges.

It is impossible for this Court to determine whether the jury was correctly charged as a matter of law with respect to the requested jury charge submitted by Este. The jury charges must be examined as a whole to determine whether the jury was properly instructed as to the law regarding a driver’s primary responsibility in conjunction with the other aspects of the law the jury was required to consider. Because the record is incomplete, we are not able to make this determination.

The next issue before us is whether the jury’s answers to the interrogatories were inconsistent. The jury answered “yes” to interrogatory number 3 which stated, “Do you find by a preponderance of the evidence, that the negligence of Jeremy Vigreaux, the second defendant driver involved in the accident, was negligent?” The jury answered “no” to interrogatory number 4 which stated, “Do you find by a preponderance of the evidence, that the negligence of Jeremy |9Vigreaux was the legal cause of the plaintiffs injuries?” In interrogatory number 7, the jury found Vigreaux’s attributable fault for the accident as 10 percent. Este objected that the jury’s answers to interrogatories number 4 and 7 were inconsistent. To resolve the inconsistencies, on the record the trial court entered an answer of “yes” to interrogatory number 4 in lieu of the jury’s “no” answer.

In the jury charge conference, counsel for all parties had an opportunity to raise any objections to the interrogatories before they were submitted to the jury. In the record, it was discussed at length whether interrogatories 3 and 4 should remain in the interrogatories since a preliminary default judgment had been entered against Vigreaux. The jury was allowed to hear evidence about Vigreaux’s actions in the automobile collision, but the default judgment had the effect of a confirmation of Vigreaux’s negligence. It was agreed to by all parties and ruled by the court that the interrogatories regarding Vigreaux should remain, because the issue of Vigreuax’s negligence and percentage of fault was a question for the jury. The trial court stated:

I am going to let the jury make its decision. I may or may not disregard three and four. Based upon the fact that there is a confirmation, if they find no negligence and no cause, I may have to amend their judgment based upon what I find in that aspect. Now, hopefully, hopefully, I won’t have to touch it because they will come back and find him negligent and as a cause; and they will give me a message, and everybody will walk away happy. But I am going to let you know now in case there is any question that if the jury finds that he was not negligent and his negligence was not a cause, I will strike those two parts of the interrogatory. I will find that he was negligent and that he was a cause, because it’s obvious to all of us that he was following too close and ran into the back of this lady.

Counsel for all of the parties had an opportunity to object to the court’s ruling, and no objections were raised. After the jury’s verdict was read, Este objected to the Iminconsistent answers to interrogatories 3, 4, and 7, and the trial court corrected the jury’s findings on the record in accordance with his ruling in the conference.

Este did not object to the interrogatories to be submitted to the jury and did not raise an objection to the court’s ruling regarding how to cure inconsistent answers to the specific interrogatories in question. Este “cannot now complain of the form of the jury interrogatories unless [s]he objected to them at trial either before or after their submission to the jury.” Wisner, 537 So.2d at 749. However, the jury did request that the court clarify its instructions as to whether they were to assess Vigreaux’s negligence and percentage of fault. Since the record does not contain the charges read to the jury, we are not able to determine whether the charges given to the jury correctly instructed them as to the law regarding following motorists or whether the jury instructions contributed to the inconsistent answers to the interrogatories.

We find that a trial de novo is appropriate in this matter due to the record’s silence regarding the jury charges and the inconsistencies in the jury interrogatories. As such, we pretermit discussion of Este’s assignment of error regarding the amount of the jury award and the percentage of fault assigned to Barilleaux.

Apportionment of Fault

In determining one’s standard of care, “[n]o fixed rule exists for determining what conduct constitutes negligence; thus, the facts and environmental characteristics of each case must be considered and treated individually.” Coleman v. Riley, 2000-0673, p. 3 (La.App. 4 Cir. 2/7/01), 780 So.2d 1071, 1073, citing, Allen v. Rawlins, 95-1592, 95-1593, p. 4, (La.App. 4 Cir. 2/15/96), 669 So.2d 1282, 1285.

Inin this case, Barilleaux drove into the left lane of Genie Street to allow the ambulance to pass her on the right. In her testimony, Barilleaux described the traffic conditions in detail. She stated there were two cars in front of her at the red light that had to clear the street for the ambulance before she could move. She moved her truck as quickly as possible to clear the road for the approaching ambulance by moving into the left lane of Genie Street with the front of her truck crossing into the right lane of Paris Road. Barilleaux testified if she had tried to move her truck to the right and turn onto Paris Road to avoid being in the intersection, she would have had to turn in front of the ambulance, therefore she had nowhere else to move her truck.

Under La. R.S. 32:125(A),

Upon the immediate approach of an authorized emergency vehicle making use of audible or visual signals, or of a police vehicle properly and lawfully making use of an audible signal only, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the highway clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer. (Emphasis added)

Barilleaux was negligent under the statute, because she did not drive to the right-hand side of Genie Street, but instead drove into the left lane of Genie Street. Even though Barilleaux was acting in an emergency situation, she could have acted differently. Barilleaux testified there were two cars in front of her that had to clear Genie Street before she could, which indicates she could have moved her car to the right or have moved her car into the left lane of Genie Street without traversing the intersection.

Both Barilleaux and Este testified that the traffic on Paris Road had come to a stop. Este testified she did not see nor hear the ambulance, and she did not | ^remember looking to the left or right to determine why the traffic on Paris Road had stopped. Este also testified she did not see Barilleaux’s truck until immediately before she collided with it. Este and Barilleaux both stated they each did not have time to take any evasive action to prevent the collision. Barilleaux also testified other motorists tried to wave to Este to get her attention to prevent the collision.

When a motorist approaches an intersection with a green light facing him, he has the right to assume that others will stop in obedience to the red light. Modica v. Manchester Insurance & Indemnity Company, 284 So.2d 791, 793 (La.App. 4th Cir.1973), citing, Bourgeois v. Francois, 245 La. 875, 161 So.2d 750 (1964). Preferences on favored streets created by statutes, signal, or signs, do not relieve the driver traveling on the favored street from ordinary care. Kirk v. Allstate Insurance Company, 366 So.2d 642, 644 (La.App. 3rd Cir.1979). “[T]he favored driver can still be found contribu-torily negligent if his/her substandard conduct contributed to the cause of the accident.” Thomasie v. Lee, 97-397, p. 8 (La.App. 5 Cir. 9/30/97), 700 So.2d 580, 584, citing, Corvers v. Acme Truck Lines, 95-925 (La.App. 5 Cir. 4/16/96), 673 So.2d 1088, 1090. If a motorist fails to see what he should have seen, then the law charges him with having seen what he should have seen, and the court examines his subsequent conduct on the premise that he did see what he should have seen. Fernandez v. General Motors Corporation, 491 So.2d 638, 636-37 (La.1986).

From Barilleaux’s testimony, the accident occurred in the afternoon and there were no inclement weather conditions present which would impair one’s vision. Also from the record, all of the other motorists either saw or heard the ambulance because they had come to a stop. Este is the only motorist who did not 113see nor hear the ambulance. Even though Este was the favored motorist, she cannot blindly approach an intersection. She must exercise ordinary care, and in this instance this would have been at a minimum to look to the left, right, or into the intersection itself, especially since she noticed that the traffic on the road she was traveling had come to a stop. While Baril-leaux probably could have acted differently as the driver on the less favored street, she was at fault for traversing the intersection. However, Este’s lack of due diligence as a motorist also contributed to the accident.

According to La. R.S. 32:81(A), “the driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”

That rule is based upon the premise that a following motorist whose vehicle rear-ends a preceding motorist either has failed in his responsibility to maintain a sharp lookout or has followed at a distance from the preceding vehicle which is insufficient to allow him to stop safely under normal circumstances.

Daigle v. Mumphrey, 96-1891, p. 3 (La.App. 4 Cir. 3/12/97) 691 So.2d 260, 262, citing, Welch v. Thomas, 263 So.2d 427, 429 (La.App. 1st Cir.1972).

A default judgment had been taken against Vigreaux and he did not appear at trial. From the testimony of both Este and Barilleaux, Vigreaux collided with the rear of Este’s car immediately after Este’s car collided with Barilleaux’s truck. Each testified the time that elapsed between the first and second impact was seconds. Even though Este did not have time to apply her brakes to avoid the first impact, if Vigreaux had been following at a reasonable distance he could have avoided colliding with Este, or at the very least taken evasive action to avoid the 114collision. We find he was following too closely behind Este and is partially at fault for the accident.

Accordingly, we find that Barilleaux is sixty percent at fault because she was negligent under the statute. We find that Este is thirty percent at fault for her contributory negligence by not showing due diligence as a motorist, and Vigreaux is ten percent at fault for following too closely behind Este.

Damages

In Gaines v. Daiichi Chuo Shipping (American), Inc., 95-1597 (La.App. 4 Cir. 4/24/96), 673 So.2d 1192, we held:

In a personal injury suit, the plaintiff has the burden of proving, by a preponderance of the evidence, a causal connection between the injury sustained and the accident which caused the injury; the test for determining the causal connection between the accident and the subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident.

Id. at p. 6, 673 So.2d at 1197, citing, Maranto v. Goodyear Tire & Rubber Co., 94-2603, pp. 3, 6 (La.2/20/95), 650 So.2d 757, 759, 761.

According to Dr. Brammer’s records, Este’s medical history indicates she did not have a history of back or knee problems prior to her accident in 1995. The only medical problems associated with Este’s back prior to the accident was a tenderness in her back which Dr. Bram-mer diagnosed as a symptom of Este’s heart condition. Dr. Brammer testified that Este did complain of some back pain to her after the accident, but Dr. Moss testified she did not complain of back pain to him.

Dr. Moss treated Este from August 14, 1995 until December 4, 1995 for her knee injuries related to this accident. Dr. Moss diagnosed Este as having a condition called patellofermoral chondromalcia in her knees, the degeneration of cartilage, which he causally related to the accident. He prescribed antijinflammatory16 and pain medication along with physical therapy three times a week for Este during this period. At his last appointment with Este, he found she had no permanent injuries resulting from the accident, and she had reached maximum medical improvement. He discontinued her physical therapy and instructed her to return to him if she had a reoccurrence of pain in her knees in the future. Este did not return to see Dr. Moss again until 1998, after she had been injured in another automobile accident.

Este did continue to see Dr. Brammer between the date of her last visit with Dr. Moss and the accident in 1998. During this period, Este continued to complain of lower back and knee pain to Dr. Brammer. Dr. Brammer continued to prescribe pain medication for Este, and in 1997 ordered an MRI of Este’s back. The MRI showed degeneration of the cartilage in Este’s lower back and that discs L4-5 were slightly bulging, which Dr. Brammer causally related to the accident of 1995.

Este testified to the change in her quality of life after the accident. Este complained of pain in her lower back and knees at the time of trial, some five years after the accident. Este stated she consumes fifty packs of BC per week to manage her back pain. She is unable to stand for long periods of time, which has made her ability to perform household duties difficult. She and her husband are not able to participate in their local social club where she would dance and “party,” because of her back and knees. Also, she was unable to care for her two grandchildren who had lived with her and her husband.

We find there was sufficient medical evidence given in the testimony of Dr. Bram-mer and Dr. Moss to find a causal connection between Este’s knee and lower back injuries and the accident in 1995.

|1fiAt trial, it was stipulated that Este’s lost wages for two months of missed work after the accident was $2,634.82, and the bills for Dr. Brammer totaled $201.92, the MRI in 1997 was $1,625.25, and X-rays taken in 1996 was $148.34. The ambulance bill for $617.00; the emergency room bill for $635.00, and the bill for treatment at the hospital the day after the accident for $67.25 were entered into evidence. Dr. Moss’ bill for $335.00, and the physical therapy bill for $1,260.00 were also entered into evidence. Este’s medical bills for her past medical treatment from this accident total $4,889.76. Este did not make a claim for future medical expenses.

General damages do not have a common denominator and are decided on a case by case basis. Williams v. Golden, 95-2712, p. 20 (La.App. 4 Cir. 7/23/97) 699 So.2d 102, 112. They involve physical and mental pain and suffering, inconvenience, loss of intellectual gratification or physical enjoyment, and other factors that affect a victim’s life. Id. Based on the testimony and evidence, we award Este the following:

Physical pain and suffering, Mental anguish, Permanent disability, And loss of enjoyment of life, past and future $60,000.00
Past Medical Expenses $ 4,889.76
Past Lost Wages $ 2,634.82
TOTAL $67,524.58

CONCLUSION

We vacate the judgment of the trial court. After a de novo review of the facts, we find Barilleaux, Este and Vigreaux to be sixty, thirty, and ten percent at fault, respectively. We award Este $2,634.82 for lost wages, $4,889.76 for past |17medical expenses, and $60,000.00 for physical pain and suffering, mental anguish, permanent disability, and loss of enjoyment of life, past and future, for a total of $67,524.58. This award is to be reduced based on the apportionment of fault.

REVERSED AND RENDERED.

      . Roussel is Barilleaux's ex-husband, and was dismissed as a party at the trial.


author: hDAVID S. GORBATY, Judge.

text:
    LHO NEW ORLEANS LM, L.P., v. MHI LEASCO NEW ORLEANS, INC.
    No. 2002-CA-0663.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 20, 2002.
    Writ Denied Dec. 19, 2002.

      William M. Bosch, Katten Muchin Zavis Rosenman, Washington, DC, and James A. Budinetz, Morgan, Lewis & Bockius, LLP, McLean, VA, and A. Gregory Grimsal, Martin E. Landrieu, Deborah F. Mal-veaux, Marcel Garsaud, Jr., Gordon, Arata, McCollam, Duplantis & Eagan, L.L.P., New Orleans, LA, for Plaintiff Appellant, LHO New Orleans LM, L.P.
    Bruce V. Schewe, Phelps Dunbar LLP, New Orleans, LA, and Michael S. Elkin, Thomas P. Lane, Gabriel M. Nugent, The-len Reid & Priest, LLP, New York, NY, for Defendant/Appellee, MHI Leasco New Orleans, Inc.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge DAVID S. GORBATY).
   hDAVID S. GORBATY, Judge.

Parties to this litigation are plaintiff/appellant, LHO New Orleans L.M., L.P., (hereinafter referred to as LaSalle) the owner of the Le Meridien Hotel in New Orleans, and MHI Leaseco New Orleans, Inc. (hereinafter referred to as Meridien), the tenant/operator/manager of the hotel. LaSalle has filed this devolutive appeal in response to an order/judgment of the trial court rendered February 4, 2002, denying LaSalle’s motion to stay and enjoin arbitration and motion for preliminary injunction, granting Meridien’s motion to consolidate and motion for preliminary injunction, ordering that the case be sent to arbitration, and staying all proceedings until arbitration is complete. For the following reasons, we reverse in part, affirm in part, and lift the stay order.

PROCEEDINGS BELOW:

On February 19, 1998, the parties entered into a lease agreement whereby Meridien would operate and manage the Le Meridien Hotel on Canal Street. In June of 2001, Meridien notified LaSalle that it intended to sell its lease and | ^.management interests in the hotel to a third-party. Under the terms of the lease, LaSalle was entitled to exercise a right of first refusal on the purchase of those interests. The exercise of that right is the basis of the dispute between the parties. After numerous communications between the parties, the parties agreed to disagree and the underlying litigation was commenced.

LaSalle filed a Petition for Declaratory Judgment, Eviction and Injunction on January 11, seeking to declare Meridien to be in default of the lease, and obligating Meri-dien to vacate the premises and cooperate in the management .transition. LaSalle further sought injunctive relief requiring Meridien to assist in an orderly transition, to refrain from any acts injurious to La-Salle, and to vacate the premises.

Meridien excepted to the trial court’s jurisdiction on the ground that the matters in dispute were subject to arbitration according to the terms of the lease. Further, Meridien claimed that a mandatory arbitration clause in the lease made La-Salle’s petition premature. Meridien also sought a preliminary injunction to prevent LaSalle from interfering with Meridien’s management of the hotel, from exercising any default remedies such as eviction, and to toll any time periods purportedly applicable to termination of the lease.

LaSalle responded to Meridien’s arbitration claims by filing a motion to stay/enjoin arbitration. All matters were set to be heard on January 23, 2002.

After hearing, the court issued a judg-' ment denying LaSalle’s motion to stay and enjoin arbitration and motion for preliminary injunction, granting Meridien’s | amotion for preliminary injunction, and ordering the parties to arbitration to determine the fair market value of Meridien’s interests.

DISCUSSION:

The judgment before this Court is a ruling denying LaSalle’s motion to stay and enjoin arbitration and its motion for preliminary injunction, and granting Meri-dien’s motion for preliminary injunction. The judgment further stays the proceedings below until such time as arbitration is completed and a fair market value of Meri-dien’s interest is determined.

A preliminary injunction is an interlocutory procedural device designed to preserve the status quo as it exists between the parties pending trial on the merits. Therefore, a trial court has great discretion to grant or deny the relief requested. A to Z Paper Co., Inc. v. Carlo Ditto, Inc., 98-1417, pp. 8-9 (La.App. 4 Cir. 9/9/98), 720 So.2d 703, 708.

The issue of whether or not the language of a contract is ambiguous is an issue of law subject to de novo review on appeal. Lakeland Anesthesia, Inc. v. Cigna HealthCare of Louisiana, Inc., 2001-1059, p. 3 (La.App. 4 Cir. 2/6/02), 812 So.2d 695, 697, quoting Bartlett Const. Co., Inc. v. St. Bernard Parish Council, 99-1186 (La.App. 4 Cir. 5/31/00), 763 So.2d 94, writ denied 2000-2322 (La.11/03/00), 773 So.2d 142. The trial court’s interpretation of a contract is subject to the manifest error rule. Id. The manifest error rule provides that an appeals court |4may not simply substitute its own view of the evidence for the trial court’s view, nor may it disturb the trial court’s finding of fact so long as it is reasonable. Id.

A review of the lease does not reveal any ambiguous language, nor do the parties argue that the lease is ambiguous. As such, we will not review this matter de novo. However, because no written or oral reasons for judgment were issued, this Court can only infer from the order/judgment that the trial court made the factual finding that no closing could take place prior to the establishment of the fair market value of Meridien’s interests. We must also infer that the trial court did not find Meridien to be in default of the lease as La Salle claimed. ¿ For this Court to determine if the trial court abused its discretion in granting Meridien’s motion and denying LaSalle’s, we must review the lease agreement between the parties.

Section 22.22 of the lease agreement between LaSalle and Meridien provides, in pertinent part:

22.22 Change of Control of Tenant. If, during the Term, any Parent or Affiliate (each a “Transferor”) of Tenant has elected to transfer its interest in Tenant to a third party which is not an Affiliate of Tenant, which, for the purposes of this Agreement shall only be permitted in conjunction with the sale of all, or substantially all, of Transferor’s hotel management businesses (a “Permitted Transfer”), then such Permitted Transfer shall be made only upon the following terms and conditions:
(a) Transferor shall give written notice of the proposed Permitted Transfer to Landlord (the “Sale Notice”);
(b) Landlord shall have thirty (30) days from the date of receipt of the Sale Notice to provide Transferor with written notice (the “Purchase Notice”) of Landlord’s intention to purchase, in Landlord’s name or in the name of Landlord’s designee, Transferor’s interests in Tenant at the then Fair Market Value of such interest (the “Purchase”);
(e) The closing of the Purchase, ..., shall occur within sixty (60) days from the later to occur of (x) delivery of the Sale Notice or (y) delivery of the Third Party Notice;
(f) If the parties fail to agree on the Fair Market Value of the respective interests in Tenant, the matter shall be referred to arbitration as provided for in Article 23; provided, however, unless and until the Fair Market Value of the prospective interests in Tenant have been fully determined, Landlord shall have no obligation to complete the Purchase ....

Section 23.3 provides, in pertinent part:

23.3 Arbitration Procedures. In any arbitration commenced pursuant to Article 23, a single arbitrator shall be designated and shall resolve the dispute. The arbitrator’s decision shall be binding on all parties and shall not be subject to further review or appeal except as otherwise allowed by applicable law. To the maximum extent practicable, the arbitrator and the parties, and the AAA, if applicable, shall take any action necessary to insure that the arbitration shall be concluded within ninety (90) days of the filing of such dispute.

LaSalle argues that, under the terms of the lease, specifically Section 22.22, it is entitled to complete the purchase of Meri-dien’s interests, and take over management of the hotel, prior to establishment of the fair market value of Meridien’s interests. LaSalle admits that arbitration is mandated if the parties do not agree on the value; however, it claims that the completion of an arbitration proceeding does not preclude the closing on the purchase. LaSalle also argues that the trial court erred in not finding Meridien in default of the lease, thereby preventing LaSalle from regaining control and occupancy of its hotel.

Meridien counters that it is entitled to the injunctive relief granted by the trial court pursuant to La.Code Civ. Proc. arts. 3668 and 3601. Pursuant to La. |fiCode Civ. Proc. art. 3663, Meridien is entitled to the peaceful enjoyment of the property that they have possessed for over twenty years. Meridien argues that art. 3663 does not require a showing of irreparable injury for it to be granted injunctive relief. Notwithstanding art. 3663, Meridien claims that it has shown irreparable injury as required by La.Code Civ. Proc. art. 3601, and, therefore, injunctive relief was proper under that article also.

After a thorough review of the lease, we conclude that LaSalle is correct in its assessment that the closing on the purchase can take place prior to determination of the fair market value of Meridien’s interests. Section 22.22 provides that LaSalle shall have thirty days from the date of Meridien’s Sale Notice to notify Meridien of its intent to purchase Meridien’s interest at the “then Fair Market Value of such interest.” If the parties do not agree on the fair market value, such value shall be determined by arbitration.

The dispute between the parties lies in the definition of the terms “closing” and “completion of purchase.” Meridien contends that because the term “closing” is not defined in the lease, LaSalle is free to interpret “closing” to mean the point at which Meridien must begin assisting with a transition to new management. However, because the lease provides that LaSalle may opt to not “complete the purchase,” which term Merdien equates with “closing,” if LaSalle is unhappy with the fair market value determined by arbitration, it can choose not to “complete the purchase.”

|70ur interpretation of the lease is based on basic sales principles of Louisiana law. A valid sale requires three elements: the thing sold, the price, and the consent of the parties. La. Civ.Code art. 2439. The price must be fixed by the parties in a sum either certain or determinable through a method agreed by them. There is no sale unless the parties intended that a price be paid. La. Civ.Code art. 2464. It is also well-accepted under Louisiana law that the term “closing” means that the parties have consented to the thing sold and the price, even though the price may be determined at a later date. Therefore, once LaSalle sets a closing date, it is bound to pay whatever price is determined for Meri-dien’s interests. Likewise, under the terms of the lease, on the closing date, Meridien is bound to begin to vacate the premises and to assist in the transition to the new tenant. However, if LaSalle desires to wait until fair market value is determined, it may do so under the provisions of Section 22.22(f). If LaSalle so chooses, the closing cannot take place.

Thus we find that the trial court erred in granting Meridien’s preliminary injunction providing that a closing cannot take place until such time as the price of Meridien’s interests is determined by arbitration.

We must now consider the actual chain of events that occurred between the parties from June 1, 2001 until the various motions were filed in the trial court to determine if Meridien is in default of the lease.

On June 1, 2001, Robert A. White, Senior Vice President of Le Meridien, notified Michael Barnello, Chief Operating Officer of LaSalle, that Meridien was Lselling its management interests to a third party. According to the lease, LaSalle had thirty days from receipt of the Sale Notice to exercise an option to purchase the management interests. LaSalle did not exercise this option within the thirty-day period, but sought and was granted extensions in writing from Meridien to exercise the purchase option. The last extension granted was in a letter from Mr. White to Mr. Barnello dated October 19, 2001. The letter extended the time period to provide a purchase notice to January 31, 2002, and further provided that a closing would take place no later than February 28, 2002. Mr. Barnello signed the letter accepting those terms.

On December 21, LaSalle sent Meridien a letter requesting that Meridien agree to the following: 1) LaSalle would meet with Meridien representatives on January 7, 2002; LaSalle would not notify Meridien prior to that meeting whether it intended to purchase Meridien’s interests; 3) La-Salle could tender its Purchase Notice at any time after the January 7 meeting, and terminate the lease. The purchase and termination would not take place sooner than fourteen days or later than thirty days from the date of notice; 4) if LaSalle elected to purchase Meridien’s interest, the purchase would be effective regardless of whether a fair market value of the interest had been determined; however, Meridien would not be deemed to have waived its right to have that value determined; and 5) if LaSalle elected to purchase Meridien’s interests, Meridien would cooperate with the transition according to the lease agreement. Meredien did not agree to the terms of the letter.

[ 9Pespite the extension to January 31, on December 28, 2001, Mr. Barnello sent a Purchase Notice letter to Mr. White. The letter indicated that LaSalle intended to exercise its purchase option effective thirty days from December 28. The letter further informed Meridien that LaSalle’s des-ignee would succeed to Meridien’s rights under the lease. Additionally, on the effective date and upon completion of the purchase, LaSalle and its designee would elect to terminate the lease. The letter further explained that in connection with the purchase and termination, Meridien would be expected to, among other things, surrender the property.

On January 4, 2002, Meridien notified LaSalle that its Purchase Notice letter was not in compliance with the terms of the lease because it failed to include a fair market value of Meridien’s interests. Meridien also disputed LaSalle’s contentions that the lease and management agreement would terminate on the effective date because no closing could take place without a fair market value being established.

LaSalle responded to Meridien in a January 7, 2002, letter informing Meridien that if it did not cooperate in the transition or vacate the hotel before the effective date, Meridien would be in default of the terms of the lease. The letter further expressed LaSalle’s assessment that the fair market value of Meridien’s management interests was zero. LaSalle noted that this same information had been included in an attachment to the December 28 Purchase Notice letter. Lastly, LaSalle informed Meridien that even should the parties not agree on LaSalle’s fair hnmarket value assessment, LaSalle still intended to close the purchase on January 28.

On January 8, Meridien responded denying that it was in default of the lease terms. It also argued that it could not make a counter-assessment of the fair market value of its interests because La-Salle failed to provide any foundation for its assessment. Meridien also accused La-Salle of not negotiating in good faith.

LaSalle proceeded with its intent to take over the hotel and, to that end, sent a letter to Meridien on January 9 attaching switch over guidelines.

As previously stated, we interpret the lease to mean that LaSalle can choose to close prior to the fair market value of Meridien’s interests being established. If LaSalle chooses to close, Meridien must begin vacating the premises and must assist in the orderly transition to the new tenant.

In brief, LaSalle claims that Meridien stated in its October 19 extension letter that a closing would take place within thirty days of the purchase notice, or no later than February 28. However, the record copy of the October 19 letter does not include the “thirty days” language LaSalle claims is in the letter. Section 22.22 of the lease provides that the closing of the purchase shall occur within sixty days from the date of delivery of the Sale Notice; however, the parties waived that stipulation and extended the closing date. Thus the parties were no longer operating under the terms of Section 22.22 as to the closing date, but were instead operating under the terms of the various extension letters. Further, the lease provides in Section 22.15 that a transition shall take place “[ujpon the expiration or [^termination of the Term of this Agreement.” According to LaSalle’s December 28 Purchase Notice, the lease would not terminate until the effective date (January 28) and completion of the purchase. The hearing on this matter took place prior to the effective date, and obviously, prior to the completion of the purchase. As such, Meridien was not in default at the time of the hearing because it was not yet required under the terms of the lease to participate in a transition. Section 22.15 does provide that if the lease terminates as a result of an event of default, then the transition procedures of section 22.15 would not apply. However, the only event of default applicable is if a change of control should occur other than as provided by Section 22.22. Meri-dien was in compliance with Section 22.22 when it properly notified LaSalle of the proposed sale of its interests to a third party. Thus, we find no error m the trial court’s finding that Meridien was not in default of the lease.

Accordingly, we reverse the portion of the trial court’s judgment issuing a preliminary injunction in favor of Meridien and granting a stay order. We affirm the portion of the judgment ordering that arbitration take place to determine the fair market value of Meridien’s interests. Should LaSalle choose to go forward with a closing, such closing shall take place thirty (30) days from the date of this opinion.

REVERSED IN PART; AFFIRMED IN PART; STAY ORDER LIFTED.

      . MHI Leaseco New Orleans, Inc., is a special-purpose entity owned by Meridien Hotels, Inc. For purposes of this appeal, we will refer to all Meridien entities collectively as "Meri-dien.”

      . The judgment also consolidates another action with the subject case, an issue not relevant to this appeal.


text:
    LOUISIANA ELECTORATE OF GAYS AND LESBIANS, INC., a Louisiana Corporation not for Profit, Laurence E. Best, Esquire, W. Lloyd Bowers, Esquire, John D. Rawls, Esquire, The Hon. Joan L. Ladnier, Kevin Besse, R.N., Jeanne M. Leblanc, ACSW, BCSW, et al. v. STATE of Louisiana, The Hon. Richard P. Ieyoub, Attorney General of Louisiana and the Hon. Harry F. Connick, District Attorney of Orleans Parish, not Individually but rather in their Official Capacities, et al.
    No. 2001-CA-1091.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 20, 2002.

      John D. Rawls, New Orleans, LA, for PlaintiffAppellant.
    Richard P. Ieyoub, Attorney General, Charles H. Braud, Jr., Assistant Attorney General, Thomas S. Halligan, Assistant Attorney General, Baton Rouge, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge DAVID S. GORBATY).
   hDAVID S. GORBATY, Judge.

Plaintiffs-Appellants, a lesbian and gay civil organization, and several lesbian and gay citizens (“LEGAL”), sued the State of Louisiana, its Attorney General and the District Attorney of Orleans Parish, the latter both individually and as the class representative of all of the prosecutors in and for the State of Louisiana. Plaintiffs sought a declaration that the Louisiana Crime Against Nature statute, La. R.S. 14:89, and several statutes extending its effects, La. R.S. 12:1041, 15:535, 15:536, 15:538, 15:540, 15:542, 15:542.1, 15:543, 15:544, 15:545 and 15:549, are unconstitutional. Plaintiffs alleged that the targeted statutes: (a) are arbitrarily applied and arbitrarily enforced against plaintiffs as gay men and lesbians and reward police misconduct in such application and enforcement in violation of La. Const, art. I, 2 and 3; (b) deny plaintiffs equal protection of the laws on the basis of sex, physical condition, birth, culture, and religion in violation of La. Const, art. I, 3; (c) intrude upon the privacy of the individual plaintiffs in violation of La. Const, art. I, 5; (d) curtail and restrain the plaintiffs’ freedom of speech and of the press in violation of La. Const, art. I, 7; (e) constitute a state endorsement of religious beliefs and an establishment of religion in violation of La. Const, art. I, 8; (f) impair plaintiffs’ right to assemble ^peaceably and to petition the government for a redress of grievances in violation of La. Const, art. I, § 9; (g) discriminate, on the basis of physical condition, against plaintiffs in their access to public areas in violation of La. Const, art. I, 12; (h) subject plaintiffs to cruel, excessive, and unusual punishment in violation of La. Const, art. I, 20; and (i) constitute bills of attainder in violation of La. Const, art. I, 23.

After a five-day bench trial, Judge Carolyn Gill-Jefferson declared La. R.S. 14:89(A)(1) unconstitutional on privacy grounds “only insofar as it prohibits noncommercial, consensual, private sexual behavior by adult human beings,” and further declared the remainder of the targeted statutes unconstitutional only as they relate to the prohibition of La. R.S. 14:89(A)(1). The judgment did not address the other constitutional grounds raised by plaintiffs. Plaintiffs subsequently appealed to the Louisiana Supreme Court.

At the same time, plaintiffs filed a motion for new trial in the district court, contending that it should have explicitly addressed all of the constitutional issues raised, not just the right to privacy. The district court granted the motion for new trial to make some non-substantive changes in the March 17, 1999 judgment, but otherwise denied plaintiffs’ motion. On April 28, 1999, in oral reasons for judgment, the trial court rejected “all of plaintiffs’ other grounds for declaring the targeted statutes unconstitutional.”

^Plaintiffs appealed to this court the portions of the judgment declaring the targeted statutes constitutional. On June 14, 2000, the Louisiana Supreme Court issued an order staying the proceedings here.

On July 6, 2000, the Louisiana Supreme Court rendered an opinion in State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501, finding La. R.S. 14:89(A)(1) to be constitutional. Thereafter, the court remanded the instant case to the district court for reconsideration in light of Smith. The court also lifted the stay of proceedings pending in this court.

On remand, the district court again found La.R.S. 14:89(A)(1) to be in violation of Article I, Section 5 of the Louisiana Constitution. Defendants appealed this holding to the Louisiana Supreme Court.

On November 14, 2001, this court dismissed plaintiffs’ pending appeal for lack of jurisdiction, stating that jurisdiction properly lay with the Louisiana Supreme Court. This court denied plaintiffs’ subsequent application for an en banc rehearing, and transferred the appeal to the Louisiana Supreme Court.

On March 28, 2002, relying on Smith, supra, the Louisiana Supreme Court vacated the judgments of the district court invalidating the targeted statutes based upon Article I, Section 5 of the Louisiana Constitution. Further, the Supreme Court decreed that “[b]ecause we have disposed of the appeal before us relating to the privacy issue, we will transfer plaintiffs’ appeal of the remaining constitutional issues to the Court of Appeal, Fourth Circuit, for consideration under its appellate jurisdiction.” Louisiana Electorate of Gays and Lesbians, Inc. v. State, 99-3357 (La.3/28/02), 812 So.2d 626.

| ¿PLAINTIFFS’ ASSIGNMENTS OF ERROR

Plaintiffs assert that the trial judge erred in dismissing the actions of original plaintiffs Bowers and Ladnier. Plaintiffs argue that Ladnier was present at the trial and should not have been dismissed. Further, they complain that the dismissal was “without prejudice” in the original Judgment, but “with prejudice” in the second set of Reasons for Judgment. , Such a dismissal is improper under La. C.C.P. art. 1672, they aver.

After trial, the trial court rendered a judgment dismissing Bowers and Ladnier sua sponte, “without prejudice pursuant to Code of Civil Procedure article 1672(A)(2) due to their failure to appear for trial.” Plaintiffs filed a motion for new trial, challenging that ruling, among others, and arguing that the court could not supply that kind of dismissal without prejudice on its own motion. Subsequently, the trial court essentially withdrew its dismissal of the plaintiffs without prejudice pursuant to C.C.P. art. 1672(A)(2), and dismissed the plaintiffs’ cumulated actions on the merits, and therefore with prejudice, for their failure to testify and establish by sufficient proof at trial their own individual circumstances and personal interest in the subject matter of the suit.

The trial judge explained:

The court must dismiss these plaintiffs’ claims with prejudice due to their failure to establish at trial their interest and standing.
The court is not persuaded by any of the plaintiffs’ arguments to the contrary. The court set aside five days for the trial of this matter. During the trial, plaintiffs’ counsel made no statement to the court that Ms. Ladnier was ready and able to testify but could not do so due to its time constraints.
| «¡Furthermore, the plaintiffs did not proffer the testimony of Ms. Ladnier, Mr. Bowers, or Mr. Foster. Nor did the plaintiffs request a stipulation from defendants.

The plaintiffs did not bring one action as a class of plaintiffs. Every plaintiff has alleged a separate action on behalf of himself or herself, and these separate actions have been cumulated in this one suit. As such, each named plaintiff is required to prove that he or she has a real and actual interest in the suit. Plaintiffs Bowers and Ladnier did not present adequate evidence of their standing and interest in the instant case. The trial judge did not ultimately rely upon La. C.C.P. art. 1672 in dismissing Bowers and Ladnier, but rather based their dismissal on their failure to prove their cases. As such, we find that the trial judge did not err in dismissing them. Further, we amend the original judgment to read that these plaintiffs are dismissed “with prejudice,” as stated in the Reasons for Judgment.

Plaintiffs aver that the trial judge erred in sustaining various hearsay and relevancy objections and in barring proffered testimony.

Plaintiffs object to the trial court’s exclusion of a statement purportedly made by a New Orleans city police officer to witness Best after a police “sensitivity training” session. They argue that the statement should have been admitted as a statement against interest because the officer serves in a representative capacity for the State as its employee and agent. However, we find that the city police officer is the employee, representative, and agent of the City of New Orleans, which is a local municipal corporation with an independent “home rule” charter. La. Const. (1974) art. 6, Section 4; Police Ass’n of New Orleans v. City of New Orleans, 94-1078 (La.1/17/95), 649 So.2d 951; R.S. 42:1441-1441.3. As such, this argument lacks merit.

Plaintiffs also contend that the trial court should have admitted Commissioner Donald Gorton’s expert testimony on the history and practice of the common law of England as received into America, with particular reference to Crime Against Nature. The trial court refused to accept Commissioner Gorton as an expert despite his outstanding qualifications, plaintiffs assert.

In rejecting Commissioner Gorton, the trial judge stated that she was “well aware as to the historical evolution of the Louisiana Civil Code as it relates in some instances to the common law and has the ability to interpret it along with the facts being presented in this case.” We find that the trial judge’s decision to exclude Gorton’s testimony was proper and well within her broad discretion.

Plaintiffs complain that the trial court erroneously barred expert testimony from two clergymen, Dr. Hotchkiss and Pastor Brecht, on the tenets and beliefs of their denominations and the effect the Crime Against Nature statute has on their denominations’ ability to have lesbian and gay ministers.

The trial judge found that the potential testimony of the clergymen was not relevant to plaintiffs’ constitutional challenges to the statutes in question. To be relevant, the evidence must tend to prove or disprove a fact “that is of consequence to the determination of the action.” La.Code of Evidence art. 401. We find that the trial judge did not abuse her discretion in excluding the testimony.

^Plaintiffs also contend that the trial court erred excluding as hearsay certain possible testimony by State Representative Edwin Murray. The trial judge did not permit Rep. Murray to reveal statements made by various legislators that an attempt to repeal the Crime Against Nature statute would fail for antigay reasons. Plaintiff argues that such assertions are statements against interest and thus admissible.

The trial court stated that “any off-the-record conversations [Rep. Murray] may have had with other legislators is hearsay and therefore is inadmissible.” We agree, and find that the trial judge did not err in excluding them.

Plaintiffs aver that the trial court erred in barring their expert on political campaigns, William Schultz, from testifying about the statute’s discriminatory effect on gay candidates. The court sustained relevancy objections, stating, “The statute before the Court refers to acts. It does not refer to anything else. And as you are citing this witness’ testimony, we want this witness to testify that ... members of the gay and lesbian community are prohibited from running for public office based on this statute ... And whether or not that is true is not relevant to this determination of constitutionality.” We agree, and find that the trial judge properly excluded the testimony as irrelevant.

Plaintiffs next argue that the trial court erred in permitting Richard Cohen to testify as an expert witness in “psychotherapy and counseling-psychology [with an] emphasis on healing homosexuality.” Plaintiffs objected to Mr. Cohen being recognized as an expert, arguing that he is not licensed in this or any other state for anything, including psychotherapy or mental health counseling.

|sMr. Cohen possesses as master’s degree in psychology and has practiced as a counselor for many years. The record shows that he is a member of professional organizations and has presented many publications to them. We find that the trial judge did not err in qualifying Mr. Cohen as an expert in these fields.

Plaintiffs complain that the trial court erred in ruling that the targeted statutes do not discriminate arbitrarily, capriciously, and unreasonably on the basis of sex, physical condition, birth, or culture. Further, the trial court erred in holding that the targeted statutes do not discriminate on the basis of religious ideas, beliefs, or affiliations, and that the statutes do not respect an establishment of religion or prohibit the free exercise thereof. Plaintiffs also allege that the trial court erred in ruling that the targeted statutes were not enacted and are not maintained because of a discriminatory legislative purpose and intent.

The Louisiana Supreme Court, in State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973 (Baxley II), addressed the issue of discrimination with respect to a statute that does not discriminate on its face. Under the stipulation in this case, R.S. 14:89 is facially neutral in its entirety and is governed by the Baxley II standard; accordingly, what is said in Baxley II about claimed discrimination and R.S. 14:89(A)(2) applies equally to R.S. 14:89(A)(1). In Baxley II, the Louisiana Supreme Court explained:

Generally, the state constitutional guarantee of equal protection mandates that state laws affect alike all persons and interests similarly situated. State v. Petrovich, 396 So.2d 1318, 1322 (La.1981). This guarantee does not, however, take from the state all power of classification. In Sibley v. Bd. of Supervisors of Louisiana State Univ., 477 So.2d 1094, 1107 (La.1985), reh’g denied, this court set forth the analysis required by the state’s equal protection guarantee in the face of a legislative classification. However, in the present case, we find no legislative | ¡¡classification on the face of the statute. To the contrary, the statute, on its face, is neutral. It applies equally to all individuals — male, female, heterosexual and homosexual. The statute punishes conduct — solicitation with the intent to engage in oral sex or anal sex for compensation. The statute does not single out gay men or lesbians for punishment. Rather, it punishes conduct which the state has deemed to be against the public interest. For these reasons, we hold that La.R.S. 14:89(A)(2) [as well as R.S. 14:89(A)(1) now in this case] does not, on its face, violate the state equal protection guarantee.
A statute, though facially neutral, may still be challenged as constitutionally infirm if the challenger can prove that the statute was enacted because of a discriminatory purpose. Personnel Admin. of Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979). “ ‘Discriminatory purpose’ ... implies more than intent as volition or intent as awareness of the consequences.... It implies that the de-cisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Id. at 279, 99 S.Ct. at 2296 (citations and footnote omitted). Disparate impact upon the identifiable group, while relevant, is not dispositive of this issue. That disparate impact must be traced to a discriminatory purpose to support a claim that the statute is unconstitutional under the equal protection clause. Id. at 272, 99 S.Ct. at 2292. Given the presumption of the constitutionality of legislation which does not classify on its face, it is incumbent upon the challenger of the legislation to prove the discriminatory purpose. In the present case, the record is devoid of any evidence that the crime against nature statute was enacted for the purpose of discriminating against gay men and lesbians. Therefore, the statute is not constitutionally infirm on these grounds.

Id. at pp. 6-8, 656 So.2d at 977-978.

Likewise, in the trial of this case, discriminatory purpose by the lawmaking body was not proven. Although plaintiffs attempted to adduce evidence of legislative intent and purpose by the testimony of Rep. Murray, it is well settled that one member of the legislature cannot testify as to the legislative intent of the whole lawmaking body. Macon v. Costa, 437 So.2d 806 (La.1983); Ethyl Corp. v. Collector of Revenue, 351 So.2d 1290, 1293 (La.App. 1 Cir.1977). Rep. Murray testified that he had made his own individual arguments and expressed his own individual opinion to other legislators that the statute was discriminatory, |inand that the legislature has refused to repeal this statute. However, no evidence was introduced that the entire legislative body enacted these statutes for the purpose of discriminating against gay men and lesbians. As such, the statutes are not unconstitutional on these grounds, and this court need not address the subsidiary questions of whether such discrimination was on the basis of physical condition, culture, sex, or religion. Accordingly, we find that these assignments of error are without merit.

Plaintiffs next argue that the trial court erred in ruling that the targeted statutes do not impair the right to assemble peaceably or to petition the government for a redress of grievances, and that they do not curtail freedom of speech and of the press. Plaintiffs aver that the statutes intimidate the movement of gay political organizers and restrain gay people from joining civic and political organizations or otherwise publicly identifying themselves as lesbian, gay, bisexual, or transgendered. Further, the statutes expose gay people to criminal prosecution when revealing their sexual orientation.

In oral reasons for judgment, the trial court noted:

[Tjhere are publications such as Sunflower that report on issues concerning gay and lesbian persons. The State argues that while much of the information contained in the publication is inadmissible hearsay, there are articles reporting that gay and lesbian persons have picketed City Hall to voice their grievances to city officials and other articles publicizing a picnic and a rally in City Park. Furthermore, Mr. Beach, the president of plaintiff, LEGAL, testified that the Attorney General had not attempted to curtain LEGAL in its efforts to lobby [in] Baton Rouge or to limit its other political activities.
Additionally, while plaintiff, Mr. Best, testified that gay people are exposed to criminal prosecution simply for revealing their sexual orientation, this allegation was not confirmed by Mr. Penny’s study.
InThe state concludes that the above demonstrates that gay and lesbian citizens are engaging in free speech, are assembling, are petitioning the government, and are granted access to public areas.
Considering the law and evidence, the court finds that there is insufficient evidence to hold the targeted statutes deny plaintiffs access to public areas, impair their ability to assemble, and to petition or restrain their freedom of speech.

We find that the trial court’s findings are reasonable in light of the record. The evidence presented at trial did not support the plaintiffs’ contention that their freedoms of speech and assembly are compromised in any way.

Plaintiffs assert that the trial court erred in ruling that the targeted statutes do not subject persons to cruel, excessive, or unusual punishment.

The trial court based its ruling, in part, on State v. Telsee, 425 So.2d 1251 (La.1983). The Telsee court examined several factors in determining whether the sentence by its excessive length or severity is greatly disproportionate to the underlying offense: “Insight into the nature of the offender and his offense may be gained by asking, for example, whether (1) there is undue risk the defendant will commit another crime, (2) the defendant needs to be institutionalized, (3) a lesser sentence will deprecate the seriousness of defendant’s crime, (4) defendant’s conduct caused or threatened harm, (5) defendant has a criminal record, (6) defendant will respond to rehabilitation.” Id. at 1253. The court also compared the defendant’s punishment with the sentences imposed for similar crimes by the same court and other courts, as well as the legislative purpose behind the punishment.

hJn analyzing these factors as they apply to the instant case, the trial court noted that the plaintiffs failed to present evidence as to the legislative purpose behind the penalty, or how other courts sentence individuals convicted of violating La. R.S. 14:89(A)(1). The court also referred to Baxley II, supra, in which the Supreme Court reviewed the penalties imposed in other jurisdictions for sodomy and found that some were more severe than those imposed by Louisiana, and some were less severe. After considering the evidence and law, we find no error in the trial judge’s ruling that there is insufficient evidence to hold that the targeted statutes provide for cruel, unusual, and excessive punishment.

Finally, plaintiff argues that the trial court erred in ruling that the targeted statutes are not bills of attainder. The United States Supreme Court has defined such bills as “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.... ” United States v. Brown, 381 U.S. 437, 448-49, 85 S.Ct. 1707, 1715, 14 L.Ed.2d 484 (1965). These statutes are clearly not bills of attainder. They do not apply to easily ascertainable members of a group; they apply to everyone who engages in the proscribed conduct. In addition, they do not inflict punishment without a judicial trial. A person must be convicted of the offense after a trial by judge or jury before any punishment can be imposed. Therefore, we find that the trial judge correctly ruled that the targeted statutes are not bills of attainder.

J^DEFENDANTS’ ASSIGNMENTS OF ERROR

Defendants argue that the district court erred by casting the defendants with all costs of the proceedings prior to the remand, including the fees set for plaintiffs’ experts, virtually all of whom testified only with respect to factual matters, actions, and claims that plaintiffs lost on the merits. Defendants assert that since they have prevailed in this case, the costs should not be taxed against them.

La. C.C.P. art.1920 provides, “Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”

It is the general rule that a party cast in judgment is taxed with the costs of the proceedings. However, the trial court may assess costs in any equitable manner, and its assessment will not be reversed on appeal in the absence of an abuse of discretion. Adams v. Canal Indemnity Co., 99-1190 (La.App. 3 Cir. 5/10/00), 760 So.2d 1197; Spillers v. ABH Trucking Co., Inc., 30,332 (La.App. 2 Cir. 4/13/98), 713 So.2d 505. The trial court is vested with great discretion in determining who is liable for costs of court; it may assess costs against any party in any proportion it deems equitable, even against the party prevailing on the merits. Greene v. Greene, 94-79 (La.App. 3 Cir. 10/5/94), 643 So.2d 891; D.B. Orban Co. v. Lakco Pipe, 496 So.2d 1382 (La.App. 3 Cir.1986). We cannot say that the trial judge abused her discretion in apportioning the costs of the proceedings prior to remand to defendants. This assignment of error lacks merit.

1 ^Because we have rejected the plaintiffs’ assignments of error, and have found in favor of the defendants on those issues, the defendants’ remaining two assignments of error are moot. As such, we need not address them.

CONCLUSION

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

AFFIRMED as amended

JONES, J., dissents with written reasons to follow.

      . La. R.S. 14:89(A)(1) defines crime against nature as "the unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal, except that anal sexual intercourse between two human beings shall not be deemed as a crime against nature when done under any of the circumstances described in R.S. 14:41, 14:42, 14:42.1 or 14:43. Emission is not necessary; and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.”


author: hDREW, J.

text:
    Freddy NOLAN, Plaintiff-Appellant v. ROOFING SUPPLY, INC., of Monroe and Frank Stone & Son, Inc., Defendants-Appellees.
    No. 36,403-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 26, 2002.

      Kenneth L. Harper, Jonesboro, for Appellant.
    Gregory Scott More, for Appellee.
    Before GASKINS, KOSTELKA and DREW, JJ.
   hDREW, J.

At issue is whether the homeowner’s claims over a faulty slate roof have prescribed. Freddy Nolan, plaintiff, sued Roofing Supply, Inc. of Monroe (Roofing Supply), the supplier, and Frank Stone & Son, Inc. (Stone), the builder, claiming that the slate roof installed on his new home was defective or improperly installed. Nolan appealed the trial court’s judgment sustaining the defendants’ peremptory exceptions of prescription and dismissing his action with prejudice. For the following reasons, we affirm in part, reverse in part and remand to the trial court for further proceedings.

FACTS

The basic facts are undisputed. In 1994 Nolan hired Stone as general contractor on the construction of a new home. In 1994 Stone purchased from Roofing Supply rigid slate-like shingles for the roof. Stone had Bayou Roofing install the roof. The Nolans moved into the house just before Thanksgiving 1995 (according to their brief) or by December 1995 (as stated in the amended petition). From the beginning there were problems with shingles breaking. On several occasions, Stone had Bayou Roofing return to the property to replace broken shingles and to perform other tasks. On February 28, 2000, Nolan and Stone, along with personnel from Roofing Supply and Bayou Roofing, met at the Nolan residence to examine the roof. After the inspection, the builder and roofers concluded the shingles had failed. They abandoned any further attempts to repair the roof. On April 3, 2000, Ralph Norman of Roofing Supply sent a letter to Nolan informing him that no further repairs would be done. This letter is not in the record.

| ^PROCEDURAL BACKGROUND

Nolan made the following allegations in his petition filed on March 28, 2001:

• Nolan contracted with Stone to build the home.
• Stone subcontracted with Bayou Roofing to install a slate roof.
• Roofing Supply sold the slate to Stone with a 50 year warranty against defects.
• After installation, the slate began to break apart and fall off the house.
• When Nolan complained to the defendants, they informed him there was no problem with the slate and that the breakage to the slate was caused by people walking on the roof.
• The slate was improperly installed or defective and needed to be removed and replaced.

Asserting a breach of the 50 year warranty, Nolan prayed for damages including removal and replacement of the roof, non-pecuniary loss, costs and interest. Stone responded with an exception of vagueness and ambiguity.

On June 8, 2001, Nolan filed an amended petition stating:

• The parties entered a contract in early 1994, and the house was completed enough for the Nolans to occupy the house by December 1995.
• The slate was sold by Supra Dura Manufacturing Corp., which provided a 50 year warranty. Supra Dura is now bankrupt and Roofing Supply should honor the warranty.
• The slate began to break up before Nolan moved into the house. Defendants inspected and attempted repairs to the roof on numerous occasions.
• On April 3, 2000 defendants abandoned attempts to repair the slate and informed Nolan the slate was defective.

Roofing Supply then filed an exception of no cause of action. Stone filed a motion to dismiss because the amended petition did not identify any warranties which Stone allegedly breached.

On September 6, 2001, Nolan filed a second amending petition and alleged that Nolan purchased the slate from Stone, who had purchased the |3material from Roofing Supply. Nolan asserted that, if the court found the roofing material to be defective, then the slate was useless to the point that neither Nolan nor Stone would have purchased it had they known of the defect. Nolan urged that he was subrogated to the rights of Stone and that the defendants had been given an opportunity to repair the defect. Nolan maintained that Stone had breached the warranties of the New Home Warranty Act.

Both Stone and Roofing Supply responded with exceptions of prescription. At the prescription hearing, the trial court heard argument of counsel but refused to receive testimony or other evidence. Finding that the New Home Warranty Act applied, the trial court sustained the exceptions of prescription. At the conclusion of the hearing and after the trial court’s ruling, the trial court permitted plaintiff to place into the record depositions, presumably as a proffer, and the record of Nolan’s initial suit filed September 7, 2000, and dismissed without prejudice April 27, 2001, for failure to request service within ninety days. The plaintiff filed the depositions of Robert Stone, the builder, and Steve Johnson of Bayou Roofing. The defendants filed the deposition of Ralph Norman of Roofing Supply. None of those filings were considered by the trial court.

PROFFERED DEPOSITIONS

Steve Johnson, owner with his parents of Bayou Roofing, Inc., stated in his deposition that his testimony was based upon a daily business log book (which is not in the record). Johnson said that the shingles, artificial slate, were delivered to the Nolan job approximately November 16, 1994. |4 According to Johnson, the roofing job was finished on May 20, 1995. He returned to the job on September 20 and 22 to install vents; on October 6 to install a fireplace vent; and November 1, 1995, to install a stove vent. On August 14, 1996, Johnson roofed the boat house with a different type shingle. After being phoned by Stone, Johnson replaced 12 to 15 shingles and put screens on the chimneys to keep birds out on June 5 and 6, 1997. On that occasion, they also found a lot of broken shingles on the back of the house on which it appeared someone had been walking. On March 26, 1998, Bayou Roofing returned to the No-lans, again at Stone’s request, to put up scaffolding to fix broken shingles on the upper roof. The repair was performed on March 30,1998.

The next time they returned was not until February 28, 2000, when Johnson meet with Doug Norman of Roofing Supply, Stone and the Nolans. On earlier occasions, there had been only a few broken shingles. However, on that day, virtually every shingle was cracked or chipped. Before February 28, 2000, Johnson thought that his company had installed a few shingles with hairline cracks that had to be replaced over time, a normal occurrence with rigid shingles, according to Johnson. After seeing the extent of the cracking, he knew something was wrong with the shingles and not the installation by his company. On that date, he abandoned any effort to repair the shingles. During construction, both Mr. and Mrs. Nolan showed him broken shingles before they moved into the house. However, he denied- discussing the massive problem with the Nolans before February 2000.

IsNolan also placed into the record the deposition of Robert Stone, Nolan’s general contractor, who stated he did not disagree with anything in Johnson’s deposition. Stone stated Mrs. Nolan found a house plan in a book and worked with a draftsman who made several sketches of the 14,000 square foot home. Mrs. Nolan selected the shingles after seeing them in a book. Nolan negotiated with Ralph Norman of Roofing Supply to meet the lower quote and supply the shingles. Aside from normal breakage during construction, Stone learned for the first time that shingles were breaking and falling off on June 5, 1998, when the roofer put on the chimney screens. Stone stated he learned there was a real problem with the shingles themselves after the parties’ inspection on February 28, 2000. On that date Johnson and Doug Norman of Roofing Supply climbed a ladder up to the roof. Doug came down and reported there was a problem with the shingles. Stone concluded either there was a defect in the shingles or the roof had been damaged by hail. Stone did not recall when the Nolans first complained about the breakage. In 1997 Johnson reported to Stone he had found cigarette butts indicating someone had been walking on the roof. Therefore, Stone told Johnson not to pursue repairs at that time. In March 1998 Stone acknowledged he was trying to repair shingles on the upper roof by sending Johnson from Bayou Roofing. Stone gave up on the roof on February 28, 2000 at the time of their group inspection. Stone also related that while he was not stating hail caused the damage, there was a hail storm in that area two months before. Stone did not bill for any repairs, and he stood behind his work until he determined the shingle breakage was not his | ¿fault.

At the conclusion of the hearing on December 11, 2001 after the trial court’s ruling, the defendants placed the deposition of Ralph Norman of Roofing Supply into the record. A wholesale and retail roofing supplier, Norman said Roofing Supply bought these shingles directly from Super Dura Corporation in Pennsylvania sometime in 1993 or 1994. Stone bought the shingles from Roofing Supply for the Nolan job. Norman found out the shingles were failing after the joint meeting at the Nolans (February 28, 2000) attended by his son, Doug Norman. When he then tried to contact Super Dura about its warranty, he learned the company was bankrupt. On April 3, 2000, Norman wrote Nolan the letter (which was not placed into evidence) stating the shingles were failing at the lap edge. In Norman’s opinion, there could be many causes and it would take a laboratory examination to determine the exact cause. Norman acknowledged the April 3, 2000, letter opined that the defect was in the manufacturing of the shingles.

TIME LINE BASED UPON PLEADINGS, FILINGS IN RECORD AND PROFFER

| sDISCUSSION

Ordinarily, the party claiming the matter is prescribed bears the burden of proof at the trial of the peremptory exception. However, if prescription is evident on the face of the pleadings, then the burden shifts to the plaintiff to show that the action has not prescribed. Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502. The standard for review of a peremptory exception of prescription requires that this court strictly construe the statutes “against prescription and in favor of the claim that is said to be extinguished.” Pratt v. Himel Marine, Inc., 2001-1832 (La.App. 1st Cir.6/21/02), 823 So.2d 394.

CLAIM AGAINST STONE

At the time this claim arose, the New Home Warranty Act, La. R.S. 9:3141 stated:

The Legislature finds a need to promote commerce in Louisiana by providing clear, concise, and mandatory warranties for the purchasers and occupants of new homes in Louisiana and by providing for the use of home owners’ insurance as additional protection for the public against defects in the construction of new homes. This need can be met by providing for uniform building standards in those parishes and municipalities that have not yet adopted building codes; by requiring that all new residential buildings comply with building standards; by adopting provisions that clearly state the scope and the time of warranties; by providing for insurance protecting home owners from breaches of warranty; and by making the required warranties mandatory in most cases.

A 1999 amendment pronounced that the purpose was to provide warranties for new home purchasers and added that the warranty applied to any defect although there was no building standard directly regulating the defective workmanship or materials. Both before and after the amendment, that 1 ¡¡provision when read along with La. R.S. 9:3150 demonstrates that the New Home Warranty Act from its inception was intended to apply to any defective work or material. La. R.S. 9:3150 states:

This Chapter provides the exclusive remedies, warranties, and prescriptive periods as between builder and owner relative to home construction and no other provisions of law relative to warranties and redhibitory vices and defects shall apply. Nothing herein shall be construed as affecting or limiting any warranty of title to land or improvements.

The “warranty commencement date” is “the date that legal title to a home is conveyed to its initial purchaser or the date the home is first occupied, whichever occurs first.” La. R.S. 9:3143(7). The builder warrants that, for one year following the warranty commencement date, the home would be free of defects. La. R.S. 9:3144. Before the owner could undertake any repair or action for breach of warranty, the owner “shall give the builder written notice, by registered or certified mail, advising him of all defects and give the builder a reasonable opportunity to comply with the New Home Warranty Act.” La. R.S. 9:3145. Any action to enforce rights under the New Home Warranty Act “shall prescribe thirty days after the expiration of the appropriate time period provided in R.S. 9:3144.” La. R.S. 9:3146.

As the exclusive remedy, warranty and prescriptive period between the builder, Stone and the homeowner, Nolan, the New Home Warranty Act | inapplies in this dispute. The trial court properly granted the exception of prescription in favor of Stone, the builder. Nolan argues that by analogy to the law on redhibition, the attempts to repair the roof caused prescription to commence to run anew. However, as Nolan acknowledged in brief, there is no jurisprudence supporting his argument. The Legislature specifically fashioned for new homeowners an exclusive remedy against builders for defects. The prescriptive period is 30 days after the expiration of the warranty period. The Legislature could have, but did not, provide for interruptions in the warranty period. The warranty commencement date was just before Thanksgiving in 1995 (according to Nolan’s brief) or by December 1995 (as alleged in the amended petition) and the warranty expired one year thereafter. The 30 day prescriptive period expired 30 days after the warranty expired, or by the end of December 1996. Although this court does not find an interruption in the initial 30 day prescriptive period, if the initial prescriptive period had been interrupted and the 30 day prescription commenced anew, numerous 30 day periods of time elapsed without interruption thereafter causing Nolan’s action against Stone to have prescribed. The trial court did not err in finding that Nolan’s exclusive remedy against Stone under the New Home Warranty Act had prescribed.

CLAIM AGAINST ROOFING SUPPLY

Notwithstanding the trial court’s application of the New Home Warranty Act to both defendants, the New Home Warranty Act provides new homeowners protection only against the builder. La. R.S. 9:3150. The trial court erred as a matter of law in applying the New Home Warranty Act Into Nolan’s claim against Roofing Supply which sold the shingles to Stone.

Nolan’s claim against Roofing Supply is based upon the law of redhibition defined in La. C.C. art. 2520:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

Prescription for redhibition claims is governed by La. C.C. art. 2534

A. (1) The action for redhibition against a seller who did not know of the existence of a defect in the thing sold prescribes in four years from the day delivery of such thing was made to the buyer or one year from the day the defect was discovered by the buyer, whichever occurs first.
(2) However, when the defect is of residential or commercial immovable property, an action for redhibition against a seller who did not know of the existence of the defect prescribes in one year from the day delivery of the property was made to the buyer.
B. The action for redhibition against a seller who knew, or is presumed to have known, of the existence of a defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer.
C. In any case prescription is interrupted when the seller accepts the thing for repairs and commences anew from the day he tenders it back to the buyer or notifies the buyer of his refusal or inability to make the required repairs.

The 1993 amendment to the article made the prescriptive period for a seller who did not know of the existence of a defect in the thing sold four years from the day of delivery of the thing, or one year from the day the defect was discovered by the buyer, whichever comes first. La. C.C. art. 11R2534(A)(1). La. C.C. art. 2534(A)(2) sets a one year prescriptive period for redhibition actions for defects in residential or commercial immovable property. That provision governs redhibitory actions by purchasers of immovable property against sellers of immovable property. Stichberry v. Nolan, 33,803 (La.App.2d Cir.8/23/00), 765 So.2d 1201. In this case, the plaintiff seeks to recover from the seller of allegedly defective shingles.

The prescriptive period for redhibition is interrupted by the seller’s attempts to repair defects. La. C.C. art. 2534(C). If the seller attempts to remedy the defect, the prescriptive period does not start to run until all attempts to repair the defect are abandoned by the seller. Pratt v. Himel Marine, Inc., supra.

Nolan alleged in his amended petition that:

• he moved in by December 1995 and
• the slate began to break apart before he moved into the house and that
• “on numerous occasions defendants came to the house to inspect and attempt to repair the slate.”
• defendants abandoned their repair attempts and notified Nolan on April 3, 2000 that they had abandoned repair attempts.

This action was filed on March 28, 2001, and is, therefore, prescribed on its face. The burden was on the plaintiff to show that the action had not prescribed. Campo v. Correa, supra.

In addition to erroneously applying the New Home Warranty Act instead of treating Nolan’s claim against Roofing Supply as a redhibitory action, the trial court erred in refusing to permit the parties to introduce |iaevidence at the prescription hearing. The record shows that the plaintiff had witnesses present to testify, and the trial court rejected that request. La. C.C.P. art. 931 provides that evidence may be introduced to support or controvert the exception of prescription pleaded prior to trial.

A legal error occurs when a trial court applies incorrect principles of law and such error is prejudicial. A legal error is prejudicial when it materially affects the outcome and deprives a party of substantial rights. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. See Lasha v. Olin Corp., 625 So.2d 1002 (La.1993). When a reversible error of law is made in the trial court, whenever possible, the appellate court should redetermine the facts de novo from the entire record and render a judgment on the merits. Thompson v. State, 97-0293 (La.10/31/97), 701 So.2d 952.

The trial court’s application of the New Home Warranty Act to Nolan's claim against Roofing Supply was prejudicial and substantially affected the outcome of this matter. That ruling was a reversible error of law. In order to decide whether Nolan’s claim against Roofing Supply is prescribed, the trier of fact should have made factual findings regarding prescription. See Dauterive Contractors, Inc. v. Landry and Watkins, 01-1112 (La.App. 1st Cir.3/13/02), 811 So.2d 1242. The trial court’s refusal to take evidence on whether Nolan’s claim against Roofing Supply was prescribed makes a de novo review by this court impossible. While the 114parties proffered some depositions, the information therein is inadequate for this court to make a de novo review.

Therefore, the trial court’s action sustaining the exception of prescription and dismissing Nolan’s claim against Roofing Supply is vacated, set aside and reversed. The matter is remanded to the trial court for an evidentiary hearing on Roofing Supply’s exception of prescription to Nolan’s action in redhibition. In all other respects, the judgment is affirmed.

DECREE

That portion of the trial court’s judgment which granted Roofing Supply’s exception of prescription against Nolan’s action against it is reversed, vacated and set aside. The matter is remanded for further proceedings in accordance with this opinion. In all other respects, the judgment is affirmed. Costs are assessed equally against Nolan and Roofing Supply.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . At the conclusion of the hearing on prescription, the trial judge declined to take testimony. The plaintiff's counsel indicated that he had witnesses ready to testify and that he had a couple of depositions to place into the record. The record is silent as to tire specific depositions to be placed into evidence, although the trial court indicated they would be filed into the record. The December 11, 2001, notations from the clerk of court show the following were filed: By Nolan-record in Nolan's previous suit dismissed without prejudice and depositions of Robert Johnson of Bayou Roofing and Robert Stone, the general contractor. The defense filed a deposition from Ralph Norman of Roofing Supply. Without explanation, depositions of plaintiff and his wife were filed with the clerk of court on January 24, 2002. Both Nolan and the defendants refer to the Nolan depositions in their briefs to this court. These later depositions are not part of the record on appeal and were not considered by this court.

      . In 1997, the statute was amended to provide that the owner had to give the notice “within one year of the discovery of the defect.” The 1997 amendment also added:

        "The builder shall give the owner written notice of the requirements of this Chapter at the time of closing.”

      . In 2001, the legislature amended this provision to make the thirty day period peremptive rather than prescriptive.

      . The comments to art. 2534 explain that the prescriptive period for good faith sellers was extended to make Louisiana consistent with other jurisdictions governed by the Uniform Commercial Code, to discourage precipitate action by disappointed buyers and to facilitate settlement of disputes between buyers and sellers.