author: PARRO, J. GUIDRY, J.,

text:
    Lottie MORGAN v. CITY OF BATON ROUGE and Parish of East Baton Rouge.
    No. 2006 CA 0158.
    Court of Appeal of Louisiana, First Circuit.
    April 4, 2007.
    Rehearing Denied May 11, 2007.

      Kris A. Perret, Law Offices of Ossie Brown, Baton Rouge, for Plaintiff-Appel-lee Lottie Morgan.
    E. Wade Shows, Mary E. Roper, Gwendolyn K. Brown, Baton Rouge, for Defendant-Appellant City of Baton Rouge/Parish of East Baton Rouge.
    Before: CARTER, C.J., PARRO, GUIDRY, DOWNING and McClendon, jj.
   PARRO, J.

|gIn this personal injury case, the City of Baton Rouge/Parish of East Baton Rouge (City/Parish) appeals a judgment ordering it to pay Lottie Morgan damages in the amount of $7,804.45, plus legal interest and court costs, for injuries she received when she fell at the edge of a sidewalk under the care and custody of the City/Parish. For the following reasons, we reverse.

BACKGROUND

On June 15, 2000, Ms. Morgan was getting out of the passenger side of her father’s car in a handicapped parking space where he had pulled up to allow her to exit. As she stepped off the sidewalk to walk around the car, a piece of wood serving as an expansion joint or spacer board between the sidewalk and the curb became stuck in her sandal, causing her to fall. The location of her fall was on the east side of the 200 block of St. Louis Street, immediately adjacent to a crosswalk spanning the street between the Baton Rouge City Court and the East Baton Rouge Parish Governmental Building. When she fell, Ms. Morgan skinned and bruised her knee, bruised her elbow, and strained her neck.

Ms. Morgan filed suit against the City/Parish, alleging that the sidewalk and curb area where she fell was within its care, custody, and control, and that due to the high volume of pedestrian traffic, the City/Parish had actual or constructive knowledge of the defective condition. She claimed the defect in the sidewalk created an unreasonably hazardous situation, which the City/Parish had failed to remedy. The City/Parish admitted having maintenance responsibility for the area where Ms. Morgan fell, but denied that the expansion joint, sidewalk, or curb was defective or that the City/Parish had any actual or constructive knowledge of any problems at the site. In the alternative, it asserted Ms. Morgan’s negligence as a contributing cause of her fall. Immediately before the trial, Ms. Morgan stipulated that the City/Parish had no actual knowledge of any defect in the sidewalk, and the City/Parish stipulated that it had not Isdone any maintenance work at the accident site for a period of two years before her fall, and had done no redesign work at that site for the five years preceding her fall.

One of the witnesses at trial was Captain Gary Fontenot, a Baton Rouge City Police officer, who testified concerning his investigation of Ms. Morgan’s accident. After she reported what had occurred, he walked with her to the scene and saw a piece of the expansion joint completely removed from the sidewalk. Captain Fon-tenot said Ms. Morgan told him she was stepping down off the curb and the expansion joint was sticking up, causing her to trip on it and fall. Photographs introduced in connection with his testimony-showed a weathered strip of wood about 2-3 feet long lying on the sidewalk near the site of her fall. Other photographs showed the gap between the sidewalk and the curb where the piece of wood had been. The location was right at the edge of the handicapped parking spot, where the curb started to curve around to the entrance to the City Court parking lot. Captain Fontenot also identified a photograph showing bruising on Ms. Morgan’s right knee.

Ms. Morgan testified that on the day of her fall, she was going to the governmental building. She rode with her father in his car, which had a “handicap tag,” and he pulled to the curb in the handicapped parking spot on the City Court side of the street, so she could get out. She planned to cross the street at the crosswalk and enter the governmental building. Ms. Morgan said she got out of the passenger side of his car, intending to walk around the front of it. When she tried to step off the curb, she felt something that went through her shoe, causing her to lose her balance; she fell onto the street, injuring her elbow and knee. Ms. Morgan said she could not avoid falling, “because I couldn’t get that, that piece of wood. It was, like, stuck in my shoe.” She said it was the “skinny piece of wood that separates the concrete,” and observed that it was rotten. After the fall, the piece of wood was still stuck in her shoe until she removed it. Ms. Morgan said she did not see the piece of wood before she fell, because she was not looking down, but was looking where she was going as she began to cross the street. After the fall, she went into the governmental building, reported what had Lhappened, and cleaned herself up. She confirmed Captain Fontenot’s testimony about investigating the accident site with her. Because her leg was extremely swollen the next day, Ms. Morgan went to a hospital emergency room for treatment. The doctor examined her, administered a tetanus shot, and gave her some non-narcotic pain medication for her leg and neck complaints. She identified photographs of her right leg and knee, showing the bruising and swelling, and stated the bruised area remained discolored for several months. She returned to work after a week, and the knee injury fully resolved in about three months. However, Ms. Morgan said she still experiences occasional neck pain. Her medical records were introduced without objection. She said that because the site of her fall was a high-traffic area, and especially since it was in the handicapped zone, it needed to be properly maintained, and further stated that there was nothing about the spacer board to draw her attention to it before trying to step off the curb.

On cross-examination, Ms. Morgan explained that she had been going to the governmental building every week for two months before the fall. Each time she went, she rode with her father, who always parked at or near the spot in the handicapped parking area where she fell. In all those visits, she had not noticed a problem with the expansion joint. Ms. Morgan said she never looked down as she walked, but always looked ahead. She acknowledged it was a clear, sunny day, and that if she had glanced down, there was nothing blocking her view of the spacer board. She testified that she was wearing sandals, which was how the broken piece of board was able to lodge in her shoe through the sandal opening.

Ms. Morgan’s attorney asked the court to take judicial notice of the high volume of pedestrian traffic on the street and sidewalk area between the two courthouses. The City/Parish attorney acquiesced in that request. Following the bench trial, the court rendered judgment in favor of Ms. Morgan, ordering the City/Parish to pay her $7,500 in general damages and $304.45 in medical expenses, plus legal interest and court costs. The judgment was signed on November 24, 2005, and this appeal followed.

INAPPLICABLE LAW

A plaintiff may recover damages from a public entity, such as the City/Parish, under a theory of negligence based on Louisiana Civil Code article 2315 or a theory of custodial liability based on Article 2317, as modified or limited by Article 2317.1 and Louisiana Revised Statute 9:280o. The applicable portion of Article 2317.1 states:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Louisiana Revised Statute 9:2800, before its amendment by 2003 La. Acts, Nos. 725 and 1077, provided, in pertinent part:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
B. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
C.Constructive notice shall mean the existence of facts which infer actual knowledge.

The burden of proof is the same under either negligence or custodial liability. The plaintiff must prove: (1) the public entity had custody of the thing that caused the plaintiffs damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) the public entity had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time; and (4) the defect was a cause-in-fact of the plaintiffs injuries. See Shilling ex rel. Shilling v. State ex rel. Dept. of Transp. and Dev., 05-0172 (La.App. 1st Cir.12/22/05), 928 So.2d 95, 99, writ denied, 06-0151 (La.4/24/06), 926 So.2d 541.

The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. See Stobart v. State, through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

ANALYSIS

The City/Parish admits the sidewalk and curb area where Ms. Morgan fell was within its care, custody, and control, and that it had maintenance responsibility over the site. Moreover, there is no dispute concerning the fact that the wooden expansion joint caught in her shoe and caused her to fall. However, the City/Parish alleges the trial court erred in finding it had constructive notice of the alleged defect and in concluding that the sidewalk posed an unreasonable risk of harm. In the alternative, should this court accept the trial court’s findings on those issues, the City/Parish contends the trial court erred in failing to assess any fault to Ms. Morgan for her own negligence.

Although the trial court’s oral reasons for judgment do not refer to any of the facts underlying its conclusions, we must determine whether those conclusions are supported by the record. Therefore, we examine the evidence to determine whether there is a reasonable factual basis in the record for the findings of the trial court, and whether the record further establishes that those findings are not manifestly erroneous.

Addressing first the issue of constructive notice, we find no evidence to provide a reasonable factual basis for the court’s finding that the City/Parish had constructive notice of the situation that caused Ms. Morgan’s fall. Her own testimony established |7that she had been alighting from her father’s vehicle in this “same parking spot” or very near it every week for two months before she fell, and never saw any problem with the sidewalk, the curb, or the expansion joints in that area. Asked if she had noticed that the wood was protruding in any way prior to attempting to step off the curb, she said, “No, because, I mean, I was coming to this governmental building every week.” Ms. Morgan said that there was nothing about the spacer board to draw her attention to it until “afterwards.” After she fell, when she looked at the piece of wood that had stuck in her shoe, she saw that it “was rotten.” Captain Fonte-not said only that the expansion joint, “didn’t look new,” which is consistent with the City/Parish stipulations concerning the length of time since it had repaired or redesigned this area.

The photographs in evidence show a large paved sidewalk area and curb in front of the City Court, with expansion joints running across the sidewalk at regular intervals and in the groove between the sidewalk and the curb. The wooden spacers in the grooves between the sidewalk and curb, including the piece that came loose, show signs of weathering. However, all along the length of the sidewalk and curb shown in the photographs, there are no visual differences in elevation between the sections and no protruding or uneven spacers. In short, there is nothing in the overall appearance of the area to indicate that the wooden spacers were broken or likely to break loose from the grooves in which they were installed. As Ms. Morgan testified, there was nothing to draw her attention to this area or to provide notice of a potential problem to her or anyone else walking there. This is equally true for any City/Parish personnel who might traverse this area. Moreover, despite the fact that this crosswalk and immediately adjacent area are used by hundreds of pedestrians on a daily basis, there is no evidence of other falls at or near this busy site. Nor is there any evidence that this particular spacer board had broken or was protruding before Ms. Morgan’s attempt to step off the curb on the day she fell. In the two years preceding Ms. Morgan’s fall, there was nothing at this site that required repair by the City/Parish.

^Constructive notice requires the existence of facts from which actual knowledge can be inferred. The facts in this case simply do not satisfy this statutory mandate, and the trial court’s conclusion to the contrary is clearly wrong. Having determined that the trial court’s conclusion on this necessary element of Ms. Morgan’s claim was manifestly erroneous, it is unnecessary to address the remaining assignments of error.

CONCLUSION

The judgment of November 24, 2005 is reversed. All costs of this appeal are assessed to Ms. Morgan.

REVERSED.

GUIDRY, J., dissents and assigns reasons.

DOWNING, J., dissents for the reasons assigned by Judge GUIDRY.

CARTER, J., concurs.

GUIDRY, J.,

dissenting.

hFor an appellate court to reverse a trial court’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the trial court or, even if a reasonable factual basis exists, that the record as a whole establishes that the finding is clearly wrong. Irion v. State ex rel. Department of Transportation and Development, 98-2616, p. 10 (La.App. 1st Cir.5/12/00), 760 So.2d 1220, 1229, writ denied, 00-2365 (La.11/13/00), 773 So.2d 727. Thus, the reviewing court must do more than simply review the record for some evidence that supports or controverts the trial court’s finding. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly erroneous; Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

There was evidence in the record that would support a finding of constructive notice: the testimony of the police captain and the plaintiff regarding the weathered condition of the expansion joint and the pictures that support that testimony. Jurisprudence has held that a public entity can be held to have constructive notice of a defect if the defective condition existed for such a period | aof time that it should have been discovered and repaired if the public body had exercised reasonable care. Hammons v. City of Tallulah, 30,091, pp. 4-5 (La.App. 2d Cir.12/10/97), 705 So.2d 276, 280-281, writs denied, 98-0407, 98-0440 (La.3/27/98), 716 So.2d 892, 894. On the record before us, applying the applicable standard of appellate review, I cannot say that the trial court’s finding was clearly wrong. See Stobart, 617 So.2d at 882. Accordingly, I respectfully dissent.

      . The legislation enacting LSA-C.C. art. 2317.1, effective April 16, 1996, abolished the concept of strict liability governed by prior interpretations of LSA-C.C. art. 2317. A more appropriate term now for liability under Articles 2317 and 2317.1 and LSA-R.S. 9:2800 might be "custodial liability,” which is now based on a finding of actual or constructive knowledge. See Granda v. State Farm Mut. Ins. Co., 04-1722 (La.App. 1st Cir.2/10/06), 935 So.2d 703, 707 n. 5, writ denied, 06-0589 (La.5/5/06), 927 So.2d 326.


source: Caselaw Access Project

author: CARTER, C.J.

license: Public Domain

text:
    Guy WILLIAMS v. Frances Rita DUNN, Malise Prieto, Clerk of Court, 22 JDC, Jay Dardenne, Secretary of State of Louisiana.
    No. 2007 CE 0735.
    Court of Appeal of Louisiana, First Circuit.
    April 18, 2007.

      William J. Dutel, Frederick S. Ellis, Covington, Walter J. Leger, Jr., New Orleans, Counsel for Plaintiff/Appellant, Guy Williams.
    Charles N. Branton, Slidell, Counsel for Defendant/Appellee, Frances Rita Dunn.
    William E. Crawford, Jr., Merietta Spencer Norton, Baton Rouge, Counsel for Defendant/Appellee, Jay Dardenne, in his official capacity as Secretary of State for the State of Louisiana.
    Before: CARTER, C.J., WHIPPLE, DOWNING, MCDONALD, and MCCLENDON, JJ.
   CARTER, C.J.

| ¡.This is an election dispute. The sole issue for this court’s determination is whether plaintiffs petition challenging the outcome of the election was timely filed in accordance with LSA-R.S. 18:1405 B. Finding no error in the trial court’s judgments sustaining the defendants’ exceptions raising the objections of prescription and dismissing plaintiffs petition with prejudice, we affirm.

FACTS AND PROCEDURAL HISTORY

An election was held on March 31, 2007, for the office of Councilman, District A, City of Covington, Louisiana. Francis Rita Dunn won the election, defeating plaintiff, Guy Williams, by a two-vote margin. Plaintiff sought to challenge the election results alleging that, but for substantial irregularities or errors, he would have been elected city councilman.

Appearing in proper person, plaintiff faxed a petition objecting to the March 31, 2007, election to the St. Tammany Parish Clerk of Court’s office at 5:15 p.m. on April 9, 2007. Francis Rita Dunn was the sole named defendant. Thereafter, on April 10, 2007, at 2:01 p.m., plaintiff, again appearing in proper person, filed with the St. Tammany Parish Clerk of Court a second petition objecting to the election results. In this second petition, plaintiff named Twenty-Second Judicial District Court Clerk of Court Maliste Prieto and Secretary of State Jay Dardenne, in addition to | aDunn, as defendants. In response to plaintiffs petitions, Dardenne and Dunn filed peremptory exceptions raising the objection of prescription.

Following a contradictory hearing, the trial court signed two judgments sustaining the exceptions and dismissing plaintiffs suit with prejudice. This appeal follows.

ANALYSIS

“An action contesting any election involving election to office shall be instituted on or before ⅛:80 p.m. of the ninth day after the date of the election.” LSA-R.S. 18:1405 B. (Emphasis added.) The election for Covington city councilman was held on March 31, 2007. The ninth day following the date of the election was Monday, April 9, 2007, and plaintiffs petition had to be filed on or before 4:30 p.m. that afternoon. Therefore, both of plaintiffs petitions were filed after the statutory delay specified for commencing an action to challenge an election.

On appeal, plaintiff argues that any delay in filing his challenge was due to the fact that officers of the court impeded the exercise of his right to timely file his petition. Specifically, plaintiff challenges the trial court’s factual conclusion that he arrived at the St. Tammany courthouse after 4:30 p.m. on April 9, 2007. Plaintiff places his arrival at the courthouse between 4:25 p.m. and 4:26 p.m.

14Plaintiff testified that an officer at the security desk stopped him upon entering the courthouse. The officer told plaintiff the machine was “off,” and plaintiff was not allowed to pass. After being turned away from the courthouse, plaintiff went to Carl Perkins’s office, because he “knew his office was close,” and faxed his petition to the clerk’s office. The facsimile filing indicates it was sent from Carl Perkin’s office at 5:15 p.m. on April 9, 2007. Thereafter, on the afternoon of April 10, 2007, he filed his second petition naming as defendants, in addition to Dunn, the clerk of court and the secretary of state.

Deputy Charles Grimes of the St. Tammany Parish Sheriffs Office was working as a security officer on the afternoon of April 9, 2007. In accordance with daily procedures, when the digital clock on the courthouse wall indicated it was 4:30 p.m., he shut down the security machine and began locking the courthouse doors. Plaintiff approached the courthouse doors, pulling on one of the locked exterior doors. Finding it locked, the plaintiff entered through an employee entrance door that Deputy Grimes stated he is unable to manually lock. Deputy Grimes apologized to the plaintiff, informing him that it was 4:30 p.m. and the courthouse was closed.

Plaintiff then phoned Fadra White, an acquaintance working in the criminal division of the clerk of court’s office. White told the plaintiff that the office closed at 4:30 p.m., but she would call to see if someone was “working late” in the civil division. White telephoned Gretchen Moss, a deputy clerk in the civil division. Moss’s telephone log indicated she received the call from White at 4:32 p.m.

|RAngela “Becky” Galatas is the St. Tammany Parish Clerk of Court Election Coordinator. Galatas testified that on April 9, 2007, at 4:30 p.m., she contacted an employee in civil intake to see if any election challenges had been filed or whether there was anyone in line waiting to file documents. After being told no one was waiting, Galatas remained on the telephone line while the employee closed the door to the civil division.

The trial court’s judgment was based on a factual determination that plaintiff did not institute his suit on or before 4:30 p.m. of the ninth day after the March 31, 2007, election. Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse a fact-finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the factfinder is clearly wrong or manifestly erroneous. Bonin v. Ferrellgas, Inc., 03-3024 (La.7/2/04), 877 So.2d 89, 94-95. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Bonin, 877 So.2d at 95. Similarly, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review. Bonin, 877 So.2d at 98.

The testimony and the documentary evidence of record amply support the trial court’s factual conclusion that plaintiff arrived at the courthouse shortly after 4:30 p.m. on April 9, 2007. Plaintiffs challenges to the March 31, 2007, election were not “instituted on or before 4:30 p.m. of the ninth | (¡after the date of the election” and, therefore, are untimely. LSA-R.S. 18:1405 B.

The results in this case are harsh. However, the short time delays within which to bring an action contesting an election are set by the legislature in the interest of the electorate, not in the interest of the private party litigants. As such, they may not be waived or modified even with the agreement of the litigants and the courts. See City of Donaldsonville v. State, 99-1582 (La.App. 1 Cir. 6/23/00), 764 So.2d 339, 344, writ denied, 00-2257 (La.10/27/00), 772 So.2d 654.

CONCLUSION

Considering the foregoing, the judgments appealed from are affirmed, and costs of this appeal are assessed to the plaintiff/appellant, Guy Williams.

AFFIRMED.

McCLENDON, J., concurs with the result reached by the majority.

      . Pursuant to LSA-R.S. 13:850, any paper in a civil action may be filed with the district court by facsimile transmission. The filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court, if the party complies with the additional requirements specified in the statute.

      . "Computation of all time intervals in this Chapter shall include Sundays and other legal holidays. However, if the time interval ends on a Sunday or other legal holiday, then noon of the next legal day shall be deemed to be the end of the time interval.'' LSA-R.S. 18:1413.

      . Plaintiff also offered the testimony of Belinda Dunn, who stated she passed plaintiff on the courthouse steps before 4:30 p.m. on April 9, 2007, after conducting business at the Registrar of Voters Office.


author: DOWNING, J. GAIDRY, J.,

text:
    Charles E. PLUMMER and Mae Etta Plummer Lewis v. Ora Lee Plummer BROWN, Ruth Plummer Hubbard, Joyce Marie Plummer, Joseph Plummer, Irma Jean Plummer and Samuel Paul Plummer.
    No. 2005 CA 1059.
    Court of Appeal of Louisiana, First Circuit.
    April 24, 2007.
    Rehearing Denied May 29, 2007.
    J. Arthur Smith, III, Baton Rouge, Counsel for Plaintiff/Appellee Mae Etta Plummer Lewis.
    Walter C. Dumas, Baton Rouge, Counsel for Defendants/Appellants Ora Lee Plum-mer Brown, Ruth Plummer Hubbard, Joyce Marie Plummer, Joseph Plummer, Irma Jean Plummer & Samuel Paul Plum-mer.
    Ellene Williams Plummer, Baton Rouge, In Proper Person.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   DOWNING, J.

[2The defendants appeal a judgment that declared certain sales of immovable property by their mother and deceased father to be donations in disguise or sales for an inadequate price. The judgment recognized the plaintiff-appellee’s right to seek collation in a proper proceeding. For the following reasons, we affirm.

On May 5, 2006, this court issued an order as follows:

ORDER
Pursuant to La. C.C.P. art. 2161, we remand this matter to the 19th Judicial District Court for the limited purpose of holding a hearing for the purpose of admission of evidence, stipulations, and/or taking testimony in order to correct the record by re-creating the evidence, if possible. If the trial court determines that certain relevant portions of the record cannot be corrected, the trial court shall dictate an explanation into the transcript of the hearing or provide a per curiam giving the explanation.
The hearing shall be held within 90 days of this opinion. Within 30 days of the hearing, the Clerk of Court of the 19th Judicial District Court shall supplement the appellate record with the evidence, stipulations, testimony, explanations, minute entries, and/or any other information produced in the trial court in connection with this matter.

Plummer v. Brown, 05-1059, p. 3 (La.App. 1 Cir. 5/5/06), 934 So.2d 175, 176, writ denied, 06-1354 (La.9/22/06), 937 So.2d 389.

After receipt of this court’s order, the plaintiff sought writs with the supreme court. The supreme court denied the writ application on September 22, 2006. Plummer v. Brown, 06-1354 (La.9/22/06), 937 So.2d 389. Our order became fully final at that time.

Accordingly, pursuant to our order, a hearing should have been held on or before December 21, 2006, and the record should have been | ^supplemented within 30 days. That hearing was never held. Rather, we were informed that on November 20, 2006, a status conference was converted to a “hearing on rule,” at which time the parties chose March 12, 2007 as the first available date for the ordered hearing. Certain evidence was introduced into the record at the November 20 hearing.

Neither party requested an extension of this court’s order. However, pursuant to an inquiry from the clerk of this court, we received correspondence from appellee’s attorney dated February 21, 2007 explaining the status of the matter in the district court. We, therefore, issued another order on March 5, 2007, as follows:

ORDER
WHEREAS, this Court issued an interim opinion on May 5, 2006, that remanded this matter back to the 19th Judicial District Court for the limited purpose of holding a hearing to correct the record. This hearing was ordered to be held within 90 days of May 5, 2006 and thereafter, the Clerk of Court of the 19th Judicial District Court was to supplement the appellate record within 30 days of the hearing.
On February 22, 2007, Appellee in this matter respectfully filed with this Court correspondence that provided an update on this matter since our Court’s May 5, 2006 interim opinion. Thereby, this Court has been advised of the March 12, 2007 hearing before the Honorable Donald Johnson in regards to the reconstruction of the record.
IN CONSIDERATION OF THE ABOVE, IT IS HEREBY ORDERED, as described in this Court’s May 5, 2006 interim order, that the Clerk of Court of the 19th Judicial District Court shall supplement the appellate record by March 30, 2007, with the “evidence, stipulations, testimony, explanations, minute entries, and/or any other information produced in the trial court in connection with this matter.” No extensions on this date shall be granted absent emergency circumstances.

Despite our clear directive that no extensions would be granted absent emergency circumstances, as of the date of this opinion no motion seeking extension of our deadlines has been filed. We have, however, received on March 21, 2007 an undated letter from the trial judge’s judicial assistant | informing us that the hearing has been rescheduled for April 30, 2007. This letter neither requests an extension of our order nor states any emergency circumstances. Accordingly, finding no just reason for delay, we will decide the matter based on the trial record before us.

In issuing our initial May 5, 2006 order, we noted that in the absence of relevant portions of the transcript or a narrative report, we do not possess the factual basis from which to determine the merits of this matter. We cited Oliver v. Cal Dive Intern., Inc., 02-1122, pp. 7-8 (La.App. 1 Cir. 4/2/03), 844 So.2d 942, 947, in support of this proposition. Further citing Oliver, we explained that in such cases, a reviewing court generally will be relegated to applying the presumption that the trial court’s judgment is supported by competent evidence and affirm the judgment. Id.

Here, having reviewed the available record, and after providing the parties ample opportunity to complete the record, we conclude that we do not possess an adequate factual basis from which to determine the merits of the matter before us. Therefore, we must apply the presumption that the trial court’s judgment is correct. Accordingly, we will affirm the judgment of the trial court.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are assessed to the defendants-appellants, Ora Lee Plummer Brown, Ruth Plummer Hubbard, Joyce Marie Plummer, Joseph Plummer, Irma Jean Plummer and Samuel Plummer.

AFFIRMED.

GAIDRY, J.,

concurring.

hi concur in the result, for the reasons set forth in my original dissenting opinion in this case. The original majority now correctly applies the rule of Oliver v. Cal Dive Int’l, Inc., 02-1122, pp. 7-8 (La.App. 1st Cir.4/2/03), 844 So.2d 942, 947. Unfortunately, this case may serve as an exemplar for William Gladstone’s venerable observation, “Justice delayed is justice denied.”

      . The defendants are Ora Lee Plummer Brown, Ruth Plummer Hubbard, Joyce Marie Plummer, Joseph Plummer, Irma Jean Plum-mer and Samuel Plummer.

      . Mae Etta Plummer Lewis is the only remaining plaintiff. The other plaintiff, Charles E. Plummer, previously dismissed his cause of action.

      . We do not consider the evidence filed in connection with the November 20, 2006 hearing. The minute entry for this hearing reflects that the court allowed the parties to "introduce whatever additional evidence they desire, today not being that day of introduction of evidence." The minute entry also reflected that a judgment was to be "signed accordingly.” The record, however, contains no judgment or any other indicia that this evidence was admitted in furtherance of our May 3, 2006 order “to correct the record by re-creating the evidence, if possible." Nor is there evidence that the parties stipulate that the introduced evidence can be substituted for the lost testimony.


author: KUHN, J. WELCH, J., PETTIGREW, J.,

text:
    Felton HOGAN v. Joe MORGAN, M.D.
    No. 2006 CA 0808.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 2007.

      Christopher L. Whittington, Baton Rouge, Counsel for Plaintiff/Appellee Fel-ton Hogan.
    Herbert J. Mang, Jr., Tara S. Bourgeois, Baton Rouge, Counsel for Defendant/Appellant Joe Morgan, M.D.
    Before: PARRO, KUHN, PETTIGREW, GAIDRY, and WELCH, JJ.
   KUHN, J.

| gPlaintiff-appellee, Felton Hogan, filed suit against defendant-appellant, Joe Morgan, M.D., seeking to recover “mental and physical damages as a result of [Dr. Morgan’s] unreasonable invasion of [Hogan’s] right to privacy as well as his battery upon [Hogan].” Hogan’s suit stems from Dr. Morgan’s physical examination of him during an August 11, 2003 independent medical exam (“IME”). Dr. Morgan appeals a trial court judgment in favor of Hogan. We reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

According to the allegations of Hogan’s petition in this case: 1) he injured his upper back, shoulders and cervical spine in an October 24, 2001 vehicular accident; 2) Hogan sought recovery from his under-insured motorist carrier, Liberty Mutual Insurance Company (“Liberty Mutual”) in a separate action; and 3) Liberty Mutual retained the services of Dr. Morgan to conduct an IME in the other action. One week before the IME, Liberty Mutual hand-delivered Hogan’s medical records from other providers and a copy of a July 25, 2003 trial court order to Dr. Morgan’s office. The trial court order had restricted Dr. Morgan’s physical examination of Hogan “to the cervical, shoulder and upper back area,” and the order further instructed that there “shall be no physical examination regarding any other portion of [Hogan].” Neither Dr. Morgan nor any members of his office staff reviewed the paperwork before he performed the IME and, thus, Dr. Morgan was unaware the 13order existed when he examined Hogan. Dr. Morgan conducted a routine orthopedic and neurological examination of Hogan’s entire body. Although Hogan commented once or twice during the examination that Dr. Morgan was not supposed to go below his shoulders, he allowed Dr. Morgan to complete the full examination.

The trial court signed a judgment in favor of Hogan in the amount of $2,500.00, finding in oral reasons that Dr. Morgan was “liable for [exceeding] the scope of ... the court-ordered examination.” The trial court found that the full examination of Hogan’s body was “offensive to [Hogan]” and that the examination caused him “extreme embarrassment.”

Dr. Morgan has appealed, urging:

1) The trial court committed manifest error in finding that [Dr. Morgan] exceeded the scope of [Hogan’s] consent in conducting a complete independent medical examination of him.
2) The trial court was manifestly erroneous in finding that [Dr. Morgan’s] examination of [Hogan] caused him to suffer an offensive touching.
3) The trial court abused its discretion in awarding [Hogan] $2,500.00 for mental damages allegedly sustained during the performance of an independent medical examination.

II. ANALYSIS

A trial judge’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993). Appellate review of questions of law is simply to discern whether the trial court’s interpretive decision is legally correct. In re Succession of Hebert, 03-0531, p. 9 (La.App. 1st Cir.9/17/04), 887 So.2d 98, 105, writ denied, 04-2571 (La.12/17/04), 888 So.2d 872. If legal error is found, an appellate court is to make a de novo review. Id.

We reverse the trial court’s award of damages to Hogan because the record does not establish a legal basis for the award. The record provides no support for a finding that Dr. Morgan committed a battery. Further, the record does not support a finding that Dr. Morgan’s conduct while performing the IME was unreasonable or that it seriously interfered with Hogan’s privacy interest, such that it amounted to an actionable invasion of privacy.

A. Battery

A harmful or offensive contact with a person, resulting from an act intended to cause that person to suffer such a contact, is a battery. The intent need not be malicious nor need it be an intent to inflict actual damage. It is sufficient if the actor intends to inflict either a harmful or offensive contact without the other’s consent. Caudle v. Betts, 512 So.2d 389, 391 (La.1987).

The trial court found that Dr. Morgan intended to touch Hogan and that Hogan found this touching to be offensive. The trial court also found, however, that Dr. Morgan did not intend to harm Hogan. Rather, the record soundly demonstrates that Dr. Morgan had no intent to inflict a harmful or offensive contact upon Hogan. According to Dr. Morgan’s uncontradicted testimony, the only reason that he conducted a complete IME is that he was not aware of the July 25, 2003 trial court order. In its reasons for judgment, the trial court concluded that Dr. Morgan lacked personal knowledge of the trial court order. Although Hogan stated that he com- ■ mented to Dr. Morgan during the IME that he was “not supposed to go below [his] shoulders,” Hogan did not mention to Dr. Morgan that | ¡¡there was a court order limiting the IME. Dr. Morgan testified that if Hogan had told him about the court order, he would have stopped the IME. Dr. Morgan explained that he first became aware that the order existed when he received a contempt citation after the IME.

Dr. Morgan testified that IME patients commonly question the scope of an IME, particularly when the IME extends beyond the part of the body that the patient asserts has been injured. Previously, he has had some patients that leave before he finishes an IME. Dr. Morgan explained that if a patient refuses to let him examine them, he tells them that they can leave. He stated, however, that Hogan did not refuse to allow the examination below his shoulders, made no effort to stop the examination, and voiced no objections. He described Hogan as being “cooperative” during the IME.

Dr. Morgan further testified that whenever a patient presents with some type of injury to the spine, he routinely performs a complete orthopedic and neurological examination. He also stated that his examination of a patient had never been previously limited by a court order and that he had no reason to suspect the existence of such an order in relation to Hogan.

Because the record does not contain any evidence establishing that Dr. Morgan intended his examination of Hogan to be harmful or offensive, we find no battery occurred. Our finding is reinforced by Hogan’s own characterization of the examination, as described below.

IfiB- Invasion of Privacy

Article I, Section 5 of the Louisiana Constitution expressly prohibits unreasonable invasions of privacy. The right to privacy in Louisiana has been described as “the right to be let alone.” Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1388 (La.1979). The right to privacy protects varied interests from invasion. Among the interests protected is the individual’s right to be free from unreasonable intrusion into his seclusion, solitude, or private affairs. The right is not absolute; it is qualified by the rights of others. Angelo Iafrate Const., L.L.C. v. State ex rel. Dep’t of Transp. and Dev., 03-0892, p. 5 (La.App. 1st Cir.5/14/04), 879 So.2d 250, 255, writ denied, 04-1442 (La.9/24/04), 882 So.2d 1131. An actionable invasion of privacy occurs only when the defendant’s conduct is unreasonable and seriously interferes with the plaintiffs privacy interest. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d at 1389, citing Comment, The Right of Privacy in Louisiana, 28 La.L.Rev. 469 (1968).

A plaintiff in a negligence action who asserts mental or physical injury places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury. Schlagenhauf v. Holder, 379 U.S. 104, 119, 85 S.Ct. 234, 243, 13 L.Ed.2d 152 (1964).

Louisiana Code of Civil Procedure article 1464 provides, in part:

When the mental or physical condition of a party ... is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician .... The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person ... by whom it is to be made.

17It has been noted that the apparent purpose of providing for limitations on medical examinations under La. C.C.P. art. 1464 is to restrict the circumstances under which a party may be required to submit his mind or body for examination, thus balancing considerations of the sanctity of the body and the right to privacy with considerations of fairness in the judicial quest for truth. See Alugas v. Halbert, 378 So.2d 192, 193 (La.App. 4th Cir.1979).

Although it is undisputed that Dr. Morgan did in fact exceed the scope of the July 25, 2003 trial court order, albeit without his knowledge, the record also establishes that Hogan implicitly consented to Dr. Morgan’s examination of his entire body during the IME. He allowed Dr. Morgan’s examination to continue below his shoulders, and although he told Dr. Morgan, “[YJou’re not supposed to go below my shoulders,” he made no effort to refuse or stop the examination. Hogan admitted that he did not tell Dr. Morgan to stop the exam, and he stated that he “let [Dr. Morgan] do what he wanted to do because that’s in reason .... ” He further stated, “He was doing a reasonable extent of his job so I didn’t see no need to stop him.”

Based on the entirety of the evidence presented in the record, we find that Hogan failed to prove the essential elements of a claim for invasion of privacy. Although Hogan claims that Dr. Morgan intruded on his physical solitude or seclusion by conducting the unlimited IME, the record does not support such a conclusion.

IsHogan described the IME as lasting ten to fifteen minutes. The examination was non-invasive and consisted of voluntary movements by Hogan upon Dr. Morgan’s request and the limited placement of Dr. Morgan’s hands on Hogan for the purpose of conducting certain orthopedic and neurological tests that were part of the IME. Although Hogan stated that he felt “violated” and “uneasy” during the examination, we find no actionable claim because Dr. Morgan acted reasonably in performing the complete IME. Dr. Morgan was unaware of the trial court order, and Hogan failed to halt the exam or advise Dr. Morgan that the order had been issued. We find any implicit conclusions by the trial court that Dr. Morgan’s conduct was unreasonable to be manifestly erroneous. Further Dr. Morgan’s actions did not seriously interfere with Hogan’s privacy interests. Hogan himself characterized Dr. Morgan’s examination as “in reason” and “reasonable,” and Hogan implicitly consented to the examination by not halting it when it proceeded below his neck and shoulders.

III. CONCLUSION

For these reasons, the trial court’s judgment in favor of Hogan is reversed. Appeal costs are assessed against Hogan.

REVERSED.

WELCH, J.,

dissenting.

bl respectfully dissent from the majority opinion in this case, which reverses the judgment of the trial court. I would affirm the judgment of the trial court with regard to liability, but amend the judgment with regard to damages.

The order to which the parties stipulated provided: “IT IS ORDERED that Dr. Joe Morgan, the defendant’s choice of medical examiner, restrict his medical examination of Mr. Felton Hogan to the cervical, shoulder and upper back area and there shall be no physical examination regarding any other portion of Mr. Felton Hogan.” It is undisputed that Dr. Morgan exceeded the scope of the independent medical examination, even after Mr. Hogan told Dr. Morgan, “You know, you’re not supposed to go below my shoulders.”

In oral reasons for judgment, the trial court stated:

Mr. Hogan’s statement to Dr. Morgan should have placed Dr. Morgan on sufficient notice of a ... limitation upon his medical exam. Dr. Morgan simply ignored the statement of Mr. Hogan that he was not to go beyond the area prescribed. I don’t know why Dr. Morgan proceeded beyond the scope of what Mr. Hogan said. I find that important espe-dally with the fact that Mr. Hogan is not trained, he’s not in the area of knowledge of profession that Dr. Morgan is. Dr. Morgan has a standard obligation under the code of medicine practice [sic] to listen to the patient and even though he’s not a treating physician, this is a medical exam that he’s conducting. So the standard of his profession does apply to him and when a patient says, no, you’re not to do something, then you must cease and desist. Dr. Morgan did not do that. I find him liable for going beyond the scope of the ... the court ordered [independent medical] examination. With respect to injuries, Dr. Morgan did not intend to harm. That’s true. I don’t find harm that he intended to harm. He intended to touch which was offensive to Mr. Hogan. Mr. Hogan appeared at trial and [he] seemed to be a very, very submissive person based upon his testimony and my observation. There seemed to be a person who submits to ^authority ... Mr. Hogan is not that type of person [who would leave the examination] based upon my observation and based upon his testimony. He tends to submit. I have to take the person as I see him and as the facts show. Having considered the lack of intent to cause harm but having further found Dr. Morgan liable for exceeding the scope of the exam, I do and will award Mr. Hogan damages. He did indicate that he felt invaded. He felt as if he was less than a man, and the touching to him was offensive.... For Mr. Hogan it was extreme embarrassment [for] him to submit to anything other than what he consented to. I award liability and I award damages in the amount of $2,500.00 .... ”

Clearly, the trial court’s ruling in this matter was based largely on credibility determinations through its personal observation of the plaintiff, Mr. Hogan. After determining that Mr. Hogan was a submissive person, that Dr. Morgan (for some unknown reason) ignored Mr. Hogan’s statement that Dr. Morgan was not to go below Mr. Hogan’s shoulders, that Dr. Morgan intended to touch Mr. Hogan, and that Mr. Hogan found the touching to be offensive, the trial court found Dr. Morgan was liable for damages.

Factual findings, including those based on determinations regarding the credibility of witnesses, cannot be reversed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The appellate court must be cautious not to reweigh the evidence or substitute its own factual findings just because it would have decided the case differently. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3112 (La.7/5/94), 639 So.2d 216, 221. This is because in reviewing the cold record of a trial, an appellate court is not in a position to ascertain the tone in which a witness responds to a question nor his demeanor. These factors and other factors play a critical role in a fact finder’s evaluation of a witnesses’ credibility. For this reason, great deference is afforded the trier of fact in determinations of credibility, and accordingly, the “manifest error” or “clearly wrong” standard of review was established to preclude the de novo review of the factual findings of a trial court by a court of appeal. See Rosell, 549 So.2d at 844 n. 2; Canter v. Koehring, 283 So.2d 716, 724 (La.1973).

|sWhile recognizing that Dr. Morgan did in fact exceed the scope of the order, and that Dr. Morgan did so despite Mr. Hogan’s statement that he was not to go below the shoulders, the majority overturns a trial court’s factual findings on liability and damages by finding that Mr. Hogan “implicitly” consented to an examination of his entire body because Mr. Hogan “made no effort to refuse or stop the examination.” This finding ignores the trial court’s factual finding that Mr. Hogan was a “very” submissive person, that Mr. Hogan specifically told Dr. Morgan he was not to go below his shoulders during the examination, that Dr. Morgan ignored this statement and intended to touch Mr. Hogan, and that Mr. Hogan found the touching to be offensive. Thus, on a cold record and without deference to the trial court’s factual findings and determination of credibility, which led to its decision on liability, the majority has substituted its own evaluations of credibility and its own inferences of fact — that Mr. Hogan was not submissive and therefore possessed the ability to stand up for himself and stop the examination — without establishing that the trial court was manifestly erroneous or clearly wrong in its underlying factual findings in this regard.

After reviewing the record in this matter, I believe that great deference should be given to the trial court’s determination that Mr. Hogan was a submissive person. This factual finding, coupled with the fact that Mr. Hogan did inform Dr. Morgan that he was not to go below his shoulders, sufficiently establishes a reasonable basis for the trial court’s determination that Dr. Morgan was liable to Mr. Hogan. Thus, I do not believe that the trial court’s factual findings that Dr. Morgan was liable to Mr. Hogan for damages was manifestly erroneous. Therefore, I would affirm the judgment of the trial court in this regard.

However, with regard to damages awards,

[T]he discretion vested in the trier of fact is “great” and even vast, so 14that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, te either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993).

In this case, the evidence indicated that the IME lasted approximately ten to fifteen minutes. Mr. Hogan testified that he felt violated and embarrassed. In light of this evidence, I believe that the trial court abused its vast discretion in making the award of damages in the amount of $2,500 to Mr. Hogan. Accordingly, I would amend the trial court’s judgment to award damages to Mr. Hogan in the amount of $500.

For these reasons, I respectfully dissent.

PETTIGREW, J., concurs and assigns reasons.

WELCH, J., dissents and assigns reasons.

PETTIGREW, J.,

concurring.

|, The order issued by the trial court authorizing an IME of Hogan contained a prohibitive order directed to Dr. Morgan limiting the scope of his IME. Hogan consented to the IME with this limitation. Dr. Morgan, not being a party to the legal proceeding in which said order was issued in, was entitled to be served with said order and he was not. There was no legal notice to Dr. Morgan of the limitations of the scope of the IME he was to do on Hogan. Dr. Morgan performed a routine IME; therefore, there was no harmful or offensive conduct upon Hogan. I agree with the majority that the judgment of the trial court should be reversed.

      . Hogan’s separate suit against Liberty Mutual did not name Dr. Morgan as a defendant, and because he was not a party to that proceeding, Dr. Morgan was not served with a copy of the July 25, 2003 trial court order. Dr. Morgan testified that no one informed him of the existence of the order; he did not discover its existence until after he performed the IME. Although Hogan’s medical documentation and the trial court order were delivered to Dr. Morgan’s office prior to the IME, the trial court order was the last of 10 various documents that were referenced in a cover letter.

      . Hogan testified that he thought he mentioned the limitation twice. Dr. Morgan testified that Hogan commented only once that he was not supposed to examine anything but his neck and shoulders.

      . Hogan testified that he knew the order limiting the IME existed.

      . Dr. Morgan testified that he talked to Hogan for about ten minutes to obtain his medical history. Afterwards, he conducted a physical examination that lasted "a little over five minutes.”

      . The logical extension of the majority’s reasoning suggests condoning self-defense measures taken by the plaintiff in order to stop the examination. This is the wrong result.


author: GAIDRY, J.

text:
    Aaron R. CATHCART and Betty Leboeuf Cathcart v. James N. MAGRUDER, et al. Aaron R. Cathcart and Betty Leboeuf Cathcart v. James N. Magruder, Chip McVea and Ed Branch James Ricky Magee and Playground, L.L.C. v. Aaron R. Cathcart.
    Nos. 2006 CA 0986, 2006 CA 0987, 2006 CA 0988.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      Michael D. Conroy, Covington, Counsel for Plaintiffs/Appellants Aaron R. Cathcart and Betty LeBoeuf Cathcart.
    William J. Crane, Covington, Counsel for Defendants/Appellees James Rickey Magee, Cathy Madere Magee, Chip McVea, Ed Branch, James N. Magruder, and Playground, L.L.C.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

| ¡¡This appeal arises from a judgment rendered in three consolidated civil actions relating to the interpretation and enforcement of building restrictions and conventional servitudes. Aaron R. Cathcart and Betty LeBoeuf Cathcart, plaintiffs in two of the actions and defendants in the third, appeal the judgment. For the following reasons, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On May 28, 1999, Circle T, Ltd. (Circle T), a Mississippi corporation, acquired a tract of rural land in Washington Parish from Green Land Limited Partnership. This original tract, subsequently known as “MaKinley Cove,” had an area of 411.93 acres, including a portion of Lake MaKin-ley and all of two smaller lakes. On July 18, 2000, Circle T sold a portion of its property, encompassing 20.648 acres in area, to James and Cathy Magee (the Ma-gees). The act of sale also established a “non-exclusive servitude and right of ingress and egress for passage ... in favor of the [Magee property] and subsequent parcels conveyed.” This first servitude of passage is served by an existing gravel road that extends westward from Louisiana Highway 25, which forms the eastern boundary of the original tract, to and across a narrow portion of Lake MaKinley, with a newer section extending southward towards the Magee property and forming part of the southwest boundary of that property.

Although only the Magees appear as owners of record in the act of sale to them, Mr. Magee acknowledged in his trial testimony that they |4acquired the property on their own behalf and that of Chip McVea and Ed Branch, whom he acknowledged were co-owners. At some point after the Magees acquired their tract of approximately 20 acres, they sold a five-acre parcel to Barry Kennedy and another five-acre parcel to Randy Magee, leaving them and their co-owners, McVea and Branch, slightly over ten acres owned in indivisión.

On August 11, 2000, Circle T and the Magees executed an instrument entitled “Restrictive Covenants for MaKinley Cove and Adjacent Property Parcels [etc.],” establishing building restrictions for MaKin-ley Cove. Those provisions relevant to this litigation provide as follows:

In order to assist in the safe and reasonable use of the land and lake and for the benefit of owners, family and future owners of parcels that may be adjacent to MaKinley Cove[,] the ap-pearers do hereby establish restrictive covenants and do encumber the parcels owned by them by subjecting them to the following restrictions and covenants to-wit:
1. All lots and acreage are hereby designated as recreational, residential and non-commercial lots and are restricted to such purposes only. No building, trailer or structure shall be erected, altered, placed, permitted or allowed to remain on any such property except in connection with the above permitted uses.
3. No lot or parcel shall be divided into smaller parcels of less than five (5.0) acres.
5. Parcels adjacent to the lake and the lake are designated for private use (owners and family). No guest is allowed unless accompanied by an owner, whether on the lake, hunting or on the premises. Any individual not accompanied is a trespasser subject to penalties.

A second servitude of passage (the “boat launch” servitude) was created on October 10, 2000. The second servitude of passage extends from the intersection of the original gravel road and the first servitude’s newer 1 ¡^section westward to a boat launch on the Bogue Chitto River, which forms the western boundary of the original tract.

On the same day that the “boat launch” servitude was created, October 10, 2000, Circle T sold a triangular parcel of its MaKinley Cove property to the Cathcarts. The Cathcarts’ property encompasses 5.32 acres, with the first servitude of passage crossing the property, parallel with its northern boundary. The act of sale expressly provided that the property was subject to both the first and second servi-tudes of passage, as well as the building restrictions established by Circle T and the Magees. At the time the Cathearts acquired their property, a locked gate regulated access to the servitude’s gravel road at Louisiana Highway 25. Property owners in MaKinley Cove were provided keys to the gate.

On October 11, 2000, James Magruder, Dennis Crowe, Virgil Magruder, and Richard Knight, with their respective spouses, jointly purchased a twenty-acre tract from Circle T. On November 30, 2000, through an instrument entitled “Private Act of Capital Contribution,” those purchasers transferred ownership of the tract to a limited liability company, Playground, L.L.C. The evidence at trial showed that Playground, L.L.C. had five members: James Magruder, Dennis Crowe, Virgil Magruder, Richard Knight, and a later-added member, Bill Durdin.

In August 2001, Circle T removed the gate across the gravel road at Louisiana Highway 25. Differences and confrontations developed between the property owners and other individuals using the gravel road to access the tracts in MaKinley Cove. The disputes centered on the issues of whether guests were required to be physically accompanied by property owners while using the gravel road and the meaning and identity of “owners” as used in the building restrictions.

| (.The First Suit

On August 7, 2003, the Cathearts filed a petition for damages and injunctive relief against James Magruder, Tammy Magee Magruder, and the Magees, alleging that those defendants continually violated paragraphs 1, 3, and 5 of the MaKinley Cove building restrictions “by allowing guests to visit their property unaccompanied by an escort and by subdividing their property.” The Magees filed an answer in the form of a general denial of the petition’s allegations. The Magruders excepted to the petition on the grounds that it failed to state a cause of action or right of action against them, as they individually were not owners of property in MaKinley Cove.

On January 26, 2004, the Cathearts filed a supplemental and amending petition, deleting Ms. Magruder as a defendant, adding Playground, L.L.C. as a defendant, and alleging Mr. Magruder’s status as a member of Playground, L.L.C. in violating the building restrictions. The Cathearts also supplemented their description of Mr. Magruder’s violations, alleging that he “invited unescorted individuals to use the servitude in favor of Playground, L.L.C., specifically violating the restrictive covenants of MaKinley Cove” and that the defendants’ invitees “regularly drove down the unpaved servitude in front of the plaintiffs[’] home at excessive speeds[,] endangering the plaintiffs and their invitees and causing damage to the fragile health of Mr. Cathcart.” Following a hearing on January 28, 2004, the trial court overruled the Magruders’ exceptions.

In response to the supplemental and amending petition, Mr. Magruder again filed a peremptory exception raising the objections of no cause and no right of action, as well as a dilatory exception of vagueness. The Magees and Playground, L.L.C. also excepted to the supplemental and amending petition on the grounds of vagueness. Following a hearing on the exceptions [7on April 16, 2004, the trial court took the matter under advisement. On May 11, 2004, the trial court issued written reasons for judgment sustaining all exceptions, and its judgment in that regard was signed June 30, 2004. That portion of the judgment sustaining Mr. Ma-gruder’s peremptory exception dismissed the Cathearts’ claims against him with prejudice. The portion of the judgment sustaining the dilatory exception of vagueness allowed the Cathearts ten days to amend their petition to remove the grounds of the objection of vagueness.

On July 17, 2004, the Cathcarts filed a second supplemental and amending petition, alleging that at certain specified times Mr. Magruder, as a member of Playground, L.L.C., the Magees, and those parties’ invitees ignored posted speed limit signs and traveled at excessive speeds on the servitude. It was further alleged that on one occasion “four unescorted adults” passed on the servitude -on the Cathcarts’ property, hauling a boat, “[i]n violation of the restrictive covenants requiring all guests be escorted.” Finally, it was alleged that on one stated occasion, McVea, a “non-landowner,” drove unescorted on the servitude past the Cathcarts’ home, and that Branch, another “non-landowner,” regularly passed unescorted on the servitude. The Magees and Playground, L.L.C. filed an answer, which incorporated peremptory exceptions of no cause of action, no right of action, and prescription.

On August 27, 2004, the Cathcarts filed a motion for a preliminary injunction against Mr. Magee and Playground, L.L.C., prohibiting them from allowing unescorted individuals from entering the Cathcarts’ property, using the servitude, and using MaKinley Lake.

Is The Second Suit

On July 16, 2004, the Cathcarts instituted a second civil action against Mr. Magru-der, McVea, and Branch. They alleged that as a member of Playground, L.L.C., Mr. Magruder was not an owner of property in MaKinley Cove, citing the trial court’s reasons for its judgment of June 30, 2004, sustaining Mr. Magruder’s peremptory exception. They further alleged that the building restrictions prohibited access to the first servitude of passage by Mr. Magruder,’ McVea, and Branch without being escorted by an owner of property in MaKinley Cove,- and prayed for a permanent injunction “enjoining the defendants from trespassing on [their] property.” The defendants filed a joint answer generally denying the petition’s allegations.

On August 27, 2004, the Cathcarts filed a motion for a preliminary injunction against Mr. Magruder, McVea, and Branch, seeking the same type of preliminary injunction as that sought against Mr. Magee and Playground, L.L.C. in their motion filed the same day in the first suit.

The Third Suit

On August 20, 2004, Mr. Magee and Playground, L.L.C. instituted an action seeking declaratory judgment, injunctive relief, and damages against Mr. Cathcart. They alleged that Mr. Cathcart unreasonably interfered with their use of the servitude of passage on the Cathcarts’ property by installing a fence encroaching on the servitude; placing various signs, video and audio monitors along the gravel road; placing speed bumps on the roadway; and refusing to allow a grader on the servitude to maintain the roadway. It was also alleged that Mr. Cathcart repeatedly interrogated M^. Magee and guests as to their right to be on his property and' that of Playground, L.L.C., and harassed and stalked Mr. Magee and the members of Playground, L.L.C. RThe plaintiffs in the third suit sought a declaratory judgment that the building restrictions were unenforceable or abandoned and a preliminary injunction preventing Mr. Cathcart from obstructing or interfering with their use of the servitude, in addition to damages. Mr. Cathcart answered the suit, generally denying all allegations other than those relating to recorded ownership of the involved properties and the establishment of the building restrictions.

■ The hearing on the preliminary injunction requested in the third suit was held on September 2, 2004. Based upon the parties’ stipulations at the hearing, the trial court ordered that all three actions be consolidated for trial, and also entered a consent judgment granting a preliminary injunction, ordering the Cathcarts to remove all signs located within the servitude except speed limit signs, to limit video surveillance to their own property, to remove the speed bumps on the roadway, and to maintain the roadway on their property with grading consistent with the overall roadway. All parties were ordered to abide by the posted speed limit and were enjoined from harassing or following other persons. The consent judgment reserved to the parties their rights to present all evidence in support of their positions at the hearing on the requests for permanent injunctions and declaratory judgment.

On April 8, 2005, Mr. Magee and Playground, L.L.C. filed a- rule for contempt against Mr. Cathcart, claiming that he violated various aspects of the preliminary injunction. On May 18, 2005, the Cath-carts filed a motion to set pending exceptions in the second suit for hearing, as well as various requests for preliminary injunctions and declaratory judgment.

The trial court heard all pending matters on May 26, 2005. The peremptory exceptions of no cause of action and no right of action, filed by the Magees and Playground, L.L.C., were dismissed by stipulation. The trial |10court took the matters under advisement, and issued its written reasons for judgment on July 25, 2005. On September 26, 2005, it rendered judgment, issuing a preliminary injunction in the first suit to enforce the building restrictions, and making that injunction permanent, and specifically permitting visitors on property while the owner is present. It denied the third suit’s request for declaratory judgment declaring the building restrictions either abandoned or unenforceable, as well as the Cathcarts’ request for declaratory judgment permitting the erection of a gate and for identification of owners of MaKinley Cove property. The Cathcarts’ request for an injunction prohibiting Mr. Magruder, McVea, and Branch from using the servitude was also denied. Finally, the preliminary injunctions set forth in the earlier consent judgment were made permanent, with the exceptions that (1) the Cathcarts’ monitoring devices were to be located on their property off the servitude, and (2) that all signs and other objects within the servitude be removed, except for advisory speed limit signs.

The Cathcarts now appeal.

ASSIGNMENTS OF ERROR

The Cathcarts contend the trial court erred in the following respects:

(1) The [cjourt erred in not finding that ownership in MaKinley Cove by Playground, L.L.C., a limited liability company, violated restrictive covenants at issue in this matter.
(2) The [cjourt erred in denying the Cathcarts[’j request for injunctive relief against James Magruder, Ed Branch[,j and Chip McVea as they are not owners in MaKinley Cove.
(3) The [cjourt erred in denying the Cathcarts[’j request to erect a gate on the servitude;
(4) The [cjourt erred in denying the Cathcarts[’j [request] that the speed limit posted by the developers be maintained on the servitude in front of their home.

_Ly ANALYSIS

Playground, L.L.C.

Building restrictions, or “restrictive covenants” as they are generally known in the common law and occasionally termed in Louisiana, are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. La. C.C. art. 775. They generally fall into two classes: (1) true “building” restrictions, which limit the type and size of structures, and (2) “use” restrictions, which limit the uses which may be made of the immovable and its structures. See Smith v. DeVincent, 322 So.2d 257, 261 (La.App. 2nd Cir.1975). A use restriction may merely involve restraints on the type of use of an immovable, without necessarily imposing restrictions on the type or size of building on the property. See La. C.C. art. 775, Comment (b).

Building restrictions constitute real rights running with the land, and the remedy of landowners seeking to prevent a violation of the restrictions by another is by injunction. Cosby v. Holcomb Trucking, Inc., 05-0470, pp. 6-7 (La.9/6/06), 942 So.2d 471, 475 (quoting Oakbrook Civic Ass’n, Inc. v. Sonnier, 481 So.2d 1008, 1010 (La.1986)). See also La. C.C. art. 779. Doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable. La. C.C. art. 783.

A limited liability company (LLC) is “an entity that is an unincorporated association having one or more members” and organized under the applicable law. La. R.S. 12:1301(A)(10). With limited exceptions, an LLC “may be organized ... and may conduct business for any lawful purpose, unless a more limited purpose is stated in its articles of organization.” La. R.S. 12:1302(A). “Business” is defined as “any trade, [^occupation, profession, or other commercial activity ... whether or not engaged in for profit.” La. R.S. 12:1301(A)(2). The “whether or not for profit” language of the foregoing definition was added in 1997, and liberalized the original definition of “business,” which had required the activities of the LLC to be carried out “for gain, profit, or livelihood.” 8 Glenn G. Morris & Wendell H. Holmes, Louisiana Civil Law Treatise: Business Organizations § 44.03 n. 5 (1999).

The Cathcarts argue that because of its status as an LLC, any use of the property by Playground, L.L.C. must necessarily be “commercial” in nature, and therefore violative of the building restrictions. Playground, L.L.C. contends that the Cathcarts are simply confusing the inherent powers of an LLC to conduct “business” with the actual purposes or use of its property. We agree. We know of no legal impediment to a corporation, partnership, or LLC acquiring immovable property limited to residential use, as long as the character of the use complies with any applicable building restrictions, zoning regulations, or other legal use limitations. The Cathcarts have not made any showing that the property of Playground, L.L.C. is used for anything other than recreational and residential purposes. If the “business” of Playground, L.L.C. is the management and maintenance of its property for the recreational and residential use of its members, such does not equate to “commercial” use of the immovable property; its use would still be “recreational, residential and non-commercial” in nature. This assignment of error has no merit.

1 i s Use of the Servitudes of Passage

Louisiana Civil Code article 646 defines a predial servitude as “a charge on a ser-vient estate for the benefit of a dominant estate.” Predial servitudes are not attached to a particular person but are due to anyone who happens to be owner of the dominant estate. La. C.C. art. 646, Revision Comments — 1977, (c). Thus, a predial servitude is inseparable from the dominant estate and passes with it. See La. C.C. art. 650(A). There must be a benefit to the dominant estate; there is no predial servitude if the charge imposed cannot be reasonably expected to benefit the dominant estate. La. C.C. art. 647.

Neither contiguity nor proximity of the dominant and servient estates is necessary for the existence of a predial servitude; it is sufficient that their respective location allows one to derive benefit from the charge on the other. La. C.C. art. 648. One estate may be subjected to a servitude for the benefit of several dominant estates. La. C.C. art. 724.

Predial servitudes may be natural, legal, and voluntary or conventional. La. C.C. art. 654. Both servitudes of passage burdening the Cathcarts’ property are indisputably conventional predial servitudes in favor of multiple dominant estates, including the residual tract owned of record by the Magees.

A servitude is due to the whole of the dominant estate and to all parts of it; if this estate is divided, every acquirer of a paid has the right of using the servitude in its entirety. La. C.C. art. 652. However, in the event of such division of the dominant estate, no additional burden may be imposed on the servient estate. In the case of a right of passage, all the dominant estate owners are bound to exercise that right through the same place. La. C.C. art. 747.

1,,¡Louisiana Civil Code article 705 describes the conventional servitude of passage, or right of way, and the general parameters of its use:

The servitude of passage is the right for the benefit of the dominant estate whereby persons, animals, or vehicles are permitted to pass through the ser-vient estate. Unless the title provides otherwise, the extent of the right and the mode of its exercise shall he suitable for the kind of traffic necessary for the reasonable use of the dominant estate. (Emphasis supplied.)

Similarly, La. C.C. art. 749 provides:

If the title is silent as to the extent and manner of use of the servitude, the intention of the parties is to be determined in the light of its purpose.

The allegations of the Cathcarts’ petition against Mr. Magruder, McVea, and Branch and their argument on appeal are limited to the issue of injunctive relief against those parties to prohibit their use of the servitudes of passage only, although the building restrictions are cited as the basis for prohibiting the defendants’ use of those servitudes. As the Cathcarts’ petition identified the defendants as nonowners of any property in MaKinley Cove, the Cath-carts did not seek injunctive relief to enforce the building restrictions against the defendants, nor did they seek such relief against any of the recognized owners regarding the defendants’ use of any owned property. It is therefore unnecessary for us to address any claim that the failure of McVea and Branch to properly record the transfers to them operates to preclude their use of the property as “owners” under the building restrictions, as the use of the servitudes of passage constitutes a separate issue.

| isThe Cathcarts contend on appeal that Mr. Magruder, McVea, and Branch are precluded from using the servitudes of passage “as they are not owners in MaKin-ley Cove.” The only authority they cite for that proposition is La. C.C. art. 1839:

A transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated under oath.
An instrument involving immovable property shall have effect against third persons only from the time it is filed for registry in the parish where the property is located.

In its written reasons for judgment, the trial court noted that “through this litigation all owners have been identified,” an obvious reference to La. C.C. art. 1839’s second sentence and Mr. Magee’s testimony regarding his oral transfers to McVea and Branch. It thus implicitly found that the oral transfers of undivided interests were valid between the parties to those transactions, entitling McVea and Branch to use of the servitudes of passage to access their property.

The servitudes of passage are owed to the dominant estate rather than to individuals, and both servitudes on the Cathcarts’ property were unquestionably matters of public record. Changes in the ownership of the dominant estate or the servient estate are immaterial; the owner of the servient estate is bound to suffer .the exercise of the right of servitude by the person who happens to be the owner of the dominant estate. See La. C.C. art. 650, Revision Comments — 1977, (b). Although the content of the building restrictions are relevant in considering the “reasonable use” of the dominant estates and the related “purpose” of the servitudes of passage, we agree with the defendants that the limitations of use in the building |1firestrictions cannot be incorporated by implication into the servitudes of passage.

The first servitude of passage burdening the Cathcarts’ property does not restrict its use to owners of record and to guests accompanied by those owners of the dominant estates, as the Cathcarts contend. It simply establishes a “non-exclusive servitude and right of ingress and egress” in favor of the dominant estates. Thus, La. C.C. art. 705 governs the use of the servitude by persons and vehicles accessing the dominant estates, provided such traffic is “necessary for the reasonable use” of the dominant estates. The “reasonable use” of the dominant estate co-owned by McVea and Branch would logically contemplate their use of the servitude to access the property.

Similarly, the “boat launch” servitude does not expressly limit its use to owners or escorted guests. Its express purpose is to “assist in the reasonable recreational use of the land and river for the benefit of owners, family and future owners” in MaKinley Cove, while acknowledging that it is “[n]ot for public use and only for recreational, non-commercial use.” Those limitations likewise do not operate to preclude the use of that servitude by McVea and Branch as unrecorded co-owners of property in MaKinley Cove, as their right of use is enforceable against their co-owners, the Magees, and may properly be construed as benefiting the Magees, as well as themselves.

|17In summary, we find that Mr. Magru-der’s status as a member of Playground, Inc. entitles him to use of the servitudes of passage burdening the Cathcarts’ property. Similarly, we find that McVea and Branch have adequately established that their use of the servitudes is necessary for the reasonable use of the dominant estate of which they own undivided, although unrecorded, interests.

The Gate and the Speed Limit

The Cathcarts’ residence is situated 194 feet from the servitude of passage on their property. They urge that the existence of the original gate limiting access to MaKinley Cove was a factor in their decision to buy their property, and that their concerns regarding trespassers and the speed of passing vehicles are legitimate. However, as pointed out by the opposing parties, more tracts of property have been sold in MaKinley Cove since the Cathcarts’ acquisition of their property, necessarily resulting in more traffic on the servitude. The Cathcarts contend that the trial court erred in permanently enjoining their erection of a gate on the servitude on their property and in refusing to issue a mandatory injunction imposing a speed limit on the servitude.

The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude. La. C.C. art. 748. See also La. C.C. art. 651. Conversely, the dominant estate must exercise its rights in a way least inconvenient for the servient estate. La. C.C. art. 743. L, If the dominant estate is divided, no additional burden may be imposed on the servient estate. La. C.C. art. 747.

The standard of review for the issuance of a permanent injunction is the manifest error standard. Mary Moe, L.L.C. v. La. Bd. of Ethics, 03-2220, p. 9 (La.4/14/04), 875 So.2d 22, 29. The interrelated issues of whether the placement of the proposed gate would make the use of the servitude more inconvenient and whether the division in ownership imposed an additional burden on the Cathcarts were fact issues. See, e.g., Woodward v. Gehrig, 97-1040 (La.App. 3rd Cir.2/11/98), 707 So.2d 1322, writ denied, 98-0651 (La.4/24/98), 717 So.2d 1177. As trier of fact, the trial court resolved these issues in favor of the defendants. As there are two permissible views of the evidence, requiring an assessment of the credibility of the witnesses and the weighing of the evidence, the trial court’s determination is entitled to deference and cannot be considered manifestly erroneous. See Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 883 (La.1993). The same considerations apply to the trial court’s determination that imposition of a mandatory speed limit on the servitude was inappropriate and unwarranted under the facts presented at trial.

DECREE

The judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiffs-appellants, Aaron R. Cathcart and Betty LeBoeuf Cathcart.

AFFIRMED.

      . In various legal documents, correspondence, and trial testimony, the term "MaKin-ley Cove” is used interchangeably for the lake itself, those properties adjoining the lake, and the entire community formed from the original tract. For convenience and consistency, we will use that term only to describe the original tract and the properties deriving from it.

      . The tract sold to the Magees is located to the south of the Cathcarts’ property, but is not contiguous to that property.

      . In the context of redhibition, the third circuit court of appeal has held that "residential property pertains to property used for residences or dwellings, whereas commercial property applies to areas where trade or business is conducted.” Stevens v. Bruce, 04-133, p. 6 (La.App. 3rd Cir.6/2/04), 878 So.2d 734, 738. See also Gwatney v. Miller, 371 So.2d 1355, 1361 (La.App. 3rd Cir.1979).

      . To the extent that the Cathcarts' brief may indirectly raise the issue of the effect of the public records doctrine on any claimed violation of the building restrictions, as opposed to the use of the servitude of passage, we hold that any such assignment of error has been abandoned, as it has not been briefed by the Cathcarts. See Rule 2-12.4, Uniform Rules of Louisiana Courts of Appeal.

      . See, e.g., La. C.C. art. 757.

      . A predial servitude may be acquired for the benefit of the dominant estate by any person acting in the name of or on behalf of the owner of that estate. See La. C.C. art. 735. The acquirer of the servitude need not be a competent person nor owner of the dominant estate. La. C.C. art. 735, Revision Comments — 1977 (b). However, the grantor of the servitude, or the owner of the servient estate, may not revoke the servitude he has granted on the ground that the owner of the dominant estate was not a party to the contract, because it is not to the person but to the estate that it is granted. See La. C.C. art. 735, Revision Comments — 1977, (c). Under La. C.C. art. 735, a co-owner acquires a predial servitude for the benefit of the estate owned in indivisión. La. C.C. art. 735, Revision Comments — 1977 (e).

      . Unless an LLC's articles of organization expressly limit its management to specified members, all members have management rights and duties. See La. R.S. 12:1311 and 12:1312. Likewise, unless management is so limited, “[e]ach member ... is a mandatary of the [LLC] for all matters in the ordinary course of its business other than the alienation, lease, or encumbrance of its immov-ables ....'' La. R.S. 12:1317(A). There was no showing at trial that Playground, L.L.C.'s management was limited to less than all members, nor that any member could not make use of its property, as its articles were not introduced into evidence.