author: MICHAEL E. KIRBY, Judge. TOBIAS, J., ARMSTRONG, C.J.,

text:
    Roslyn DAVIS and Murphy Davis v. Dr. Edward LAZARUS and Sheila Fontenot, CRNA.
    No. 2004-CA-0582.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 8, 2006.
    Rehearing Denied April 12, 2006.

      Joseph M. Bruno, Christopher J. Bruno, Bruno & Bruno, New Orleans, Counsel for Plaintiff/Appellee.
    Kurt S. Blankenship, Robert I. Baudouin, Blue Williams, L.L.P., Metairie, Counsel for Defendant/Appellant (Dr. Edward Lazarus).
    George E. Cain, Ann Marie Leblanc, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, Counsel for Interve-nor/Appellant (The Louisiana Patient’s Compensation Fund).
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS Jr., Judge LEON A. CANNIZZARO, Jr., Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

hln this medical malpractice case, Dr. Edward Lazarus and the Louisiana Patients’ Compensation Fund (“PCF”), appeal the December 5, 2003 trial court judgment in favor of plaintiffs Roslyn and Murphy Davis.

On June 10, 1997, plaintiff Roslyn Davis was admitted to Touro Infirmary for an outpatient laparoscopic surgical procedure. Mrs. Davis’ gynecologist, defendant Dr. Edward Lazarus, performed this procedure, which was completed without any immediate evidence of complications. Shortly after arriving in the recovery unit, Mrs. Davis began to experience breathing difficulties. She was diagnosed with a condition known as flash pulmonary edema, and was transported to the hospital’s intensive care unit (“ICU”). The flash pulmonary edema was resolved by no later than 7:30 a.m. on June 11, 1997. The plaintiffs do not contend that the flash pulmonary edema was the result of any negligence or fault on the part of Dr. Lazarus.

The medical care at issue in this lawsuit began with Dr. Lazarus’ visit with Mrs. Davis on the morning of June 11, 1997. When Dr. Lazarus saw Mrs. Davis at | ¡..approximately 7:30 a.m., the flash pulmonary edema had cleared. She had a temperature of 100.2. A physical examination revealed that her abdomen was soft, and bowel sounds were present but hypoactive. Dr. Lazarus ordered a complete blood count (“CBC”), started Mrs. Davis on oral fluids, discharged her from the ICU and transferred her to a room in the gynecology ward of the hospital.

At approximately 2:00 p.m. that same day, Dr. Lazarus ordered a flat and erect abdominal x-ray due to a rise in Mrs. Davis’ temperature. He also put Mrs. Davis on a broad-spectrum antibiotic. Later that afternoon, Dr. Lazarus viewed the film of the abdominal x-ray with the radiologist. Both thought that the x-ray showed signs of a post-operative ileus, or paralysis of the bowel. They discussed the possibility of a ruptured abdominal viscus or bowel perforation, but Dr. Lazarus did not think that was the case. Mrs. Davis’ primary care physician, Dr. Febry, saw Mrs. Davis next at 5:30 p.m. He noted that she had a temperature of 102 and had vomited in recovery post-extubation. Dr. Febry indicated in his notes that he would monitor Mrs. Davis closely for possible evolution of aspirational pneumonia, and that he agreed with Dr. Lazarus’ decision to treat Mrs. Davis with the antibiotic, Clarapham.

Dr. Lazarus saw Mrs. Davis at 6:30 p.m. She still had a temperature of 102, and he said he knew Mrs. Davis had been complaining of pain because Dr. Febry had ordered Percocet. He performed a physical examination and found no significant change from his earlier examination. Dr. Lazarus testified that he was concerned because Mrs. Davis-was not recovering as normally as he would have | «expected for someone who had undergone laparoscopy the day before. He ordered additional blood tests, including another CBC. He also ordered a Dulcolax suppository to see if he could get the bowel working by evacuating the rectum and lower colon.

The nursing staff called Dr. Lazarus at 7:30 p.m. that evening, and reported that Mrs. Davis’ temperature had spiked to 103. He ordered another CBC, and returned to the hospital at 9:15 p.m. to examine Mrs. Davis after picking up the results of her blood work. Her white blood count was stable so Dr. Lazarus did not think Mrs. Davis’ fever was being caused by infection, although he considered it a possibility. He also still considered bowel perforation a possibility at that time, in addition to other possible diagnoses. Dr. Lazarus noted at this visit that Mrs. Davis, who is a nurse, told him she felt that her pain was due to gas, and she requested a rectal tube to try to expel the gas. He gave the order for the rectal tube, and also discussed with Mrs. Davis the possibility of going back into surgery if her condition did not improve.

The next morning, June 12, 1997, Dr. Lazarus saw Mrs. Davis and found a significant change in her condition, namely, an acute abdomen. At that time, Dr. Lazarus made the decision to have a surgical consult with Dr. Ernest Cohen. Dr. Cohen suspected that the cause of the acute abdomen was peritonitis, but recommended surgery to rule out the possibility of a perforated bowel. Dr. Cohen performed surgery that afternoon, and found a perforation in the bowel. In the surgery, he made an open incision, repaired the bowel perforation, irrigated the |4abdomen to remove material that had entered Mrs. Davis’ abdomen as a result of the bowel perforation and then closed the incision. The surgery took approximately one hour. Mrs. Davis remained hospitalized after the surgery until June 19, 1997.

Three days later, on June 22, 1997, Mrs. Davis went to the emergency room complaining of pleuritic chest pain accompanied by fever. She was admitted to the hospital with a diagnosis of atelectasis in the right lower lung fields, with small pleural effusion. In his deposition, Dr. Cohen described atelectasis as “a partial, or can be total, collapse of the lung, where it’s not being filled with air.” He said that this condition is not uncommon postopera-tively in someone who has had a general anesthetic. Mrs. Davis was treated in the hospital with antibiotics and physical therapy until her release on June 25, 1997.

Mrs. Davis was hospitalized again on June 30, 1997 with fever and right pleural fusion. She was diagnosed with right thoracic empyema, which is pus in the chest cavity. Mrs. Davis was treated with antibiotics and underwent thoracentesis for removal of pleural fluid. She was discharged from the hospital on July 5, 1997. She returned to the hospital on July 8, 1997 to receive a blood transfusion due to anemia. Mrs. Davis was also hospitalized in September 1997 for a bowel obstruction.

Mrs. Davis and her husband, Murphy Davis, filed a petition for damages against Dr. Lazarus and Sheila Fontenot, CNRA. Plaintiffs subsequently dismissed Ms. Fon-tenot from the lawsuit. In their petition, plaintiffs allege that Dr. Lazarus | ¡¡committed medical malpractice by waiting too long to obtain a surgical consult for Mrs. Davis after her laparoscopic surgery, and failing to diagnose her perforated bowel and pleural effusion. Plaintiffs allege that the delay in obtaining a surgical consult required Mrs. Davis to undergo additional medical procedures and caused her to suffer post-traumatic stress disorder. Following a jury trial, the jury returned a verdict finding that Dr. Lazarus breached the standard of care, but that his breach was not a cause of the damages complained of by plaintiffs. The trial court rendered judgment in conformity with the jury’s verdict, and dismissed plaintiffs’ case against Dr. Lazarus with prejudice.

Following the trial court’s judgment, the plaintiffs filed a motion for new trial and/or a motion for judgment notwithstanding the verdict (“JNOV”). The trial court granted both motions, and rendered judgment in favor of plaintiffs and against Dr. Lazarus. The trial court awarded Mrs. Davis $350,000.00 for pain, suffering and mental anguish, and $107,549.53 for past medical bills. The court awarded Mr. Davis $50,000.00 for loss of consortium.

Dr. Lazarus filed a motion for new trial, asking the trial court to vacate its judgment granting plaintiffs’ motions for JNOV and new trial, and to reinstate the original judgment. Alternatively, Dr. Lazarus asked for the court’s judgment to be amended to reflect his participation in the PCF and to recognize his immunity to a judgment in excess of $100,000.00.

On December 5, 2003, the trial court denied Dr. Lazarus’ motion for new trial as to the trial court’s granting of plaintiffs’ motions for JNOV and new trial. | ^However, the trial court granted Dr. Lazarus’ motion for new trial solely for the purpose of conforming the previous judgment to the limitation of liability provided in the Louisiana Medical Malpractice Act. The amended judgment stated that because Dr. Lazarus is a qualified health care provider under the Louisiana Medical Malpractice Act, La. R.S. 40:1299 et seq., the judgment in favor of plaintiffs and against Dr. Lazarus is limited to the sum of $100,000.00 plus judicial interest from the date of plaintiffs’ filing of their claim with the PCF. The trial court recast the previous judgment to award Mrs. Davis $350,000.00 for pain, suffering and mental anguish and $107,549.53 for past medical bills, plus interest from the date of the filing of the complaint with the PCF. The court awarded Mr. Davis $50,000.00 for loss of consortium, plus judicial interest from the date of the filing of the complaint with the PCF. The amended judgment stated that the plaintiffs’ rights against the PCF are reserved to them as provided by law. The trial court granted the PCF’s petition to intervene in this matter for the purpose of appealing the December 5, 2003 trial court judgment. Dr. Lazarus and the PCF both filed timely appeals in this matter.

On appeal, both Dr. Lazarus and PCF argue that the trial court erred in granting the plaintiffs’ motions for JNOV and for new trial, and in awarding excessive damages. Additionally, the PCF argues that the trial court committed reversible error in allowing hearsay evidence over the objection of Dr. Lazarus.

In a medical malpractice action against a physician, a plaintiff must first establish by a preponderance of the evidence that the physician’s treatment fell 17below the ordinary standard of care expected of physicians in his medical specialty, and must then establish a causal relationship between the alleged negligent treatment and the injury sustained. La. R.S. 9:2794; Madison v. Ernest N. Morial Convention Center-New Orleans, 2000-1929 (La.App. 4 Cir. 12/4/02), 834 So.2d 578. As stated above, the jury found that Dr. Lazarus breached the standard of care, but that his breach was not a cause of the damages complained of by plaintiffs. ■ After initially rendering judgment in conformity with the jury’s verdict and dismissing plaintiffs’ claim against Dr. Lazarus, the trial court granted plaintiffs’ motions for JNOV and new trial and rendered judgment in favor of plaintiffs and against Dr. Lazarus and the PCF.

In Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 832 (La.1991), the Louisiana Supreme Court set forth the following criteria to be used in determining when a JNOV is proper:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. Scott, supra. In making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party-

The Supreme Court also set forth the standard of review of a JNOV as follows:

|sIn reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable men in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated.

Id. at 832.

Furthermore, as this Court stated in Selico v. Intercontinental Bulk Tank Corporation, 98-0763, p. 9 (La.App. 4 Cir. 5/12/99), 733 So.2d 1240, 1245, a trial court’s authority to grant a JNOV under Louisiana Code of Civil Procedure Article 1811 is limited by the jurisprudence to those eases where the jury’s verdict is absolutely unsupported by any competent evidence. (Emphasis ours.) The Fifth Circuit further amplified the strict standard for JNOV in the case of State, Department of Transportation and Development v. August Christina & Brothers, Inc., 97-244, pp. 8-9 (La.App. 5 Cir. 2/11/98), 716 So.2d 372, 377, as follows:

It is elementary that where a case is tried by a jury, that jury is the trier of fact. La. C.C.P. art. 1736, Scott v. Hosp. Serv. Dist. No. 1, 496 So.2d 270 (La.1986); Clayton v. State, Dept. Of Transp. & Development, 599 So.2d 394, 396 (La.App. 5 Cir.1992). The granting of a JNOV completely abrogates and nullifies this basic, mandated and well established role of the jury and, therefore, such action by a trial judge must always be reviewed with great care and caution. Clayton v. State, Dept. Of Transp. & Development, supra at 396; Jinks v. Wright, 520 So.2d 792 (La.App. 3 Cir.1987). [emphasis in original.]

The trial court issued written reasons for judgment in support of its decision to grant the JNOV. The trial court stated that “there are facts and inferences from |flthe evidence that strongly and overwhelmingly point to a conclusion different than that reached by the jury.” The court stated that the evidence reflected that Dr. Lazarus breached the standard of care by failing to timely operate on Mrs. Davis. The court further stated that Dr. Cohen and Dr. Michael Seneff both testified that had Dr. Lazarus operated on Mrs. Davis 15-24 hours earlier, there would have been 15-24 hours of less bacteria, including fecal matter pooling in her abdominal area. The court noted that Dr. Lazarus, admitted that the most likely cause of the bowel injury was the June 10, 1997 laparoscopic surgery. The court found that the evidence presented on causation established that Mrs. Davis suffered harm due to the delay in bringing her back to surgery. The court stated that its granting of plaintiffs’ motion for new trial was based on its finding that the jury’s verdict is contrary to the law and evidence.

On the issue of causation, the plaintiffs presented expert witness testimony that Dr. Lazarus’ delay in requesting a surgical consult (waiting until the morning of June 12, 1997 rather than ordering the consult on the evening of June 11, 1997) caused plaintiff to undergo additional medical treatment and hospitalizations. Dr. Michael Seneff, an expert in the field of critical care medicine from Chevy Chase, Maryland, testified that his opinion was that Mrs. Davis should have been taken to surgery on the evening on June 11, 1997 because it was obvious at that time that she had complications from her laparo-scopic surgery, and delaying the inevitable was not appropriate. He stated that the results of Mrs. Davis’ blood count study on the evening of June 11, 1997 required that she be taken to surgery immediately. His opinion is the delay in taking Mrs. Davis back to surgery was the cause for her subsequent hospitalizations on June 22, 1997 and June 30, 1997 for the pleural effusion and empyema. He also said the delay in bringing Mrs. Davis back to hnsurgery caused her July 6, 1997 hospitalization for anemia. However, he testified that he could not state with a reasonable degree of certainty that Mrs. Davis’ September 1997 hospitalization for a bowel obstruction was caused by a delay in surgery.

Dr. Joel Engel, an expert in obstetrics and gynecology from Atlanta, Georgia, stated that a bowel perforation is an accepted risk of the type of laparoscopic surgery that Dr. Lazarus performed on Mrs. Davis, but that Dr. Lazarus’ delay in responding surgically to the pooling of bacteria in Mrs. Davis’ abdomen deprived her of a better outcome. He said the longer the delay, more bowel is lost and there is more post-operative scarring, adhesions and pain.

The defense presented the deposition testimony of Dr. Ernest Cohen, an expert in general surgery. Dr. Cohen is the surgeon who repaired Mrs. Davis’ perforated bowel in surgery on the afternoon of June 12, 1997. He stated that if Mrs. Davis had been brought into surgery the night before, the length of the surgery would not have been different. He said he disagreed with Dr. Seneffs opinion that the results of Mrs. Davis’ blood count study on the evening of June 11, 1997 were enough to warrant taking Mrs. Davis into surgery right away that evening.

Most importantly, Dr. Cohen testified that he could not determine in surgery when the bowel actually became perforated. He said the bowel might not have been perforated when Dr. Lazarus last saw Mrs. Davis on the evening of June 11th. He said that it is possible that Mrs. Davis had an area of dead or dying wall of her bowel from injury from the harmonic scalpel used in the surgery and that this portion of her bowel did not actually perforate until late on the 11th or on the 12th of June. Therefore, because the time that the perforation occurred was unknown, he In could not say for sure whether going back to surgery 24 hours earlier would have resulted in 24 hours of less bacteria and fecal matter pooling in Mrs. Davis’ abdomen. Dr. Cohen also stated that if fecal matter gets into a patient’s abdominal cavity through a bowel perforation, peritonitis could develop even if the fecal matter is only there for a very short time. He said the amount of time that an infection is in the intra-abdominal space and the patient’s outcome are not always related. He also said that perforations are a known complication of abdominal surgeries. He did not relate Mrs. Davis’ subsequent hospitalization for atelectasis or empyema or the September 1997 bowel obstruction to the intra-abdominal infection or to the fact that surgery was performed on June 12, 1997 instead of on June 11, 1997.

Dr. Lazarus also presented the testimony of Dr. Ryckman Caplan and Dr. George Morris, both experts in the field of obstetrics and gynecology. Both testified that Dr. Lazarus did not breach the standard of care in this ease. Both also testified that the results of Mrs. Davis’ blood count study on the evening of June 11,1997 were not enough to warrant taking Mrs. Davis into surgery right away that evening.

In reasons for judgment, the trial court stated that both Dr. Seneff and Dr. Cohen testified that had Dr. Lazarus operated on Mrs. Davis 15-24 hours earlier, there would have been 15-24 hours of less bacteria, including fecal matter pooling in her abdominal area. While that statement does accurately reflect Dr. Seneff s testimony on that issue, it does not accurately reflect Dr. Cohen’s testimony. The portion of Dr. Cohen’s testimony on that issue is quoted as follows:

Q. And you would agree that if you had gone in 24 hours earlier, Miss Davis would have 24 hours less of bacteria 112and fecal matter that would have been pooling in her abdomen?
A. Possibly. That’s if she had perforated 24 hours earlier or 12 hours earlier. We don’t know she had perforated then. She might have had an area of dead wall of her bowel or dying wall of her bowel from the harmonic scalpel injury, which didn’t actually perforate until late the 11th or the 12th. We don’t know that.

After reviewing the expert testimony on the issue of causation, we conclude that the jury’s finding that Dr. Lazarus’ breach of the standard of care was not a cause of plaintiffs’ damages is supported by the testimony of Dr. Cohen. Although the expert witness testimony presented by plaintiffs strongly supports their position that their damages were caused by Dr. Lazarus’ breach of the standard of care, there is competent evidence in the record supporting the jury’s verdict. Furthermore, unlike Dr. Cohen, who operated on Mrs. Davis and repaired her bowel perforation, both Dr. Seneff and Dr. Engel were consulted for litigation purposes only, did not examine Mrs. Davis and based their opinions solely on medical records.

As a general rule, a treating physician’s opinion is entitled to greater weight than that of a physician who has. been consulted for litigation purposes only. Devlin v. Westinghouse Electric Corporation, 96-484 (La.App. 5 Cir. 12/11/96), 686 So.2d 920. This is especially true when the physician consulted for litigation does not examine the patient, but bases his opinion solely on medical records. Id. The jury obviously gave greater weight to the testimony of Dr. Cohen than to the plaintiffs’ expert witnesses, and they were entitled to do so.

We find that the trial court erred in granting the JNOV. The facts and inferences in this case do not point so strongly and overwhelmingly in favor of the | ^plaintiffs that reasonable jurors could not arrive at a verdict in favor of Dr. Lazarus. We conclude that Dr. Cohen’s testimony provides a reasonable basis for the jury’s finding that plaintiffs’ did not carry their burden of proving that Dr. Lazarus’ breach of the standard of care caused Mrs. Davis’ subsequent medical procedures and hospitalizations. Furthermore, after reviewing the testimony of Eileen Burke, social worker, and Dr. Harvey Rifkin, psychiatrist, we find that the jury could have reasonably concluded that Mrs. Davis’ psychological injuries were not caused by Dr. Lazarus’ breach of the standard of care. Accordingly, judgment should have been rendered in conformity with the jury’s verdict.

The PCF raises the issue of the admissibility of a statement allegedly made by Dr. Cohen to Dr. Lazarus in Mrs. Davis’ presence on the morning on June 12, 1997. Mrs. Davis testified that Dr. Cohen came into her hospital room to determine if she needed surgery. Dr. Lazarus was also present in the room. Mrs. Davis testified that Dr. Cohen looked at her and then said to Dr. Lazarus, “Why did you wait so long to call me?” Counsel for Dr. Lazarus objected to the admissibility of this statement, arguing that it was inadmissible hearsay. The objection was overruled.

In this appeal, the PCF argues that the trial court’s decision to allow this hearsay statement into evidence was reversible error. The plaintiffs argue that this statement was probably admitted under the excited utterance exception to the hearsay rule.

The statement in question goes to the issue of whether or not Dr. Lazarus breached the standard of care in this case. The plaintiffs were required to prove both a breach of the standard of care and that the breach was a cause of the damages complained of. The jury found that plaintiffs did not prove the causation 114element. We have concluded that there is competent evidence in the record to support that finding, and that the trial court erred in granting the JNOV. Because of our conclusion, we need not address the issue of the admissibility of the statement in question or the issue of whether the damages awarded were excessive.

Dr. Lazarus and the PCF also argue that the trial court erred in granting plaintiffs’ motion for new trial. The trial court’s reason for granting a new trial was based on its finding that the jury verdict was clearly contrary to the law and evidence because “the evidence presented on causation established that Ms. Davis suffered harm due to the delay in bringing her back to surgery.” The standard to be used by a trial court in granting a motion for new trial is different than the standard for granting a JNOV. In Martin v. Heritage Manor South, 2000-1023, pp. 4-5 (La.4/3/01), 784 So.2d 627, 631-632, the Louisiana Supreme Court explained these different standards as follows:

A motion for a new trial requires a less stringent test than for a JNOV as such a determination involves only a new trial and does not deprive the parties of their right to have all disputed issues resolved by a jury. Id. “Although the language is similar between the standards for a JNOV and new trial, there is a real difference between a finding that no evidence existed for a rational jury to reach a particular result and a finding that a jury could not have reached its conclusion on any fair interpretation of the evidence.” Gibson [v. Bossier City General Hosp.], supra[, 594 So.2d 1332] at 1336 [La.App. 2 Cir. 11/26/91]. Notably, in ■ considering whether the verdict was supported by any “fair interpretation of the evidence” on a motion for new trial, the trial judge is free to weigh the evidence and make credibility determinations, and is not required to view the evidence in the light most favorable to the non-movant as on a JNOV motion.

The standard of appellate review in ruling on a motion for new trial is whether the trial court abused its discretion. Anthony v. Davis Lumber, 629 So.2d 329 (La.1993). This case involved a dispute between medical experts as to whether the breach of the standard of care by Dr. Lazarus was the cause of Mrs. Davis’ subsequent medical procedures and hospitalizations. Although plaintiffs [^presented substantial evidence supporting their position that the breach of the standard of care caused their damages, Dr. Lazarus presented expert witness testimony in support of his position that the damages were not the result of a breach of the standard of care, including testimony from the surgeon who repaired Mrs. Davis’ bowel perforation. The jury obviously accepted the evidence offered by Dr. Lazarus, and found that the plaintiffs did not carry their burden of proving that Dr. Lazarus’ breach of the standard of care caused plaintiffs’ damages.

Although a trial court has discretion in granting or denying a motion for new trial, that discretion is not without limits. Martin v. Heritage Manor South, 2003-1023, p. 14 (La.4/3/01), 784 So.2d 627, 637. A jury verdict cannot be set aside on the grounds that the verdict is contrary to the evidence if it is supportable by any fair interpretation of the evidence. Martin v. Heritage Manor South, supra, p. 15, 784 So.2d at 637. In this case, we find that the trial court abused its discretion in granting plaintiffs’ motion for new trial, as the jury’s verdict that Dr. Lazarus’ breach of the standard of care was not a cause of the damages complained of by plaintiffs is supportable by a fair interpretation of the evidence.

For the reasons stated above, the trial court’s granting of JNOV in plaintiffs’ favor is hereby reversed. The trial court’s granting of plaintiffs’ motion for new trial is also reversed. The jury’s verdict is reinstated, and judgment is hereby rendered dismissing plaintiffs’ claims against Dr. Lazarus with prejudice.

REVERSED AND RENDERED.

TOBIAS, J., concurs in the result and assigns reasons.

ARMSTRONG, C.J., respectfully dissents.

BELSOME, J., dissents for the reasons assigned by ARMSTRONG, C.J.

TOBIAS, J.,

Concurring in the Result.

|J respectfully concur in the result.

This case has an unusual set of procedural defects that should preclude this court for the present from ruling upon the trial court’s granting of the motion for judgment notwithstanding the verdict (“JNOV”).

La. C.C.P. art. 2087 D states that “[a]n order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict. The order becomes effective upon the denial of such motions.” [Emphasis supplied.]

The trial court rendered a judgment on 15 October 2003 that granted both the plaintiffs’ motions for JNOV and new trial. Then, on 5 December 2003, the trial court rendered an amended judgment that I find should only be read as superseding in its entirety the 15 October 2003 judgment. The 5 December 2003 judgment granted the motion for JNOV but is entirely silent with respect to the motion for new trial.

La. C.C.P. art. 1811 C states:

(1) If the motion for a judgment notwithstanding the verdict is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed and shall specify the grounds for granting or denying the motion for a new trial. If the motion for a | ^new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment.
(2) If the motion for a new trial has been. conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court orders otherwise.
(3) If the motion for a new trial has been conditionally denied and the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court. [Emphasis supplied.]

I do not find that the two judgments (of 15 October and 5 December 2003) can be read together for I find that the 5 December 2005 judgment clearly demonstrates that the trial court has not ruled upon the motion for new trial in this case; the court withdrew its ruling on the motion for new trial in its 5 December 2003 judgment. The present appeal is therefore, in my view, premature until the trial court rules upon that motion for new trial. I therefore think that the majority errs in presently reviewing the trial court’s granting of the JNOV.

However, I find that I am bound by the Louisiana Supreme Court’s ruling in Va-Salle v. Wal-Mart Stores, Inc., 01-0462 (La.11/28/01), 801 So.2d 331, which holds that if the motion for JNOV has been improperly granted and the trial court fails to rule upon a motion for new trial that was coupled with the motion for JNOV, judicial economy dictates that the appellate court should rule upon the motion for new trial. Id. at pp. 17-18, 801 So.2d at 342. Because I find the majority’s analysis that the trial court erred in granting the JNOV is correct as a matter of law, although in my view prematurely decided, I am required to concur in the result.

Given my druthers and following La. C.C.P. arts. 1811 and 2087, I would (1) vacate the trial court’s 5 December 2003 judgment, (2) remand the case to the trial court to render a new judgment on the motion for JNOV, and (3) remand the case to the trial court for a formal ruling upon the motion for new trial, either (a) granting it, (b) conditionally granting it by following the mandate of La. C.C.P. art. [31811 C, or (c) denying it. Upon so ruling on both the motions for JNOV and new trial, the appeal would be ripe for consideration.

ARMSTRONG, C.J.,

Respectfully Dissenting.

11 While I agree with the standard of review for a JNOV as stated by the majority; and I essentially agree with most of the facts as set forth by the majority, when I apply the standard of review to the facts, I find no error in the trial court’s decision to grant a JNOV.

It is true that a JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 832 (La.1991). This is essentially the same as the manifest error standard of review. In other words, for a trial judge to grant a JNOV she must, in effect, find that the jury verdict was manifestly erroneous.

I also recognize as set forth by the majority that this Court stated in Selico v. Intercontinental Bulk Tank Corporation, 98-0763, p. 9 (La.App. 4 Cir. 5/12/99), 733 So.2d 1240, 1245, that a JNOV is only appropriate where “the jury’s verdict is absolutely unsupported by any competent evidence.”

I further agree with the finding of the majority that the record supports the finding that Dr. Lazarus breached the standard of care.

Therefore, the crux of this appeal is the question of whether the record permits a finding by the jury that the perforation of Ms. Davis’ bowel which led to 1 ¡.her infection and claim for damages occurred subsequent to the time Dr. Lazarus performed the operation. If the perforation occurred subsequent to the operation, then Dr. Lazarus would not have had reason to suspect the existence of the problem as soon as would be expected had the perforation of the bowel occurred immediately during the course of the operation.

However, Dr. Lazarus admitted that the injury most likely occurred during the course of the operation:

Q. Isn’t the most likely cause of the bowel injury in this patient, either the insertion of the primary Trocar, or when you were lysing (phonetic) adhesions with the harmonic scalpel?
A. Yes, sir.

Appellants do not contend that we should not believe this admission against interest made by Dr. Lazarus. Instead they make no mention of this testimony and prefer to rely on testimony from Dr. Cohen suggesting the possibility that the bowel perforation did not occur until after the operation. In other words, what this appeal really boils down to is whether the jury was entitled to rely on the existence of a mere possibility favorable to the defendants in preference to a probability in favor of the plaintiffs. This Court would find a jury verdict in favor of the plaintiff manifestly erroneous where the record would support a finding of no more than a mere possibility of the defendant’s negligence. Likewise, this Court should not allow a jury verdict to stand in favor of the defendant when the best that defendant can do is offer some uncertain evidence of the existence of the mere possibility of a favorable view of the facts in the face of credible evidence that, more likely than not, the defendant is at fault. Therefore, I believe that the trial court made the correct decision in granting the JNOV.

For the foregoing reasons, I would affirm the judgment of the trial court.

BELSOME, J., Dissents for the Reasons Assigned by Chief Judge ARMSTRONG.

      . See also Campbell v. Tork, Inc., 2003-1341 (La.2/20/04), 870 So.2d 968.


source: Caselaw Access Project

author: JAMES L. CANNELLA, Judge.

license: Public Domain

text:
    Donald Ray WALKER v. Sylvia Goodman WALKER.
    No. 05-CA-879.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.
    Rehearing Denied April 24, 2006.

      Robert L. Raymond, Destrehan, Louisiana, for Plaintiff/Appellee.
    Jeffery M. Lynch, Jefferson, Louisiana, for DefendanVAppellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   JAMES L. CANNELLA, Judge.

[ gSylvia Goodman Walker appeals from the trial court ruling in favor of her former husband, Donald R. Walker, on three issues involving the interpretation of the consent agreement and addendum thereto, partitioning the parties’ community property. For the reasons which follow, we reverse in part, affirm in part and remand.

The parties stipulated to the facts and documents involved in this dispute. The parties were married on January 1, 1970 and divorced on July 11, 1989. On May 12, 1989, prior to the divorce, the parties entered into an agreement providing for alimony for Mrs. Walker and the partition of their community property. On June 9, 1989, the parties executed an addendum to the prior agreement, as pertinent here, placing a cap on the alimony obligation once Mr. Walker “commenee[s] receiving retirement benefits.” The issue here is interpretation of those four words.

lsOn October 30, 1996, Mrs. Walker submitted two Qualified Domestic Relations Orders (QDRO) to the trial court, which were signed when there was no timely objection by Mr. Walker. On July 7, 1999, Mr. Walker filed a petition to set aside the QDROs. On August 30, 2000, upon consent of both parties, the QDROs were set aside. A new QDRO was entered October 4, 2001, providing that Mrs. Walker is to receive 32.5 percent of Mr. Walker’s retirement benefits from Union Carbide Corporation (Union Carbide). In March of 2001, Mr. Walker withdrew retirement funds that had been deposited in a fund at Union Carbide pursuant to a company plan.

On July 7, 2003, when Mrs. Walker discovered that Mr. Walker had withdrawn the retirement funds, she filed a rule for return of her portion of the retirement funds, coupled with two other issues concerning the designation of her as survivor beneficiary of the retirement plan and beneficiary of his life insurance policy with Union Carbide. The parties agreed to submit the matter on stipulated facts and exhibits.

Following a hearing on January 22, 2004, the trial court took the matter under advisement. On March 2, 2005, judgment was rendered in favor of Mr. Walker on all three issues. It is from this judgment that Mrs. Walker appeals. On appeal she assigns three errors: (1) that the trial court erred in holding that she was not entitled to a portion of the accrued retirement benefits that Mr. Walker withdrew; (2) that the trial court erred in holding that she was not entitled to be designated as the surviving spouse on Mr. Walker’s retirement plan; and (3) that the trial court erred in holding that Mr. Walker had the right to change beneficiaries on his life insurance plan with Union Carbide.

laACCRUED RETIREMENT BENEFITS AND ALIMONY

The original community property partition agreement provided in pertinent part:

1. Permanent Alimony in the exact amount of Three Hundred Dollars per month, commencing June 1, 1989, for a period of sixty (60) months, and thereafter at the rate of FIFTEEN PERCENT (15%) of DONALD RAY WALKER’S gross monthly income from any and all sources of earned income from employment' that he receives, to be calculated on a monthly basis and payable to SYLVIA GOODMAN WALKER each and every month, said fifteen percent (15%) of DONALD RAY WALKER’S gross income due and payable on the 1st of each month of the month following when said gross income was earned, said fifteen per cent (15%) of his gross income to be deducted and paid directly to SYLVIA GOODMAN WALKER.

It was further provided that the alimony was to continue for the life of Mrs. Walker.

The June 9,1989 addendum to the above agreement altered the alimony award, limiting Mrs. Walker’s entitlement as follows:

1. The alimony obligation set out in paragraph 1. of the agreement shall continue to be paid by Donald Ray Walker to Sylvia Goodman Walker for the remainder of her life, or until Donald Ray Walker shall commence receiving retirement benefits from his employment at Union Carbide Corporation, which ever occurs sooner. Upon commencement of payments under the Union Carbide Retirement Plan, Sylvia Goodman Walker shall be entitled to fifteen (15%) percent of any other earned income received by Donald Ray Walker until Donald Ray Walker reaches age 62, at which time the fifteen (15%) percent obligation shall cease. It is expressly understood by the parties that the total monthly amount to be received by Sylvia Goodman Walker, whether from retirement income or employers other that Union Carbide Corporation shall not exceed fifteen (15%) percent of the salary which Donald Ray Walker would have received from Union Carbide Corporation, prior to age 62.

As found by the trial court, when reading the original agreement together with the addendum, we find that the alimony obligation was divided into three | ¡^separate periods. The first period was a 60 month period from June 1, 1989 until May 31, 1994, during which Mrs. Walker was to receive $300 per month. The second period was from June 1, 1994, until Mr. Walker “commenced] receiving retirement benefits” from Union Carbide, during which time the alimony obligation was as provided in the original agreement, 15% of Mr. Walker’s “gross monthly income from any and all sources of earned income from employment that he receives.” The third period was from the time Mr. Walker commences receiving retirement benefits until he reached the age of 62, at which time all alimony obligations would terminate. During this last period Mrs. Walker’s alimony entitlement was further limited by the proviso that “the total monthly amount to be received by Sylvia Goodman Walker, whether from retirement income or employers other than Union Carbide Corporation shall not exceed fifteen (15%) percent of the salary which Donald Ray Walker would have received from Union Carbide Corporation prior to age 62.”

The facts stipulated to and found by the trial court indicate that Mr. Walker effected a form of “retirement” on May 1, 1999 at age 58, whereby receipt of retirement benefits was deferred and they accrued in Mr. Walker’s favor in a Union Carbide account. At the conclusion of a 22 month period, on March 1, 2001, Mr. Walker withdrew the total amount of accrued funds, $59,149.10. Thus, as expressly found by the trial judge, Mr. Walker “commenced receiving retirement benefits on March 1, 2001.” It also appears from the record that Mr. Walker continued working at Union Carbide until May of 2000. The exhibits stipulated to by the parties provide, by a letter from the payroll department, that 15% of Mr. Walker’s salary was garnished through April of 2000. The spread sheet and check stubs also corroborate that. The record further indicates that Mrs. |fiWalker was paid $789 per month (or most of the months) during the 22 month period.

Mrs. Walker contends that she is due her 32.5% share of the pension funds withdrawn by Mr. Walker in March 2001, $19,223.45 (32.5% of $59,149.10). The trial judge agreed that she was due her share, of the retirement funds, but found that Mn Walker had already paid her most of what was due by making his customary alimony payment of $789. •

The trial judge reached this conclusion based on his interpretation of the community property agreement and addendum, concluding that the limiting provisions of the addendum took effect when Mr. Walker “effectively” retired, May 1, 1999. Following that, Mrs. Walker’s alimony and retirement award combined was limited to no more than 15% of Mr. Walker’s salary that he would have received prior to age 62. This was stipulated to be $789 per month. Mrs. Walker was due $835.80 per month as her portion of the retirement funds. Thus, the trial court reasoned that, since Mrs. Walker was paid $789 per month during this period, she was owed only a minor additional amount. We disagree.

The agreement between the parties is in the nature of a contract. In interpreting the provisions of the agreement, general,rules of contract interpretation apply. Reuther v. Seales, 03-1220 (La.App. 4th Cir.2/18/04), 869 So.2d 162. La. C.C. art. 2045 provides that the common intent of the parties should be the basis for interpreting a contract. However, when the words of a contract are clear and do not lead to absurd consequences, “no further interpretation may be made in search of the parties’ intent.” La. C.C. art. 2046.

In this case, we find the wording of the alimony provisions, in what was titled a Community Property Partition and Addendum, very clear on the point in question. The addendum states that paragraph 1 of the original agreement 1 ./(entitling Mrs. Walker to $300 for 60 months and then 15% of Mr. Walker’s gross monthly income from any and all sources of earned income from employment) will continue for the remainder of her life or until Mr. Walker “commenee[s] receiving retirement benefits ... whichever occurs sooner.” The trial judge found in his reasons for judgment, and it is not disputed, that Mr. Walker “commenced receiving retirement benefits on March 1, 2001.” Based- on the record, we make the same finding, that Mr. Walker commenced receiving retirement benefits when he received a lump sum check from Union Carbide for $59,149.10. Prior to that, he had not “received” any retirement benefits* although they accrued in a company fund from May 1, 1999 until he received them on March 1, 2001.

We find that the trial court erred by misinterpreting the alimony agreement and finding that the limiting provision was activated by Mr. Walker’s “effective” retirement which triggered the “commencement of (retirement) payments” by Union Carbide. The problem with that finding is that it is at odds with the clear wording of the addendum to the alimony agreement. As stated above, the agreement between the parties clearly and expressly states that the operative act which reduces the alimony obligation is when Mr. Walker “commence^] receiving retirement benefits” and not when Union Carbide starts accruing them in an account for Mr. Walker, as was held by the trial court. Had the parties intended the latter triggering event, that is, when retirement benefits commence accruing, they could have so provided. Instead thé language is clearly otherwise and receipt of the benefits is the triggering event.

Moreover, we find this interpretation consistent with the overall alimony plan. As found by the trial judge, the intent of the parties was to provide Mrs. Walker with a continuous stream of income. In the original agreement, after receiving a set sum ($300) for 60 months, Mrs. Walker was to receive 15% of Mr. |sWalker’s gross earned income without limitation. Then, in apparent recognition of the fact that, after Mr. Walker retired and commenced receiving retirement benefits, his income would decrease and, simultaneously, Mrs. Walker would commence receiving funds from her portion of the pension funds, they added by addendum a limitation to the original provision, which took effect when Mr. Walker “commencefe] receiving retirement benefits” and/or when he reached age 62. Neither of those triggering events occurred prior to March 1, 2001.

To hold otherwise, would be completely at odds with the intent of the parties in providing Mrs. Walker with a steady flow of income. If the event that limits Mrs. Walker’s alimony, as found by the trial judge, was the day the company commenced accruing pension benefits for Mr. Walker, then Mr. Walker would be able to choose to defer receipt of his retirement benefits, as he did, even though he continued to work, during which time he would not have to pay Mrs. Walker anything. Ultimately, which in this ease was 22 months later, Mrs. Walker would receive her share of the pension funds. However, Mrs. Walker, who is handicapped, would be left in the interim in the difficult, if not impossible situation, of being without steady income for a 22 month period. The trial judge found that it was the intent of the parties to provide Mrs. Walker with steady income. The parties’ intent is only fostered by interpreting the agreement literally as written with the limiting provisions taking effect only when pension benefits are received and Mrs. Walker is ensured of the steady income as intended.

Therefore, we conclude that the trial court erred in finding that the limiting clause of the addendum was triggered on May 1, 1999 rather than on March 1, 2001, when Mr. Walker “commence[d] receiving retirement benefits”. Mrs. Walker was entitled to her share of the retirement benefits (32.5%) as well as the agreed to alimony (15% of Mr. Walker’s gross earned income). Because of the | flerroneous trial court ruling, complete information concerning Mr. Walker’s gross earned income was not included. Thus, the case must be remanded to the trial court for further proceedings to determine in accord with this opinion the amount of alimony and pension benefits due Mrs. Walker.

DESIGNATION OF RETIREMENT BENEFICIARY

Mrs. Walker contends that the parties agreed that Mrs. Walker would be the designated surviving spouse for purposes of the beneficiary designation in Mr. Walker’s retirement plan with Union Carbide. The pertinent language found in the partition agreement provides:

Donald Ray Walker further agrees to pay to Sylvia Goodman Walker one-half of all of his retirement and pension benefits from Union Carbide Corporation vested prior to June 1, 1989, when due and payable to Donald Ray Walker, and Donald Ray Walker further agrees to execute and sign a wage or income assignment order and any and all other necessary documents Sylvia Goodman Walker may request or require to facilitate the direct payment to Sylvia Goodman Walker of her one-half share of Donald Ray Walker’s retirement and pension benefits on a monthly basis due and payable on the 1st of each month from Union Carbide. Donald Ray Walker agrees to execute a surviving spouse option designation with Union Carbide Corporation in favor of Sylvia Goodman Walker in connection with said assignment.

Mrs. Walker also references language in the original QDRO in support of her argument. The QDRO provided:

The alternate Payee has and is hereby designated as the surviving spouse of the Participant under the terms of the Plan. If the Alternate Payee survives the Participant, the Alternate Payee shall receive such survivor benefits in accordance with the terms and conditions of the retirement.

ImOn April 6, 1999, Mr. Walker changed the beneficiary designation of his retirement plan to his current wife. Mrs. Walker argued that the change was in violation of the partition agreement and that she was entitled to have Mr. Walker ordered to change the beneficiary designation to her name. The trial court disagreed and ruled that there was nothing in the partition agreement that mandated that she be named the surviving beneficiary designee and that Mr. Walker was free to change that designee. We agree.

The last sentence in the applicable paragraph of the partition agreement is the only one that speaks to the surviving spouse designation for the retirement plan and it is qualified by the phrase, “in connection with this assignment.” The assignment referred to was a wage or income assignment to facilitate direct payments to Mrs. Walker of her share of the pension benefits. Reference to the surviving spouse designee was limited to effecting the assignment and nothing more. We find no language in the agreement directing that Mr. Walker must name Mrs. Walker as the surviving spouse beneficiary of his retirement plan and that he cannot change that beneficiary. We find no error in the trial court ruling on this issue denying Mrs. Walker’s request to have Mr. Walker name her as the surviving spouse beneficiary of his retirement plan.

DESIGNATION OF LIFE INSURANCE BENEFICIARY

Mrs. Walker contends that under the partition agreement the parties had agreed that Mrs. Walker would be named as the designated beneficiary of the life insurance policy on Mr. Walker’s life, that is paid for by Union Carbide. On that point, the agreement provides in pertinent part:

It is further agreed that Donald Ray Walker shall convey to Sylvia Goodman Walker the entire undivided one-half (1/2) interest in and to the following life insurance policies, to wit:
InA. Woodmen of the World Life Insurance Society Policy Certificate Nos. 4193291 and 4356478, Sylvia Goodman Walker to be responsible for all premium payments on said policies.
B. Life Insurance coverage through Union Carbide Corporation, listing Sylvia Goodman Walker as beneficiary.

As noted by the trial court, there was and still is only one company sponsored life insurance policy on Mr. Walker. The premiums are paid by the company. Mr. Walker changed the beneficiary of this policy on March 12, 2001 from Mrs. Walker to his current wife. Mrs. Walker wanted the trial court to require Mr. Walker to change the beneficiary back to her name, arguing that the agreement mandated it. The trial court concluded that the language in the agreement did not state that Mrs. Walker must be named the beneficiary of the policy and refused to order Mr. Walker to change the beneficiary back to Mrs. Walker.

Upon review, while we agree that the language in the agreement does not address the question of whether Mrs. Walker must be named as the beneficiary, we find that the agreement does transfer full ownership of the policy to Mrs. Walker. This is within the policy provisions, providing that the owner may make a legal transfer of the ownership of the policy to any person he or she chooses. This is exactly what Mr. Walker did in the partition agreement. Thus, Mr. Walker, having no ownership rights in the policy, was without any right or authority to change the beneficiary. As long as the policy in question, the Union Carbide sponsored term policy, in existence at the time of the partition agreement, remains viable, it belongs to Mrs. Walker in full ownership, and Mr. Walker has no right to change the beneficiary designation on that policy. On remand, the trial court will issue the orders necessary to reverse the beneficiary change attempted by Mr. Walker.

l1?,For the reasons set out above, we reverse the trial court in part, finding that the provision in the addendum to the partition that limits Mrs. Walker’s alimony to no more than 15% of Mr. Walker’s monthly salary prior to age 62, took effect on March 1, 2001, when Mr. Walker received his retirement benefits, and further finding that Mr. Walker, having no ownership interest in his company sponsored life insurance policy, had no legal right or authority to change the beneficiary on that policy. We affirm the trial court judgment in part, agreeing that the partition agreement did not mandate that Mrs. Walker be named as the surviving spouse beneficiary desig-nee of Mr. Walker’s retirement plan. And, we remand for a determination of the amount of alimony and/or retirement benefits due Mrs. Walker in accord with the views expressed in this opinion and for an order reversing the unauthorized change of beneficiary by Mr. Walker on the company sponsored life insurance policy on his life that is owned by Mrs. Walker.

REVERSED IN PART; AFFIRMED IN PART AND REMANDED.

      . Based on the partial record before us, it appears that there was a defined plan by which the employee could defer receipt of retirement benefits, allowing them to accrue in a company account, and receive them at a later date in a lump sum. However, there is nothing in the record explaining, defining or setting out the rules of this plan.

      . The record in this court provides little or no information about what kind of account this was or how it operated.

      . Since the trial court found that May 1, 1999 was the triggering date limiting Mrs. Walker's alimony, information about Mr. Walker's gross earned income from that date until March 1, 2001, is not contained in the record and is necessary for a determination of the alimony obligation. Accordingly, the case must be remanded for a trial court determination of quantum.


text:
    Jon L. STEINBERG; Ina Levinsohn Steinberg Godchaux; Laura Steinberg Thames; Charlotte Steinberg Gottesman; Carol Hochberg Merlin; Jacqueline Steinberg Hochberg, Individually and as Trustee of the David Merlin Trust and the Ashley Dee Merlin Trust; Rocmill, Inc.; and, Terrma Co. v. LOUISIANA LAND & EXPLORATION COMPANY, Wholly Owned Subsidiary of Burlington Resources, Inc. and Kappa Loyal, L.L.C.
    No. 05-CA-898.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      Mark A. Marino, Destrehan, Louisiana, William T. Finn, Robert Spier Stassi, Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, LLC, New Orleans, Louisiana, for Plaintiff/Appellee.
    Charles E. Hamilton, III, Galen S. Brown, Karen E. Milner, Hamilton, Brown & Babst, LLC, Sterling S. Willis, Joseph C. Peiffer, Correro, Fishman, Haygood, Phelps, Walmsley & Casteix, New Orleans, Louisiana, Robert L. Raymond, Destre-han, Louisiana, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   JAMES L. CANNELLA, Judge.

|sThe Defendants, Louisiana Land & Exploration Company, a wholly owned subsidiary of Burlington Resources (LL & E), and Kappa Loyal, L.L.C. (K.L.) appeal from a judgment declining to award indemnity in an action for a servitude of passage. The action was brought by the Plaintiffs, Jon L. Steinberg, Ina Levinsohn Steinberg Godchaux, Laura Steinberg Thames, Charlotte Steinberg Gottesman, Carol Hochberg Merlin, Jacqueline Stein-berg Hochberg (Individually and as Trustee of The David Merlin Trust and The Ashley Dee Merlin Trust), Roemill, Inc, and Terrma Co. We affirm.

LL & E owns 7,247 acres of wetlands located north of St. Charles Parish Highway 631 (Old Spanish Road.) A road through the acreage was constructed many years ago by Texaco, the lessee of the property at one time. Texaco and other mineral operators maintained the road, providing access to producing mineral leases and pipelines crossing the leased property. Texaco built a gate across the road near the entrance to Highway 631 from the property. LL & E maintained the gate, controlled the road and employed patrolmen to prevent unauthorized users. The road runs through and across the property from Highway 631 to the north and |4northwest for a distance of 4 1/8 miles. It then crosses land owned by Ideal Fur Company (Ideal), and ends at another tract of property to the east of Ideal’s property. As the road crosses the Ideal property, it branches to the north. After some distance, it exits the Ideal tract and enters the Plaintiffs’ property.

The Plaintiffs own 2,680 acres of marshland that is an “enclosed estate,” as contemplated by La.C.C. arts. 689-694. Access for many years to the public road has been by way of the LL & E road. The Plaintiffs’ ancestors in title, agents and lessees, including the Mallard Duck Club (hunting club), have used the LL & E road for over 30 years. Keys to the gate were provided to the Plaintiffs and the hunting club. No formal contract has ever been executed granting the Plaintiffs a formal servitude of passage. However, a verbal agreement had been in existence from at least the 1980s.

In July of 2001, LL & E leased the property to K.L. According to the lease, K.L. was given control of the LL & E road and responsibility for keeping out unauthorized users. Authorized users included the mineral lessees, surface lessees, and the owners of rights and rights of way in the lease. K.L. continued to allow the Plaintiffs’ lessees access to the road for more than a year. However, a dispute arose from alleged acts of poaching and abusive behavior by certain members of the hunting club causing K.L. to refuse the Plaintiffs or their lessees’ use of the road.

On February 18, 2003, the Plaintiffs filed suit against LL & E for a servitude of passage, pursuant to La.C.C. arts. 689-694, and further sought an injunction against K.L. to force it to provide access to the road. In the petition, the Plaintiffs offer indemnity as required by C.C. art. 689 to LL & E for the right of passage, but assert |sthat the right for indemnity has prescribed. K.L. and LL & E claimed that K.L., as LL & E’s lessee, was the party to whom indemnity was owed.

Following a trial on March 22, 2005, the judge rendered judgment in favor of the Plaintiffs on May 31, 2005. The trial judge determined that the Plaintiffs proved their entitlement to a right of passage, but that K.L. was not entitled to indemnity as it is not a “neighbor” within the meaning of C.C. art. 689. He further found that LL & E waived its right to indemnity. He did not reach the prescription issue.

On appeal, the Defendants assert that the trial judge erred in determining that indemnity is not owed to K.L., and in failing to award K.L. indemnity of approximately $180,000 pursuant to the evidence at trial. Alternatively, they contend that the trial judge erred in finding that LL <& E waived its right to indemnity by failing to request it by affirmative defense or reconventional demand. They claim that LL & E’s right to indemnity is not prescribed, and that it is owed $180,000 in indemnity.

RIGHT TO INDEMNITY

La.C.C. art. 689 provides:

The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.

A predial servitude is a charge on the servient estate (the Defendants’ property) for the benefit of a dominant estate (the Plaintiffs’ property), which must belong to two different owners. La.C.C. art. 646. Predial servitudes are real rights. Louisiana Irrigation & Mill Co. v. Pousson, 252 So.2d 151, 154 (La.App. 3rd Cir.1971), aff'd, 265 So.2d 756, 262 La. 973 (La.1972). However, a predial lease gives rise only to personal obligations. See: 4 A.N. Yiannopoulos, Predial Servitudes § 95, at 276 and 276 note 8, in 5 Louisiana Law Treatise (2004).

In Cobb v. McCart, 478 So.2d 204, 206 (La.App. 3rd Cir.1985) and Salvex Inc. v. Lewis, 546 So.2d 1309, 1313-1314 (La.App. 3rd Cir.1989), writ denied, 551 So.2d 1323 (La.1989), the Third Circuit held that a surface lessee does not possess a real right. Other jurisprudence has concluded that a predial or surface lessee, as here, is not a proper plaintiff in an action for forced passage. See: Yiannopoulos, Pred-ial Servitudes, supra at 277 and 277 note 17. Only mineral lessees have been specifically granted the right to claim forced passage under C.C. art. 689, by virtue of the Mineral Code which declares that a mineral lessee has a real right.

In Professor Yiannopoulos’ treatise on predial servitudes, he states that indemnity is due the owner of the servient estate. 4 A.N. Yiannopoulos, Predial Ser-vitudes, § 98, at 288, note 1, in 5 Louisiana Law Treatise (2004). While the case he cites for this statement in Note 1 does not address this particular issue and only decided if a particular party was an owner, a review of the predial servitude discussion in that treatise and the jurisprudence indicates that no lessee has been accorded by statute or case law the rights of the property owner relative to predial servitudes.

Nevertheless, the Defendants argue that the indemnity should be extended to them, the surface lessee, by analogy to the development of the law on the obligations of neighborhoods, La.C.C. art. 667, and because C.C. art. 689 uses the word “neighbor,” rather than “owner.” C.C. art. 667 prohibits works by a proprietor on his property that may damage or deprive his neighbor of the liberty of enjoying his own property. However, the Louisiana Supreme Court extended C.C. art. 667 to include lessees as proper parties, because that article relates to delictual acts. The Court discussed its relationship to C.C. art. 2315. See: Inabnet v. Exxon Corporation, 642 So.2d 1243, 1251 (La.1994).

|7C.C. art. 689 does not relate to tortious conduct, but is a method to prevent property from lying fallow, or to “secure the ‘full utility’ of the enclosed estate.” 4 A.N. Yiannopoulos, Predial Servitudes, § 92, at 261, in 5 Louisiana Law Treatise (2004). Since C.C. art. 667 and C.C. art. 689 have distinctly different purposes, we decline to analogize the developing law in C.C. art. 667 to extend the law of C.C. art. 689 to include a surface lessee in the definition of a “neighbor.” Thus, we find that K.L. is not entitled to recover indemnity under C.C. art. 689.

The Defendants alternatively argue that when LL & E transferred control over the road to K.L. in the lease, it included the right of indemnification for damages caused by the Plaintiffs as a result of the servitude awarded by the trial judge. However, the léase only provides that K.L. can impose on the Plaintiffs “a reasonable and proportionate allocation of road maintenance expenses actually incurred by Kappa Loyal.” It does not assign all indemnity rights to K.L. Furthermore, the evidence at trial did not include any actual maintenance costs incurred by K.L. for the maintenance of the road. Thus, K.L. is not entitled to an award for maintenance costs in this proceeding.

WAIVER AND PRESCRIPTION

Under C.C. art. 689, LL & E, the owner of the property would be entitled to indemnity for the legal servitude over its road. However, the trial judge denied LL & E indemnity on the basis that it waived the right by failing to ask for indemnity at any time prior to or during the judicial proceedings. The record supports this finding. The Plaintiffs used the road for approximately 30 years prior to this action with the permission of LL & E, according to Kermit Coulon, LL & E’s representative who became the manager of the property in the 1980s. Coulon testified that there had been an oral agreement that permitted the Plaintiffs to use the road at least as far back as the 1980s when he became manager of the property. |RAt no time did LL & E ask for indemnity from the Plaintiffs. Not until K.L. gained control of the road in 2001 through its lease agreement with LL & E did any dispute arise regarding, use of the road. Even then LL & E remained silent regarding its right to indemnity.

K.L. and LL & E argue that LL & E did not need to plead or ask for indemnity because the Plaintiffs had to offer indemnity in the petition in order to assert a cause of action for the right of passage under C.C. art. 689. See: 4 A.N. Yianno-poulos, Predial Servitudes, § 95, at 280, in 5 Louisiana Law Treatise (2004). However, C.C. art. 689 only requires that the owners of the enclosed estate offer to pay indemnity when a claim for the right of passage is made. When the servient estate owner fails to respond as to whether the indemnity is sought, it has not accepted the offer, and its silence on this issue will be construed as a waiver of the right to indemnity. Although in this case, K.L. asked for indemnity for K.L. “and/or” LL 6 E, K.L. in its answer, LL & E also filed an answer in which it denied the allegation in paragraph 12 relating to the offer of indemnity solely on the basis that the allegation was a legal conclusion. At no time did LL & E evidence any interest on its own behalf for the indemnity. Thus, we find that the trial judge did not err in finding that LL & E waived its right to indemnity.

We also note that this claim may in fact be prescribed. There is some support in the treatise and cited cases that a predial servitude can be established by oral agreement as between the parties as long as the servitude has in fact been used and that the grantor recognizes the grant when interrogated under oath. 4 A.N. Yianno-poulos, Predial Servitudes, § 124, at 354, note 4, in 6 Louisiana Law Treatise (2004). In the treatise, Professor Yiannopoulos author cited La.C.C. art. | a1839, and Guillotte v. Wells, 485 So.2d 187 (La.App. 2nd Cir.1986). We find that view reasonable in light of C.C. art. 1839. Because the oral agreement here would have been in effect for at least 30 years, we find that even if LL & E did not waive its indemnity claim, the claim had prescribed prior to this action.

Accordingly, the judgment of the trial court is hereby affirmed. Costs of this appeal are to be paid by the Defendants.

AFFIRMED.

      . The Plaintiffs have a conventional servitude of right of passage with Ideal.

      . He noted a contrary opinion in Robert Investment Co., Inc. v. Eastbank, Inc., 496 So.2d 465 (La.App. 1st Cir.1986).


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Rockell GREGORY.
    No. 05-KA-628.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Walter G. Amstutz, Assistant District Attorneys, Gretna, Louisiana, for Plain-tifpAppellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|2On January 7, 2004, the Jefferson Parish District Attorney filed a bill of information charging defendant, Rockell Gregory, with armed robbery in violation of LSA-R.S. 14:64. Defendant pled not guilty on January 9, 2004, and thereafter filed various pre-trial motions. After some hearings, the trial court denied defendant’s motion to suppress statements and motion to suppress evidence.

The matter proceeded to trial before a twelve person jury on September 22 and 23, 2004. After considering the evidence presented, the jury found defendant guilty as charged. Defendant then filed a motion for new trial that was denied. On February 23, 2005, the trial court sentenced defendant to imprisonment at hard labor for ten years without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

FACTS

On September 25, 2003, at approximately 2:05 a.m., Florence Lally, an employee at Dot’s Diner in Jefferson Parish, was in the back of the restaurant when she heard the doorbell ring. She went to the front and saw a black female, later ^identified as defendant, standing there. Defendant ordered some food, and Ms. Lally turned around and began preparing the order. Although Ms. Lally did not hear the door open again, a man with a black .38 revolver suddenly came over the counter and told her to “hit the floor.”

The man demanded to know where the money was, and Ms. Lally responded that it was in the back of the restaurant. The man then asked Ms. Lally who was back there, and she told him that her manager was. After the perpetrator confirmed with Ms. Lally that the manager was alone and unarmed, he took her to the back of the restaurant and told her and the manager, Ronald Farmer, to “hit the floor.” Both she and Mr. Farmer complied, and the g-unman told them at least three times, “don’t look at me or I’ll pop you.” Ms. Lally and Mr. Farmer did not see the perpetrator’s face because he was wearing a black scarf, but Ms. Lally observed that he was wearing red, white, and blue tennis shoes. The gunman shoved the cash into his pocket and took Mr. Farmer’s fanny pack, keys, and cell phone before leaving. When the perpetrator left, Ms. Lally went to the front of the store to telephone the police.

When Ms. Lally returned to the front, she saw that defendant was still standing at the counter. Ms. Lally asked defendant why she did not leave since she had the opportunity to do so, and defendant responded that she was scared. According to Ms. Lally, defendant waited for her to cook another order, and defendant was still there when the police arrived. When Ms. Lally finished cooking the food, defendant told her she did not have any money to pay for it because her ride had just left her, so Ms. Lally gave defendant the food anyway.

Deputy Harry Carmouche of the Jefferson Parish Sheriffs Office arrived at the scene in response to the call. Deputy Carmouche interviewed defendant who Instated that an armed robbery had occurred, and that she was pregnant and in a hurry to leave. Defendant indicated that her name was “Rockell Lander,” her address was 7319 Mistletoe Street, her date of birth was March 22, 1981, and her phone number was 504-467-6181. Deputy Carmouche wrote down her information and told her she could leave.

Subsequently, Detective Jeffrey Ro-drigue of the Jefferson Parish Sheriffs Office tried to interview defendant, but was unable to contact her because she had given false personal information. In connection with the investigation, Detective Rodrigue interviewed Valencia Price and Joy Gregory, defendant’s sister. While speaking with police, Joy Gregory identified Terrell Dorsey as defendant’s boyfriend and the father of defendant’s child. Joy Gregory told police that Dorsey committed the armed robbery at Dot’s Diner and that she heard him bragging about it. Further, defendant told her that she and Dorsey had a lot of money. She also told police that she believed that defendant and Dorsey spent the proceeds from the robbery on the purchase of a car.

As of result of these interviews, Detective Rodrigue developed defendant as a suspect in the armed robbery. He compiled a photographic lineup and showed it to Ms. Lally, who identified defendant as the person in Dot’s Diner at the time of the robbery. Based upon his investigation, Detective Rodrigue placed defendant under arrest and transported her to the detective bureau for questioning. After being advised of her rights and waiving them, defendant gave two taped statements.

In her first statement, dated October 28, 2003, at 10:45 p.m., defendant said that a girl dropped her off at Dot’s Diner so she could get something to eat. She | ^claimed that she was present during the robbery, but did not know anything about it. Defendant explained that the robber was wearing a white t-shirt and black jeans, and that he had a black bandana around his face. She said she could not see his face, but had a feeling that it was one of her ex-boyfriends, either Andre Lemon or his brother, Terrance. She said she gave the police an incorrect name and address because she did not want to get involved. When asked if there was anything else she wanted to add to her statement, she responded affirmatively, but said that she did not want to say it on the tape.

After defendant gave the first statement, the detective stopped the tape recorder at defendant’s request so she could provide him with additional information. When the tape recorder was off, defendant admitted that her boyfriend, Terrell Dorsey, was the one who committed the robbery. She admitted that she knew that Dorsey was going to commit the robbery prior to the crime, and that she remained behind to provide the police with false information in order to conceal Dorsey’s identity. Defendant explained that she later met up with Dorsey, that Dorsey had approximately $3,500.00, and that she spent some of the money with Dorsey. Defendant then said she wanted to record what she had said, so the detective offered her the opportunity to do so.

In her second taped statement, dated October 23, 2003, at 11:27 p.m., defendant admitted that Terrell Dorsey committed the robbery and that she previously lied because she loved him and wanted to protect him. Defendant claimed that Dorsey, who was the father of her child, took her to Dot’s Diner to get something to eat on the night of the robbery. According to defendant, when they arrived at the restaurant, Dorsey told her that he was going to rob the place. She thought Dorsey was “clownin’’, even though she knew he had a gun on him. | ^Defendant said that as she was waiting for her food, Dorsey came in behind her, told her to turn her head, and then robbed the place. She noted that he had a scarf on his face. After the robbery, she stayed behind and gave the police false information because she was afraid for her life.

On October 24, 2003, the police executed a search warrant at defendant’s residence. As a result of the search, the police recov-ex-ed ammunition and a pair of red, white, and blue Pony tennis shoes, size 11.

ASSIGNMENT OF ERROR NUMBER ONE

In her first assigned error, defendant argues that the trial court erred by allowing the state to introduce her inculpa-tory taped statements because they were the product of improper coercion or inducement.

We first note that defendant has waived any right to raise issues on appeal concerning the admissibility of the challenged statements. Defendant objected to the admissibility of her statements by written motion to suppress, and she also objected to the trial judge’s denial of that motion following a heaxing. However, at trial, defendant stated she had no objection to the introduction of the statements.

In State v. Onezime, 01-1018 (La.App. 5 Cir. 2/26/02), 811 So.2d 1033, 1043, writ denied, 2002-1099 (La.3/21/03), 840 So.2d 535, this court stated, “where a defendant initially files a pre-trial motion objecting to the introduction of certain evidence, if at trial he specifically agrees to the introduction, he has waived his prior objection and loses the right to present the issue on appeal.” Despite defendant’s waiver of the right to present the issue, this court in Onezime considered the merits of defendant’s claim in light of the constitutional issues raised. Likewise, even though we find that defendant waived any right to present this issue on appeal, we will briefly address the merits of defendant’s claim.

17On appeal, defendant claims that her taped statements were not voluntarily given but rather were the product of police coercion or inducement. She contends that the detective coerced her into giving the statements by telling her that she would not go to jail and further by not disagreeing with her when she told him she was under the impression that she would not go to jail. Defendant specifically points to the following exchange which occurred toward the end of her first taped statement:

DET. J. RODRIGUE: Have you been treated fairly here tonight?
ROCKELL GREGORY: Based off what you told me, yes I have.
DET. J. RODRIGUE: Okay have I promised you anything in return for you (sic) statement and, or have we coerced you in any which way to give us a statement?
ROCKELL GREGORY: You didn’t promise me anything.
DET. J. RODRIGUE:' Okay.
ROCKELL GREGORY: But you told me I wasn’t going to jail.
DET. J. RODRIGUE: Okay I did, I told you, you was (sic) under investigation for armed robbery. Is that correct?
ROCKELL GREGORY: Yes you did.

In order for an inculpatory statement to be admissible, the state must prove beyond a reasonable doubt that defendant was advised of his or her Miranda rights and the statement was made freely and voluntarily. LSA-C.Cr.P. art. 703 D; LSA-R.S. 15:451; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 780, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866. A statement obtained by direct or implied promises, or by the exertion of improper influence must be considered Isinvoluntary, and thus, inadmissible. State v. McLelland, 03-498 (La.App. 5 Cir. 10/15/03), 860 So.2d 31, 35, writ denied, 03-3372 (La.3/26/04), 871 So.2d 347.

The determination of voluntariness is made on a case-by-case basis and rests on the totality of the circumstances. The trial judge’s determination as to the admissibility of the statement is entitled to great weight and will not be overturned unless unsupported by the evidence. State v. Quest, 772 So.2d at 780, 782. In determining whether the trial court’s ruling on a motion to suppress is correct, the appellate court is not limited to the evidence adduced at the hearing on the motion, but may also consider pertinent evidence presented at the trial. State v. McLelland, 860 So.2d at 35.

At the suppression hearing, Detective Rodrigue testified that prior to taking defendant’s statements, he filled out a rights of arrestee or suspect form and went over that form with defendant. He explained that defendant signed the form, waived her rights, and gave him two taped statements and one oral statement. Detective Ro-drigue maintained that he did not threaten, force, or coerce defendant into giving those statements.

At trial, Detective Rodrigue again testified about the circumstances surrounding defendant’s statements. He stated that he went over a waiyer of rights form with defendant, and that she signed the form acknowledging that she understood her rights and wished to waive them. Detective Rodrigue maintained that he did not threaten or promise defendant anything in exchange for her statements. He further testified that he asked her several times in the statements whether she was threatened or coerced, and she replied that she was not.

At trial, defense counsel questioned Detective Rodrigue during cross-examination about defendant’s claim that he told her she would not go to jail. |sWhen questioned at trial whether he told defendant that she would not go to jail, Detective Rodrigue testified as follows:

No, sir, I did not. When I filled out the rights form with her she was under arrest for armed robbery based off of other statements obtained from other individuals with this case. Now, what’s being said about you might not go to jail or whatnot may be based off of depending on the total outcome of this investigation, but she was under arrest and it was very clear that she was under arrest when we were at her house and she was well aware that she was under arrest for armed robbery.

Upon further cross-examination, the detective acknowledged that he did not deny defendant’s statement about no jail time; however, he maintained throughout his testimony that he did not promise defendant anything, and that she was well aware that she was under arrest for armed robbery.

In addition to Detective Rodrigue’s testimony, defendant, in her statements, acknowledged that she was advised of her rights and was freely speaking to the officers. At the beginning of defendant’s first statement, she stated that she signed a waiver of rights form, that she understood her rights, and that she was freely speaking to the detective. At the end of the statement, although defendant referenced a comment to the effect that she would not go to jail, she acknowledged that the detective did not force her to give the statement, that he did not promise her anything, and that she had been treated fairly. At the beginning of defendant’s second statement, the officer reiterated her rights, and defendant acknowledged that she signed the waiver form and that she was freely speaking to the officer.

Based on the foregoing discussion, we find that defendant’s statements were freely and voluntarily given, and that the trial judge did not err in admitting those statements. Accordingly, the arguments raised by defendant in this assigned error are without merit.

| ASSIGNMENT OF ERROR NUMBER TWO

Defendant has also requested that we review the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We have, conducted such a review and have found no errors patent in this case.

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . Co-defendant, Terrell Dorsey, was also charged with armed robbery in the same bill of information.

      . Mr. Farmer testified that he had approximately $3,500.00 which he was counting at the time the perpetrator came in the back with Ms. Lally.

      . At trial, Joy Gregory testified that she lied in the statement that she gave to police because she was scared. She claimed that the police told her that she would go to jail if she did not tell them that defendant and Dorsey committed the robbery.

      . Dorsey was arrested for the offense on October 15, 2003, in New Orleans. At the time of his arrest, the police recovered a black and white bandana, a black .38 Special firearm, and six live rounds of ammunition.

      . There was no evidence to the contrary for the trial judge to consider before denying the motion to suppress because defendant did not testify or present any evidence at the suppression hearing.