author: JOAN BERNARD ARMSTRONG, Chief Judge. CANNIZZARO, J.,

text:
    John Hartson LEARY v. Robert M. FOLEY and The Talley Ho Club.
    No. 2007-CA-0751.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 13, 2008.

      Joe M. Inabnett, New Orleans, LA, for Plaintiff/Appellant.
    Frederick W. Bradley, King, Leblanc and Bland, New Orleans, LA, for Defendants/Appellees.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge LEON A. CANNIZZARO JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

I,The plaintiff-appellant, John Hartson Leary, appeals a judgment signed on March 2, 2007, in favor of the defendants-appellees, Robert M. Foley and The TallyHo Club, dismissing with prejudice in its entirety plaintiffs suit against the defendants with each party to bear their respective costs.

Essentially, the plaintiff is suing for his wrongful expulsion from The Tally-Ho Club, a private non-profit incorporated so-dal club. Robert M. Foley was the “Captain” or chief executive officer of the club.

These proceedings originally commenced with the filing on June 12, 2003, of the plaintiffs “Petition for Writ of Mandamus,” asking for the right to inspect club records, which was followed on June 26, 2003, by plaintiffs petition for damages and petition for temporary restraining order and rule for preliminary injunction.

On October 21, 2003, the trial court signed a judgment granting the plaintiffs writ of mandamus by ordering the defendants to produce certain records for inspection and copying by the plaintiff, and concluding with the statement that: “All other rights in the premises are reserved to the parties.”

| {.The defendants appealed that judgment unsuccessfully to this Court which affirmed the judgment of the trial court. Leary v. Foley, 03-2132 (La.App. 4 Cir. 9/14/04), 884 So.2d 655.

On December 10, 2004, plaintiffs counsel filed a “Joint Motion to Continue Hearing on Plaintiffs Motion for Preliminary Injunction” in which it was stated that “the parties are cooperating in response to the Judgment of this Honorable Court, affirmed by the Court of Appeal,” and that “the parties shall continue to abide by the letter agreement of July 3, 2003 ...” Pursuant to this motion, the trial court granted a continuance until April 29, 2005.

On January 26, 2005, the trial court signed an order granting the plaintiff the right to file a supplemental and amending petition. The defendants filed their answer on February 2, 2005.

On April 10, 2006, the defendants filed a motion for partial summary judgment on the issues of whether the plaintiff had a direct monetary interest in the club assets by virtue of his one share of stock; whether the plaintiff had been defamed; and plaintiffs claim that Robert Foley is liable to him in his individual capacity.

On June 23, 2006, the trial court rendered a judgment granting the defendants’ partial motion for summary judgment as to the issue of the plaintiffs claim to a direct ownership interest of club assets by virtue of his one share of stock; but the trial court denied the balance of the defendants’ requested relief. The defendants applied to this Court for writs regarding the denial of the last two issues raised by their motion for partial summary judgment. On August 23, 2006, this Court denied the defendants’ writ application. Leary v. Foley, et al, 2006-C-0919, unpub.

| ¡¡On July 17, 2006, the trial court issued an order fixing the trial on the merits for February 5, 2007. This hearing resulted in the judgment that forms the basis of the instant appeal.

In the trial court’s judgment, which incorporated the reasons for judgment, the trial court noted that the plaintiff withdrew his claims for defamation and, accordingly dismissed those claims with prejudice.

The trial court held that “there is no tort action for damages under Louisiana law for the alleged wrongful expulsion of a member from a private social club.” The trial court held that the only remedy would be one of mandamus. We agree. The plaintiff has cited no case which has held to the contrary. In Schexnayder v. Vacherie Volunteer Fire Dept. No. 1, 491 So.2d 1322 (La.1986), the Louisiana Supreme Court held that the resolutions resulting in the expulsion of the plaintiffs from the non-profit Vacherie Volunteer Fire Department No. 1 were illegal, reversing the judgments of the trial and appellate courts in that regard. However, the Supreme Court affirmed that portion of the trial court and appellate court judgments denying the plaintiffs’ claim for damages. Therefore, we find that Schexnayder supports the decision of the trial court and this Court in the instant case to deny the plaintiffs claim for damages for wrongful expulsion.

The cases cited by the plaintiff in support of his claim for damages involve claims against shareholder/officers who handled corporate finances improperly— they were not cases of wrongful expulsion from a social club.

Accordingly, we agree with the trial court that Louisiana does not provide a |4cause of action for damages for wrongful expulsion from a private social club.

The trial court judgment does not specifically address the plaintiffs claim for damages under La. R.S. 12:264 B for wrongfully refusing to allow the plaintiff to inspect the corporate records pursuant to La. R.S. 12:223 C. However, the trial court dismissed the plaintiffs claims in their entirety. Generally when a judgment is silent with respect to a party’s claim, it is presumed that the trial court denied the relief sought. Bain v. Middleton, 00-2630, p. 1, fn. 2 (La.App. 4 Cir. 11/14/01), 802 So.2d 837, 838, citing Zatzkis v. Zatzkis, 632 So.2d 307, 313 (La.App. 4 Cir.1993). Such silence constitutes an absolute rejection of such demand. Sun Finance Co., Inc. v. Jackson, 525 So.2d 532, 533 (La.1988). Silence in a judgment as to any part of a demand is construed as a rejection of that part of the claim. Day v. Warren, 524 So.2d 1383, 1388 (La.App. 1 Cir.1988). Therefore, we must assume that when the trial court judgment declares that, “the plaintiffs suit is hereby dismissed in its entirety with prejudice,” that dismissal included the plaintiffs claim for damages pursuant to La. R.S. 12:264 B.

The plaintiff argues in brief that the “district court erred in refusing to hear Leary’s proof of the extent of those damages which he seeks under La. R.S. 12:264(B).” We find nothing in the record, either explicit or implicit, tending to show that the plaintiff was ever given the opportunity to present this claim on the merits. The defendant does not contend that Louisiana provides no cause of action for such damages, if proven. La. R.S. 12:264 B provides for damages for the wrongful denial of the right to inspect corporate records:

B. Any corporation, or any officer or agent thereof, which or who shall in bad faith refuse to permit the exercise of inspection rights pursuant to R.S. 12:223(C), shall be liable to the member or members seeking to exercise such rights to the extent of the costs and | Rexpenses of any proceeding necessary to enforce such inspection rights, and for any other damages actually sustained by such member or members.

The defendants first argue that the plaintiffs claim is meritless in this regard, which it may well be, but we cannot make that determination from the record before us. There has been no trial of this issue.

Next the defendants argue that the plaintiff should be barred by res judicata from raising this issue as it is now foreclosed by the judgment on his “Petition for Writ of Mandamus,” which is silent on the issue, thereby implicitly denying his claim in this regard pursuant to Bain; Zatzkis; Sun Finance and Day, swpra.

In the plaintiffs “Petition for Writ of Mandamus,” the only relief prayed for by the plaintiff was for the right to examine the club records. The “Petition for Writ of Mandamus” contains no allegations of damages. His claim for damages was asserted in his original petition filed on June 27, 2003, and in his supplemental and amending petition filed on January 19, 2005. We can find no procedural requirement that his claim for damages be asserted in his “Petition for Writ of Mandamus” rather than in his main demand. Therefore, we do not find that the judgment and appeal concerning the writ of mandamus were dispositive of the plaintiffs claim for damages under La. R.S. 12:264 B. This finding is reinforced by the language in the trial court’s judgment granting the writ of mandamus reserving all other rights to the parties. Consequently, we are compelled to find that the plaintiff is entitled to have his day in court concerning this claim.

LFor the foregoing reasons, the judgment of the trial court is affirmed with the exception that the ease shall be remanded to allow the plaintiff a hearing on the issue of damages under La. R.S. 12:264 B.

AFFIRMED IN PART AND REMANDED IN PART.

CANNIZZARO, J.,

concurs with reasons.

hi respectfully concur with the majority opinion to affirm the judgment of the trial court and remand the matter for a hearing on the issue of damages under La. R.S. 12:264(B). However, while I agree that the facts as alleged by Mr. Leary in his petition for damages, as amended and supplemented, do not state a cause of action for the “wrongful expulsion” of his membership in the Tally-Ho Club, I cannot say that Louisiana law does not provide a cause of action for damages for the wrongful expulsion from a private social club.

      . Noe v. Roussel, 310 So.2d 806 (La.1975); Hirsch v. Cahn Electric Co., 694 So.2d 636 (La.App. 2 Cir. 1997); Mary v. Lupin Foundation, 609 So.2d 184 (La.1992).


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    Joseph H. HAMMELL and Melissa M. Hammell v. GICILI, A Louisiana Partnership in Commendam.
    No. 2007-CA-0867.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 13, 2008.

      James E. Uschold, James E. Uschold, PLC, New Orleans, LA, for Plaintiffs/Appellants.
    James F. Ryan, Donavan & Lawler, Me-tairie, LA, for Appellee (The Goodyear Tire and Rubber Company).
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   MICHAEL E. KIRBY, Judge.

Lin this appeal, plaintiffs, Joseph and Melissa Hammell, seek review of the trial court judgment sustaining the exception of prescription filed by the defendant, Goodyear Tire and Rubber Company (Goodyear). For the reasons which follow, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Joseph Hammell (Hammell) received injuries when he was knocked off a ladder while attempting to reattach a garage door cable to the cable guide on March 16, 2001. Hammell filed a worker’s compensation claim against his employer, Goodyear Auto and Truck (A & T) and Chailland Business Consultants, on July 9, 2001. The parties entered into a settlement which was approved by the Worker’s Compensation Judge on February 19, 2002.

Joseph and Melissa Hammell filed a suit against GICILI on March 13, 2002. GICI-LI owned the premises where Hammell was injured. GICILI filed a third party demand against Goodyear and A & T on June 17, 2002. GICILI leased the premises to Goodyear, who in turn sub-leased the premises to A & T. Plaintiffs amended their petition to add Goodyear as a defendant on April 28, 2004.

| ¡.Goodyear filed the peremptory exception of prescription on November 15, 2006. The trial court entered judgment sustaining the exception of prescription on April 17, 2007.

STANDARD OF REVIEW

In Parker v. B & K Const. Co., Inc., 2006-1465, p. 2 (La.App. 4 Cir. 6/27/07), 962 So.2d 484, 485, this Court stated “in reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous.” Citing Katz v. Allstate Ins. Co., 04-1133, p. 2 (La.App. 4 Cir. 2/2/05), 917 So.2d 443, 444.

Additionally, prescription statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished. Hodges v. Republic Western Ins. Co., 2005-0245, p. 3 (La.App. 4 Cir. 12/14/05), 921 So.2d 175, 177. The defendant has the burden of pleading and proving prescription. “However, when the plaintiffs claim is prescribed on the face of the petition, the burden shifts to the plaintiff to negate prescription by establishing a suspension or interruption.” Id. at pp. 3-4, 921 So.2d at 178.

DISCUSSION

In this instance, Hammell received injuries on March 16, 2001. Hammell filed an amended petition naming Goodyear as a defendant on April 28, 2004. A tort action is subject to a prescriptive period of one year from the date the injury is sustained. La. C.C. art. 3492. Hence, on its face, the amended petition is prescribed and the burden shifts to the plaintiffs to negate prescription by establishing a suspension or interruption.

|sThe plaintiffs first argue that a plaintiff may file a demand naming as defendant a party brought into the litigation via a third party demand at any time. The plaintiffs cite this Court’s holding in Carona v. Radwin, 195 So.2d 465 (La.App. 4 Cir.1967) and La. C.C.P. art. 1111 in support of their argument. In Carona, the defendant filed a third party demand against an alleged tortfeasor, alleging that the injuries suffered by plaintiff were caused by the joint and concurrent negligence of the third party plaintiff and the third party defendant. The Carona plaintiff filed a supplemental and amending petition, adding a claim against the third party defendant. This Court reversed the trial court’s sustaining an exception of prescription, noting that both the original petition and the third party demand were both filed within one year of the accident at issue. Therefore, the third party defendant had sufficient notice of the pending suit within the one year of the accident at issue.

Conversely, in this instance, the third party demand was not filed within one year of the accident at issue. Hence, Ca-rona is not controlling.

Plaintiffs allege La. C.C.P. art. 1111 means that a “timely filed third party demand interrupts prescription as to all of the plaintiffs claims arising out of or connected to the principal demand, even if the claims would have been prescribed if the third party demand had not been filed.” Further, plaintiffs aver that the right of the plaintiffs to assert such claims under La. C.C.P. art. 1111 is “absolute”.

La. C.C.P. art. 1111 grants a defendant in the principal action to bring in any person who is his warrantor, or who is or who may be liable to him for all or part of the principal demand. Further, the statute provides that in such cases, the plaintiff may assert any demand against the third party defendant arising out of or connected with the principal demand. However, La. C.C.P. art. 1067 allows the Ldefendant to file an incidental or third party demand only within the original prescriptive period or within ninety days of service of the main demand.

In the case sub judice, the filing of the worker’s compensation claim interrupted prescription as it was timely filed on July 9, 2001. An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue within the prescriptive period continues as long as the suit is pending. La. C.C. art. 3463. The interruption lasted until the transaction and compromise reached by the parties was approved by the court in its judgment dated February 19, 2002. At that time, prescription began to run anew. Dark v. Marshall, 41,711 (La.App. 2 Cir. 12/13/06), 945 So.2d 246; Pierce v. Foster Wheeler Constructors, Inc., 2004-0333 (La. App. 1 Cir. 2/16/05), 906 So.2d 605. Hence, plaintiffs received another one year period, or until February 19, 2003, in which to commence an action against any other tortfeasor.

In Randall v. Feducia, 507 So.2d 1237 (La.1987), the Supreme Court faced the issue of whether a plaintiff may proceed against a third party defendant who is not solidarity liable when the third party demand was filed within the time period provided by La. C.C.P. art. 1067. The Randall court declined to allow a plaintiff to resuscitate a prescribed action by the filing of a timely third party demand pursuant to La. C.C.P. art. 1067. The court noted that La. C.C.P. art. 1067 is for the benefit of the defendant against whom a suit is filed at or near the end of the prescriptive period.

Plaintiffs argue the Supreme Court explicitly disapproved of substantial portions of Randall in Moore v. Gencorp, Inc., 93-0814 (La.3/22/94), 633 So.2d |51268. However, the Moore opinion clearly states “We expressly disapprove of the reasoning of ... the dicta of Randall v. Feducia.” Id., 633 So.2d at 1271 (emphasis supplied). At no time did the Moore court overrule any portion of Randall, much less explicitly disapprove of substantial portions. Further, Moore dealt with a petition of intervention filed within the time period provided by La. C.C.P. art. 1067. The facts presented herein are not analogous.

This Court followed the reasoning of Randall in Maumus v. Leblanc, 1998-2422 (La.App. 4 Cir. 5/19/99), 733 So.2d 1268. Therein, the third party plaintiff timely filed a third party demand. More than two years after the filing of the third party demand, the plaintiff sought to amend and add the third party defendant to plaintiffs claim. This Court found the claim asserted in the amended petition prescribed and maintained the exception of prescription.

Similar to Maumus, the plaintiffs waited until nearly two years after the filing of the third party demand, and more than one year after the passing of the new prescriptive date, February 19, 2003, to amend its petition to add Goodyear. Plaintiffs possessed eight months to amend their petition after being put on notice of Goodyear’s existence and potential liability and failed to do so. No court has held that La. C.C.P. art. 1111 grants a plaintiff an absolute right to file at any time an amended petition naming a third party defendant and we decline to do so.

Lastly, plaintiffs argue the amended petition relates back to the filing of the original petition pursuant to La. C.C.P. art. 1153. La. C.C.P. art. 1153 provides that an amended petition relates back to the filing of the original petition when the action asserted in the amended petition arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. To determine whether an amendment which changes the identity of a defendant will Ifibe allowed to relate back under La. C.C.P. art. 1158, the Louisiana Supreme Court developed the following four-part test:

(1) the amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) the purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) the purported substitute defendant must know that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him; and
(4) the purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

Ray v. Alexandria Mall, 434 So.2d 1083, 1087 (La.1983); Hodges v. Republic Western Ins. Co., 2005-0245, p. 4 (La.App. 4 Cir. 12/14/05), 921 So.2d 175, 178. Applying these criteria, the plaintiffs amended petition, substituting Alexandria Mall Company, a partnership, for the Alexandria Mall, a corporation, related back as the substitute defendant was not a wholly new and unrelated defendant. Ray, 434 So.2d at 1087.

Applying these criteria to the facts of this case, we find that the amended claim arose out of the same transaction or occurrence set forth in the original pleading. Both involved a claim for damages sustained when Hammell received injuries on March 16, 2001. Goodyear received notice of the institution of an action when GICI-LI filed a third party demand against Goodyear. However, the third and fourth prongs of the Ray test must be answered negatively. Plaintiffs 17argue that Court’s finding of a lack of liability against GICI-LI proves that plaintiffs made a mistake when it named GICILI as defendant rather than Goodyear. Particularly, plaintiffs argue a mistake based on lack of information regarding the relationship between GICILI and Goodyear as lessor and lessee. GICILI filed a third party demand on June 17, 2002, eight months before the end of the new prescriptive period, outlining in great detail the relationship between GICILI and Goodyear as lessor and lessee. Goodyear is a wholly new and unrelated defendant. Plaintiffs’ only mistake was in failing to utilize the information contained in the third party demand in a timely fashion.

After reviewing the record, we conclude the trial court’s finding of fact was not manifestly erroneous.

CONCLUSION

Accordingly, for the reasons stated herein, the judgment of the trial court sustaining the exception of prescription is affirmed.

AFFIRMED.

      . Plaintiffs' petition does not allege joint or solidary liability between GICILI and Goodyear, and Plaintiffs do not argue application of the codal provisions relative to joint or solidary obligors. Hence, we decline to address the appellee's argument relative to soli-dary obligors.

      . This Court reversed the trial court’s denial of GICILI’s motion for summary judgment, finding plaintiff failed to put forth evidence of GICILI's liability. Hammell v. GICILI, un-pub., 2005-0730 (La.App. 4 Cir. 8/12/05), writ denied, 2005-2416 (La.3/24/06), 925 So.2d 1236.


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

text:
    STATE of Louisiana v. Joseph KEYS.
    No. 2007-KA-1430.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 13, 2008.
    Rehearing Denied April 23, 2008.
    Keva Landrum-Johnson, District Attorney, Donna Andrieu, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant, Joseph Keys.
    (Court composed of Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

pThe defendant, Mr. Joseph Keys, appeals his conviction and sentence for simple possession of cocaine, requesting only a review of the record for errors patent. After reviewing the record in this case, we affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On July 31, 2006, the State charged Mr. Keys with one count of simple possession of crack cocaine, a charge to which he subsequently pled not guilty. The court denied his motion to suppress the evidence, and on January 29, 2007, a six-person jury found him guilty as charged. The court initially sentenced him to serve thirty months at hard labor. After the State proved that Mr. Keys was a second offender, the court vacated his sentence and resentenced him as a second offender to serve thirty months at hard labor.

At trial, New Orleans Police Officers Demond Harris and LeJon Roberts testified that they were on proactive patrol on the evening of April 20, 2006. As they drove slowly through a parking lot of a strip shopping center in the 3600 block of MacArthur Boulevard, they saw Mr. Keys walk out of a clothing store. The officers testified that when Mr. Keys saw them approaching him, he looked | ¡^startled and nervous, and he started looking right and left. He put his hand into his pocket and then withdrew it. He then dropped an object to the ground and began walking rapidly away from the officers. While one officer detained Mr. Keys, the other one retrieved the object that Mr. Keys had dropped. The object consisted of three rocks of what appeared to be crack cocaine, wrapped in plastic. The officers then arrested Mr. Keys for possession of cocaine. The parties stipulated that the rocks retrieved on the scene later tested positive for cocaine.

LAW AND DISCUSSION

By her sole assignment of error, counsel for Mr. Keys requests a review of the record for errors patent. Such review shows there are none. Counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). Counsel filed a brief complying with State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. Counsel’s detailed review of the procedural history of the case and the facts of the case indicate a thorough review of the record. Counsel moved to withdraw because she believes, after a conscientious review of the record, that there is no non-frivolous issue for appeal. Counsel reviewed available transcripts and found no trial court ruling that arguably supports the appeal. A copy of the brief was forwarded to Mr. Keys, and this Court informed him that he had the right to file a brief in his own behalf. He has not done so. Thus, this Court’s review is limited to errors on the face of the record. La.C.Cr.P. art. 920.

As per State v. Benjamin, this Court performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appeal record. Mr. Keys was properly charged by bill of information with a laviolation of La. R.S. 40:967 C(2), and the bill was signed by an assistant district attorney. Mr. Keys was present and represented by counsel at arraignment, during the trial, and at sentencing. The jury’s verdict and Mr. Keys’ sentence are legal in all respects. Furthermore, a review of the trial transcript shows that the State provided sufficient evidence to prove beyond a reasonable doubt that Mr. Keys was guilty of possession of crack cocaine. Although trial counsel for Mr. Keys erroneously filed his motions for new trial and for post verdict judgment of acquittal after the court imposed the original sentence on Mr. Keys, in contravention of La.C.Cr.P. art. 853, counsel re-urged them and the court denied them before the court imposed the sentence as a multiple offender.

Our independent review reveals no non-frivolous issue and no trial court ruling that arguably supports the appeal.

DECREE

Accordingly, we affirm Mr. Keys’ conviction and sentence, and we grant appellate counsel’s motion to withdraw.

AFFIRMED; MOTION TO WITHDRAW GRANTED.


author: ROLAND L. BELSOME, Judge.

text:
    LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY v. TANGILENA VILLAGE, INC.
    No. 2007-CA-1230.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 13, 2008.

      Carolyn O. Bryant, Ted R. Broyles II, Louis Buatt, General Counsel, Louisiana Department of Environmental Quality, Office of the Secretary, Legal Affairs Division, Baton Rouge, LA, for Plaintiff/Appellant.
    Roger A. Stetter, Roger A. Stetter, L.L.C., Whitney National Bank Building, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

_JjThis matter was transferred to this Court from the First Circuit Court of Appeal. The Louisiana Department of Environmental Quality (“LDEQ”) appeals the trial court’s judgment, which nullified a prior judgment based on a finding of improper service. For the reasons that follow, we reverse and remand.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In March of 1999, LDEQ issued a Compliance Order, pursuant to the Louisiana Environmental Quality Act, La. R.S. 30:2001, et seq. (“the Act”), addressed to defendant, Tangilena Village, Inc. (“Tange-lina”) c/o Dr. J.H. McClendon (“Dr. McClendon”), the president of Tangelina. The Compliance Order alleged that Tange-lina, the owner of a shopping center in Amite, Louisiana, was responsible for cleaning up contaminated soil discovered in 1993 during the closure of a service station located on the property. Pursuant to the Compliance Order, Tangelina had thirty days to request a hearing; however, no request was made.

li>.On February 13, 2001, LDEQ filed an ex parte petition requesting that the Compliance Order be made executory. The petition alleged that the Compliance Order was served on Tangelina on March 23, 1999, as evidenced by a copy of the certified mail return receipt, showing that on March 23, 1999, the Compliance Order was served on Tangelina c/o Dr. J.H. McClen-don, and signed for by Charles Hickerson. The trial court granted the order in a judgment rendered on February 15, 2001.

On August 9, 2005, LDEQ filed a motion for contempt, alleging that Tangelina failed to comply with the terms of the Compliance Order and was therefore in contempt of the February 15, 2001 judgment making the Compliance Order execu-tory. On August 18, 2005, Tangelina filed a cross motion to nullify the February 15, 2001 judgment based on the assertion that the Compliance Order was not properly served. After a lengthy continuance, LDEQ’s motion for contempt and Tangeli-na’s cross motion for nullity were brought before the trial court on June 26, 2006.

In support of Tangelina’s cross motion, Dr. McClendon’s affidavit was introduced, which stated that on March 23, 1999, the Compliance Order was apparently left in the hands of Charles Hickerson (“Mr. Hickerson”), who was not authorized to sign for registered mail addressed to Tangelina or Dr. McClendon. The affidavit further stated that Mr. Hickerson was an elderly gentleman who could not read or write. At the time, he worked at Dr. McClendon’s optometry office a few days a week making coffee and running errands. Dr. McClendon also stated in his affidavit that Mr. Hickerson did not remember receiving the letter, nor could he explain what became of the letter. Dr. McClen-don claimed he never saw the original letter.

| aAt the time of the hearing, Dr. McClendon was in poor health and was unable to testify. Accordingly, trial court heard testimony from Dr. McClendon’s daughter, who testified that she was familiar with her father’s corporation and the information contained in his affidavit. She further testified she was familiar with Mr. Hickerson, explaining that he is an elderly gentleman who occasionally ran errands for her father, he was not paid a salary, he was not a regular employee, and he had no authority from Dr. McClendon to receive certified mail on behalf of Tangelina. Finally, she stated she knew that her father never received the certified mail containing the Compliance Order.

In opposition to Tangelina’s cross motion, LDEQ argued that proper service of the Compliance Order was made on Tangelina on March 23, 1999. More specifically, LDEQ maintained that the Compliance Order was properly received at 109 E. Mulberry, Amite, Louisiana, which is the address filed by Tangelina with the Louisiana Secretary of State pursuant to La. R.S. 30:2050.23. The statute provides, in pertinent part:

A.(l) Notice to an applicant for a permit, a respondent, a petitioner for a declaratory ruling, or a party to an adjudicatory hearing shall be given by certified mail return receipt requested.
C.(2) Notice to a respondent prior to becoming a party may be given at the address of the respondent’s agent for service of process, or an address filed by the respondent with the secretary of state or with the department.

La. R.S. 30:2050.23 (emphasis added).

Following the testimony of Dr. McClen-don’s daughter and the submission of Dr. McClendon’s affidavit, the trial court ruled in favor of Tangelina. Judgment was signed on July 11, 2006, rendering the February 15, 2001 judgment null and 14void and remanding the matter to LDEQ for further proceedings. The trial court subsequently issued written reasons for judgment, stating in part:

... the March 19, 1999, correspondence between LDEQ and Tangelina Village is clearly addressed to Dr. J.H. McClen-don, Registered Agent. The return receipt requested is evidently not signed by that “registered agent.” Furthermore, Mr. Henderson has no legal authority to sign for certified mail on behalf of Tangelina Village.
Based on the totality of the circumstances in this case the notice does not sufficiently reach an equitable level of fair play and justice.

LDEQ’s timely devolutive appeal followed.

STANDARD OF REVIEW

With respect to issues of law, the appellate court is required to determine whether the trial court’s decisions are legally correct. Griggs v. Harrah’s Casino, 2005-0321, p. 17 (La.App. 4 Cir. 3/22/06), 929 So.2d 204, 214. Where a decision of a court is based on an erroneous application of law rather than a valid exercise of discretion, the trial court’s decision is not entitled to deference from the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-72 (La.1983).

DISCUSSION

On appeal, LDEQ asserts the trial court erred in finding that the Compliance Order was improperly served on Tangelina and in rendering the February 15, 1999 judgment null and void. LDEQ argues that it fully complied with La. R.S. 30:2050.23 by sending the Compliance Order by certified mail to Dr. McClendon, Tangelina’s registered agent. Furthermore, LDEQ asserts that it submitted proof that the certified mail was signed for at that address by an individual working for Dr. McClendon.

LDEQ further argues that the trial court improperly relied on La. C.C.P. art. 2002, stating in her reasons for judgment that “a judgment shall be nullified if it is |firendered ... [ajgainst a defendant who has not been served with process as required by law.” LDEQ suggests that although it is well settled that a party who is not notified of a hearing may bring an action to annul a judgment pursuant to Article 2002, in the instant case, the motion to make the Compliance Order execu-tory was an ex parte proceeding. Therefore, LDEQ asserts that Tangelina was not deprived of an opportunity to be heard as contemplated by Article 2002.

We know of no case in our jurisprudence interpreting the notice requirements of La. R.S. 30:2050.23. Accordingly, we now address this issue res nova.

It is well established that a law shall be applied as written and no further interpretation made in search of the legislature’s intent when the law is clear and unambiguous and its application does not lead to absurd consequences. La. C.C.P. art. 9. Discussing statutory interpretation, the Louisiana Supreme Court stated in Mallard Bay Drilling, Inc. v. Kennedy, 2004-1089, pp. 16-17 (La.6/29/05), 914 So.2d 533, 546:

It is presumed that every word and provision in a statute was intended to serve some useful purpose, that some effect is to be given to each provision, and that no words or provisions were used unnecessarily. Conversely, it is not presumed that the legislature inserted idle, meaningless or superfluous language in a statute or that it intended any part of the statute to be meaningless, redundant or useless. The courts have a duty, if possible, to adopt a statutory construction that harmonizes and reconciles the statute with other provisions. Finally, courts should avoid a construction that creates an inconsistency when a reasonable interpretation can be adopted that does not do violence to the plain words of the statute and will carry out the legislature’s intention.

In the present case, the statute’s language is quite clear. It provides that notice, pursuant to the Act, “shall be given by certified mail return receipt requested” and “may be given at the address of the respondent’s agent for service | fiof process, or an address filed by the respondent with the secretary of state or with the department.” La. R.S. 30:2050.23 A(l) and C(2).

Moreover, it is undisputed that the notice was sent to the proper address, and that it was signed for by Mr. Hickerson. It is also undisputed that Mr. Hickerson did part time work for Dr. McClendon at his office. Although Dr. McClendon claimed Mr. Hickerson had no authority to sign for him, that fact is not controlling. La. R.S. 30:2050.23 does not require that the notice be personally received by the registered agent. Likewise, in actions brought pursuant to the Act, La. R.S. 30:2050.23 requires only that the notice be sent by certified mail to the registered agent’s address. Therefore, we find that LDEQ established that it met the requirements of the statute in this case.

We thus conclude that Tangelina received proper notice of the Compliance Order under La. R.S. 30:2050.23. To uphold the trial court’s ruling would effectively require LDEQ to proceed beyond the requirements of the Act. Accordingly, we find that the trial court erred in interpreting La. R.S. 30:2050.23 to require that the registered agent personally sign for the certified mail or that the person signing for the certified mail be an authorized agent for the registered agent.

CONCLUSION

Considering the law and evidence in the present case, we find the trial court erred in nullifying the February 15, 2001 judgment based on improper service. While we sympathize with Appellee’s situation, we are bound by the language of |7the statute. Accordingly, the judgment granting Tangelina’s motion for nullity is vacated, and the matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

      . Specifically, the LDEQ alleged that during removal of three underground storage tanks on the property owned by Tangelina, gasoline was discovered to have contaminated the surrounding soil. The LDEQ further asserted that Tangelina failed to properly remediate the contamination of the site and likewise failed to determine the extent and location of the soil that was contaminated by the release, thus leaving the soil contaminated.

      . In contrast, it is worth noting that La. C.C.P. art. 1261, regarding service of a citation on a corporation, specifically requires personal service on the registered agent.


author: JAMES F. McKAY III, Judge. TOBIAS, J.,

text:
    JOHN C. BOSE CONSULTING ENGINEER, LLC v. JOHN T. CAMPO & ASSOCIATES, INC., Architects/Planners.
    No. 2007-CA-1001.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 2008.

      Larry G. Canada, Andrea L. Albert, Galloway Johnson Tompkins Burr & Smith, New Orleans, Louisiana, for PlaintiffiAp-pellee.
    John A. Venezia, William B. Gordon, The Law Office of John A. Venezia (APLC), Metairie, Louisiana, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.).
   JAMES F. McKAY III, Judge.

hOn June 1, 1998, John T. Campo & Associates, Inc., Architects/Planners (Campo) entered into a continuing business relationship with John C. Bose Consulting Engineers, L.L.C. (Bose) wherein Bose would provide consulting services as a structural and civil engineer to Campo on a pre-determined rate schedule. Bose provided structural and civil engineering services on a number of projects from June of 1998 through July of 2002. However, Campo refused to pay Bose on several projects. Thereupon, Bose filed suit against Campo on an open account in the amount of forty-five thousand two hundred fifty-two and 50/100 dollars ($45,252.50). On January 17, 2007, Bose filed a motion for summary judgment which the trial court granted on May 31, 2007, awarding Bose $45,252.50 plus judicial interest from the date of demand. It is from this judgment that Campo appeals.

On appeal, Campo raises the following assignments of error: 1) the trial court erred by failing to find that Campo made a sufficient showing that it was entitled to a setoff on the Holiday Inn French Quarter project; 2) the trial court | ¡.erred by failing to find that Campo made a sufficient showing that it was entitled to a setoff on the Plaza Resort and Spa project; 3) the trial court erred by failing to find that Campo made a sufficient showing that it was entitled to a setoff on the Ambulatory Surgical Center project; 4) the trial court erred in making impermissible credibility determinations on a motion for summary judgment, and failing to assume that all of the affiants are credible; 5) the trial court erred in failing to resolve evidentiary doubts in favor of the party opposing the motion; and 6) the trial court erred in failing to find that a genuine issue of material fact exists as to whether payments made by Campo were properly credited to the open account.

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1182. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. Two Feathers Enterprises v. First National Bank of Commerce, 98-0465 (La.App. 4 Cir. 10/14/98), 720 So.2d 398, 400. This procedure is now favored and shall be construed to accomplish those ends. La. C.C.P. art. 966 A(2).

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. 1 La. C.C.P. art. 966. If the |scourt finds that a genuine issue of material fact exists, summary judgment must be rejected. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden does not shift to the party opposing summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, the party opposing the motion must “make a showing sufficient to establish existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial.” La. C.C.P. art. 966(C).

Campo’s initial assignment of error alleges that the court erred “by failing to find that Campo made a sufficient showing that it was entitled to a setoff on the Holiday Inn French Quarter project.” Because Bose clearly set forth that he was owed money on this project, the burden shifts to Campo to prove any affirmative defense. Campo failed to present anything, other than a self serving affidavit, to support a setoff in the amount of $7,500.00. Accordingly, this assignment of error is without merit.

Campo’s second assignment of error alleges that the court erred “by failing to find that Campo made a sufficient showing that it was entitled to a setoff on the Plaza Resort and Spa project.” Because Bose clearly set forth that he was owed money on this project the burden shifts to Campo to prove any affirmative defense. Campo only presented contradictory evidence by using approximations in his affidavit, invoices claiming chargebacks from 2002 but invoiced in 2007, and the 14affidavit of a CPA that has no personal knowledge of Bose’s work on the various projects. This is not enough to defeat summary judgment.

Campo’s third assignment of error alleges that the court erred “by failing to find that Campo made a sufficient showing that it was entitled to a setoff on the Ambulatory Surgical Center Project.” Because Bose clearly set forth that he was owed money on this project the burden of proof shifts to Campo to prove any affirmative defense. In support of his claim for a $4,100.00 chargeback, Campo again submits his self-serving affidavit, which alleges no monetary amount of setoff for this project, and the affidavit of a certified public accountant who has no personal knowledge of occurrences at the job site or with the project. Again, Campo has failed to present sufficient evidence to create an issue of material fact.

Campo’s fourth assignment of error alleges that “[t]he trial court erred in making impermissible credibility determinations on a motion for summary judgment, and failing to assume that all of the affi-ants are credible.” There were a total of three affidavits submitted in this case. In his affidavit, Bose attests that he has personal knowledge- of the matter and further attests that all invoices submitted in the case are true and correct to the best of his knowledge. One of the two affidavits submitted by Campo did not support the documents submitted and the other did not state that the affiant had personal knowledge of Bose’s actions nor did it state that the documents presented by Campo were true and correct. The trial court weighed the evidence in front of it and made its evaluation that summary judgment was appropriate. Accordingly, this assignment of error is without merit.

| ¡jCampo’s fifth assignment of error is that “[t]he trial court erred in failing to resolve evidentiary doubts in favor of the party opposing the motion.” Campo’s affidavit only offers approximations and the CPA’s affidavit fails to authenticate the documents as true and correct and fails to offer personal knowledge of Campo’s allegations against Bose. The trial court only needed to determine if Campo could bear the burden of proof at trial with regard to the setoffs. It is clear from the evidence that Campo will not be able to bear his burden of proof with regard to the setoff defense. Accordingly, this assignment of error is without merit.

Campo’s final assignment of error is that “[t]he trial court erred in failing to find that a genuine issue of material fact exists as to whether payments made by Campo were properly credited.” This assignment of error is without merit. Bose has never disputed that Campo made a payment in the amount of $33,706.35 using check number 16479. Bose set forth how this payment was credited. In its exhibits, Bose details exactly how this payment was credited on Campo’s account.

For the foregoing reasons, we find that there are no genuine issues of material fact in this case and that Bose is entitled to judgment as a matter of law. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

TOBIAS, J., concurs and assigns reasons.

TOBIAS, J.,

concurs and assigns reasons.

|TI respectfully concur. Richard v. Hall, 03-1488, p. 5 (La.4/28/04), 874 So.2d 131, 137, requires the defendant in this case to produce “factual support sufficient to establish they will be able to satisfy their evidentiary burden of proof at trial.” I do not find that documentation such as the “Architectural Services Chargeback to John C. Bose, Consulting Engineer, A Professional L.L.C.,” dated “April 26, 2007” [emphasis supplied] attached to the defendant’s memorandum in opposition to the plaintiffs motion for summary judgment filed on 5 April 2007 in the trial court would qualify as a proper factual support. It tends to imply fabrication of evidence which would allow a trial court to apply the falsus in uno doctrine or, at the very least, cause the trial court to strain at a gnat and after swallowing a camel. World Trade Center Taxing District v. All Taxpayers, Property Owners, and Citizens of World Trade Center Taxing District and Nonresidents Owning Property or Subject to Taxation Therein, 05-0048, p. 17 (La.App. 4 Cir. 2/1/05), 894 So.2d 1185, 1196, affd, 05-0374 (La.6/29/05), 908 So.2d 623.


author: MAX N. TOBIAS, JR., Judge.

text:
    Doris EVERHARDT, Individually and as Administratrix of the Estate of Carroll Everhardt v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2007-CA-0981.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 2008.

      Salvador E. Gutierrez, Jr., Mary Ann Hand, Gutierrez <& Hand, Chalmette, LA, for Doris Everhardt, Penny Holden, and Tina Everhardt Morales.
    Charles C. Foti, Jr., Attorney General, William S. Culver, Jr., Assistant Attorney General, Louisiana Department of Justice, Litigation Division, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, Jr.).
   MAX N. TOBIAS, JR., Judge.

|TIn this wrongful death action, the State of Louisiana, Department of Transportation and Development (“DOTD”), appeals from a judgment finding it 30% at fault for causing and/or contributing to an accident that resulted in the untimely death of Carroll Everhardt. After a review of the record, we affirm the trial court’s judgment.

On 2 July 1998, the decedent, Carroll Everhardt (“Carroll”), was operating a dump truck on Louisiana Highway 46 (sometimes referred to as “La. 46 Extension” or “La. 46”) located in St. Bernard Parish hauling loads of dirt. Assisting Carroll in his dirt-hauling operation was Gerard Dugue (“Dugue”), who was operating a second dump truck owned by Carroll. During the two-and-a-half-week period leading up to 2 July 1998, the two men had been hauling loads of dirt five days a week, approximately eight-round trips per day. The ten-to-twelve mile route the men used was the same each day: they picked .up the dirt at an excavation site located off of La. 46 in between Sugar Mill and Kenil-worth, then traveled La. 46 to Lafreniere, and turned south to Shell Beach to drop the load. During that entire two-and-a-half-week period, La. 46 was under construction by the | ^defendant, the Louisiana Department of Transportation and Development (“DOTD”), and was being resurfaced with asphalt.

On 2 July 1998, Dugue was traveling west on La. 46 towards Shell Beach in Carroll’s red dump truck, when he noticed Carroll’s white dump truck parked on the opposite shoulder of the highway. When Dugue stopped to see if there was a problem, Carroll advised him that the yoke on the drive shaft of his truck had been broken. Carroll instructed Dugue to continue on to Shell Beach to dump his load, and upon his return, he would hook the two trucks together and Dugue could tow him.

As instructed, Dugue dumped his load and returned to Carroll’s disabled truck; Carroll was waiting with a tow chain equipped with open-ended hooks on both ends. Carroll hooked one end of the tow chain to the right rear of Dugue’s truck, and hooked the other end of the chain to the left front of his truck. Carroll connected the two dump trucks with the chain by pulling the hook of one end of the chain through the steel eye mounted on the right rear of Dugue’s truck, tying a knot in it and latching the hook on to a steel link of the chain. Carroll then wrapped the hook on the other end of the chain to an open hook mounted on the steel frame of the front left side of the disabled truck and, likewise, latched the hook on to a steel link of the chain. Dugue entered his truck and eased it forward to remove any remaining slack in the chain. After personally observing that the chain was properly situated and tight, that the engine was running, and the air brakes were operational, Du-gue proceeded to tow Carroll, who was behind the wheel of his | struck. They traveled in tandem in the right lane heading west on La. 46 for approximately three miles without incident.

About one-quarter mile prior to having to execute a left-hand turn at the end of La. 46, Dugue reduced the accelerator on his truck and turned on the left-turn signal, letting Carroll know that they were getting ready to make the left-hand turn. As he did so, Dugue noticed that Carroll had likewise turned on his left-turn signal. As Dugue was moving into the left lane, he saw Carroll maneuvering his truck to the left lane as well. As he proceeded with the lane change, Dugue glanced in his side-view mirror and noticed Carroll’s left front tire was off of the asphalt roadway and into the grassy median. The asphalt road was situated higher than the ground. In an attempt to help straighten out Carroll’s truck, Dugue turned his dump truck to the right. As he did so, he looked into his mirror again and saw the entire left side of Carroll’s truck leaning to the left. According to Dugue, the entire left side of the disabled truck was completely off the asphalt roadway appearing as if the truck might flip over. At this point, Dugue realized the chain between the two trucks was no longer connected. He then drove his truck over to the far right side of the roadway, parked and exited the truck, and came back to check on Carroll. Dugue observed that Carroll’s truck was lying on its side on the roadway; Carroll had been ejected from the truck and was laying face-down on the ground adjacent to it. Upon approaching Carroll, Dugue found Carroll unconscious and non-responsive. Carroll was later pronounced dead at the scene.

|4In July 1998, La. 46 consisted of four lanes, two in each direction, separated by a wide median down the center, with a ten-foot outside paved shoulder and a four-foot wide inside paved shoulder. La. 46 was a straight stretch of road, with no curves. At the time of the accident, DOTD was in the process of resurfacing an eight-mile stretch of La. 46 with a new layer of asphalt. DOTD’s diaries maintained on this overlay project reflect that in the area of the highway where the accident occurred the asphalt overlay was completed on 16 June 1998. While temporary dash center lines dividing the lanes of travel were on the roadway, the permanent edge striping (fog lines) delineating where the travel lanes ended and the shoulder began had not yet been applied as of the date of the accident. The project diaries further indicate permanent edge striping was not laid until 13 July 1998, eleven days after the accident. Moreover, the project diaries show that from 16 June 1998 through 2 July 1998, nothing had been done to bring the shoulder in the area of the accident up to grade. The diaries establish that the shoulder was not brought up to grade until 6 July 1998. No “low shoulder” or other warning signs, barrels, or cones in the area of the highway where the accident occurred were present. The accident happened during daylight hours under sunny and dry conditions.

The plaintiff, Doris Everhardt (“Doris”), individually, and as administratrix of the Estate of Carroll, filed suit against DOTD on 28 August 1998, alleging negligence on the part of DOTD. Specifically, Doris averred that DOTD failed to have proper and adequate shoulders situated adjacent to the main traveled portions |Rof the roadway for purposes of providing safe utilization to a vehicle and failed to warn motorists of the unreasonably dangerous situation created by the incomplete highway and shoulder. Subsequently, Doris filed a supplemental and amending petition for damages, adding the decedent’s two surviving daughters, Penny Holden and Tina Everhardt, as parties plaintiff.

On 7 April 2003, DOTD filed a motion in limine or alternatively, a motion for summary judgment on the issue of spoliation of evidence, requesting that the trial court either dismiss the plaintiffs’ claims or allow DOTD to invoke the adverse presumption that the evidence disposed of (ie., the disabled truck, which was sold for scrap materials by Doris in the months following the accident), would have been unfavorable to the plaintiffs. Additionally, on 10 September 2003, DOTD filed a motion in limine to strike Duaine Evans (“Evans”) as an expert witness on the grounds that his testimony did not meet the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as adopted by Louisiana in State v. Foret, 628 So.2d 1116 (La.1993). A hearing on DOTD’s motions was held and the trial court denied both motions, assigning written reasons. DOTD did not seek supervisory review of the trial court’s decision.

A thrée-day jury trial on the merits was held and a verdict was returned on 12 August 2005, wherein the jury allocated 30% of the fault for causing the | ^accident to DOTD, assessed 70% of the fault to Carroll Everhardt, and awarded the following damages:

Wrongful death to Doris $362,500.00
Wrongful death to Penny Holden . 65,000.00
Wrongful death to Tina Everhardt Morales 65,000.00 Survival Damages 0.00
Loss of Earnings 53,291.00
■ TOTAL: $545,791.00

On 15 August 2005, the trial court entered judgment in accordance with the jury’s verdict. DOTD timely filed a motion and order for suspensive appeal from this judgment, assigning the following errors: (a) the trial court erred in denying DOTD’s motion in limine regarding spoliation of evidence; (b) the trial court erred in denying DOTD’s motion in limine to strike the expert testimony of Evans; (c) the trial court erred in denying DOTD’s motion for involuntary dismissal; (d) the trial court erred in failing to sustain DOTD’s objection to the testimony of the plaintiffs’ accident reconstruction expert, Oscar Griffith, on the basis of cumulation; and, (e) the jury erred and/or abused its discretion in assessing any fault for the accident to DOTD.

DOTD’s first four assignments of error pertain to. evidentiary matters. In Jones v. Peyton Place, Inc., 95-0574, pp. 11-12 (LaApp. 4 Cir. 5/22/96), 675 So.2d 754, 763, this court stated that “[a] trial court’s ruling on ... evidentiary issues will not be disturbed unless a clear abuse of discretion is shown.” See also Sanford v. City of New Orleans, 03-0883, p. 13 (La.App. 4 Cir. 1/21/04), 866 So.2d 882, 890 and Tadlock v. Taylor, 02-0712, p. 7 (La.App. 4 Cir. 9/24/03), 857 So.2d 20, 27. For the reasons that follow, we do not find that the trial judge abused his discretion in ruling on these evidentiary matters.

A. Spoliation of Evidence

DOTD sought dismissal of the plaintiffs’ case or an adverse-presumption instruction to the jury regarding the destruction of physical evidence; namely, the disabled dump truck. The theory of spoliation of evidence refers to the “intentional destruction of the evidence for the purpose of depriving the opposing parties of its use.” Constans v. Choctaw Transport, Inc., 97-0863, p. 36 (La.App. 4 Cir. 12/23/97), 712 So.2d 885, 902 citing Randolph v. General Motors Corp., 93-1983, p. 12 (La.App. 1 Cir. 11/10/94), 646 So.2d 1019, 1027. A court may either exclude the spoiled evidence or allow the jury to infer that the party spoiled the evidence because the evidence was unfavorable to that party’s case. Lafayette Ins. Co. v. CMA Dishmachines, 2005 WL 1038495, at *3 (U.S.D.C., E.D.La.4/26/05). Before a court may exclude spoiled evidence or provide for an adverse inference to arise from the intentional destruction of evidence, “the party having control over the evidence must have had an obligation to preserve it at the time it was destroyed.” Kronisch v. U.S., 150 F.3d 112, 126 (2d Cir.1998). Such a duty “arises when the party has notice that the evidence is relevant to the litigation.” Id. Once a court concludes that a party was obliged to preserve the evidence, it must then consider whether the evidence was intentionally destroyed and the likely contents of that evidence. See Id. at 127. See also Caparotta v. Entergy Corp., 168 F.3d 754, 756 (5th Cir.l999)(adverse inference “predicated on bad conduct”); Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir.l995)(requiring intentional and willful conduct); Anderson v. Production Management Corp., 2000 WL 492095 at *3 (U.S.D.C., E.D.La.4/25/00)(no adverse inference absent a showing of bad conduct). Furthermore, the presumption that evidence that a litigant fails to produce is detrimental to his case is not applicable when the failure to produce the evidence is adequately explained. Constans, supra at p. 12, 712 So.2d at 902; Boh Brothers Constr. Co. v. Luber-Finer, Inc., 612 So.2d 270, 274 (La.App. 4 Cir.1992).

The accident in this matter occurred on 2 July 1998, and Doris filed her suit on 24 August 1998. Doris’ original petition was served on DOTD on 28 August 1998; DOTD filed its answer on 10 February 1999. Also on 10 February 1999, seven months and one week postaccident, DOTD forwarded interrogatories and requests for production of documents to the plaintiffs, which included the following, inter alia:

Interrogatory No. 29: Please state the specific address of the current location of the truck involved in this litigation.
Request for Production No. 16: Please produce the truck driven by Carroll Ev-erhardt and the truck driven by Gerard Dugue at the time of the accident, for inspection by defendant’s expert.

In response, the plaintiffs answered that Carroll’s truck had previously been sold for scrap materials. Thereafter, DOTD deposed Doris seeking information regarding the sale of the truck. She testified as follows:

Q. Do you know where the truck is now?
A. No. It was sold in parts,
Q. Do you remember when?
A. No.
Q. Would it be a couple of days after the accident? A couple of months after the accident?
A. No, uh-uh (negative response). It was about a year.

Doris further testified that the vehicle was kept at Car Craft in Chalmette until it was sold.

Based on the above testimony, DOTD averred that, based on Doris’ testimony that she did not sell the truck for scrap materials until “about a year” after the accident, the truck was not disposed of until after DOTD had specifically requested the plaintiffs to produce it for inspection. Conversely, the plaintiffs maintained that even though Doris could not state specifically how long after the accident the truck was sold, the sale definitely took place prior to their having knowledge of any request from DOTD to inspect it.

In denying DOTD’s request for a spoliation instruction, the trial court found that the doctrine of spoliation was not applicable because DOTD failed to establish that the plaintiffs intentionally destroyed the evidence for the purpose of depriving DOTD of its use. Additionally, the trial court held that the evidence presented at the hearing on DOTD’s motion did not conclusively support the position that the plaintiffs had notice that the evidence was relevant to the litigation and, therefore, |1nno obligation to preserve the evidence existed at the time the vehicle was sold for scrap. Further, the trial court concluded that, even if the plaintiffs were obliged to preserve the dump truck, they reasonably explained its destruction, precluding the application of the adverse presumption rule. We agree.

The trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed on appeal absent a clear abuse of that discretion. Sanford, supra at p. 13, 866 So.2d at 890. We find no evidence in the appellate record that supports a finding that the plaintiffs intentionally disposed of the truck for purposes of depriving DOTD from inspecting it or discovering evidence that would be detrimental to their case. Further, the record establishes that after DOTD was served, it made no attempt to examine the truck prior to it being sold for scrap materials. Accordingly, we find no error in the trial court’s denial of DOTD’s motion in limine.

B. Motion to Strike Plaintiffs’ Expert, Evans

Prior to the trial of this matter, DOTD filed a motion, in limine to strike the testimony of Evans, the plaintiffs’ expert in traffic highway design and traffic engineering. DOTD argued that Evans failed to apply any scientific standards to arrive at his opinion as to the cause of Carroll’s accident and resulting death in accordance with the admissibility requirements for expert testimony as set forth in Daubert. After conducting the required Daubert hearing, and analyzing and determining that Evans’ qualifications and proposed testimony met the Daubert U standard for admissibility, the trial court denied DOTD’s motion, issuing written reasons. DOTD now re-urges its previously denied motion.

The record reflects that, at the trial of this matter, Evans was tendered by the plaintiffs as an expert in the field of traffic highway design and traffic engineering without objection from DOTD. The plaintiffs correctly argue that by failing to raise an objection to Evans’ testimony at trial, DOTD effectively waived any objections it might otherwise have had as to his expert qualifications or the admissibility of his expert testimony. See La. Code Evid. art. 103 (an error cannot be predicted upon a ruling that admits evidence unless a timely objection appears of record); Leard v. Schenker, 06-1116, p. 3 (La.6/16/06), 931 So.2d 355, 357; Bush v. Winn-Dixie of La., Inc., 573 So.2d 508, 513-514 (La.App. 4 Cir.1990). Moreover, the record further reflects that at the close of the second day of trial, following Evans’ testimony and after the plaintiffs rested their case-in-chief, counsel for DOTD stated the following on the record:

Before we go off the record, there is one thing of housekeeping I would like to do. Just for the record, before Mr. Dwayne [sic] Evans was called to the stand as plaintiffs’ expert, we had a bench conference. I had filed a Motion in Limine for a Dobert [sic] hearing to exclude Evans. Counsel for plaintiff stipulated that he would only be testifying to traffic engineering, as opposed to accident reconstruction. So I will moot and withdraw my Motion in Limine to exclude Evans.

We find that DOTD’s withdrawal of its objection following Evans’ expert testimony is a waiver of its right to renew the objection on appeal. We further find that, to the extent DOTD attempts to assert different grounds as the basis for its h¡>prior objection, this, too, is prohibited on appeal. See Bush, 573 So.2d at 513. Accordingly, this assignment of error is without merit.

C. DOTD’s Motion for Involuntary Dismissal

At the close of the plaintiffs’ case, DOTD moved for an involuntary dismissal of all claims made against it by the plaintiffs. While the record on appeal reflects that DOTD timely moved for an involuntary dismissal and that the court denied its motion, DOTD’s oral argument and the specific grounds supporting its motion are not contained in the record on appeal. Technically, the motion for involuntary dismissal was not the proper procedural vehicle because this matter was not tried by a judge, but a jury. DOTD should have moved for a directed verdict under La. C.C.P. art. 1810. We address this assigned error, however, by examining whether a directed verdict should have been granted based on our review of all the evidence in the light most favorable to the plaintiffs. La. C.C.P. art. 1810 provides:

A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict that is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a |1sdirected verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

The trial judge has much discretion in determining whether or not to grant a motion for directed verdict. Delaney v. Whitney National Bank, 96-2144, pp. 9-10 (La.App. 4 Cir. 11/12/98), 703 So.2d 709, 717. The motion is appropriately made at the close of the evidence offered by the opposing party and should be granted when, after considering all eviden-tiary inferences in the light most favorable to the non-moving party, it is clear that the facts and inferences so overwhelmingly favor a verdict for the movant, that reasonable jurors could not have arrived at a contrary conclusion. Thomas v. A.P. Green Industries, Inc., 05-1064, p. 19 (La. App. 4 Cir. 5/31/06), 933 So.2d 843, 858. If there is substantial evidence opposed to the motion, ie., evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied and the case submitted to the jury. Id.

The standard of review on appeal of a directed verdict is whether reasonable persons could not reach a contrary verdict under the evidence. Davis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 03-2219, pp. 7-8 (La.App. 4 Cir. 11/17/04), 887 So.2d 722, 727. The question to be asked by the appellate court is not whether a plaintiff proved his case by a preponderance of the evidence, but rather, whether upon reviewing the evidence submitted, the court could conclude that reasonable persons could not have reached a verdict in favor of the plaintiff. Id. The appellate court must also determine if the record supports the granting of a directed verdict, based not on a credibility determination (a factual issue), but on a sufficiency-of-evidence | udetermination (a question of law). Id.; Lott v. Lebon, 96-1328, p. 4 (La.App. 4 Cir. 1/15/97), 687 So.2d 612, 616. A directed verdict must be sustained on appeal where the reviewing court would find a jury verdict in favor of the party opposing the motion to be manifestly erroneous had the trial judge allowed the case to go to the jury. Wichser v. Trosclair, 99-1929, p. 5 (La.App. 4 Cir. 2/28/01), 789 So.2d 24, 27. The court of appeal considers the evidence under the substantive law applicable to the nonmov-ing party’s claim. Tanner v. Cooksey, 42,-010, p. 6 (La.App. 2 Cir. 4/4/07) 954 So.2d 335, 339.

The record in the instant case shows that the plaintiffs offered evidence of fault on the part of DOTD for failing to place proper signage or warning devices to alert motorists of the low shoulder in the area of the accident where the drop-off from the travel lane to the shoulder was in excess of five inches; for failing to timely bring the shoulder of the highway up to grade following the laying of asphalt in the area of the accident; and, for failing to timely put fog lines or edge markers in place once the asphalt overlay on the portion of the roadway where the accident occurred was completed. The record contains sufficient evidence on the issue of fault for reasonable and fair-minded jurors to reach different conclusions. Accordingly, a motion for a directed verdict would have been properly denied.

We find that the trial court did not abuse its discretion in denying DOTD’s motion, regardless of the moniker assigned to it. Sufficient evidence as to DOTD’s alleged negligence to allow the matter to be decided by the jury was present. Accordingly, we find the assignment of error to be without merit.

D. Admissibility of the Testimony of the Plaintiffs’ Expert, Dr. Frank Griffith

|1fiAt trial, the plaintiffs offered the testimony of two experts in the field of accident reconstruction: Raymond Bur-kart (“Burkart”) and Dr. Frank Griffith. DOTD objected on the basis of cumulation to the testimony of Dr. Griffith as an additional expert in the field; the objection was overruled by the trial court.

A trial court is accorded broad discretion in determining whether expert testimony should be admissible" and who should or should not be permitted to testify as an expert. Cheairs v. State ex rel. Dept. of Transp. and Dev., 03-0680, p. 6 (La.12/3/03), 861 So.2d 536, 541 citing 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 702[02] (1981). Whether an expert meets the qualifications of an expert witness and the competency of the expert witness to testify in specialized areas is within the sound discretion of the trial court. Id. A district court’s decision to qualify an expert will not be overturned absent an abuse of discretion. Id. See also State v. Castleberry, 98-1388, p. 37 (La.4/13/99), 758 So.2d 749, 776. Additionally, where evidence is admitted that is merely cumulative of other evidence in the record, any error in its admission is generally viewed as harmless. Kaufman v. Sewerage & Water Bd. of N. O., 99-1942, p. 15 (La.App. 4 Cir. 5/3/00), 762 So.2d 644, 653. See also Graves v. Riverwood International Corp., 41,810, p. 6 (La.App. 2 Cir. 1/31/07), 949 So.2d 576, 582.

In the case at bar, the plaintiffs first offered Burkart’s testimony, which centered upon “driver reaction and driver response” to roadway conditions similar to those existing on La. 46 at the time of the subject accident. Next, the plaintiffs offered the testimony of Dr. Griffith, whose testimony emphasized the physics and geometry of the subject accident. We find that the trial court correctly determined that the testimony of these witnesses was not cumulative. Although the two experts 11(ireached the same conclusion (the decedent’s roll-over accident would not have occurred absent the substantial drop-off from the travel portion of the roadway on La. 46 to the adjacent grassy median), the experts focused on different aspects or areas of accident reconstruction in formulating their opinions. Moreover, to the extent the testimony of Burkart and Dr. Griffith may have overlapped or possibly be viewed as cumulative, any error in admitting the cumulative testimony was harmless. We find this assignment of error is without merit.

E. Jury’s Assessment of Fault to DOTD

The jury returned a verdict in which it found DOTD 30% at fault and Carroll 70% at fault. DOTD contends that it should be absolved of all liability as the accident was Carroll’s sole fault in implementing and utilizing an improper towing method. Conversely, the plaintiffs aver that the jury’s verdict is well supported by the evidence.

DOTD has a legal duty to maintain the public highways in a reasonably safe condition. Sinitiere v. Lavergne, 391 So.2d 821, 824 (La.1980). This duty extends to the shoulders of the highways as well. Graves v. Page, 96-2201, pp. 12-13 (La.11/7/97), 703 So.2d 566, 572; Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170, 1172 (La.1986); Rue v. State, Dept. of Highways, 372 So.2d 1197, 1199 (La.1979). The highway department’s duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on, the shoulder. Petre v. State ex rel. Dept. of Transp. and Dev., 01-0876, p. 8 (La.4/3/02), 817 So.2d 1107, 1112; Ledoux v. State, Through Dept. of Transp. and Dev., 98-0024, p. 3 (La.9/18/98), 719 So.2d 43, 44. However, in recognizing the existence of this duty, this court has held that that DOTD is not a guarantor of the safety of those vyho travel highways of this state. Updegraff v. State, Through Dept. of Transp. and Dev., 01-1048, pp. 3-4 (La.App. 4 Cir. 10/2/02), 828 So.2d 693, 698, citing Ryland v. Liberty Lloyds Ins. Co., 93-1712 (La.1/14/94), 630 So.2d 1289. DOTD’s duty to the traveling public is breached only when the highway at the scene of the accident is found to create an unreasonably dangerous condition. Id. at p. 4, 828 So.2d at 698. DOTD’s duty to maintain reasonably safe roadways encompasses persons who are foreseeably placed in danger by unreasonably dangerous conditions; that under our comparative negligence system, even motorists who are slightly exceeding the speed limit, momentarily inattentive, or otherwise negligent may recover from DOTD. Id.

DOTD contends that the jury erred in determining La. 46 contained a defect — i.e., a significant drop off from the travel portion of the roadway to the grassy median — that created an unreasonable risk of harm to Carroll. Whether a defect presents an unreasonable risk of harm must be decided on the particular facts and circumstances of each case. See Hunter v. Dept. of Transp. and Dev., 620 So.2d 1149, 1151 (La.1993). The jury’s determination in this regard is factual in nature. We evaluate findings of the trier of fact under the manifest error or clearly wrong standard. Rosell v. ESCO, 549 So.2d 840 (La.1989). Under the manifest error standard, a factual finding cannot be set aside unless the appellate court finds that the trier of fact’s determination is manifestly erroneous or clearly wrong. Detraz v. Lee, 05-1263, p. 7 (La.1/17/07), 950 So.2d 557, 561. In order to reverse a fact finder’s determination of fact, an appellate court must review the |7Srecord in its entirety and find that a reasonable factual basis does not exist for the finding and that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id.

The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Id. See also Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217, p. 11 (La.4/3/02), 816 So.2d 270, 278-79. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong, even if the reviewing court would have decided the case differently. Detraz, supra at p. 7, 950 So.2d at 561. Louisiana courts have consistently held that causation is a factual finding, which should not be reversed on appeal absent manifest error. Id. The issue- to be resolved is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992). Thus, even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where testimony conflicts. Ledoux, supra at p. 4, 719 So.2d at 45.

Similarly, the trier of fact is afforded great deference in its allocation of fault. Even if the reviewing court would have apportioned fault differently had it been the original trier of fact, the judgment of the trial court should be affirmed unless manifestly erroneous or clearly wrong. See Dupree v. City of New Orleans, 99-3651, p. 19 (La.8/31/00), 765 So.2d 1002, 1015.

11flProper deference to the manifest error rule protects a litigant, plaintiff or defendant, from being subjected to multiple trials by preventing the appellate courts from reevaluating and reweighing evidence to reach an independent decision without giving due deference to the trial court’s function. Updegraff, supra at p. 6, 828 So.2d at 699. With these precepts in mind, we now turn to a review the record to determine if the jury’s findings of fact were reasonable in light of the evidence contained in the record.

The plaintiffs’ averred DOTD breached its duty to properly maintain the shoulder of La. 46 during the construction project in that a significant drop off from the roadway to the median existed; no warning signs or cones were placed in the area advising motorists of the dangerous condition existing in the roadway; and the roadway lacked an edge or fog line advising motorists of where the travel portion of the roadway ended and the median began. The plaintiffs’ contended that when Carroll’s truck veered off the asphalt onto the grassy median and Carroll attempted to regain the roadway, he encountered a defect in the roadway — a drop-off in excess of four inches — which caused his truck to bounce up and flip over.

Louisiana jurisprudence is replete with cases holding that a drop-off from the roadway to the shoulder in excess of four inches constitutes a defect in the roadway and presents an unreasonable risk of harm to the traveling public. See LeBlanc v. State of Louisiana, 419 So.2d 853 (La.1982)(four to six-inch drop off of the shoulder created a dangerous hazard); Perez v. State of Louisiana, Through the Dept. of Transp. and Dev., 578 So.2d 1199 (La.App. 4 Cir.l991)(roadway Lnwas defective because it had an eight-inch drop from the road to the shoulder and state held to be 40% negligent); Roberts v. State, Through the Dept. of Transp. and Dev., 576 So.2d 85 (La.App. 2 Cir.l991)(three to five-inch drop off constituted an unreasonably dangerous condition); Brown v. State, Through the Dept. of Transp. and Dev., 04-912 (La.App. 5 Cir. 2/15/05), 896 So.2d 1136 (DOTD found liable for accident involving seven to ten-inch drop off); Aday v. State, Through the Dept. of Transp. and Dev., 06-1181 (La.App. 3 Cir. 2/7/07), 950 So.2d 928 (summary judgment granted on the issue of liability in favor of motorists on grounds that a shoulder with a four- and-one-half inch drop off constituted a defect in the shoulder); Bozeman v. State, Through the Dept. of Transp. and Dev., 34,430 (La.App. 2 Cir. 4/4/01), 787 So.2d 357 (a three-ineh drop off presents an unreasonable risk of harm); Guzman v. State, Through the Dept. of Transp. and Dev., 95-0957 (La.App. 1 Cir. 12/15/95), 664 So.2d 1343 (a three-inch drop off found to constitute a defect with the state being held 50% liable); Hood v. State, Through the Dept. of Transp. and Dev., 587 So.2d 755 (La.App. 2 Cir.l991)(a four-inch shoulder drop off deemed unreasonably dangerous to normal use); Caruthers v. State, Through the Dept. of Transp. and Dev., 97-1450 (La.App. 3 Cir. 4/15/98), 711 So.2d 420 (generally, a roadway ,is. considered defective and unreasonably dangerous when the depth of its drop off exceeds two inches). We find the plaintiffs presented ample evidence to the jury that supports its determination that the roadway was defective and presented an unreasonable risk of harm to Carroll.

1⅞1 First, Louis Pomes (“Pomes”), a 23-year employee of the St. Bernard Parish Government, Department of Public Works, testified that he came upon the accident scene soon after it occurred. Pomes was employed in Road Maintenance and was familiar with road and overlay projects such as the one being conducted by DOTD on La. 46. He testified that when he arrived at the scene, he looked at the scene and examined the roadway in the area of the accident. Pomes testified that the asphalt portion of the roadway was higher than the adjacent ground; he measured the drop off using a yardstick. Mr. Pomes took photographs on the day of the accident, which depict his measurements with the yardstick and show a drop off of approximately eight to nine inches in the area where he estimated the accident occurred. According to Pomes, it appeared to him that Carroll’s truck went off the road at the point of the eight to nine-inch drop off and where the wheel marks went into the asphalt as the truck reentered the roadway. He further testified that, as a road supervisor with 23 years experience, when he looked at the roadway and saw the six to nine inch overlay, he would not have permitted traffic to travel on that type of roadway.

Next, Michael Ferguson (“Ferguson”), DOTD supervisor in charge of the La. 46 resurfacing project in July 1998, testified that he was on the construction job daily, and that had he seen a drop off of four to five inches, he would havej^notified the contractor and advised him to stop the project until the situation was corrected. The project diaries maintained on this project evidence that between 16 June 1998, when the asphalt in the area of the accident was laid, and 2 July 1998, the day of the accident, nothing was done to bring the shoulder along La. 46 up to grade. Ferguson further testified that it was his job to determine whether or not to place “low shoulder” signs along the roadway in the area of a construction zone, and that if there was a drop off of four to five inches, this would be considered unsafe and it would be appropriate for him to direct the erection of “low shoulder” signs. Mr. Ferguson could not recall placing low shoulder signs on La. 46 during the overlay construction project in 1998. He also testified that when an overlay of the asphalt is completed, the edge line should be in place within a two-week period. He conceded that it would be safer for the traveling public if the edge line markers were placed on the roadway on the same day the work is completed. The project diaries for the La. 46 overlay project indicate that the edge line was not placed until 13 July 1998.

Edmund Gipson, an inspector for DOTD who worked on the La. 46 overlay project, testified that he was on the job daily with Ferguson, but did not specifically look to see if there was any drop off from the travel portion of the roadway to the median. Nonetheless, he testified that a five to six-inch drop off of the roadway is unsafe and would require correction.

Evans opined that the absence of an edge line played a part in causing Carroll’s accident since the edge line would have provided him with some | ^guidance as to where the travel portion of the roadway ended and the grassy median began. Evans testified that a drop off of five inches from the hard surface of the road would be extremely unsafe and would cause a driver to lose control when he attempted to regain the roadway, which in his opinion, is what happened when Carroll tried to bring his disabled truck back onto the roadway.

Both Burkart and Dr. Griffith were of the opinion that the primary causative factor of the accident was the drop off encountered by Carroll as he tried to reenter the road from the shoulder. Burkart testified that as Carroll tried to reenter the travel lane, his front right tire lifted upward when it encountered the elevated roadway, causing the truck to bounce up and roll over. According to Burkart, the Pomes photographs confirm the presence of divots in the asphalt overlay caused by the tires of Carroll’s truck as Carroll attempted to get back onto the road.

Dr. Griffith testified that the right front wheel of Carroll’s truck contacted the “drop off’ causing the wheel to have enough force to flip the truck on its side and roll over. Dr.' Griffith also testified that he ran some' simulations to see if this same type of motion' would have occurred had the truck encountered a drop off of two to three inches, and determined that the truck would not have rolled over had it not been for the combination of the side forces and the impulse that was given to |S4the right front tire when it hit the large drop-off causing it to bounce up and roll over.

DOTD’s accident reconstruction expert, Nalle, disagreed that the lack of a low shoulder sign or edge line marker contributed to the accident and that the drop off — if one existed in the area of the accident — did not play a role because the truck rolled over in the grassy median prior to any attempt to regain the roadway. According to Nalle, the sole cause of the accident was the improper towing method employed by Carroll. Nalle opined that when the tow chain linking the trucks together came loose, it got caught in the front wheel of Carroll’s truck causing him to lose control and to over-steer the truck to the left to overcome the pull from the right. Nalle further opined that the brakes of the truck locked contributing to Carroll’s loss of control of the truck. The out-of-control truck then entered the grassy median and rotated or spun out to the right due to the over-steering applied by Carroll in an attempt to regain the roadway. Once the chain got locked up in the front wheel, he opined, only 3.8 seconds -passed before the truck went off of the road giving Carroll virtually no time to look up and see the edge line marker warning him to steer back onto the roadway. In short, Nalle posited that Carroll lost control of the truck before he would have had time to even consider road signs warning him that he was leaving the roadway, and having an edge line marker would have made no difference or prevented the accident from occurring. Nalle Issfurther posited that, to the extent there actually was a large drop off, it would not have played any role in the accident since the truck was already flipping when it reentered the roadway. According to Nalle, his opinion is supported by Pomes’ photographs, and the divot shown in the asphalt was not caused by the truck’s tires as it attempted to regain the roadway as testified to by the plaintiffs’ experts, but rather, was caused by the “headache bar” as the truck rolled over from the median onto the roadway.

DOTD, relying Netecke v. State ex rel. Dept. of Transp. and Dev., 98-1182 (La.10/19/99), 747 So.2d 489, argues that its duty to the traveling public to maintain highways in a reasonably safe condition for motorists driving in a non-negligent manner does not extend to Carroll since, based on Nalle’s expert testimony, he was employing an improper towing method and was proceeding on the highway in a negligent manner. The plaintiffs’ experts, however, rebutted Nalle’s proposed theories regarding how and where the truck began to roll over. Burkart testified that the physical evidence disputes Nalle’s opinions, and Dr. Griffith noted an incompatibility between the measurements utilized by Nalle in formulating his opinions and those taken by the investigating officer on the date of the accident.

The parties presented two opposing views concerning the cause of the accident at issue herein. The jury’s decision regarding liability obviously turned on its choice between those two theories of liability. When the court has allowed both parties to present their experts before making its factual determinations, the 12fifact finder’s choice of alternative permissible views cannot be considered to be manifestly erroneous or clearly wrong. See Cheairs, supra at pp. 15-16, 861 So.2d at 546. Credibility determinations, including evaluating expert witness testimony, are for the trier of fact. Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-0201, p. 6 (La.10/19/99), 748 So.2d 417, 421.

The jury’s factual determination that the drop-off from the asphalt to the grassy median presented an unreasonably dangerous condition in the roadway that, in part, caused and/or contributed to the accident and Carroll’s resulting death is entitled to great deference on appeal and is supported by a reasonable factual basis in the record. Accordingly, we find the jury’s allocation of 30% of the fault for the accident to DOTD for failing to properly maintain the shoulder of the roadway in a construction zone is not manifestly erroneous or clearly wrong.

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

AFFIRMED.

      . This issue is discussed in detail below.

      . The plaintiffs' supplemental and amending petition was filed on 28 January 1999, and was served on 2 February 1999.

      . At trial, DOTD’s accident reconstruction expert, William Nalle (“Nalle”), testified that he relied upon the deposition of the owner of Car Craft, Calvin Schenck, which deposition was not admitted into evidence at trial, in formulating his expert opinion. According to Nalle's testimony at trial, Mr. Schenck testified in his deposition that the disabled “truck stayed in his lot six to seven months” after the accident before someone came and removed it from his yard.

      . In pertinent part, La. C.C.P. art. 1672, dealing with motions for involuntary dismissal, provides:
      B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence. [Emphasis supplied.]

      . The only Pomes photographs contained in the record on appeal are those admitted into evidence by DOTD; those admitted by the plaintiffs were destroyed in Hurricane Katrina, and the plaintiffs did not move to supplement the record on appeal with copies of the photographs or other destroyed exhibits.

      . DOTD avers that Pomes had credibility problems as he failed to reveal to the jury that he was related to Carroll. The jury apparently disregarded this assertion and found Pomes' testimony to be credible.

      . Burkart also opined that the lack of a road edge marker and construction warning signs about a low shoulder contributed to Carroll’s accident.

      . Reference is made in the record not only to photographs taken by Pomes, but also photographs taken by an investigating Louisiana State Trooper. To the extent these photographs were introduced into evidence at trial by the plaintiffs, we again note that these photographs are not contained in the record on appeal. Photographs in the appellate record depict the divots referred to by Burkart.

      .Apparently, Nalle testified in his original deposition that the cause of the accident was the drop off Carroll encountered when he attempted to regain the roadway causing the truck to flip over. Nalle changed his opinion after reviewing some of the photographs taken by Pomes, which he contended confirmed that the roll over occurred in the median and prior to Carroll’s truck reentering the roadway.

      . The jury’s allocation of 70 % of the fault to Carroll shows that it took into account his negligence in causing and/or contributing to his own accident and death, which would include consideration of the towing method he devised and employed.