author: liAMY, Judge.

text:
    Cable PREJEAN v. RIVER RANCH, LLC.
    No. 03-462.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.
    Mark D. Sikes, John Emory Castle, Jr., Herman Edgar Garner, Jr., Paul Joseph Hebert, Ottinger Hebert, L.L.C., Lafayette, LA, for Defendants/Appellants: River Ranch, LLC, Robert W. Daigle, Rodney L. Savoy, River Ranch Development, LLC, The Village of River Ranch Association, Inc.
    Stephen Gary McGoffin, Jacques Emil deMoss, Durio, McGoffin & Stagg, David Alexander Young, Lafayette, LA, for Plaintiff/Appellee: Cable Prejean.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   liAMY, Judge.

The plaintiffs filed suit asserting detrimental reliance and seeking damages that they contend followed the opening of their business in a developing multi-use subdivision. The defendants filed a reconventional demand, seeking past due rent from the plaintiffs’ occupation of the business space. The trial court denied both claims. The defendants appeal the denial of their re-conventional demand. For the following reasons, we affirm.

Factual and Procedural Background

River Ranch is a developing, multi-use subdivision in Lafayette. Referred to in the record as a traditional neighborhood development, the area features both residential and commercial property. The plaintiffs, Cable and Rose Prejean, assert that they were immediately interested in the area for both residential and business purposes upon learning of its proposed development in the late 1990s. The couple first purchased a residential lot in 1998 and began building a home in the community, where they still resided at the time of trial. Furthermore, Cable Prejean began to express his interest to developer Robert Daigle about opening a business in the community. The record indicates that Mr. Daigle is a Co-Managing Member of River Ranch, L.L.C. and River Ranch Development, L.L.C. Rodney Savoy is also a Co-Managing Member.

The Prejeans, former business owners, explained that they were interested in the concept of the development. They found it appealing that, as business and home owners in the area, they could live within walking distance of work. Following discussions with the developers, the Prejeans proceeded with plans to open their | ^business, Wild Things, a wildlife gift store and gallery. Wild Things was to open in a mixed-use building, fronting what would become Town Square in the development. Mr. Daigle testified that he asked that the Prejeans delay the opening of their business until the development proceeded further. In particular, he felt that the development was to be enhanced by the completion of a longstanding public works project, the Camellia Street Bridge Project. Mr. Prejean denied that Mr. Dai-gle suggested that they delay the opening of the business. The Prejeans pursued their plans and occupied the store front on August 1, 2000. Mr. Prejean explained that there were no other buildings being built at that time.

On May 14, 2001, Mr. Prejean filed suit, asserting that they relied to their detriment on representations that River Ranch would be more quickly and fully built to suit the requirements of business owners. River Ranch, L.L.C., River Ranch Development, L.L.C., Mr. Daigle and Mr. Savoy were named as defendants. The Village of River Ranch Association, Inc. was subsequently named as a defendant. The defendants filed a reconventional demand, alleging that the plaintiffs owed past due rent on the Wild Things’ retail space, a 1,000 square foot area. The defendants sought all unpaid rent and common expenses. The defendants assert that a lease exists and is evidenced by an October 11, 1999 letter signed by Cable and Rose Prejean and Robert Daigle.

The trial court denied the detrimental reliance claim. The plaintiffs do not appeal that decision. The trial court further denied the defendants’ reconventional demand, finding that a lease did not exist between the parties as there was no “meeting of the minds.” The trial court concluded that each party had a different opinion of the date on which rent would commence. The trial court also explained | ¡¡that it considered whether rent was due even absent a lease, but concluded that insufficient evidence of the value of the rental space existed in the record. However, finding that the plaintiffs were occupying a space to which they were not entitled, the trial court granted the defendants’ demand for eviction of the plaintiffs’ business.

The defendants appeal, assigning the following as error:

A. The trial court erred in holding that there was not an agreement of “lease” between Appellants and Ap-pellees and, therefore, there were no rental payments due from Appel-lees.
B. Alternatively, the trial court erred in failing to grant Appellants compensation for the value of the use of the Premises by Appellees.
C. The trial court erred in its assessment of the costs of the trial proceedings.

Discussion

Existence of Lease

The defendants first question the trial court’s determination that no lease existed. The defendants note that the October 11, 1999 letter agreement demonstrates that the parties expected to enter into a formal lease arrangement at some point in time. However, no such formal lease was confected. Pointing to La.Civ. Code art. 2683, the defendants contend that the absence of this formal document does not preclude finding the existence of the legal effects of a lease. They contend that the fact that the plaintiffs continued to possess and use the retail space, absent a formal lease, indicates that the plaintiffs placed little value on such a formal lease agreement. With regard to the presence of a lease, absent written formalities, the defendants point to the letter agreement entered into by the parties.

The letter agreement, dated October 11, 1999, contains the caption “Re: Lease of Town Center Square,” and reads:

|4Pear Cable and Rose:
As per our recent meetings and discussions, River Ranch, LLC does hereby propose to construct a building in the Town Center of The Village of River Ranch and lease a portion of that building to you for the operation of a gallery, on the following terms and conditions
(a) Premises Leased A portion of the ground floor of that certain mixed use building fronting River Ranch Place having approximately 1,000 square feet of gross air conditioned area.
(b) Term of Lease Three years.
(c) Renewal Options Five terms of five years each with the rent for each renewal option increased based upon increases in the CPI.
(d) Rent Commencement Date Substantial completion of all improvements constructed by landlord.
(e) Rent $1,100.00 per month for the first two years and $1,340.00 per month for the third year.
(f) Other Sums Payable Utilities, tenants share of property taxes, interior maintenance and repairs less and except structural repairs and major repairs to the air eonditioning/heating system, tenants share of liability insurance and insurance covering the building; tenants share of common area maintenance expenses (CAM charges).
(g) Major Repairs All structural repairs and major repairs to the air conditioning/heating systems shall be the responsibility of landlord.
(h) Guarantors Cable and Rose Prejean
(i) Tenant Improvement Allowance Landlord will construct the building as per plans and specifications and landlord will construct, and pay for, all interior' finishes subject to a tenant allowance of $40.00 per square foot of gross air conditioned area.
(j) Estimated Constructed Completion Date April 30, 2000.
(k) Architectural Fees and Services All architectural design and services shall be provided by landlord at landlord’s expense.
Base[d] upon our real estate and construction cost, we feel that the above proposal is substantially below what the market rent will be within the very near future and is well below what we typically expect |sto receive as a return on investment. Specifically, construction cost of the building, excluding site improvements, will total $105.00 per square foot. Construction of the building shell will cost $65.00 per square foot and we are affording to you a $40.00 per square foot allowance for interior finishes. Thus, the construction cost attributable to your space, excluding site improvements, totals $105,000.00.
With respect to our land costs, we are required to allocate 4,000 square feet of real estate for your business. This 4,000 square feet includes the actual building footprint for your space and all covered walkways, as well as your pro rata share of all parking and common areas for the site. For example, for each parking space required by zoning for the intended use of your site, we must allocate a minimum of 400 square feet for the construction of that parking place. In your case, the zoning ordinance requires that we allocate and provide not less than five (5) parking places. Your pro rata share of the construction cost associated with all subsurface drainage, parking improvements, and common area improvements total $8750.00. If we value the real estate associated with your intended use (4,000 square feet) times $10 00 per square foot, which is the least expensive residential property in River Ranch, your site has an allocated real estate cost of $40,000.00. When we add the building cost of $105,000.00 to the real estate cost of $40,000.00 and the parking improvement cost of $8,750.00 we arrive at a total construction and land cost of $153,750.00. We then have a 7.5% design fee associated with the project which brings our total cost of your space to $162,281.00. This does not include any allocation of the Town Square real estate or expenses.
Under ordinary circumstances, we try to make a 15% return on our investment which would have resulted in a monthly rent to you which exceeds $2,000.00. As you can see from the above proposal, our rent proposal is substantially below the return that we attempt to achieve under ordinary circumstances.
If the terms and conditions are acceptable to you, please execute this correspondence in the space provided below. Upon execution of this agreement, we will commence design of your interi- or space and will forward to you a formal Lease Agreement for your consideration and execution.

The letter is signed, by Robert Daigle. It further indicates that it was accepted by Cable and Rose Prejean on November 9, 1999.

Louisiana Civil Code Article 2670 sets forth the essential elements of a lease, providing that: “To the contract of lease, as to that of sale, three things are absolutely | ^necessary, to wit: the thing, the price, and the consent.” Furthermore, “[l]eases may be made either by written or verbal contract.” La.Civ.Code art. 2683.

The trial court concluded that the parties did not share a common understanding as to the date of commencement of any agreement to lease. This failure to share a common understanding mitigates against a finding of “consent.” In oral reasons for ruling, the trial court explained:

There was talk about a lease. Nothing was ever finalized in detail. There was no talk about a commencement date. There was no talk about rental amounts, none of the details. Only that Mr. Pre-jean wanted 1,000 square feet in the first commercial building in the Town Square.
Mr. Daigle took it upon himself to say, “Fine. I’m going to put those things in writing in the form of an offer.” He wrote a letter. That letter, (we’re all familiar with is “Plaintiffs Exhibit — 13”) [sic]. That letter talks about the terms that would be offered, if the plaintiffs wanted to accept it, for a lease to be executed at a later date. We all know that the language that we’re concerned about is the language of the commencement date of the lease.
The Prejeans signed off on that document on November 9, 1999, and actually began construction, and moved into Wild Things in August 2000, a little less than a year later.
A lease requires a meeting of the minds between the people involved, of the thing to be leased, the price, and consent, the most important thing. I have struggled with the idea of what is this particular document. I am of the opinion that because in the document there’s reference to a lease agreement to be executed at some later date, that the document itself does not constitute a lease. At best, it would constitute a memorialization of the meeting of the minds between the parties, as to the terms it contains.
So, the question becomes, “was there really a meeting of the minds?” There’s been no discussion, no evidence in the court that there’s ambiguity in the language. So, I’m going to sort of skip over the ambiguity issue, and get down to the consent issue.
There’s no question in my mind that from the testimony today, Mr. Daigle’s mind-set, when he wrote the letter and signed it, was that the lease was to begin upon completion of the 1,000 square foot space, designed and built for Wild Things. No question.
|7There was also no question from the evidence in this case that the mind-set of the Prejeans was that the rental was going to begin only upon completion of the entire building within which Wild Things occupied 1,000 square feet— about 9% of the space. That tells me that there was no meeting of the minds on commencement of the rental period, because Mr. Daigle had one mind-set, Mr. Prejean had another. They never got together and talked about it. There was no meeting of the minds, so there is no lease, which is the position of the Prejeans.
So, what do we have? We have an occupancy. The Prejeans contend that they had a right to occupy, based on their interpretation of that letter, a right to occupy, until the date came by that they say that the rental was to commence. Daigle said they were tenants. They were supposed to start paying, by his interpretation, the rental immediately. There had been no need for a lease agreement, because there had been a meeting of the minds. There was no meeting of the minds. There is no lease. I find that the legal relationship between the parties as lessorfiessee never came to pass. It’s my view that the Prejeans occupy, and have occupied the space known as Wild Things, with no legal right to do so, other than the inaction of the River Ranch Development people. What that means to them, in my view, is that they owe no rent. What it means to River Ranch is they can decide that they no longer want to be inactive, and consent, or by silence, consent to the occupancy, and may evict at any time.

In short, the record supports the factual finding of the trial court in its conclusion that the parties failed to agree upon a term. As explained in the oral reasons, Mr. Daigle explained that the term “substantial completion of all improvements” indicated that rent would commence upon the time of occupancy. Mr. Prejean, however, explained that he felt that the “substantial completion of all improvements” referred to the completion of the entire building he says was originally planned. This evidence was related to Mr. Prejean’s other testimony regarding his perception that the Town Center was to be developed in line with the developers’ early projections. In the end, the trial court found both parties’ explanations credible. It concluded that they held that they each agreed or “consented” to different terms. This type of factual finding, part of which is a pure | ^credibility determination, is not subject to reversal on appeal. This assignment lacks merit.

Past Due Rent

In their alternative argument, the defendants contend that, even if a lease is not found, that they are entitled to costs associated with the use of the space and with costs associated with the plaintiffs’ occupancy. At the close of its oral reasons for ruling, the trial court explained that it considered such an alternative claim, stating:

I might add that I did consider whether or not there should be any, even absent a lease, whether or not there should be any compensation for the use of the premises. But there’s been no evidence as to the value of that in a non-negotiated, non-lease situation. So, for lack of any evidence as to the value of the use, I will grant none.

On appeal, the defendants question the trial court’s determination that evidence was not presented as to the value of the use. They observe that the letter agreement contains an initial rent of $1,100 per month and that the agreement also indicates that this fee is less than the market rent expected at a later stage of the development. Thus, they contend sufficient evidence exists for an award.

Our review of the record indicates that, although the trial court may have indicated that it considered an alternative theory of recovery, this was not a theory of recovery introduced by the pleadings. Although the Louisiana Code of Civil Procedure does not contain a “theory of the case” requirement, it requires adequate fact pleading. Article 854 provides:

No technical forms of pleading are required.
All allegations of fact of the petition, exceptions, or answer shall be simple, concise, and direct, and shall be set forth in numbered paragraphs. As far as practicable, the contents of each paragraph shall be limited to a single set of circumstances.

IflFurthermore, Article 891 indicates that a petition “shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation.”

In Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706, the Louisiana Supreme Court explained that the term “material facts,” as used in La.Code Civ.P. art. 891, requires that a party allege more than mixed questions of law and fact. The term requires that the pleading party must set forth the act/omission that is to be established at trial. Id. The supreme court further explained that the concept of fact pleading assists in satisfying due process concerns as it provides a defendant with fair notice. Id. Fact pleading further limits the issues before the court and provides notice to the defendant of the facts upon which the plaintiffs claims are based. Id.

Our review of the record indicates that the defendants’ reconventional demand does not satisfy the requirements of the Code of Civil Procedure insofar as the defendants now attempt to recover due to unjust enrichment or quantum meruit. The reconventional demand was clearly focused on recovery based on the lease. This is true of the defendants’ evidence and arguments made to the trial court as well. Although the defendants included a plea for alternative relief in the event a lease was not found to exist, that plea was limited to eviction. Contained in the “Amending and Supplemental Answer to Petition for Damages and First Supplemental And Amending Petition And Re-conventional Demand,” this alternative plea provides:

Alternatively, River Ranch L.L.C. and River Ranch Development, L.L.C. pray that this Honorable Court declare that there is no lease existing between the parties due to the lack of consent or meeting of the minds between the parties as to the essential elements of a lease and that, accordingly, Defendants in Reconvention be ordered to immediately vacate the Premises and deliver possession thereof to River Ranch, L.L.C. and River Ranch Development, L.L.C.

ImWhile clearly labeled an alternative to the main argument regarding the presence of a lease, the petition does not adequately allege sufficient material facts to place the opposing parties on notice of an alternative quantum meruit or unjust enrichment claim. Neither was the evidence or argument directed toward fulfillment of either of those claims. Evidence as to other potential businesses seeking that particular space or fair rental value of the space was not presented at trial. Accordingly, we find no error in the result reached by the trial court with regard to the damages associated with the use of the premises.

Court Costs

In their final assignment of error, the defendants assert that the trial court erred in assessing to them one-third of the court costs associated with the claim. They contend that since they were successful against all of the plaintiffs’ claims, the totality of the costs should have been assessed against the plaintiffs.

Louisiana Code of Civil Procedure Article 1920 provides that: “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.” Considering that neither the plaintiffs nor the defendants prevailed on their respective claims at trial, we do not conclude that the trial court abused the discretion conveyed by Article 1920 when it assessed the defendants with one-third of the costs. This assignment lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the defendants, River Ranch, L.L.C. and River Ranch Development, L.L.C., The Village of River Ranch Association, Inc., Robert W. Daigle and Rodney L. Savoy.

AFFIRMED.

      . Although the petition was filed with Cable Prejean listed as the only plaintiff, the appellants' brief references an amending petition wherein Rose Prejean and Wild Things, Inc. were named as co-plaintiffs. Other references in the record also indicate that all three were plaintiffs.


source: Caselaw Access Project

author: LAMY, Judge.

license: Public Domain

text:
    Earl LEE SCOTT and Felicia A. Scott v. James Ray ROBERTS and State of LA, thru The DOTD, et al.
    No. 03-435.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.

      Ralph Jerone Williams, Elizabeth Brooks Hollins, Louisiana Department of Justice, Lake Charles, LA, for Defendants/Appellants: State of Louisiana, through the Department of Transportation and Development James Ray Roberts.
    John Ezell Jackson, Lake Charles, LA, Charles A. Sam Jones, III, DeRidder, LA, for Plaintiffs/Appellees: Earl Lee Scott, Felicia A. Scott.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   LAMY, Judge.

Plaintiffs, husband and wife, seek damages resulting from an automobile accident in which their vehicle, driven by the wife, was struck by a truck driven by an employee of the State of Louisiana, Department of Transportation and Development, and belonging to the State. Plaintiffs moved for and were granted summary judgment as to liability of the State, and the matter proceeded to trial as to damages. A jury awarded plaintiffs special and general damages, as well as compensation for loss of consortium. The State appeals, asserting that the jury erred in awarding excessive general damages. For the following reasons, we affirm.

Factual and Procedural Background

The accident from which the instant matter arose occurred at around midday on October 7, 1999. According to the record, Felicia Scott, plaintiff-appellee herein, was driving on the inside lane of westbound U.S. 171 in DeRidder, Louisiana. At the same time, James Roberts, an employee of the State of Louisiana, Department of Transportation and Development (DOTD), was driving a state-owned 1991 Ford F-350 in the right lane of westbound U.S. 171. Roberts negotiated a left turn in an attempt to enter a parking lot. As Roberts turned, he entered the inside lane of U.S. 171, striking the front right side of Ms. Scott’s automobile. The force of the collision dragged Ms. Scott’s vehicle a distance of roughly forty feet. According to Ms. Scott’s testimony, she immediately noticed swelling in both feet and bruising on her arms and chest. She was treated for her injuries at Beauregard Memorial Hospital soon after the accident. Emergency room physicians took X-rays, performed an examination of Ms. Scott’s injuries, and prescribed pain medication. Ms. Scott was also instructed to wear a sling for her arm and shoulder.

bMs. Scott returned to Beauregard Memorial three days after the accident, complaining of headaches and pain in her back, neck, and shoulder. Hospital staff treated her and referred her to her family physician, Dr. Edwin R. Bonilla.

On October 11, 1999, Ms. Scott consulted Dr. Bonilla, presenting complaints of general soreness. Dr. Bonilla prescribed pain medication and an analgesic and suggested that Ms. Scott seek chiropractic therapy. The record indicates that in concurrence with occasional follow-up appointments with Dr. Bonilla, Ms. Scott visited her chiropractor, Dr. Darryl V. Bauer, of DeQuincy, Louisiana, fourteen times between October of 1999 and June of 2000, with the concentration of visits occurring in October and November. Dr. Bauer performed X-rays, which showed misaligned vertebrae, and he also administered myo-fascial massage in an attempt to alleviate some of the pressure on the nerve roots surrounding Ms. Scott’s spinal cord. According to Ms. Scott’s testimony, Dr. Bauer’s treatments afforded only temporary relief from the pain she suffered as a result of her injuries.

On Dr. Bauer’s advice, Ms. Scott sought the expertise of an orthopedist. She began seeing Dr. R. Dale Bernauer on November 15,1999, and as of the time of trial in the matter in early December 2002, she remained under his care. Dr. Bernauer instructed Ms. Scott to wear a body glove and a TENS unit, which she still wore at the time of trial; however, she stated, these devices provided only temporary relief from pain. In efforts to determine the status of her injuries and to determine a proper course of therapy, Dr. Bernauer had Ms. Scott undergo five MRI’s, an EMG, a CAT scan, and a myelogram. Ms. Scott testified at trial that the EMG was particularly onerous, and the myelogram and its effects required her to miss a week of work. Dr. Bernauer testified that surgery had been scheduled for the week after trial for | ¡¡purposes of repairing Ms. Scott’s left shoulder and that surgery would more likely than not be required to repair her lumbar herniation.

Prior to the accident, Ms. Scott held a teller position in a DeRidder bank. Her job required her to be on her feet for extended periods of time and to handle a significant volume of coins. Ms. Scott testified at trial that she continued to work at the bank for two years after the accident, but that, in November 2001, the pain required that she terminate her employment.

Ms. Scott and her husband, Earl Lee Scott, filed a petition in the instant matter on October 2, 2000. They named as defendants James Roberts, the driver of the other vehicle involved in the crash; the State of Louisiana through the Department of Transportation and Development; and Louisiana Farm Bureau Casualty Insurance Co. The petition alleged that the Scotts’ damages were caused by the fault, negligence, and/or the strict liability of the defendants, claiming that the State was hable for the acts of Roberts, its employee, through principles of respondeat superior.

The Scotts’ petition alleged injuries to Ms. Scott’s neck, thoracic spine, lower spine, right elbow, leg, and cervicothoracic lumbar region, and sought both special and general damages associated with the alleged injuries. Mr. Scott sought damages for loss of consortium.

After the Scotts voluntarily dismissed Louisiana Farm Bureau from the case, they moved for summary judgment as to their claims against the State. Summary judgment was granted, and the State was determined to be hable as the sole cause of the plaintiffs’ injuries. In December 2002, the matter went to trial by jury as to the amount of damages to be awarded.

| ¿After hearing testimony from Mr. and Ms. Scott, Dr. Bonilla, Dr. Bauer, and Dr. Bernauer, the jury returned a special verdict awarding the Scotts the following amounts:

General damages: $300,000
Special damages:
Past Medical Expenses: $16,930.40
Future Medical Expenses: $45,000
Loss of Earnings to Date: $18,308
Future loss of Earnings or Earning Capacity: $25,000

Additionally, the jury determined that the State was responsible for Mr. Scott’s loss of consortium and awarded him compensation of $25,000.

The State appeals, asserting in its sole assignment of error that the general damages awarded are excessive.

Discussion

The State claims that the jury erred in awarding $300,000 in general damages to Ms. Scott and seeks a reduction in the amount of general damages awarded. With respect to Ms. Scott’s neck injuries, the State underscores the trial testimony of Ms. Scott’s orthopedist that her injuries were not substantial enough to necessitate surgery. Additionally, the State requests that we compare prior general damages awards for plaintiffs with injuries to the L5-S1 region of the spinal cord. Finally, the State notes that Ms. Scott’s physicians have not seen fit to assign her a disability; Ms. Scott was not taking prescription pain medication at the time of trial; and she terminated employment without her physicians’ express orders to do so.

General damages are described in the Louisiana Supreme Court’s opinion in Duncan v. Kansas City Southern Railway Co., 00-0066, p. 13 (La.10/30/00), 773 So.2d 670, 682, cert. dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001), as:

| s[T]hose which may not be fixed with pecuniary exactitude; instead, they “involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms.” Keeth v. Dept. of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2 Cir.1993). Vast discretion is accorded the trier of fact in fixing general damage awards. La. Civ.Code art. 2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-0377 (La.App. 1 Cir. 11/8/96), p. 13; 685 So.2d 163, 172.

In Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), the supreme court enunciated its general disapproval of the practice of comparing the present award to past awards in efforts to determine whether the present award was the product of the factfinder’s abuse of discretion. Instead, the supreme court stated:

The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indem. Co. of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967). Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1974).

Youn, 623 So.2d at 1260-61. The court then turned its attention to the standard of review to be implemented by appellate courts in determining whether an abuse of discretion has occurred:

The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and through Reck [v. Stevens, 373 So.2d 498 (La.1979)] to the present case is that the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should | ¿rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

Id. at 1261.

In determining whether an award of general damages constitutes an abuse of discretion, appellate courts must decide whether a rational trier of fact could have fixed the general damages award at that same level. Youn, Id., citing Bartholomew v. CNG Producing Co., 832 F.2d 326 (5th Cir.1987). In so doing, appellate courts are to examine the record in the light most favorable to the prevailing party at trial. Id.

When we examine the record in the light most favorable to Ms. Scott, we find the evidence therein supports the general damages award in controversy on appeal. The record reflects that before the accident at issue, Ms. Scott had slight problems with her right shoulder but no problems with her left shoulder, back, neck, legs, or feet. Ms. Scott testified at trial that as a result of the accident, and despite the pain medication she takes, she suffers painful neck spasms, her back hurts constantly, her leg occasionally bothers her, both shoulders hurt, and her feet swell. In fact, she noted, the pain is still so severe that it awakens her when she is asleep at night. She told the trial court of her initial pain immediately following the accident, and she described numerous, persistent attempts on her part to seek medical treatment for her injuries and pain. Ms. Scott explained that the efforts of her chiropractor and general practitioner had provided only temporary relief from her suffering. Upon commencing treatment with Dr. Bernauer, Ms. Scott was required to endure several uncomfortable, painful tests over a period of time; as previously mentioned, the myelogram forced her to miss one week of work. Ms. Scott explained at trial that she 17had attempted to work as a bank teller in spite of her injuries, but the pain became too great, prompting her to resign her position. She further testified that she would like to reenter the work force, but the pain and her injuries simply will not allow it. Dr. Bernauer testified that he did not recommend that Ms. Scott return to work.

Mr. Scott described to the trial court the decline in Ms. Scott’s ability to perform household work after the accident. He testified that he has had to take up the duty of housework due to his wife’s condition. He noted that in the time before she quit her job as a teller, she would come home at night in tears due to pain. Mr. Scott mentioned that he and his wife are unable to travel in the manner to which they were accustomed and that Ms. Scott is no longer able to travel to California to visit her father or to Dallas to visit her mother.

Furthermore, the record indicates that Ms. Scott was scheduled to undergo an acromioplasty on her left shoulder the week after trial in this matter and that Dr. Bernauer believed that more likely than not, an intralumbar fusion was necessary. As far as Ms. Scott’s neck is concerned, she testified that it still bothered her, but Dr. Bernauer said that surgery would not help correct the situation. The shoulder surgery was expected to require several weeks’ recovery and physical therapy; the back surgery would require recovery time of one full year. Thereafter, according to Dr. Bernauer’s testimony, Ms. Scott will not be able to return to her former employment as a teller due to limitations on bending, lifting, and standing for long periods of time.

Moreover, the verdict indicates that the jury found Ms. Scott’s testimony credible, as they awarded her damages for past and future lost wages and future medical expenses. (The parties had previously stipulated the amount of past medical | «expenses.) These determinations are now final in that the State has not questioned them on appeal.

It is the well-settled jurisprudence of this state that in making an award of general damages, the trier of fact “must consider the severity and duration of the injured party’s pain and suffering.” LeBlanc v. Stevenson, 00-0157, p. 6 (La.10/17/00), 770 So.2d 766, 772. It is apparent that in its consideration of the general damages award, the jury noted Ms. Scott’s testimony as to her pain, injuries, and impending surgeries and her testimony that she has suffered considerable pain as a result of her injuries over the past three years since the accident. The evidence supports this conclusion and indicates that the award for general damages was not an abuse of the jury’s discretion. It is therefore not necessary for us to consider prior awards for similarly situated plaintiffs as the State urges us to do. This assignment of error is without merit.

DECREE

For the foregoing reasons, the award of general damages is affirmed. All costs of this proceeding are assigned to the defendant, the Department of Transportation and Development, in the amount of $7,752.92.

AFFIRMED.


author: hGREMILLION, Judge.

text:
    Peter L. LORIO, III v. STATE of Louisiana, et al.
    No. 03-422.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.
    Louis Wellan, Alexandria, LA, for Plaintiff/Appellant, Peter L. Lorio, III.
    Robert Lewis Bussey, Bussey & Lauve, Alexandria, LA, for Defendant/Appellee, Rapides Parish Police Jury.

      Monique Freeman Rauls, Asst. Attorney General, Alexandria, LA, for Defendant/Appellee, State of LA., DOTD.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   hGREMILLION, Judge.

The plaintiff, Peter L. Lorio, III, appeals the judgment of the trial court granting summary judgment in favor of the defendant, State of Louisiana, through the Department of Transportation and Development (DOTD). For the following reasons, we reverse and remand the matter for further proceedings.

FACTS

On November 20, 1997, at approximately 10:30 p.m., Lorio was traveling north on Old Baton Rouge Highway, also known as LA 1208-1, in Rapides Parish, Louisiana. As he approached the intersection of Old Baton Rouge Highway with U.S. Highway 71, he came upon a severe left-hand curve, but was unable to complete the turn due to the absence of signage or markers indicating the presence of the curve or the intersection with Hwy 71. Lorio suffered injuries as a result of this accident and filed suit against DOTD and the Rapides Parish Police Jury for their failure to safely maintain and regulate this road. Both DOTD and the Police Jury denied responsibility for the accident. DOTD further filed a motion for summary judgment arguing that Old Baton Rouge Highway was not part of the State highway system, thus, it was not responsible for maintaining Old Baton Rouge Highway. In support of its motion, DOTD introduced an affidavit by Robert Gunter, a District Maintenance Engineer for DOTD in Rapides Parish, who stated, “based upon personal knowledge, the Old Baton Rouge highway is not in the State Highway system and the State does not maintain same.”

Three hearings were held on the motion for summary judgment. At the close of the first hearing, on January 8, 2001, the trial court continued the hearing for ^discovery until January 22, 2001. At the hearing on that date, the trial court granted the motion for summary judgment in favor of DOTD, finding that there was an intent on the part of DOTD to transfer the road at issue to the Police Jury, and that the Police Jury had been maintaining the road since 1993. However, the trial court allowed Lorio additional time for discovery and scheduled the matter for rehearing on February 26, 2001.

The matter was not heard again until September 23, 2002. At that time, Lorio introduced an affidavit by Cecil Raggio, the Maintenance Director for Rapides Parish, which stated that the entire intersection and curve involved in this accident were within the frontage road right of way of the State, and that DOTD maintains and is responsible for signage at the intersection since it is within its right of way. At the close of argument, the trial court granted DOTD’s motion and rendered judgment in its favor. This appeal by Lorio followed.

ISSUE

On appeal, Lorio argues that the trial court erred in finding that no genuine issue of material fact existed with regard to whether DOTD owned or maintained that portion of Old Baton Rouge Highway involved in this accident.

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). Judgment will be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim. La. Code Civ.P. art. 966(B). If the opposing party cannot produce any evidence to suggest that it will be able to meet its evidentiary burden at trial, no genuine issues of material fact exist. La. Code Civ.P. art. 966(C)(2). Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. In deciding whether certain facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

After performing a de novo review of the record, we find that a genuine issue of material fact does exist with regard to whether DOTD owns or maintains that portion of Old Baton Rouge Highway involved in this accident. DOTD submitted Gunter’s affidavit, which stated, “Affiant further asserts that based upon personal knowledge, the Old Baton Rouge highway is not in the State Highway system and the State does not maintain same.” This is the extent of Gunter’s affidavit. DOTD also introduced into evidence a Transfer and Acceptance dated May 11, 1993, in which the Police Jury accepted the operation and maintenance of “All that portion of LA 1208-1 beginning at the barricade at Route U.S. 71 at Chambers, thence northerly 3.44 miles to the junction with the Route I — 49 frontage road at the Routes I-49 and U.S. 71 Interchange at Willow Glen.” In exchange, DOTD took over the operation and | ¿maintenance of Robertson Bridge Road. DOTD also introduced into evidence the Police Jury’s maintenance records pertaining to Old Baton Rouge Highway, from February 1995 through December 29,1997.

In opposition to DOTD’s motion, Lorio introduced answers to interrogatories and Raggio’s affidavit. In his affidavit, he states:

I am not qualified to state whether or not the Old Baton Rouge Highway (La. 1208-1) was legally transferred from the State of Louisiana to the Rapides Parish Police Jury in May, 1993. This transfer would extend to the point where the Old Baton Rouge Highway intersects the state right of way for the U.S. 71 and 1-49 frontage road. I have examined the site and the right of way markers, including the marker depicted in the photograph attached hereto. The entire intersection and the curve in the Old Baton Rouge Highway leading to this intersection is entirely within the frontage road right of way of the State of Louisiana. The Louisiana Department of Transportation maintains and is responsible for the signage at this intersection because it is within the right of way owned by the Louisiana Department of Transportation.
The attached photographs of the curve and the intersection depict the change in road surface where the right-of-way line ends, the new road overlay begins on the portion of roadway within the state right of way. This curve is more severe and closer to the intersection than it should be for an arterial roadway or for a road with speed limits over twenty-five miles per hour and would not satisfy parish safety standards. The installation of this curve and intersection predated May, 1998, and the design and installation was carried out by the State of Louisiana, not the Rap-ides Parish Police Jury.

Lorio also introduced into evidence several DOTD forms dealing with the transfer of Old Baton Rouge Highway to the Police Jury. Form 1104, dated January 27, 1998, entitled “CHANGES IN STATE MAINTENANCE SYSTEM,” ordered the following change in the state maintenance system:

DISCONTINUE: From the barricade at Route U.S. 71 at Chambers, thence northerly 3.44 mile to the junction with the Route 1-49 Frontage Road at the Routes 1-49 and U.S. 71 Interchange at Willow Glen. (Transfer 3.44 miles to the Rapides Parish Police Jury).
J^REVISED MAINTENANCE: From the junction with the Route 1-49 East Frontage Road at the Routes 1-49 and the U.S. 71 Interchange at Willow Glen, thence northerly 4.34 miles to the junction with Route LA 1 on Willow Glen at Third Street in Alexandria.
PURPOSE: Exchange of roads with the Rapides Parish Police Jury on authority of letter dated November 10, 1992 from General Jude W.P. Patín, Secretary, Department Transportation and Development, to Senator Joe McPherson.

Form 1103, dated February 1, 1993, entitled “CHANGES IN STATE HIGHWAY SYSTEM,” ordered the following revision to La. 1208-1:

Revised Description: In Alexandria from a junction with LA-US 71 between 1-49 and Bayou Robert, thence along the frontage road of the U.S. 71-1-49 Interchange, along New York Avenue, and along Willow Glen Road to a junction with LA 1.
Purpose: To revise description as per road exchange with the Rapides Parish Police Jury.
Authority: Rapides Parish Police Jury resolution of June 9, 1992 and DOTD letter of November 10,1992.

A second Form 1103, dated February 1, 1993, eliminated La. 1208-1 and stated:

Eliminate: From a junction with LA-US 71 at Moreland northerly to a junction with the LA-US 71 frontage road at the 1-49 Interchange.
Purpose: To eliminate the portion of route in the above function class due to an exchange of roads with the Rap-ides Parish Police Jury.
Authority: Rapides Parish Police Jury resolution of June 9, 1992 and DOTD letter of November 10,1992.

At the close of argument, the trial court stated:

The court will maintain the motion for summary judgment. If the state doesn’t own it, then the parish has to own it. So, at this point if it’s not one governmental body, it will be the other one. But, I can’t believe that it’s been this long and we, three hearings on the same issue and still Rwe have no idea who owns the road at what time. I mean, you know, the parish says it does or doesn’t, and the state says it doesn’t. So I’m going to go with the state at this point and grant the motion and we’ll just have to go from there.

Even the trial court’s statement indicates that there is a genuine issue of material fact with regard to the ownership of the road. Moreover, Raggio’s affidavit presents a genuine issue of material fact on the issue of whether DOTD was maintained or even owned that portion of Old Baton Rouge Highway where Lorio’s accident occurred. Whether that portion of the road was within DOTD’s right of way of the U.S. 71 and 1-49 frontage road is a question of fact. Raggio’s affidavit is in contrast to the very brief affidavit of Gunter, who merely states that, to his personal knowledge, the road is no longer in the state highway system and that DOTD no longer maintains it. Since there is a genuine issue of material fact remaining in this matter, the trial court’s grant of summary judgment in favor of DOTD was improper.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and this matter is remanded to the trial court for further proceedings. The costs of this appeal are to be held in abeyance until the final outcome of this matter.

REVERSED AND REMANDED.


author: I .MARC T. AMY, Judge.

text:
    Lavera GEORGE v. RELIANCE INSURANCE COMPANY, et al.
    No. 2003-379.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.
    Jimmy L. Dauzat, Dauzat, Falgoust, Ca-viness, and Bienvenue, L.L.P., Opelousas, LA, Thomas Stephen Morse, Adams, Johnston & Oreck, New Orleans, LA, for Defendants/Appellees, Kenneth O’Neil Privat, Thomas Keith Regan, and Trinity Universal Insurance Co. of Kansas, Inc.
    James Albert Rowell, New Orleans, LA, for Defendant/Appellee, Trinity Universal Insurance Co. of Kansas, Inc.

      Scott Anthony Dartez, Perrin, Landry, Lafayette, LA, for Plaintiff/Appellee, Lav-era George.
    Stephen Michael Gele' Ungarino & Ec-kert, L.L.C., Metairie, LA, for Defendants/Appellees, Travelers Property and Casualty Insurance Company, Family Dollar Store, Reliance Insurance Company, and Trinity Universal Insurance Co. of Kansas, Inc.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   I .MARC T. AMY, Judge.

In this action for indemnity and attorney’s fees resulting from the defense of a personal injury action, the trial court denied the claims of the tenant and landlord. The tenant appealed, and the landlord answered the appeal. For the following reasons, we affirm.

Factual and Procedural Background

This case arises from an alleged trip and fall accident at the Wager Shopping Center in Crowley, Louisiana. On July 18, 1986, Kenneth 0. Privat and Thomas K. Regan (“Privat & Regan”) entered into a lease with Family Dollar Stores of Louisiana, Inc. for space at the Wager Shopping Center. This lease provides, in pertinent part:

11. INSURANCE. ...
(b) Tenant shall maintain insurance against public liability for personal injury or death or damage to property occurring in the demised premises arising out of the use and occupancy thereof by Tenant. Such insurance shall be with minimum limits of $500,000/$l,000,000 for personal injury or death and $100,000 for property damage and Landlords shall be named as an additional insured under the policy (except for structural alterations, new construction or demolition operations performed by or behalf of landlords).
(c) Landlords shall maintain insurance against public liability for personal injury or death or damage to property arising out of the acts or omissions of Landlords or arising out of the use of common areas (including without limitation, parking areas, sidewalks, ramps and service areas) in the shopping center. Such insurance shall be with minimum limits of $250,000/$500,000 for personal injury or death and $50,000 for property damage, and Tenant shall be named as an additional insured under the policy.
12. MAINTENANCE AND REPAIRS. The Landlords shall maintain, keep and repair, at their expense, the shopping center and all exterior portions of the building constituting part of the demised premises, including the roof, exterior walls, canopy, gutters, downspouts, and also all structural portions of said building whether the same be on the interior or the exterior. In addition, the Landlords agree 12they will keep the paved and marked parking, service and access areas maintained, including the removal of snow, trash and debris, and in a good state of repair and properly lighted....
The Tenant shall keep, maintain and repair at its expense all interior portions of said building, except structural portions, and keep the plumbing, electrical, heating and air conditioning systems in repair except major repairs and replacements shall be at Tenant’s option and Tenant agrees to notify Landlords of any such major repair or replacement which Tenant does not elect to have made.

Notably, this lease does not contain any provision concerning indemnity or the recovery of attorney’s fees.

After an alleged trip and fall at the Wager Shopping Center, Lavera George filed a petition naming Family Dollar, Pri-vat & Regan, and their liability insurers as defendants. This petition alleged that, on or about November 7, 1998, George tripped and fell on the sidewalk outside the Family Dollar Store because of a three-inch gap in the sidewalk pallets. Family Dollar and Privat & Regan made the following stipulation which provides more information about the alleged trip and fall:

[O]n November 7, 1998, members of the Masonic Brothers and Order of the Eastern Star of the Morning Star Missionary Baptist Church in Crowley, Louisiana, were selling hamburgers and po-boys in front of the Family Dollar Store in the Wager Shopping Center at 826 North Parkerson Avenue, Crowley, Louisiana; the Masonic Brothers and Morning Stars set up for the sale on the sidewalk in front of the Family Dollar Store a long table with two folding legs, and three chairs behind the table, at which Lavera George sat in the chair to the south; at approximately noon Lav-era George got up from the table, walked along the sidewalk and fell.

After answering George’s petition, Family Dollar and Privat & Regan filed cross claims. Family Dollar’s cross claim alleged that Privat & Regan breached the lease agreement between the parties by failing to add Family Dollar as an additional insured under a public liability policy covering the common areas of the shopping center. As a result, Family Dollar claimed that Privat & Regan owed it a defense and |3indemnity and sought to recover all of its legal expenses toward defense of the George lawsuit. Privat & Regan’s cross claim alleged that Family Dollar had breached the lease by faffing to add them as an additional insured under Family Dollar’s liability insurance policy. Much like Family Dollar, Privat & Regan asserted that it was entitled to recover attorney’s fees and damages.

On October 16, 2002, Family Dollar filed a motion for summary judgment on its cross claim against Privat & Regan, and the trial court granted Family Dollar’s motion. However, alleging that the trial court’s ruling was contrary to the law and evidence, Privat & Regan requested a rehearing. After all of the parties settled with George on her original claims, the trial court granted Privat & Regan’s motion for rehearing and reversed its prior judgment. Family Dollar sought supervisory writs of the trial court’s ruling. A panel of this court found no error, and Family Dollar’s writ application was denied. See George v. Reliance Ins. Co., 01-1836 (La.App. 3 Cir. 6/5/02), 819 So.2d 453.

On October 21, 2002, Family Dollar filed another motion for summary judgment on its cross claim against Privat & Regan, and it attached the biffing records of the law firm of Ungarino and Eckert totaling $17,739.61. The trial court denied Family Dollar’s motion for summary judgment “on the grounds that there is no provision by statute or contract for the payment of attorney’s fees; and, therefore, ... claim for attorney’s fees would not be in accordance with the law.”

Thereafter, Family Dollar and Privat & Regan submitted their cross claims to the trial court for trial on the merits. The evidence at trial consisted of joint stipulations of both facts and evidence in lieu of live testimony. On January 10, 2003, |4the trial court gave, in part, the following written reasons for dismissing both cross claims:

Under the provisions of the lease, both the landlord and the tenant agreed to maintain insurance against public liability for personal injury. Both landlord and tenant also agreed to name each other as an additional insured under their respective policies. This provision was breached by both sides. The issue to be decided by the Court is whether attorney fees are recoverable as an item of damages due to the breach.
After considering the evidence presented and the joint stipulations submitted, the Court finds that attorney fees are not recoverable in the case because the lease agreement between the parties does not contain a provision for the recovery of attorney fees.

From this judgment, Family Dollar appeals, alleging the following assignments of error:

1. The trial court erred by denying Family Dollar and Traveler’s claims for attorneys fees and costs against Privat and Regan.
2. The trial court erred by finding that Family Dollar breached the lease between Family Dollar and Privat and Regan.
3. The trial court erred by not finding as a matter of law Privat and Regan owed Family Dollar and Traveler’s costs of defense, including costs and attorney’s fees.

Privat and Regan also filed an answer to the appeal, requesting “that this Court reverse that portion of the judgment dated January 10, 2003, which dismissed with prejudice the cross claim of [Privat & Re-gan] herein against FAMILY DOLLAR STORES OF LOUISIANA, INC., and TRAVELER’S INSURANCE COMPANY and render judgment in favor of [Privat & Regan] and against said parties, granting to [Privat & Regan] all relief sought in their cross claim at the cost of cross defendants.”

^Discussion

Recovery of Attorney’s Fees

On appeal, Family Dollar points out that, by entering the lease agreement, Privat & Regan obligated themselves to obtain Lability insurance and have Family Dollar added as a named insured. Since Privat & Regan did not have it added as a named insured, Family Dollar asserts that it is entitled to recover the costs of defense and indemnity. Further, it attempts to differentiate its claim from a “typical claim for attorney’s fees.” Family Dollar contends that it is not seeking the recovery of attorney’s fees for the prosecution of its cross claim. Rather, it argues that it is seeking damages that resulted from Privat & Regan’s alleged breach of the lease, which happen to be attorney’s fees. As such, Family Dollar urges this court to reverse the judgment of the trial court dismissing its cross claim.

Despite Family Dollar’s attempt to differentiate its claim, we find no error in the trial court’s determination that Family Dollar is seeking the recovery of attorney’s fees. As a general rule, attorney’s fees cannot be recovered unless expressly authorized by statute or contract. Soloco, Inc. v. Dupree, 99-1476 (La.App. 3 Cir. 2/9/00), 758 So.2d 851. A suit for breach of contract is not an exception to the general rule. Willett v. Premier Bank, 97-187 (La.App. 3 Cir. 6/4/97), 696 So.2d 196. Review of the lease in this case indicates that there is no provision addressing indemnity or the recovery of attorney’s fees. Therefore, regardless of the finding of breach of lease by either party, Family Dollar is not entitled to recover attorney’s fees; nor is Privat & Regan. Accordingly, the trial court did not err when it denied the cross claims of Family Dollar and Privat & Regan.

IrDECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Half of all costs of this appeal are assigned to Family Dollar Stores of Louisiana, Inc.; the remaining costs are assigned to Privat & Regan.

AFFIRMED.


author: JjGREMILLION, Judge.

text:
    Robert KITE v. Felicia CARTER and Colonial Ins. Co. of California.
    No. 03-378.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.

      Randall Scott lies, Lafayette, LA, for Plaintiff/Appellant Robert Kite.
    Mesonie Terrence Halley, Jr., Pitre, Halley & Sikich, Lake Charles, LA, for Defendani/Appellee Felicia Carter Colonial Ins. Co. of CA.
    Mitchel Mark Evans, II, DeRidder, LA, for Third Party Defendant/Appellee Smith’s Car Wash, Howard Smith, Marlin Jantz.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   JjGREMILLION, Judge.

The plaintiff, Robert Kite (Kite), appeals the trial court’s directed verdict in favor of the defendants, Colonial Insurance Company of California and its insured, Felicia Carter. For the following reasons, we render a judgment of involuntary dismissal in favor of Colonial and Carter.

FACTS

On August 3, 1996, Carter ran a stop sign at the intersection of Pine Tree Lane and East First Street in DeRidder, Louisiana, and struck a building operated as Smith’s Car Wash. The building was located on land originally owned by George Kite. On March 1, 1967, George leased the property to Howard Smith, the operator of Smith Car Wash, Inc. The lease of the property was for $140 per month, for a term of five years, and terminating on February 28, 1972. The lease provided in pertinent part:

6.
- The LESSOR retains the LESSOR’S hen provided by law upon all property and equipment of the LESSEE upon the premises, and in addition thereto, it is stipulated that the LESSEE shall not remove from the premises that equipment this date purchased by LESSEE from LESSOR, more particularly described in a bill of sale and chattel mortgage executed of even date herewith to secure a note from LESSEE to LESSOR until said purchase money note has been paid and satisfied in full.
7.
The LESSOR grants to the LESSEE the right to take and remove from the premises at the end of the full five (5) year term of this lease, the building and improvements situated upon the leased property, except the foundation slab of said building. It is stipulated that removal of the improvements so granted in this paragraph shall be without damage to said foundation or to the premises.

| a At the termination of the five-year term, the parties continued the lease on a month-to-month basis under the terms of the original lease. George died on May 4, 1977. After George’s death, Smith continued paying the rental amount to his wife, Billy, and then to his son, Kite, in the name of his estate. Sometime after George’s death, his wife increased the monthly rental from $140 to $200 per month. Smith continued paying this amount until October 1996, even though the car wash was no longer operable due to the damage caused by Carter. On September 24, 1996, Smith notified Kite in writing that he intended to discontinue his car wash operations and that he intended to remove the building out of which he operated the business. In response, Kite informed Smith, via a September 25, 1996 letter, that the March 1, 1972 lease had terminated, that he was the owner of the building, and that Smith owed him several thousand dollars for rent from 1972 through September 25, 1996. Thereafter, Smith abandoned the building.

On April 21, 1997, Kite filed suit against Carter and Colonial seeking monetary damages for the property damage sustained by the building located on East First Street. In its answer, Colonial stated that it had paid $10,000 in response to a demand by CNA Insurance Company for reimbursement of amounts paid by it to its insured, Smith Car Wash, and its owners, Smith and his son-in-law, Marlin Jantz. Thereafter, Colonial and Carter filed a third-party demand against CNA, Smith, and Jantz. Smith and Jantz answered the third-party demand alleging that George had conveyed the building and car wash equipment to Smith on the same date he entered into the lease of the named property, as evidenced by the lease which mentions the bill of sale and chattel mortgage. They further introduced a Notice of Filing of the | .-¡chattel mortgage in the Beauregard Parish public records on March 14, 1967, and the cancellation of the chattel mortgage by prescription on November 24, 1997.

Kite filed a motion for summary judgment on the issue of liability, damages, right of subrogation, bad faith, and excess damages. Following a hearing on the motion, the trial court granted summary judgment in favor of Kite on the issue of liability, but referred the remaining issues to the trial on the merits. During the trial on the merits, Smith, Jantz, Carter, and Colonial moved for a directed verdict following the close of Kite’s evidence. The trial court granted the directed verdict and dismissed Kite’s claims against Colonial and Carter. All other claims were rendered moot as a result. A judgment in this matter was rendered on November 11, 2002. This appeal by Kite followed.

ISSUES

On appeal, Kite raises one assignment of error arguing that the trial court erred in finding that the March 1, 1967 lease between Smith and George had reconducted even though it exceeded its terms, the original lessor had died, and the rental amount had changed. Although we agree that the original lease terminated at the time the lease amount changed, we still find that Smith was the owner of the building located on the leased property at issue.

RECONDUCTED LEASE

In Misse v. Dronet, 493 So.2d 271, 273-74 (La.App. 3 Cir.1986) (citations omitted), we stated:

To have a tacit reconduction in Louisiana it is necessary that the lease has expired, that the lessee remain in possession for more than a week, that the lessor consent to his remaining in possession of the premises or not have given him notice to vacate. The reconduct-ed lease |4is actually a continuation of the original lease in all respects except that the fixed terms or period of duration under the old lease is voided and the reconducted lease is considered to be by the month.

We further stated that when, by agreement, the rental amount is changed, a new rental amount and a new consent is created. Id. Thus, the old lease terminated and a new one was created in its stead.

In the instant case, the trial court held that the 1967 lease was recondueted at the end of the original five year term on a month-to-month basis, with an adjustment of the rent amount from $140 to $200 per month. Thus, it held that all of the terms and conditions of the original lease continued in the reconducted lease, even after the parties agreed to the increase in the rent. This finding is clearly wrong. Once Billy and Smith agreed to increase the monthly rental from $140 to $200, a new lease was created and all of the terms of the original lease ceased. However, after conducting a de novo review of the record, we still find that Smith is the owner of the building located upon the leased premises and render judgment dismissing Kite’s claim with prejudice.

INVOLUNTARY DISMISSAL

Although Smith moved for and was granted a directed verdict, the proper procedural motion was for an involuntary dismissal. The procedure for an involuntary dismissal is provided for in La.Code Civ.P. art. 1672. If the matter is tried as a bench trial, the defendant may move for a dismissal of the plaintiffs action at the close of the plaintiffs case, based on the “ground that upon the facts and law, the plaintiff has shown no right to relief.” La. Code Civ.P. 1672(B). At that point, the trial court may either render judgment or decline to render judgment until the close Lof all evidence. Id.

The trial court is accorded much discretion in the granting of an involuntary dismissal. Guillory v. Int’l Harvester Co., 99-593 (La.App. 3 Cir. 10/13/99), 745 So.2d 733, writ denied, 99-3237 (La.1/14/00), 753 So.2d 220. It is required to weigh and evaluate all of the evidence presented by the plaintiff and grant the dismissal if the evidence is sufficient to establish that the plaintiff has not proven his claim by a preponderance of the evidence. Id. The grant of an involuntary dismissal is subject to the manifest error standard of review. Id.

Louisiana Civil Code article 464 provides that a building is a separate immovable when it belongs to someone other than the owner of the ground upon which it stands. Louisiana Civil Code article 491 provides that a building is presumed to belong to the owner of the ground, unless an instrument evidencing separate ownership is filed for registry in the conveyance records of the parish in which the immovable is located. Moreover, the law requires that immovable property be transferred by authentic act or by act under private signature. La.Civ.Code art. 1839. An oral transfer is valid if actual delivery has occurred and the transferor recognizes the transfer when questioned under oath. Id. However, if a written contract is required by law, “the contract may not be proved by testimony or by presumption, unless the written instrument has been destroyed, lost, or stolen.” La.Civ.Code art. 1832.

In this instance, Smith alleged that he purchased the building located on the leased property, and the equipment located therein, pursuant to a written bill of sale and chattel mortgage executed the same date as the lease. However, in his |fianswer to the third-party demand, he stated that the original bill of sale and chattel mortgage had either been lost or stolen. In support of his allegation, he introduced a copy of the original lease, a Notice of Filing from the Beauregard Parish Conveyance Records evidencing that a chattel mortgage from Smith to George was filed on March 14, 1967, bearing file number 186418, and a cancellation by prescription of the same chattel mortgage in the amount of $65,000, on November 24, 1997.

Smith testified that he purchased the car wash business and its equipment from George on the same date that the lease was executed in 1967. However, he could not recall whether this was reduced to writing or where the documents were located. He stated that he made payments for the purchase over a period of five years to the First National Bank in DeRidder. At the end of that time, he stated that he believed that he was the owner of the building and the equipment. However, he could not recall receiving a canceled chattel mortgage. Smith testified that George never participated in the profits and losses of the business, he never made any improvements to the structure or the property, nor did he require Smith to insure the property. He stated that all of the equipment originally purchased in 1967 had been replaced due to general wear and tear. He further testified that the business was damaged by a tornado after George’s death, but that no claim was made by Kite to the insurance proceeds used to repair the structure. Smith stated that the first notice he received from Kite concerning the ownership of car wash equipment and the building was in the September 26,1997 letter.

17Jantz testified that he started working at the car wash in 1994, and that he took over the operations sometime after Smith incorporated his business in 1997. He testified that they were in the process of remodeling the car wash prior to the August 1996 accident, and had purchased $20,000 worth of new equipment through financing from Beauregard Federal Savings Bank. He stated that the equipment they were replacing was not the original equipment purchased in 1967. Jantz testified that the equipment damaged as a result of the August 1996 accident was repaired with the insurance money received from its insurer. He stated that Kite never offered to pay for the remodeling, refurbishing, or repairs to the equipment or property.

Jantz testified that he talked to Kite several times about entering into a long-term lease or selling the property. He stated that their discussions never concerned the purchase of the equipment, since Smith informed him that he already owned the equipment. He further stated that no one representing George’s estate ever contacted them about insuring the equipment pursuant to the lease. Moreover, the insurance settlement proceeds were not issued in Kite’s name. After they decided to relocate the car wash, Jantz stated that they notified Kite of their intent not to renew the lease. In the September 26, 1997 letter, Kite informed them that he owned the building and that they owed him rent for the building. Jantz testified that they viewed the building as belonging to them, and that they never acknowledged that Kite owned either the building or the equipment located therein.

After reviewing the evidence, we find that Kite has failed to prove that he is the owner of the building located on the leased property. While a building is considered an immovable and is presumed to belong to the owner of the ground upon | swhich it is located, we find that the evidence proves that this building is the separate property of Smith. Although the bill of sale and chattel mortgage were either lost or destroyed, we find that they were sufficiently proven by parole evidence through the testimony of Smith and Jantz and through the original lease agreement, which mentions that a bill of sale and the chattel mortgage were executed on the same day as the lease. Further evidence affirming the existence of the sale is presented by the notice of filing of the chattel mortgage and the cancellation of the chattel mortgage from the Beauregard Parish Clerk of Court’s records. Since Kite has failed to contradict this evidence, we find that he has failed to establish his claim by a preponderance of the evidence. Accordingly, we grant the motion for involuntary dismissal and render judgment in favor of Carter and Colonial. The third party demand by Carter and Colonial against Smith and Jantz, and their insurer, CNA, is rendered moot.

CONCLUSION

For the foregoing reasons, we order, adjudge, and decree that a judgment of involuntary dismissal be granted in favor of the defendants-appellees, Colonial Insurance Company of California and Felicia Carter. The third-party demand against the third-party defendants, Howard Smith, Marlin Jantz, and CNA Insurance Company, is rendered moot. The cost of this appeal is assessed against the plaintiff-appellant, Robert Kite.

JUDGMENT RENDERED.