text:
    STATE of Louisiana v. Brent FEARHEILEY.
    No. 2008-KK-0307.
    Supreme Court of Louisiana.
    April 18, 2008.
   PER CURIAM.

| granted. The order of the court of appeal is vacated, the decision of the trial court denying defendant’s motion to suppress is reinstated, and this case is remanded for further proceedings.

While the police may not detain individuals on the basis of an “ ‘inchoate and unparticularized suspicion or “hunch,” ’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)(quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)), in determining whether reasonable suspicion exists to conduct an investigatory stop, i.e., whether the police possessed the requisite “minimal level of objective justification,” INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984), courts must take into account the totality of the circumstances in a process that allows the police “ ‘to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” ’ ” State v. Johnson, 01-2081, p. 3, 815 So.2d 809, 811 (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002))(internal quotation marks and citations omitted).

In the present case, the police officer observed the “independent, yet complementary and simultaneous actions by two parties,” conducting an apparent hand-to-hand transaction, Black v. United States, 810 A.2d 410, 413 (D.C.2002), although the officer could not see what either person had in his or her hand. The apparent exchange lasted no more than 15 to 20 seconds inside one of two cars which had arrived separately in the parking lot of a Circle K store with no apparent purpose that evening other than facilitating the brief exchange before the parties, who appeared to the officer to have no other connection to each other, went their separate ways. That the encounter had other possible innocent explanations, including the one offered by defendant after the stop that the unidentified female involved in the transaction had paid off a debt she owed him, did not require the police officer to turn a blind eye to the circumstances and ignore what two years of experience in narcotics investigations, encompassing 15 to 20 arrests, had taught him, that in the narcotics trade, “when it’s done outside, it’s done very fast from one hand to the next.” See Arvizu, 534 U.S. at 274, 122 S.Ct. at 751 (“Although an officer’s reliance on a mere ‘hunch’ is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.”) (citing Terry, 392 U.S. at 27, 88 S.Ct. at 1883 and Sokolow, 490 U.S. at 7,109 S.Ct. at 1585).

Given the minimal objective and particularized justification for the ensuing detention of the defendant, the subsequent warrantless seizure of a plastic baggie filled with crystalline methamphetamine, plainly visible on the front passenger | aseat of the vehicle after defendant opened the car door, was lawful, whether rationalized as an incident of an arrest based on probable cause, Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004); State v. Melton, 412 So.2d 1065, 1068 (La.1982) (“Where there is probable cause but no formal arrest, a limited search to preserve evidence is justified.”), or as part of a search conducted under the automobile exception to the warrant requirement which rests on the diminished expectations of privacy associated with vehicles and on their inherent mobility. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996).


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    Garland LATIOLAIS v. Cheryl JACKSON and Patient’s Compensation Fund.
    No. 2006 CW2403.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.

      James McManus, Lafayette, Louisiana, for Plaintiff/Appellee, Garland Latiolais.
    David A. Woolridge, Jr., Larry M. Roe-del Carlton, Jones, III, Baton Rouge, Louisiana, for Defendant/Appellant, Cheryl Jackson and Patient’s Compensation Fund.
    Before GAIDRY, McDONALD, and McClendon, jj.
   GAIDRY, J.

li>This matter arises from a suit for damages and for mandamus filed against the Patient’s Compensation Fund (“PCF”). For the following reasons, we convert the appeal to an application for supervisory review, grant writs, and reverse the judgment of the trial court granting the mandamus.

FACTS AND PROCEDURAL HISTORY

On January 21, 2004, Garland Latiolais filed a petition for a medical review panel, alleging an act of medical malpractice that occurred in January 2003. The PCF mailed a letter dated February 10, 2004 to Mr. Latiolais’s attorney, Mr. James Patrick MacManus, acknowledging receipt of the January 21, 2004 request for a medical review panel, assigned PCF# 2004-00118. This letter also contained the following notice regarding filing fees:

In accordance with Act No. 961 of the 2003 Regular Session, which amended [La. R.S. 40:1299.47(A)(l)(c) ], effective August 15, 2003, a filing fee of $100 per qualified defendant is due within 45 days from the date of this notice. Please remit a payment to the Patient’s Corn-pensation Fund in the amount of $200.00. This filing fee may only be waived upon receipt of an affidavit from a physician or a district court’s forma pauperis ruling as set forth in [La. R.S. 40:1299.47(A)(l)(d) ] as amended by Act No. 961. Failure to comply shall render the request invalid and without effect and the request shall not suspend the time within which suit must be instituted.

The defendant health care providers were also notified of the claim and the filing fee requirements.

In an April 22, 2004 letter, the PCF notified all parties to the action that because Mr. MacManus failed to timely comply with the statutory filing 1 acquirements, as outlined in the PCF’s February 10, 2004 letter, Mr. Latiolais’s claim “is no longer considered filed by this office.”

On April 27, 2004, Mr. Latiolais refiled his Petition for Medical Review Panel. Accompanying the April 27 petition was a letter from Mr. MacManus claiming that he never received the February 10 letter from the PCF. In a May 7, 2004 letter, the PCF acknowledged receipt of the April 27, 2004 Petition for Medical Review Panel, assigned PCF# 2004-679, and again notified the plaintiff of the 45-day requirement for paying a filing fee or submitting a pauper order or physician’s affidavit. The PCF also notified the defendant health care providers of the claim and of the filing fee requirements.

A pauper order, signed by a district judge on June 9, 2004, was received by the PCF on June 17, 2004. In Mr. MacMa-nus’s June 9, 2004 letter accompanying the pauper order, he informs the PCF:

[The pauper order] applies to both [Mr. Latiolais’s] Petitions for Medical Review Panel: 2204-118 and 2004-679. It is our position that this in forma pauperis cures any problems with the original petition for medical review panel (January 16, 2004), since no notice was received informing us of the possible dismissal until April 22, 2004. This is within 45 days of that notice and since, in an abundance of caution, we have refiled, it is also within 45 days of the subsequent petition and this applies to both.

Nothing further from the medical review panel proceedings is contained in the record. On November 5, 2004, Mr. Latiolais filed a petition for damages against Cheryl Jackson, the Malpractice Insurance Director of the PCF, and the PCF. In his petition, Mr. Latiolais alleges that neither he nor his counsel received the February 10, 2004 letter from the PCF and that | ¿they received no other correspondence from the PCF prior to the April 22, 2004 letter notifying him that his claim was no longer considered filed. He asserts that his April 27, 2004 claim is “now in the process of being dismissed on the basis that it has prescribed.” Mr. Latiolais alleges that Ms. Jackson and the PCF are at fault in dismissing his claims and that their fault has caused him damages including anxiety, anger, other mental damages, delay due to his case-in-chief being dropped, loss of his cause of action in his case-in-chief, and other damages. In addition to asking the court to award him damages, Mr. Latiolais also asks the court to order Ms. Jackson and the PCF to reinstate his claim and rescind their dismissal of his original claim. Mr. Latiolais filed a First Amending Petition for Damages and Writ of Mandamus requesting, in addition to damages, a writ of mandamus ordering the defendants to reinstate his claim and rescind their dismissal of his first claim.

At the trial of this matter, Mr. MacMa-nus told the court that the parties had agreed to “take up separately the writ of mandamus without prejudicing our right to go forward with the rest of our suit later.” After the conclusion of the trial, the court rendered judgment in favor of Mr. Latio-lais, ordering the defendants to reconstitute Mr. Latiolais’s petition under PCF# 2004-00118, nullifying the PCF’s declaration that PCF# 2004-00118 was to be considered as not filed or without effect, ordering the PCF to receive the pauper order, and assessing all costs against Ms. Jackson and the PCF. No mention was made in the judgment of Mr. Latiolais’s request for damages, Land the judgment was not designated as final for appeal purposes under La. C.C.P. art. 1915(b). The PCF appealed suspensively from this judgment.

As this partial judgment was not certified as final by the trial court, we lack jurisdiction, to hear this appeal. However, because the record is already before us, judicial efficiency and the interests of justice may best be served by asserting our plenary power to exercise supervisory jurisdiction at this time. See Succession of Brantley, 96-1307, p. 6 (La.App. 1 Cir. 6/20/97), 697 So.2d 16, 19. Therefore, in the interest of judicial economy, we will convert the PCF’s appeal to an application for supervisory review and grant writs. We will now address the merits of this matter.

DISCUSSION

Mandamus is a writ compelling a public officer to perform a ministerial duty required by law. La. C.C.P. arts. 3861 and 3863. Mandamus is appropriate to compel the performance of a purely ministerial duty, meaning one which is so clear and simple that it does not call for the exercise of judgment and discretion by the officer or body at whose hands the performance is required. Allen v. St. Tammany Parish Police Jury, 96-0938 (La. App. 1 Cir. 2/14/97), 690 So.2d 150, 153. Mandamus is to be used only when there is a clear and specific legal right to be enforced or a duty which ought to be performed; it never issues in doubtful cases. Wiginton v. Tangipahoa Parish Council, 00-1319 (La.App. 1 Cir. 6/29/01), 790 So.2d 160, 163, writ denied, 01-2541 (La.12/7/01), 803 So.2d 971.

In Golden v. Patient’s Compensation Fund Oversight Bd., 40,801 (La.App. 2 Cir. 3/8/06), 924 So.2d 459, writ denied, 06-0837 (La.6/2/06), 929 So.2d 1261, the Second Circuit granted a writ of mandamus ordering the PCF to allow the plaintiff to continue with the medical review panel process despite her failure to pay the filing fee timely. In Golden, the plaintiff 1 ^submitted the filing fee after the 45-day time period had expired. After paying the filing fee, the plaintiff notified the PCF that the parties had selected an attorney-chairman of the Medical Review Panel and wished to have the board notify him of their decision. The PCF returned the untimely filing fee and refused to notify the attorney-chairman because it no longer considered the claim filed, due to the plaintiffs failure to pay the filing fee timely. The Second Circuit held that the PCF’s duties under La. R.S. 40:1299.47(A)(3) are “mandatory duties of a clerical nature to facilitate the panel process,” and the PCF had no authority to unilaterally stop the process as they did in this case. The court interpreted the “invalid and without effect” language of the statute as:

pertaining to the suspension of prescription which occurs during the pendency of the review panel process. With that interpretation, it is not the [PCF’s] place to assert prescription and effectively dismiss plaintiffs claim with prejudice. The defendant alone may choose to assert prescription.

The only thing the PCF is authorized to do when the required filing fee is not timely paid is to notify all the parties. Golden, 924 So.2d at 463-64.

In the instant case, the trial court stated in its written reasons for judgment that:

the PCF should accept Mr. Latiolais’ refiling of April 27, 2004. The PCF should have sent out notice to the parties again, and let Mr. Latiolais’ counsel know that he had 45 days to render a filing fee or an in forma pauperis ruling. The PCF does not have , the authority to dismiss Mr. Latiolais’ claim with prejudice. The defendants must assert prescription if that claim is viable, and the PCF must continue to perform its ministerial duties.

The facts of this case as described by the court in its written reasons for judgment do not match what we have found in the record. We cannot find any evidence in the record that the PCF did not “accept” the April 27, 2004 petition. In fact, the record reveals that the PCF did send out notice to |7the parties again informing them of the 45 day time period for paying the fees or submitting a pauper order or physician’s affidavit. Furthermore, the record contains no evidence that the PCF dismissed Mr. Latiolais’s claim with prejudice. While Mr. Latiolais’s petition for damages in this suit alleges that his April 27, 2004 petition for medical review panel “is now in the process of being dismissed on the basis that it has prescribed because it was filed [more than] one year from the date of his injury,” there is no evidence in the record of any such action being taken by the PCF or Jackson, or, for that matter, by either of the defendant health care providers.

The trial court erred in granting mandamus in this case ordering the defendants to reconstitute Latiolais’s. January 21, 2004 petition and nullifying the PCF’s declaration that the January 21, 2004 petition is considered as not filed or without effect. The PCF did not overstep its authority in this case as it did in Golden. Latiolais was not prevented from continuing the process, and in fact did proceed to assert his claim. The PCF accepted the filing of his April 27, 2004 petition and sent out the notice letter to all parties just as it had with the January 21, 2004 petition. Therefore, there is no basis for the trial court’s judgment.

The judgment of the trial court granting the writ of mandamus is reversed. Costs of this appeal are assessed to the plaintiff, Garland Latiolais.

APPEAL CONVERTED TO WRIT; WRIT GRANTED; REVERSED.

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

      . The exact date of the alleged malpractice is not clear. The April 27, 2004 Petition for Medical Review Panel states that the act of alleged malpractice occurred on January 30, 2003, but the November 5, 2004 Petition for Damages states that the malpractice occurred on January 21, 2003.

      . The plaintiff repeatedly asserts that he submitted a pauper order on May 28, 2004; however, May 28 is merely the date on which his affidavit was notarized. The pauper order was not signed by the court until June 9, 2004, and Mr. MacManus’s letter to the PCF accompanying the order was also dated June 9, 2004. The PCF received the signed pauper order on June 17, 2004.

      . In his petition, Mr. Latiolais alleges that Ms. Jackson sent out the April 22, 2004 letter notifying plaintiff that his suit was no longer considered filed. However, the April 22, 2004 letter was signed by Lorraine LeBlanc, Executive Director of the PCF. Ms. Jackson only signed the February 10, 2004 and May 7, 2004 letters from the PCF acknowledging receipt of the petitions for medical review panel and notifying Mr. Latiolais of the 45-day period within which he must either pay the filing fee or submit a pauper order or physician's affidavit.


author: GUIDRY, J. HUGHES, J.,

text:
    Dan FRISARD v. STATE FARM FIRE AND CASUALTY COMPANY; Porteous, Hainkel, Johnson and Sarpy Law Firm, LLP; William Lozes, and ABC and John Doe Insurance Company.
    No. 2006 CA 2353.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.
    Dan Frisard, Metairie, LA, Appellant/Pro Se.
    Thomas G. Buck, Metairie, LA, for Defendants/Appellees William C. Lozes and Porteous, Hainkel, Johnson, and Sarpy, Law Firm, LLP.
    Before WHIPPLE, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

12In this legal malpractice action, Dan Frisard appeals the trial court’s judgment granting a motion for summary judgment in favor of Porteous, Hainkel, Johnson, and Sarpy Law Firm, LLP (the Porteous Law Firm) and William Lozes, and dismissing Frisard’s claims for legal malpractice with prejudice. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

This legal malpractice action arises from a real estate transaction, whereby Frisard agreed to purchase a home belonging to Jo Ann Ulmer, who was a real estate agent, and paid a $17,000.00 deposit. However, Frisard sought return of his deposit, or alternatively, diminution of the purchase price, due to an alleged misrepresentation regarding the property. Thereafter, Jo Ann Ulmer, individually and together with her husband, Louis J. Ulmer (the Ulmers), filed several suits against Frisard in the Twenty-Second and Twenty-Fourth judicial district courts. Additionally, Frisard reconvened in these actions and asserted his own claims against the Ulmers. Fri-sard’s homeowner’s insurer, State Farm Fire and Casualty Company (State Farm), appointed the Porteous Law Firm to defend Frisard in the actions asserted by the Ulmers. The Porteous Law Firm thereafter assigned William Lozes to handle Fri-sard’s case.

The Porteous Law Firm and Lozes ultimately settled all of the Ulmers claims against Frisard within his policy limits. However, on July 8, 2003, Frisard | sfiled a petition against the Porteous Law Firm, Lozes, and State Farm, seeking damages for legal malpractice and breach of contract. In his petition, Frisard asserted that the Porteous Law Firm and Lozes committed malpractice by failing, from 1995-2001, to properly defend Frisard against all legal causes of action filed against him by the Ulmers in the twenty-second and twenty-fourth judicial district courts. Particularly, Frisard asserted that the Porteous Law Firm and Lozes failed to timely file exceptions raising the objections of no right of action, no cause of action, and prematurity; failed to object to improper parties; failed to file a motion for summary judgment; failed to object to discovery pleadings filed by the Ulmers; failed to defend him in a subsequent motion for contempt and motion for sanctions filed by the Ulmers; and pressured him to attend negotiations in bad faith. As such, Frisard also asserted that State Farm breached its insurance contract by failing to provide effective legal counsel.

Thereafter, the Porteous Law Firm and Lozes filed a motion for summary judgment on June 9, 2004, asserting that the legal malpractice alleged in Frisard’s action was not simple and straightforward, that expert testimony was required to establish the standard of care of practicing attorneys in the locality, and that Frisard was unable to produce such testimony. Additionally, on June 6, 2005, Frisard filed a motion for partial summary judgment, asserting that the acts of the Porteous Law Firm and Lozes show obvious negligence for which expert testimony is not required to establish the standard of care, and requesting judgment in his favor, finding that the Porteous Law Firm and Lozes committed legal malpractice.

On the morning of June 23, 2006, prior to the hearing on these motions, Frisard filed a request for preliminary default judgment, which the trial court entered on June 26, 2006. However, the preliminary default judgment -was not confirmed, and on July 24, 2006, the trial court signed a judgment in favor of the |4Porteous Law Firm and Lozes, dismissing Frisard’s claims against them with prejudice.

Frisard now appeals from this judgment and asserts that the trial court erred: in dismissing his legal malpractice petition, still in pre-trial discovery, because he failed to name a legal expert; in failing to hear and/or rule on his motion for partial summary judgment; and in failing to recognize a preliminary default judgment against the Porteous Law Firm and Lozes for their failure to answer his legal malpractice petition.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Schwehm v. Jones, 03-0109, p. 4 (La.App. 1st Cir.2/23/04), 872 So.2d 1140, 1143. The plaintiff or defendant in the principal or any incidental action may move for summary judgment in his favor. The plaintiffs motion may be made at any time after the answer has been filed; the defendant’s motion may be made at any time. La. C.C.P. art. 966(A)(1). There is no requirement that discovery be completed before a party may move for summary judgment. Rather, the only requirement regarding discovery in the context of summary judgment is that the parties be given a fair opportunity to present their claims. Judsoa v. Davis, 04-1699, p. 13 (La.App. 1st Cir.6/29/05), 916 So.2d 1106, 1116, writ denied, 05-1998 (La.2/10/06), 924 So.2d 167.

The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, |Bshow that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230-231. An appellate court reviews the district court’s decision to grant or deny a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Lieux v. Mitchell 06-0382, p. 9 (La.App. 1st Cir.12/28/06), 951 So.2d 307, 314, writ denied, 07-0905 (La.6/15/07), 958 So.2d 1199.

The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party must only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the nonmoving party must produce factual support sufficient to satisfy its evi-dentiary burden of proof at trial; if the nonmoving party fails to do so, there is no genuine issue of material fact. Schwehm, 03-0109 at p. 5, 872 So.2d at 1144. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Charlet v. Legislature of the State of Louisiana, 97-0212, p. 7 (La.App. 1st Cir.6/29/98), 713 So.2d 1199, 1203, writ denied, 98-2023 (La.11/13/98), 730 So.2d 934.

To establish a claim for legal malpractice, a plaintiff must prove: 1) the existence of an attorney client relationship; 2) negligent representation by the attorney; and 3) loss or damage caused by that negligence. Costello v. Hardy, 03-1146, p. 9 (La.1/21/04), 864 So.2d 129, 138. The standard of practice that an attorney must exercise in the representation of his client is that degree of care, skill, and diligence, which is exercised by prudent practicing attorneys in his locality. Ramp v. St. Paul Fire and Marine Insurance Company, 263 La. 774, 786, 269 So.2d 239, 244 (1972). With regard to the proof necessary to establish the requisite standard of care, this court stated in Watkins v. Sheppard, 278 So.2d 890, 892 (La.App. 1st Cir. 1973):

Expert testimony is certainly admissible to establish the standard of care based on practices of attorneys in the community. In certain cases the opinions of experts may be essential to prove the standard of care an attorney must meet. In many eases, however, the trial court, which is of necessity familiar with the standards of practice in its community, is competent to make such a determination without the assistance of expert witnesses. There may also be cases in which the failure of the practitioner to use due care under any reasonable standard of conduct may be so obvious as to make expert testimony unnecessary.

In the instant case, the Porteous Law Firm and Lozes moved for summary judgment, asserting that Frisard’s claims for legal malpractice were complicated and required expert testimony for Frisard to establish the standard of care in this case, and Frisard was unable to produce such testimony. The Porteous Law Firm and Lozes attached Frisard’s responses to interrogatories, wherein Frisard states that he had contacted experts in legal malpractice, and that such names may be provided at a later date.

In opposition to the motion for summary judgment, Frisard submitted his own affidavit testimony with attached exhibits. In his affidavit, Frisard states that Lozes was his attorney of record. Additionally, Fri-sard states that Lozes failed to file responsive pleadings to Louis J. Ulmer’s motion for contempt and motion for sanctions, which was filed because of Frisard’s failure to produce his income tax returns as ordered, and also failed to appear and defend Frisard at the hearing on these motions. Frisard states that as a result, the trial court entered a judgment holding him in contempt of court and ordering him to be detained in the St. |7Tammany Parish Jail until he complied with the court’s discovery order. Frisard attached to his affidavit answers to the Ulmers’s interrogatories and requests for production of documents, filed in case number 89-16052, which were submitted by Lozes on behalf of Frisard and reference the Ulmer’s request for Fri-sard’s tax returns. Additionally, Frisard attached the trial court’s judgment on Louis J. Ulmer’s motion for contempt and motion for sanctions, also in case number 89-16052, indicating that Frisard appeared pro se at the hearing on the motions, finding Frisard in contempt of court for failing to provide the Ulmers with copies of his tax returns, and ordering him to report to the St. Tammany Parish Jail to be detained until he provided the requested tax returns.

From our review of the record, and the law as outlined above, we find that the trial court erred in granting summary judgment in favor of the Porteous Law Firm and Lozes. While the facts surrounding this case are complicated, and therefore, most of Frisard’s claims for legal malpractice would probably require an expert to testify as to the standard of care to be exercised under the circumstances, one of Frisard’s allegations in his petition is that the Porteous Law Firm and Lozes failed to file responsive pleadings to a motion for contempt and motion for sanctions filed by Louis J. Ulmer and also failed to appear and defend Frisard at the hearing on these motions. To the extent that Fri-sard produced evidence indicating that Lozes was his attorney of record, that Lozes filed pleadings on behalf of Frisard relating to the Ulmer’s request for Fri-sard’s tax returns, that Lozes failed to appear and defend Frisard at the hearing on the motion for contempt and motion for sanctions related to Frisard’s failure to produce these tax returns, and that a judgment was subsequently rendered against Frisard on these motions, whereupon Fri-sard was ordered to spend time in the St. Tammany Parish Jail, we find that Frisard produced factual support sufficient to satisfy his evidentiary burden of proof at trial.

|sThe fact that he failed to name an expert, or that he did not submit expert testimony in opposition to the motion for summary judgment, is immaterial, since the failure to appear and defend a client, when that client faces substantial ramifications, is an obvious act of professional negligence for which no expert testimony is needed. See Watkins, 278 So.2d at 892. Accordingly, the trial court erred in granting the Porteous Law Firm and Lozes’s motion for summary judgment.

In addition to the motion for summary judgment filed by the Porteous Law Firm and Lozes, Frisard filed a motion for partial summary judgment requesting that the trial court find the Porteous Law Firm and Lozes’s obvious acts of negligence constituted legal malpractice. The trial court did not rule on Frisard’s motion, and its silence on this issue is deemed a rejection. See Junot v. Morgan, 2001-0237, p. 4 (La.App. 1st Cir.2/20/02), 818 So.2d 152, 156. However, from our de novo review of the record, we find that there are genuine issues of material fact, which preclude the granting of a partial summary judgment in favor of Frisard.

In opposing Frisard’s motion for partial summary judgment, the Porteous Law Firm and Lozes referred to a letter sent by Lozes to Frisard, which was attached to Frisard’s affidavit, wherein Lozes details, among other things, the limits of his representation. Specifically, Lozes states that he does not represent Frisard in any of Frisard’s causes of action against the Ul-mers. Further, the record contains supplemental responses to Frisard’s request for admissions, wherein the | sPorteous Law Firm and Lozes state that the discovery for which Frisard was held in contempt of court was related to Frisard’s claims that he was advancing against the Ulmers, which is corroborated by the caption on the discovery responses and the contempt judgment, and was not within the scope of the Porteous Law Firm and Lozes’s representation of Frisard.

As stated above, in order to find an attorney was negligent in his representation of a client, a plaintiff must first establish that an attorney-client relationship existed. See Costello, 03-1146 at p. 9, 864 So.2d at 138. The existence of an attorney-client relationship turns largely on the client’s subjective belief that it exists, which is necessarily a factual determination. See Francois v. Reed, 97-1328, p. 4 (La.App. 1st Cir.5/15/98), 714 So.2d 228, 230. Accordingly, because there is conflicting evidence in the record on this issue, a partial summary judgment is inappropriate.

CONCLUSION

For the foregoing reasons, the judgment of the trial court, granting summary judgment in favor of the Porteous Law Firm and Lozes and dismissing Frisard’s claims against them with prejudice, is reversed and this matter is remanded to the trial court for further proceedings. All costs of this appeal are to be borne by the appel-lees, Porteous, Hainkel, Johnson, and Sar-py Law Firm, LLP and William Lozes.

REVERSED AND REMANDED.

WHIPPLE, J., concurs for the reasons assigned by Judge HUGHES.

HUGHES, J., concurs with reasons.

HUGHES, J.,

concurring.

|,I respectfully concur. The purpose of an expert witness is to assist the fact-finder in understanding the evidence. This is not a medical malpractice case. It is not, as is so often urged, “complicated.” It does involve contested facts which presumably should be decided the same anywhere in Louisiana today.

      . The litigation involved in this case spans over twenty years and involves issues such as: the retention of Frisard's $17,000.00 deposit; defamation, libel, and slander for Frisard's assertions in the bankruptcy proceeding; annulment of a sheriffs sale of a piece of immovable property owned by the Ulmers, located at 16 Denni Court in Covington, Louisiana (“Denni property”), which mortgage interest was awarded to Frisard in the bankruptcy proceeding to satisfy the judgment in favor of Frisard; and an award for damages related to the seizure and sale of the Denni property.

      . Frisard obtained a judgment in his favor regarding the return of his $17,000.00 deposit. However, Frisard was unable to execute on this judgment because the Ulmers filed for bankruptcy. Accordingly, in addition to participating in the district court litigation, Fri-sard also participated as a claimant in the bankruptcy proceedings in the United States District Court for the Eastern District of Louisiana.

      . The judgment emphasized that only the claims against the Porteous Law Firm and Mr. Lozes were dismissed. Accordingly, this is a final judgment pursuant to La. C.C.P. art. 1915(A)(1), since State Farm’s claims have not been adjudicated.

      . The record also contains supplemental responses to interrogatories listing several potential legal experts. The Porteous Law Firm and Lozes filed a supplemental memorandum in support of their motion for summary judgment, which addresses the deficiencies of these supplemental responses. Neither party on appeal asserts that Frisard in fact had an expert at the time of the motion for summary judgment. Rather, Frisard contends that an expert is not necessary because the negligence on the part of the Porteous Law Firm and Lozes is obvious.

      . Because we find that the trial court erred in granting summary judgment, we pretermit Frisard’s assignment of error regarding the trial court’s failure to give effect to a preliminary default judgment.

      . Louisiana Code of Civil Procedure article 966(A)(1) clearly states that the plaintiff may move for summary judgment at any time after the answer has been filed. At the time Fri-sard filed his motion for partial summary judgment, the Porteous Law Firm and Lozes had not filed an answer to Frisard's petition. However, the Porteous Law Firm and Lozes waived any objection to this defect by filing an opposition to Frisard’s motion for partial summary judgment. See American Bank & Trust Company v. International Development Corporation, Inc., 506 So.2d 1234, 1236 (La. App. 1st Cir. 1987).


author: WHIPPLE, J.

text:
    Timothy Kim DEVALL v. BATON ROUGE FIRE DEPARTMENT.
    No. 2007 CA 0156.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.

      Frank J. Ferrara, Jr. Walker, LA, for Claimant/Appellee, Timothy Devall.
    E. Wade Shows, Eugene Booth, Gwendolyn K. Brown, Baton Rouge, LA, for Defendant/Appellant, Baton Rouge Fire Department.
    Before WHIPPLE, GUIDRY and HUGHES, JJ.
   WHIPPLE, J.

| ¡..This is an appeal from a judgment of the Office of Workers’ Compensation Administration, District 6. Claimant, Timothy Devall, a firefighter employed by defendant, the Baton Rouge Fire Department (“the Fire Department”), for twenty-eight years, filed a disputed claim for compensation, contending that his heart condition was an occupational disease as defined by the Heart and Lung Act, LSA-R.S. 33:2581, and, thus, that he was entitled to workers’ compensation benefits.

Following trial in this matter, the workers’ compensation judge determined that Devall was entitled to workers’ compensation benefits based on the Heart and Lung Act and rendered judgment accordingly. From this judgment, the Fire Department appeals, averring that the workers’ compensation judge erred: (1) in rendering judgment in favor of Devall where the evidence clearly established that no causal relationship existed between Devall’s heart condition and his employment; (2) in finding that the evidence adduced by the Fire Department was inadequate to rebut the presumption in favor of Devall as established by the Heart and Lung Act; and (3) in failing to exclude the testimony of Dr. David Hutchinson pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Foret, 628 So.2d 1116 (La.1993), in that the testimony was without scientific basis.

EVIDENTIARY RULING

(Assignment of Error No. 3)

In the instant case, the Fire Department filed a “Motion to Limit Trial Testimony,” contending that the testimony of Dr. David Hutchinson should be precluded pursuant to LSA-C.E. art. 702 as lacking in scientific basis. The motion was denied. On appeal, the Fire Department contends that the |sworkers’ compensation judge erred in the performance of his ga-tekeeping role pursuant to Daubert and Foret in determining that the testimony of Dr. Hutchinson was reliable and in refusing to exclude the testimony. Because a finding of an evidentiary error may affect the applicable standard of review, in that this court must conduct a de novo review if the trial court commits an evidentiary error that interdicts the fact-finding process, alleged evidentiary errors must be addressed first on appeal. Wright v. Bennett, 2004-1944 (La.App. 1st Cir.9/28/05), 924 So.2d 178, 182.

Louisiana Code of Evidence article 702 provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In Foret, the Louisiana Supreme Court adopted the federal guidelines for admissibility of an expert’s opinions, as explained by the United States Supreme Court in Daubert. Because LSA-C.E. art. 702 is virtually identical to its source provision in the Federal Rules of Evidence, F.R.E. 702, the Louisiana Supreme Court applied the Daubert analysis, which allows a more flexible standard for determining admissibility while recognizing the detailed analysis in which the trial court must engage to satisfy its gatekeeping function. Foret 628 So.2d at 1121-1123. Under Daubert, the trial court is charged with the duty of performing a gatekeeping function to ensure that the expert testimony is not only relevant, but also reliable. Daubert, 509 U.S. at 589, 113 S.Ct. at 2795.

To ensure reliability, the Daubert standard requires that the expert’s I ¿opinions be grounded in methods and procedures of science, rather than just subjective belief or unsupported speculation. Accordingly, before expert testimony is admitted, the court must make a preliminary assessment that the reasoning or methodology underlying the testimony is scientifically valid and can be applied to the facts at issue. Daubert, 509 U.S. at 590-593, 113 S.Ct. at 2795-2796; Vardaman v. Baker Center, Inc., 96-2611 (La. App. 1st Cir.3/13/98), 711 So.2d 727, 731 n. 6.

In determining whether expert: testimony is reliable, the Court in Daubert enumerated illustrative considerations to determine whether the reasoning and methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, as follows: (1) whether the expert’s theory or technique can be and has been tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) whether there is a known or potential rate of error, and (4) whether the methodology is generally accepted in the scientific community. Daubert, 509 U.S. at 593-594, 113 S.Ct. at 2796-2797; Mitchell v. Uniroval Goodrich Tire Company, Inc., 95-0403 (La.App. 4th Cir.12/28/95), 666 So.2d 727, 729, writ denied 96-0260 (La.3/15/96), 669 So.2d 421.

The decision to admit or exclude expert testimony is within the sound discretion of the trial court, and its judgment will not be disturbed by an appellate court unless it is clearly erroneous. LSA-C.E. art. 702, comment (d); Mistich v. Volkswagen of Germany, Inc., 95-0939 (La.1/29/96), 666 So.2d 1073, 1079; Mitchell, 666 So.2d at 729.

The Fire Department contends that Dr. Hutchinson’s testimony failed to meet the Daubert test because Dr. Hutchinson “could provide no verification in the form of scientific documentation, scientific studies, or even other medical cases, wherein it was stated that being employed as a | ¡¿fireman caused the problems for which Mr. Devall was treated.” (Emphasis added). We disagree.

At the outset, we note that: Dr. Hutchinson, a board-certified cardiologist who examined Devall to provide a second opinion, candidly acknowledged that he was unaware of any medical studies or documentation directly focusing on the link between the occupation of firefighter and heart disease. However, Dr. Hutchinson explained that he was aware of the documented effects of exposure to smoke and certain toxic fumes and gases, such as carbon monoxide, as well as the effects of stress, on heart disease. Indeed, he testified in terms of these known and recognized risks when discussing Devall’s career and its effect on his heart disease. Thus, the mere fact that Dr. Hutchinson did not rely on any studies specifically linking heart disease to firefighting as an occupation is of no moment. Instead, Dr. Hutchinson relied upon the specific duties and exposures and the stress related to that occupation and testified with regard to the known and accepted effects of these specific factors upon Devall’s medical condition.

Accordingly, we cannot find any clear error or abuse of discretion in the decision of the workers’ compensation judge to admit the testimony of Dr. Hutchinson. Dr. Hutchinson’s testimony was clearly based on known medical risks of heart disease and the complications associated with stress and exposure to smoke and toxic fumes. This assignment of error is without merit.

DEVALL’S ENTITLEMENT TO BENEFITS

(Assignments of Error Nos. 1 & 2)

In these assignments of error, the Fire Department contends that the workers’ compensation judge erred in rendering judgment in favor of Devall, where the evidence clearly established that no causal relationship | fiexisted between Devall’s heart condition and his employment, and in finding that the evidence adduced by the Fire Department was inadequate to rebut the presumption in favor of Devall as established by the Heart and Lung Act.

By enacting the Heart and Lung Act, the legislature has acknowledged that firefighters, as a result of the stress and strain of their work, are predisposed to vascular diseases and heart problems. Coats v. City of Bossier City, 31,164 (La.App. 2nd Cir.10/30/98), 720 So.2d 1283, 1286, writ denied, 99-0019 (La.2/12/99), 738 So.2d 581. The Heart and Lung Act creates a presumption that the nature of a firefighter’s work caused, contributed to, accelerated, or aggravated his heart disease or infirmity if the heart problem manifested itself after the first five years of employment. LSA-R.S. 33:2581; McCoy v. City of Shreveport Fire Department, 26,181 (La.App. 2nd Cir.1/25/95), 649 So.2d 103,107.

Once a claimant establishes that a covered disease is at issue, and the presumption applies, the burden shifts to the employer to prove that the disease was not caused by the firefighter’s employment. Vallelungo, 673 So.2d at 1295. The claimant is not required to prove that the employment was the sole cause of the heart injury, so long as it is shown to be a 17contributing, accelerating, or aggravating factor. Rothell v. City of Shreveport, 626 So.2d 763, 766 (La.App. 2nd Cir.1993), writ denied, 93-3191 (La.2/11/94), 634 So.2d 379. Thus, to rebut the presumption, the employer must prove that the firefighter’s employment did not precipitate, accelerate, aggravate, or otherwise cause or contribute to the heart condition. Arsenaux v. City of New Orleans, 98-1405 (La.App. 4th Cir.12/23/98), 729 So.2d 1056,1059.

Clearly, this shifting of the burden of proof imposes an onerous task upon the employer. Vincent v. City of New Orleans, 326 So.2d 401, 403 (La.App. 4th Cir.1975), writ denied, 329 So.2d 760 (La.1976). In fact, because the employer is required to prove a negative, ie., that the employment did not in any way precipitate, accelerate aggravate, or otherwise cause or contribute to the heart condition, some courts have termed this presumption as almost impossible to rebut. Rothell, 626 So.2d at 766; Vincent, 326 So.2d at 405 (on rehearing).

In the instant case, the parties do not dispute that Devall suffered from a heart disease or infirmity within the meaning of LSA-R.S. 33:2581. Thus, the presumption that his employment caused, contributed to, accelerated, or aggravated his heart condition applied. The burden then shifted to the Fire Department to rebut that presumption. In attempting to rebut the presumption, the Fire Department cites the testimony of Dr. Joseph Deumite, De-vall’s treating cardiologist. When asked whether he could say to a medical certainty that Devall’s work as a firefighter had a relationship to his heart problems, Dr. Deumite responded:

I am not aware of any independent risk factor that a fireman has as to contributing to heart disease, I am not aware of any. And I could be educated on that, but I am not aware of that.

IsWhen then asked if he was of the opinion that Devall’s heart condition was not related to his work, Dr. Deumite again acknowledged that he was “not aware of any occupational hazard specifically contributing to coronary artery disease,” but again qualified his answer by stating that “I can be educated on that and I’m very open to it.” When asked this question a second time, Dr. Deumite responded:

I can answer that question as simply as this, that if you go and open up a standard textbook of cardiology and go to the risk factors for coronary artery disease, I’m not aware that there is any specific occupation that is listed ... I don’t know that that is a contributing factor. (Emphasis added).

Thus, given his lack of knowledge of any studies or medical textbook specifically relating the occupation of firefighter to increased risk of coronary artery disease, Dr. Deumite could not say that Devall’s heart problems were specifically related to being a firefighter.

Nonetheless, Dr. Deumite did acknowledge that stress “contributes” to heart disease. While further acknowledging that Devall had had several elevated blood pressure recordings, he stated that he did not know whether Devall’s blood pressure was higher on the job. However, Dr. Deu-mite then conceded that if Devall’s work was very stressful for him, such stress could contribute or aggravate his heart condition. He further admitted that he could not rule out that stress related to Devall’s job as a firefighter had “some contribution” to Devall’s heart problems.

As stated above, because the record establishes that Devall suffered from a heart disease or infirmity within the meaning of LSA-R.S. 33:2581, the Fire Department had the “almost impossible” burden of proving that Devall’s employment as a firefighter did not in any way precipitate, accelerate, aggravate, or otherwise cause or contribute to his heart condition. Rot-hell, 626 So.2d at 766; Vincent, 326 So.2d at 405 (on rehearing). Based |aupon our review of Dr. Deumite’s testimony in its entirety, we cannot conclude that the workers’ compensation judge committed manifest error in finding that Devall was entitled to benefits under the Heart and Lung Act. As noted by the Second Circuit Court of Appeal in McCoy, a medical opinion that generally negates that the firefighter’s work was the cause of his heart disability, but which is tempered by ac-knowledgements, agreements, or concessions that the work may have been a cause or contributing factor, even though remote, is simply insufficient to rebut the statutory presumption that the heart infirmity resulted from the firefighter’s work. McCoy, 649 So.2d at 108.

Moreover, the testimony of Dr. Hutchinson, who examined Devall to provide a second opinion, also supports the workers’ compensation judge’s factual determinations that Devall’s heart condition was work related and, that he accordingly was entitled to workers’ compensation benefits. Specifically, Dr. Hutchinson explained that a patient’s exposure to carbon monoxide or smoke can result in a drop in the oxygen concentration in the patient’s bloodstream, which can “potentially lead to worsening of [his] heart condition.” Dr. Hutchinson further testified that, given the potential compounds present in toxic fumes to which firefighters are exposed, such exposure could have been involved in accelerating thickening of the endothelia, which leads to hardening of the arteries.

Dr. Hutchinson testified that Devall’s ongoing exposure to the adverse conditions required by his work would be stressful and that stress constitutes a “clear cut risk” for heart disease. As confirmed in discussions with Devall, Dr. Hutchinson noted that as a firefighter, Devall had been subjected to physical stress, in terms of the intensity of the physical effort involved, stress on the body caused by lower oxygen levels as discussed above, and | mpsychological stress associated with trying to save lives and property as quickly as possible. Thus, Dr. Hutchinson opined that the stress associated with working as a firefighter “definitely ... would be a contributing factor” after reviewing De-vall’s activities on his job and comparing his other risk factors.

Thus, Dr. Hutchinson concluded, despite the lack of any studies directly focusing on the link between firefighting as an occupation and heart disease, based on the conditions of the job as related by Devall and the known risks associated with these exposures and stresses, “it seemingly would be impossible to refute that there couldn’t be some contributing factor” affecting De-vall’s heart condition.

Considering the foregoing and recognizing the onerous burden imposed by statute upon the employee herein, we are unable to say, after a review of the entire record, that the workers’ compensation judge erred in finding that Devall’s employment as a firefighter precipitated, accelerated, aggravated, or otherwise caused or contributed to his heart condition. There simply was no evidence presented that was sufficient to overcome the presumption that Devall’s heart infirmity resulted from his work as a firefighter. See McCoy, 649 So.2d at 108. Accordingly, we find no merit to the Fire Department’s remaining two assignments of error.

I ^CONCLUSION

For the above and foregoing reasons, the October 24, 2006 judgment of the Office of Workers’ Compensation Administration, District 6, is affirmed. Costs of this appeal are assessed against the Baton Rouge Fire Department.

AFFIRMED.

      . Although Daubert specifically dealt with expert scientific testimony, the United States Supreme Court has since pronounced that the Daubert analysis is equally applicable to all expert testimony. Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 1174, 143 L.Ed.2d 238 (1999).

      . Louisiana Revised Statute 33:2581 provides as follows:
      Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment. The employee affected, or his survivors, shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, prima facie, to have developed during employment and shall be presumed, prima facie, to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment.

      . While not specifically part of the Workers’ Compensation Act, LSA-R.S. 23:1021, et seq., the Heart and Lung Act consistently has been applied to workers’ compensation cases involving firefighters. Vallelungo v. City of New Orleans, 95-0264 (La.App. 4th Cir.5/1/96), 673 So.2d 1292, 1295.

      . Lawrence Efferson, the chief of safety for the Fire Department, also testified with regard to the conditions to which firefighters bad been exposed on the job during the past thirty years. He noted that in the 1970s, many firefighters with the Fire Department fought fires without any respiratory protection, thus exposing those firefighters to cya-nides, fire gases, carbon monoxide, and many other toxins. He further stated that all firefighters with the Fire Department were not provided with or encouraged to use a self-contained breathing apparatus until the late 1970s. Devall, who had been a firefighter for 28 years, similarly testified about the limited respiratory equipment available when he first started his career. Moreover, both Efferson and Devall testified as to the high levels of stress associated with the job.


author: McClendon, j.

text:
    SUCCESSION OF Henry James WERNER Through Its Duly Qualified and Appointed Provisional Administratrix, Sue Werner v. Gloria ZARATE.
    No. 2007 CA 0829.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2007.

      Joseph A. Prokop, Jr., Baton Rouge, LA, for Plaintiff/Appellee Succession of Henry James Werner.
    Dawn N. Guillot, Baton Rouge, LA, Counsel for Defendant/Appellant Gloria Zarate.
    Before GAIDRY, McDONALD, and McClendon, jj.
   McClendon, j.

| ¡¡Gloria Zarate appeals a judgment declaring the December 1993 act of donation by Dr. Henry James Werner to Ms. Za-rate of Dr. Werner’s home to be a nullity. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Zarate met Dr. Werner, a retired professor at Louisiana State University, in August 1992, and helped him move from a larger home to a smaller one in Baton Rouge. Sometime thereafter, Ms. Zarate also moved into the home. Dr. Werner suffered a massive stroke on December 8, 1993, and was hospitalized. On December 18, 1993, an attorney went to Dr. Werner’s hospital room where an act of donation was executed, in which Dr. Werner gave Ms. Zarate his home. Following his stroke, Dr. Werner was transferred from the hospital to a nursing home, where he died on September 29,1994.

On October 9, 1996, the Succession of Henry James Werner filed a “Petition to Nullify Inter Vivos Donation Due to Donor’s Lack of Capacity & Duress and Do-nee’s Fraud & Undue Influence.” In its petition, plaintiff asserted that in the fall of 1992, the defendant, Gloria Zarate, became Dr. Werner’s live-in housekeeper. Thereafter, relying on Dr. Werner’s poor health and dependence on others, defendant concocted and implemented a scheme to obtain the ownership of all of Dr. Werner’s property. In particular, plaintiff asserted that defendant caused Dr. Werner to transfer funds from an existing bank to a different bank and open an annuity account, naming defendant as the beneficiary; that defendant systematically cashed IsDr. Werner’s certificates of deposit, placing the proceeds in the annuity account; that defendant wrote checks on Dr. Wer-ner’s accounts without apparent authority; that defendant routinely wrote large checks on Dr. Werner’s accounts to herself and her family members; and that following the massive stroke suffered by Dr. Werner on December 8, 1993, defendant caused Dr. Werner to donate his home to her. Plaintiff asserted that at the time of the inter vivos donations, Dr. Werner lacked the capacity to comprehend generally the nature and consequences of the dispositions that he was making, and that the donations were the product of fraud and duress by the defendant.

A bench trial in the matter was held on October 16-18, 2006. In oral reasons for judgment, on October 20, 2006, the trial court determined that there was clear and convincing evidence that on December 18, 1993, Dr. Werner lacked the capacity to donate his house to the defendant. However, the trial court found that there was insufficient evidence to prove fraud, duress and undue influence relating to the other transactions at issue. Accordingly, on December 18, 2006, judgment was rendered ordering that the sale of Dr. Werner’s home to the defendant was null and void, and further ordering an accounting of all income and expenses related to the property since Dr. Werner’s death. The judgment also dismissed plaintiffs claims for fraud, duress and undue influence, and assessed costs to the defendant.

Defendant appealed, assigning the following as error:

1) The expert testimony upon which the court based its ruling failed to meet the Daubert standards and therefore was inadmissible.
|42) The plaintiff failed to sustain its burden to provide clear and convincing evidence that the decedent lacked capacity to donate the home to the defendant.

DISCUSSION

At the outset of trial, defendant challenged plaintiffs expert, Dr. Robert Blanche, a board-certified psychiatrist. A Daubert hearing was conducted, after which the trial court permitted Dr. Blanche to testify regarding Dr. Werner’s mental capacity on the date of the act of donation.

On appeal, defendant asserts that “Dr. Blanche’s testimony gave no assistance to the Court as it was not based upon a reliable scientific methodology or sufficient facts or data.” Defendant asserts that “review of medical records is not an accepted or rehable methodology upon which to base an expert opinion on a deceased person’s capacity.” Therefore, according to defendant, Dr. Blanche’s testimony fails the Daubert test.

When faced with a proffer of expert scientific testimony, the trial court must determine at the outset whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. Daubert, 509 U.S. at 592, 113 S.Ct. 2786, 125 L.Ed.2d 469; Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, pp. 12-13 (La.2/29/00), 755 So.2d 226, 234; Bethley v. Keller Const., 01-1085, pp. 5-6 (La.App. 1 Cir. 12/20/02), 836 So.2d 397, 402. See also LSA-C.E. art. 702. In fulfilling this gatekeeping role, the trial court must ensure that the proffered evidence is not only relevant, but rehable, by utilizing a flexible approach requiring that consideration be given to factors such as whether the technique can be (and has been) tested, whether it has been subjected to peer review and publication, whether there is a known or potential rate of error, and whether the relevant scientific/expert community generally accepts the technique. Each of these factors may or may not be relevant to the particular inquiry. Daubert, 509 U.S. at 594-95, 113 S.Ct. 2786, 125 L.Ed.2d 469; Bethley, 01-1085 at p. 6, 836 So.2d at 402.

A trial judge has broad discretion in determining whether Daubert’s specific factors are reasonable measures of reliability in a particular case. Ultimately, the trial judge’s decision to admit or exclude expert testimony is subject to the abuse of discretion standard of review. Corkern v. T.K Valve, 04-2293, p. 6 (La.App. 1 Cir. 3/29/06), 934 So.2d 102, 106; Bethley, 01-1085 at p. 7, 836 So.2d at 403.

At the Daubert hearing, Dr. Blanche testified that he had years of experience in working with elderly persons with altered mental status. He estimated that he did three to four hundred admissions to geriatric psychiatric units per year for elderly persons with mental status changes. Dr. Blanche testified that in this case he relied on the analysis of the extensive medical records, which he stated were quite detailed through several hospital courses. He also looked at the depositions provided to him, including that of Dr. Carolyn Baker, Dr. Werner’s treating neurologist, and | fiMark Lazarre, the attorney who prepared the act of donation. Dr. Blanche also reviewed financial documents provided to him.

When asked about a psychiatric autopsy, Dr. Blanche testified that it is an accepted psychiatric practice and explained that it is an analysis conducted by the review of medical records to form an opinion about mental capacity. He further stated that he would be present during the trial to hear the testimony of the witnesses as part of the psychiatric autopsy in this case. He also stated that such methodology has been peer reviewed. Dr. Blanche reiterated that the methodology he used is the methodology commonly used, and used in all matters that psychiatrists do in forensic or clinical practice.

After considering the testimony of Dr. Blanche, the trial court stated:

This is a Daubert hearing challenging the methodology and proposed testimony of Dr. Blanche concerning the capacity of Dr. Werner to make donations at certain periods during his life. His testimony is that he was going to make his determination based upon his review of all of the medical records, the deposition testimony of the treating neurologist, Dr. Carolyn Baker. He also testified that he reviewed the depositions of the defendant, Ms. Zarate, who was the caretaker of Dr. Werner, as well as the deposition of Mr. Lazarre, who is the attorney who apparently prepared and notarized the relevant donations.
Article 702 of the Code of Evidence deals with expert testimony. Subpart six under the comments deals with methodology and the Daubert-Foret rule. Psychiatry is a difficult science in that because it is in many extents subjective on the part of the examiner, its testability and rate of error are difficult to assess; but still it has long been recognized as a scientific discipline subject to admissible expert testimony.
The question in this case is what has been referred to as psychiatric autopsy, but is basically just a review of all of the medical records and other pertinent information of a person who is now deceased to try to determine their condition at a certain time.
* * *
|7And I think in this case based upon these comments, based upon the testimony of the doctor, based upon the second circuit opinion, which specifically found that there was indeed a number of — there had been a number of peer reviewed psychiatric journals establishing this so-called psychological or psychiatric autopsy procedure, that this was an acceptable method. And I find that the testimony of Dr. Blanche on that issue will be allowed. Any objections made, any evidence presented here will go to the weight to be given to that testimony, but the testimony itself will be allowed.

After reviewing the record, we are not convinced that the trial court abused its discretion in allowing Dr. Blanche to testify. Accordingly, defendant’s first assignment of error is without merit.

The defendant next asserts that the trial court erred in finding that plaintiff sustained its burden of proof in challenging the donation with clear and convincing evidence that Dr. Werner lacked the requisite capacity.

To have capacity to make a donation inter vivos or mortis causa, a person must be able to comprehend generally the nature and consequences of the disposition that he is making. LSA-C.C. art. 1477. A person who challenges the capacity of a donor must prove by clear and convincing evidence that the donor lacked capacity at the time the donor made the donation inter vivos or executed the testament. LSA-C.C. art. 1482 A. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. In re Succession of Crawford, 04-0977, p. 8 (La.App. 1 Cir. 9/23/05), 923 So.2d 642, 647, writ denied, 05-2407 (La.4/17/06), 926 So.2d 511. The issue of capacity is a question of fact. The trial court’s factual findings will not be disturbed on appeal unless clearly wrong or manifestly erroneous. In re Succession of Dodson, 38, 188, p. 5 (La.App. 2 Cir. 3/3/04), 867 So.2d 921, 924.

|sIn thorough oral reasons for judgment, the trial court recognized the heavy burden of proof necessary to determine that Dr. Werner was incapable of validly executing the act of donation at issue herein. In discussing the testimony of defendant’s witnesses, the trial court discounted the testimony of Mr. Lazarre, the attorney, who had never met Dr. Werner before and had no prior contact with Dr. Werner. The trial court recognized that Mr. Lazarre was contacted by defendant and that Mr. Lazarre thought he was representing her. The trial court also noted that in defendant’s testimony, she either had a very poor or a very selective memory of what transpired. The court further observed that the witnesses to the act of donation, defendant’s sister and brother-in-law, were not called as witnesses. On the other hand, the trial court noted the volumes and volumes of medical records and the very explicit testimony of Dr. Blanche. Dr. Blanche cited specific instances throughout the hospital records and the doctors’ records around the time of the donation that made it very clear to him that Dr. Werner did not possess the capacity to comprehend the nature and consequences of the disposition of the property on the date of the donation. The trial court concluded that Dr. Blanche’s review of the records and the explanation as to why Dr. Werner was not capable of forming the requisite legal intent and capacity on that date was clear and convincing evidence that Dr. Werner did not have that requisite legal capacity to make a donation of his house on | ^December 18,1993.

The trial court heard the testimony and weighed the credibility of the witnesses. After a thorough review of the record, we cannot say the trial court was clearly wrong in finding clear and convincing evidence that Dr. Werner lacked the capacity to make the December 18,1993 donation of his home. This assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to Gloria Zarate.

AFFIRMED.

      . The petition was filed by the succession, through its duly qualified and appointed provisional administratrix, Sue Werner. Ms. Werner died prior to the trial in this matter. The new succession representative, Robert R. Breland, was substituted as plaintiff.

      . Plaintiff further asserted that defendant was an illegal alien who fled to Texas following Dr. Werner's death.

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . We note that plaintiff did not appeal the trial court’s judgment regarding the other transactions at issue.

      . Louisiana Code of Evidence Art. 702 provides:
      If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

      . Louisiana adopted the requirements of Daubert in State v. Foret, 628 So.2d 1116 (La.1993).

      . The opinion referred to by the trial court is Succession of Pardue, 40,177 (La.App. 2 Cir. 11/8/05), 915 So.2d 415, writ denied, 06-0215 (La.4/28/06), 927 So.2d 284.

      . Although not the basis of its ruling, we also note that the trial court seriously questioned the validity of the act of donation on other grounds. Citing the Dodson opinion, which referenced C.C. art. 1468 and the definition of a donation inter vivos, the trial court stated:
      [Wjhere the donor lacks the intent to divest [himself] of ownership at the time of the donation and never gave up possession of the property, but only intended for the property to divest upon that person’s death, that the donation was not a valid donation inter vivos and was, therefore, null and void.
      Here there was a right of habitation given at the same time as the alleged donation. So whether there was a valid donation on those grounds or not might be in question. But that is not the basis for my decision.


author: MARION F. EDWARDS, Judge.

text:
    Maria A. REDLER v. GIORLANDO’S RESTAURANT CORPORATION.
    No. 07-CA-658.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 2008.
    Rehearing Denied March 26, 2008.

      William R. Mustian, III, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Harris M. Dulitz, Attorney at Law, Me-tairie, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

| pPlaintifflappellant, Maria Redler (“Re-dler”), appeals a judgment of the Workers’ Compensation Court which granted temporary total disability benefits and payment of medical expenses, but which denied penalties, attorney’s fees, and court costs.

The facts of the accident itself and the resulting injuries to Redler are not contested. The accident occurred on November 12, 2004 when Redler fell while working at Giorlando’s Restaurant (“Gior-lando’s”). Her lower back hurt her and she left work early. Redler testified that she did not go to the emergency room, but first sought medical treatment with Dr. Clevis Parker (“Dr. Parker”) on November 15. Redler learned she had a compression fracture, but she had never had back trouble prior to this. She telephoned John Giorlando (“Giorlando”), who operated the restaurant, that day to tell him that she was hurt and unable to return to work. She did not remember having any conversation with him about payment of medical expenses before the mediation proceedings. She did not request her medical bills |3be sent to Gior-lando’s and did not remember if she requested any medical reports be sent. Giorlando never presented her with a medical authorization. Redler telephoned Giorlando and, although he told her he was doing something about her bills, nothing was ever done. Mediation took place in May 2005. At that time, Gior-lando offered to help with her medical bills. She told him she needed an MRI, but she did not hear from Giorlando again. Her medical insurance was with Blue Cross, which refused to pay for the MRI, although it did pay for her visits to Dr. Parker.

Giorlando operated Giorlando’s at the time of the accident and had done so since 1999. He testified that he and his brother formed Giorlando Brothers LLC in 2004, in order to buy the restaurant from his father, and that the sale was perfected in March 2005. Prior to that purchase, his father made the major decisions regarding the business. Giorlando thought the restaurant had insurance with the Louisiana Workmen’s Compensation Company (“LWCC”).

Giorlando did not see Redler fall but was there when it happened and helped her up afterwards. After her fall, Redler worked the rest of the day and then never returned. A couple of days after the accident, Giorlando spoke on the telephone with Redler, who told him that she had a fractured back and that her doctor told her she would be unable to work for six weeks. Redler did not request that he pay any of her medical bills or wages. Giorlando told her he would get insurance forms for workers’ compensation, and he did telephone LWCC about a week later requesting claim forms. He did not receive any such forms. About one month later, he spoke with Redler a second time, at which time he told her he was still waiting for the insurance form. Giorlando again telephoned LWCC but did not receive any insurance information. Giorlando continued to wait for claim forms from LWCC, and it was not until a week before mediation that he spoke with his insurance Ragent. At that time, the agent informed him he did not have workers’ compensation coverage. Giorlando did not realize he was uninsured — when he gets insurance information he files it without looking at it.

Just after the mediation, Redler told Giorlando she needed an MRI and would furnish him with the medical records and bills. At that time, Giorlando offered to pay for the MRI. He told Redler he believed she needed some compensation and that he would “make some compensation even over and above [the MRI] because I did not deny the fall.” After Giorlando was notified that Redler had an attorney “things changed.” He did not hear from her again until he was contacted by her attorney. Giorlando did not receive any reports or bills from her treating physicians until the mediation conference, at which time he first saw Dr. Parker’s note stating, “Maria Redler is unable to attend work from 11/15/04 to present due to illness and is under the care of Dr. Clevis Parker.” He tried to call Dr. Parker’s office to get some information on the reason for the note. He did not speak with the doctor. By the time of trial, the MRI had never been authorized.

Following the mediation conference, Re-dler obtained counsel. In August 2005, counsel forwarded Redler’s medical records to Giorlando’s attorney, along with requests for authorization for an MRI and a visit to an orthopedist of her choice. In December 2005, a prescription for physical therapy was mailed to counsel; in April 2006, Dr. Charles Billings’ (“Dr. Billings”) report was forwarded. Dr. Billings reviewed the X-rays and recommended an MRI of the neck and spine. Giorlando’s attorney responded that, after reviewing the report, he found no objective evidence to justify MRI studies, and concluded, “This is a classic case of where the legal and medical professions differ. In essence, Dr. Billings, as a matter of caution, disregarding financial reality, recommended testing to avoid any potential medical malpractice claim being asserted against him.”

|sIn evidence was an X-ray report taken on November 15, 2004 by Diagnostic Imaging Services, showing that Redler suffered from a compression fracture and the endplate of LI; however, the age of the fracture could not be determined. Dr. Parker’s report and deposition stated that Redler’s symptoms began after falling at work. He prescribed a steroid injection, pain medication, an anti-inflammatory, and a muscle relaxer. Redler was in too much pain to return to work. In May, Dr. Parker felt Redler could return to normal activity.

Following the presentation of the evidence, the court ordered that Redler undergo an MRI and ordered Giorlando to pay the bill. The case was held open pending results of the MRI. Then, after finding that Redler was injured in the course and scope of her employment and granting temporary total disability as well as medical expenses, the court determined that “because of the circumstances following this alleged injury, and because of misunderstandings on the part of both Employer and Claimant, the Court specifically declines to invoke penalties or award an attorney fee in this matter. Costs are to be borne by the respective parties.” This portion of the judgment is the sole issue on appeal.

LSA-R.S. 23:1201 states, in pertinent part, as follows:

F. Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of |fithe hearing. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that
the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
(3) Except as provided in Paragraph (4)of this Subsection, any additional compensation paid by the employer or insurer pursuant to this Section shall be paid directly to the employee.

The purpose of imposition of penalties and attorney’s fees is to discourage indifference and undesirable conduct by employers and insurers. Awards of penalties and attorney’s fees in workers’ compensation cases are essentially penal in nature. The crucial inquiry in determining whether to impose penalties and attorney’s fees on an employer is whether the employer had an articulable and objective reason to deny benefits at the time it took action. The determination of whether an employer or insurer should be cast with penalties and attorney’s fees in a workers’ compensation action is essentially a question of fact subject to the manifest error or clearly wrong standard of review. The fact that an employer is subjectively motivated to avoid paying compensation is not determinative. Neither is the fact that an employer loses a disputed claim. The employer must adequately investigate the claim. The crucial inquiry is whether the employer had 17an articulable and objective reason for denying or discontinuing benefits at the time it took that action. Whether the employer’s act is arbitrary, capricious or without probable cause depends upon the facts existing and known to the employer at the time its decision as to benefits was made.

Statutes imposing liability for penalties and attorney’s fees must be strictly construed to prevent an employer from being penalized for relying in good faith on valid defenses. In construing the term “reasonably controverted” as contemplated by the statute, our courts have found that in order to preclude the imposition of penalties and attorney’s fees under LSA-R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

Here, Giorlando was aware that Redler had fallen, and, in his own words, did not “deny the fall.” Within a few days of the accident, Giorlando was informed that Re-dler had sustained a back injury and would be unable to work. Giorlando admitted that Redler was entitled to compensation, but he did not pay any benefits, medical or otherwise, because he did not receive any medical bills from her. By his own admission, Giorlando knew that Redler had sustained a compensable injury and was entitled to compensation benefits. Redler filed a compensation claim in January 2005. It was not until one week before mediation that Giorlando finally telephoned his insurance agent to inquire about his coverage.

IsGiorlando did not pay any medical expenses until ordered to do so by the trial court. However, it is not clear from the record if any medical bills were ever presented to Giorlando or to his attorney. There are no other bills in the record.

Based on the above facts, we find that Giorlando did not adequately investigate Redler’s claim and did not articulate an objective reason to deny payment of disability benefits. Employers must demonstrate that they made reasonable efforts to medically ascertain the worker’s exact condition before denying benefits. An employer has an ongoing duty to review medical reports concerning an injured employee’s disability, and may not deny or discontinue compensation based on inconclusive medical reports. There was no evidence to reasonably counter Redler’s claim that she was injured and unable to work for the period of disability determined by the trial court. Giorlando never questioned that Redler had been injured at work. The only reason Giorlando gave for failing to pay benefits was his mistaken impression that he had compensation insurance and that he was unable to obtain claim forms. We find the trial court erred in finding that Giorlando was not arbitrary and capricious in failing to pay disability benefits and that penalties are due on this claim.

However, in the absence of evidence that medical bills were presented to Giorlando, he was not arbitrary and capricious in failing to pay medical expenses.

The factors to be considered in the imposition of the attorney’s fee in workers’ compensation cases include the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the claimant, and the amount of time the attorney devoted to the case. There is no requirement that the trial court hear evidence concerning the time spent or the hourly rates charged 18to make an award of attorney’s fees since the record will reflect much of the services rendered. Considering the appropriate factors, we find that attorney’s fees in the amount of $8,000 to be appropriate.

Redler also argues that the trial court erred in ordering costs to be borne by the respective parties. Regarding the allocation of court costs, LSA-R.S. 23:1317(B) provides that the allocation of such lies within the workers’ compensation judge’s discretion and can be reversed only upon a showing of an abuse of that discretion. Given that neither party prevailed fully on the merits, we find no abuse of the workers’ compensation judge’s discretion in the assessment of costs.

For the foregoing reasons, the judgment of the trial court is affirmed in part and reversed in part. We reverse that portion of the judgment finding that Giorlando was not arbitrary and capricious in failing to pay compensation benefits, and assess the statutory penalty of $2,000. We also award $3,000 in attorney’s fees. In all other respects, the judgment is affirmed.

AFFIRMED IN PART AND REVERSED IN PART.

      . Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41.

      . Id.

      . Authement v. Shappert Eng’g, 2002-1631 (La.2/25/03), 840 So.2d 1181 (quoting Williams, supra).

      . Authement, supra.

      . Burrow v. Della Container Corp., 05-316 (La.App. 5 Cir. 11/29/05), 923 So.2d 158, writ denied, 2005-2583 (La.4/17/06), 926 So.2d 516.

      . Burrow, supra.

      . Burrow, supra; Williams, supra.

      . Burrow, supra.

      . See, Burrow, supra; Chateau v. City of Kenner, 97-1006 (La.App. 5 Cir. 5/13/98), 712 So.2d 256, writ denied, 98-1545 (La.9/18/98), 724 So.2d 769.

      . Burrow, supra.

      . Tillmon v. Thrasher Waterproofing, 2000-0395 (La.App. 4 Cir. 3/28/01), 786 So.2d 131

      . Id.

      . Atwood v. Ewing Timber, Inc., 36, 732 (La. App. 2 Cir. 1/29/03), 836 So.2d 1199, writ denied, 2003-0888 (La.5/16/03), 843 So.2d 1134.

      . Id.

      . See, e.g., Barber Bros. Contracting Co., L.L.C. v. Morgan, 2002-1712 (La.App. 1 Cir. 5/9/03), 849 So.2d 563.


text:
    RIVER PARISHES FINANCIAL SERVICES, L.L.C. v. Dianne GOINES.
    No. 07-CA-641.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 2008.

      Benjamin L. Johnson, Attorney at Law, Donaldsonville, Louisiana, for PlaintiffAp-pellant.
    Avinell Joyce Marie Faucheux, Attorney at Law, Destrehan, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   MARION F. EDWARDS, Judge.

| gPlaintiff/appellant, River Parishes Financial Services, L.L.C. (“River Parishes”), appeals a ruling by the trial court that denied its motion to vacate and recall a preliminary injunction. For reasons that follow, we affirm the decision of the trial court, and remand the matter for further proceedings consistent with this opinion.

This matter began as a suit on an open account filed by River Parishes against defendant/appellee, Dianne Goines (“Ms. Goines”). Ms. Goines was divorced at the time she signed a promissory note to River Parishes to finance a furniture purchase and consolidate other debts in 2002. However, at that time the community that existed between the Goines had not been divided. As part of the transaction with River Parishes, Ms. Goines executed a collateral mortgage secured by her one-half interest in a home that was part of the community of acquets and gains of the former marriage between Ms. Goines and Nathanial Goines (“Mr. RGoines”). Mr. Goines was not a party to either the mortgage or the promissory note.

The account went into arrears and, on August 5, 2004, River Parishes successfully obtained a judgment against Ms. Goines in the amount of $29,399.35. To enforce the judgment, River Parishes executed a writ of seizure and sale on the home.

Mr. Goines intervened in the suit seeking injunctive relief to stop the sale of the home which was part of a pending community property partition suit between the parties. In the petition for injunctive relief, Mr. Goines alleged that the property subject to seizure was his home and was at issue in the community property partition suit between the parties set for a hearing on February 18, 2005. The trial court granted a preliminary injunction on the seizure and sale of the home pending the community property settlement.

On February 6, 2006, River Parishes filed a motion to vacate and recall the injunction. That motion was taken under advisement.

Mr. Goines filed a petition for nullity of the mortgage, asserting that the parties were divorced on July 26, 2001, and that subsequent placement of a security interest in the form of a collateral mortgage by Ms. Goines on immovable property belonging to the community was a violation of community property law.

On July 16, 2006, the parties entered into a consent judgment, in which they agreed that the mortgages and liens on the property “shall be declared null & void.” It was also agreed that the judgment against Ms. Goines on the open account was “dismissed.” The consent judgment further provides that Mr. Goines “shall make a good faith effort to obtain the loan for $32,000.00” within a forty-tfive4 day time period. The judgment also acknowledged the debt as a separate debt owed by Ms. Goines and that there be a review of the matter on August 2, 2006.

On September 12, 2006, River Parishes filed a motion to vacate the consent judgment on the basis that the debt was not paid within the forty-five day period. The trial court granted that motion and, on October 9, 2006, the consent judgment was vacated.

The trial court then took up the motion to vacate the injunction filed on February 6, 2006 that had been taken under advisement and never ruled upon. After a hearing, the motion was denied on March 26, 2007 with written reasons by the trial court. It is from that judgment that River Parishes appeals.

LAW AND ANALYSIS

LSA-C.C.P. art. 2752(A) provides that:

The petition for injunction shall be filed in the court where the executory proceeding is pending, either in the ex-ecutory proceeding or in a separate suit. The injunction proceeding to arrest a seizure and sale shall be governed by the provisions of Articles 8601 through 3609 and 3612, except as provided in Article 2753. However, a temporary restraining order shall not issue to arrest the seizure and sale of immovable property, but the defendant may apply for a preliminary injunction in accordance with Article 3602. In the event the defendant does apply for a preliminary injunction the hearing for such shall be held before the sale of the property. LSA-C.C.P. art. 3607 provides in perti-

nent part:

An interested person may move for the dissolution or modification of a temporary restraining order or preliminary injunction, upon two days’ notice to the adverse party, or such shorter notice as the court may prescribe. The court shall proceed to hear and determine the motion as expeditiously as the ends of justice may require.

In brief to this Court, River Parishes presents three assignments of error for our review. The first one relates to the validity of the injunction. River Parishes Largues that no bond was set as required by LSA-C.C.P. art. 3610. In the second assignment, River Parishes argues that Mr. Goines has no right of action to challenge the seizure and sale of the home. Finally, River Parishes argues that Mr. Goines has made no showing of irreparable harm.

In his Reasons for Judgment, the trial judge explained that he refused to dissolve or modify the injunction against the seizure and sale of the home because Mr. Goines has shown irreparable harm. If the injunction is dissolved the home that is still part of the community would be seized and sold prior to the partitioning of the community property, causing Mr. Goines to lose his one-half interest in the home.

We find this reasoning compelling. Mr. Goines was not a party to the promissory note or collateral mortgage that encumbered the community property after the divorce. Clearly, the seizure and sale of this home before the community property is divided would cause irreparable harm to Mr. Goines. Accordingly, we are not persuaded by River Parishes’ arguments that Mr. Goines has no right of action to eon-test the seizure and sale of the home or that he has not shown irreparable harm.

Mr. Goines argues that a subsequent judgment of the trial court, rendered on May 31, 2007 declaring the home in question to be his separate property, makes the issue of the necessity of an injunction and bond moot. We disagree. This Court cannot consider any actions of the trial court taken after the motion for appeal was granted. An appellate court must render its judgment upon the record on appeal. A court of appeal is a court of record, which must limit its review to evidence in the record before it. Thus, this Court is without jurisdiction to ^consider the May 31, 2007 judgment attached to Mr. Goines’ brief, but not contained in the record.

Although we believe the injunction was properly granted and the trial court was justified in maintaining the injunction pending the division of the community property, we find it troublesome that there is no signed judgment enjoining the seizure and sale of the home in the record and that the record does not indicate that a bond has been set. However, the transcript contained in the record shows that the trial court found irreparable harm and granted the injunction to prevent the sale of the home until final disposition of the community property. That ruling was never reduced to a judgment and has not been appealed.

Therefore, we believe the intention of the trial court, as acknowledged by all parties, is to enjoin the seizure and sale of the home until the community property can be divided. It is further acknowledged by all parties that an injunction was granted and has not been appealed. Given the circumstances of this case, we find no abuse of discretion in the trial court’s refusal to dissolve or modify the injunction.

AFFIRMED AND REMANDED.

      . Although all parties and the trial judge acknowledge the injunction was granted, there is no signed judgment in the record.

      . The trial court signed a separate judgment on the same day in which the court declared various debts to be community and one to be a separate debt of Ms. Goines. No appeal was taken from that judgment.

      . LSA-C.C.P. art. 2164.

      . Black v. Anderson, 06-891 (La.App. 5 Cir. 3/13/07), 956 So.2d 20, 23, writ denied, 2007-0794 (La.6/1/07), 957 So.2d 180.


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

text:
    HARVEY FORD, L.L.C. v. Davor TOMASEVIC.
    No. 07-CA-724.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 2008.

      Donna B. Wood, Burgess E. McCranie, Jr., Attorneys At Law, Metairie, Louisiana, for Plaintiff/Appellee.
    Theodore W. Nass, Attorney at Law, Gretna, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   EDWARD A. DUFRESNE, JR., Chief Judge.

| ¡.This is an appeal by Davor Tomasevic, defendant-appellant, from a judgment ordering enforcement of a settlement agreement entered into by him and Harvey Ford, L.L.C., plaintiff-appellee, in this dispute involving the trade-in value of a used pick-up truck. For the following reasons, we affirm the judgment.

The facts alleged in the petition and admitted in the answer are as follows. In December of 2005 Tomasevic bought from Harvey Ford a 2006 pick-up truck. He traded in his old 2004 pick-up truck for $24,000, paid $5,000 down, and financed an additional $9,041.75, making a total of $38,041.75 for the new vehicle.

The petition further alleges that at the time of the trade-in, Tomasevic represented that the truck was in good condition, even though he knew it had been flooded in Katrina or some other water event, thus rendering the vehicle substantially less valuable. It sought return of the $24,000 trade-in and other miscellaneous items of damages.

| ¡¡After the answer was filed the parties began settlement negotiations. Plaintiffs counsel made an offer, to which defendant’s counsel responded in writing as follows:

My client has two counter proposals: trade trucks and pay your client $3,000 or pay $15,000 to settle the matter. We can pay these funds immediately.

The second proposal for payment of $15,000 was accepted by plaintiffs counsel, also in writing.

Subsequently, plaintiff took the position that his offer to settle for $15,000 included return of the 2004 truck to him, as well as his keeping the 2005 truck. Plaintiff then filed a motion to enforce the settlement, which in its opinion did not involve return of the old truck. The trial judge agreed with plaintiffs position and ordered payment of $15,000, which included all costs, attorney fees and interest, except for an additional award of $150 for costs associated with the motion to enforce the settlement. Defendant now appeals.

Two assignments of error are urged. First, appellant asserts that the settlement offer and acceptance were not properly introduced into evidence, and therefore can not be considered by this court. Second, he argues that even were the settlement documents properly before the court, they are ambiguous and therefore do not represent a true meeting of the minds of the parties as to their terms. We reject both assignments.

As to the first, the settlement documents were properly introduced as exhibits attached to plaintiffs motion to enforce settlement. Not only did defendant not challenge the contents or admissibility of the documents, but relied on them in his own argument to the court. In these circumstances the documents were properly considered by the district court, and are properly before this court.

1¿Defendant’s second argument is equally without merit. The language of the settlement proposal accepted by plaintiff is that defendant “will pay $15,000 to settle the matter. We can pay these funds immediately.” There are no conditions or stipulations in this language. Moreover, if return of the old truck were to be considered part of the agreement, it would mean that defendant’s trade-in would be reduced from $24,000 to $9,000 by payment of the $15,000, but plaintiff would not receive the old vehicle or anything else of value for this $9,000 credit on the price of the new truck. Such a result would be absurd.

For the foregoing reasons the judgment of the district court is hereby affirmed.

AFFIRMED.


text:
    Kathy Mitchell, Wife of/and Lawrence MITCHELL v. KENNER REGIONAL MEDICAL CENTER, Dr. Michael Brothers, Dr. David Kastl and Dr. Bahram Zamanian.
    No. 07-CA-630.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 2008.
    Lawrence D. Wiedemann, Attorney at Law, New Orleans, Louisiana, for Plain-tifftAppellant.
    Harvey J. Godofsky, Attorney at Law, Metairie, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   EDWARD A. DUFRESNE, JR., Chief Judge.

| gThis is an appeal by Kathy Mitchell, wife of/and Lawrence Mitchell, plaintiffs-appellants, from as summary judgment in favor of Dr. Bahram Zamanian, defendant-appellee, in this medical malpractice action. For the following reasons we affirm the judgment.

The facts of this case are set forth in Mitchell v. Kenner Regional Medical Center, 06-620 (La.App. 5 Cir. 1/30/07), 951 So.2d 1193, and therefore need not be repeated in detail here. We do however note the following particulars which are relevant to this appeal.

Lawrence Mitchell, plaintiff, was seen by Dr. Bahram Zamanian at Kenner Regional for an apparent heart attack. An angiogram and coronary catheterization were scheduled for the next day. There was a three and one-half hour delay in the procedures until 4:45 p.m., and during the surgery a coronary artery splintered ^necessitating an emergency bypass procedure. The bypass was performed at 7:25 p.m.

Plaintiff brought this medical malpractice claim against various health care providers, including Kenner Regional and Dr. Zamanian. His theory of the case is as follows. Kenner Regional has a policy in effect which requires all doctors performing coronary catheterizations to notify a standby surgical crew of the impending procedure, and verify that there is an operating room available in the event it is needed. He alleges that this was not done and that there was a consequent delay in performing the bypass surgery which resulted in irreparable damage to his heart.

A medical review panel concluded that none of the defendants committed any acts which fell below the proper standard of medical care. It also concluded that “The time frame as to when the emergency was declared and the [bypass] surgery was begun was appropriate with an excellent result.”

Kenner Regional urged a motion for summary judgment and attached thereto the report of the medical review panel. Plaintiff opposed the motion, but did not present any competent expert testimony to refute the conclusions of the panel. Summary judgment was entered in favor of the hospital, and that judgment was affirmed on appeal in Mitchell v. Kenner Regional Medical Center, supra. In that opinion this court specifically rejected plaintiffs theory that the alleged failure to notify a surgical standby team and to have an operating room ready caused him any injury.

In the present matter, plaintiff has again urged his theory of damages due to delay, but he has still not presented any further expert opinion to refute the contrary conclusions of the medical review panel. In these circumstances and for the reasons expressed in Mitchell v. Kenner Regional Medical Center, supra, we again find that plaintiff has not come forward with evidence that would establish |4his case at trial, and therefore that Dr. Zamanian’s motion for summary judgment was properly granted.

AFFIRMED.