author: MOORE, J.

text:
    Shameka WILEY and Jasmine Wiley, individually and on behalf of Donna Wiley, Plaintiff-Appellee v. John M. LIPKA, M.D., Defendant-Appellant.
    No. 42,794-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 6, 2008.

      Weil & Arceneaux by Richard L. Weil, Gerald F. Arceneaux, for Appellant, John M. Lipka, M.D.
    Hudson, Potts & Bernstein, L.L.P. by Jay P. Adams, Gordon L. James, Monroe, for Appellant, State of La. Patient’s Compensation Fund.
    The Cochran Law Firm, Phillips and Mitchell, by Deborah E. Lavender, for Ap-pellees.
    Before STEWART, GASKINS and MOORE, JJ.
   MOORE, J.

| ¶This is an appeal from a judgment against Dr. John M. Lipka for medical malpractice that resulted in the death of Donna Wiley on December 20, 2001. The decedent’s two daughters, Shameka and Jasmine, brought a survival and wrongful death action alleging Dr. Lipka breached the standard of care in treating their mother. This core issue is whether Dr. Lipka breached the applicable standard of medical care in his response to complications arising out of an operation he performed on Ms. Wiley on December 4, 2001. For the reasons stated herein, we affirm.

Facts

The matters of record reveal that on November 30, 2001, Donna Wiley, age 34, presented at the emergency room of Morehouse General Hospital in Bastrop, Louisiana, complaining of abdominal pain, vomiting blood and passing blood from the bowel. Dr. Lipka performed an endoscopy and discovered a large broad-based ulcer with multiple bleeding points in the duodenum. In the anatomy of the digestive system, the duodenum is a hollow jointed tube about 25-30 cm long (10 to 12 inches) connecting the stomach to the jejunum or small intestines. It is the first and shortest part of the small intestine, and it is where most chemical digestion takes place. A ^duodenal ulcer is a raw area in the duodenum caused when the lining is eaten away by stomach acid and digestive juices.

Dr. Lipka brought the bleeding under control using an Argon Laser Coagulator. Ms. Wiley was admitted to ICU and given two units of blood. She recovered over the next three days.

Ms. Wiley had undergone a previous surgical procedure, a vagotomy and pylo-roplasty, for her ulcer disease. A vagoto-my is a way to reduce the acidity in the stomach by cutting the vagus nerves to the stomach that trigger the production of acid. Because this procedure has an effect on the function of the pyloris, a sphincter muscle that controls the outlet from the stomach to the duodenum, the pyloris is also cut.

After the episode of November 30, 2001, Dr. Lipka consulted with Ms. Wiley regarding further surgical intervention to prevent another recurrence of the bleeding ulcer problem. This was apparently the third episode of bleeding ulcers she had experienced. Dr. Lipka was concerned because the presence of a Lewis antibody in Ms. Wiley’s blood coupled with her ongoing problems with bleeding constituted a dangerous combination. The presence of a Lewis antibody made it difficult to locally find matching blood for a transfusion and required them to obtain matching blood from Shreveport and beyond.

The surgical procedure Dr. Lipka recommended entailed a 70% gastrecto-my/antrectomy, vagotomy and Bilroth II gastrojejunostomy. The |sgastrectomy or antrectomy would consist of surgical removal of the lower 70% of the stomach. The Billroth II involved attaching the remaining part of the stomach to the jejunum, that is, the portion of the small intestine after the duodenum. The duodenum, that part of the intestine between the stomach and the jejunum, is not removed since the organ is necessary to handle bile and pancreatic juices flowing into it through the bile duct and which would continue to flow from the duodenum into the jejunum. However, since the upper end of the duodenum is no longer attached to the stomach, it must be closed off by sutures, thereby creating a duodenal stump. This is important because the ultimate issue in this case is whether Ms. Wiley died as a result of Dr. Lipka’s breach of the standard of care regarding recognition and treatment of a duodenal stump leak as a complication of the surgery.

On December 4, Dr. Lipka performed the procedure described above at More-house General Hospital. After the surgery, she was placed in ICU to proceed toward a normal course of recovery. Ms. Wiley never recovered from the surgery; indeed, sixteen days after the operation, on December 20, 2001, Ms. Wiley went into unresuscitatable shock and died.

The plaintiffs requested that the matter be submitted to a Medical Review Panel (“MRP”) on June 11, 2002. Subsequently, an MRP was ordered to be convened by the Patient’s Compensation Fund Oversight Board. The panel issued the following terse opinion finding that Dr. Lipka did not breach the applicable standard of care:

On the 1st day of November, 2004, the Medical Review Panel composed of Edward B. Staudinger, M.D., Vincent R. pRusso, M.D. and James T. Tebbe, Jr., M.D., failed to meet the applicable standard of care as charged in the complaint.
Dr. Webb appropriately and timely attended to the medical conditions of this patient, within the scope of his general practice. Dr. Lipka addressed and treated the patient’s surgical conditions in a timely fashion. Dr. Lipka addressed the patient’s 1) general condition, i.e., nutritional status, volume status, hydration and feeding; 2) the infection by ordering antibiotic therapy; and 3) he drained the abscess percuta-neously and ordered a follow-up CAT scan.

Plaintiffs then brought suit, which ultimately went to trial, submitting into evidence the trial depositions of two medical experts who reviewed the medical records in this case, Dr. Brent Miedema, a general surgeon and Dr. Stanley A. Nasraway, Jr., an intensivist, or expert in intensive care. The defendant, Dr. Lipka, presented his own testimony and that of Dr. Brenton Wayne McDonald, a radiologist. The evi-dentiary record also contains the hospital medical records of Ms. Wiley.

After a bench trial, the trial court rendered judgment in favor of the plaintiffs and awarded $500,000 in damages, plus judicial interest from June 11, 2002. Defendant appealed.

The trial court issued its Reasons for Judgment, but, like the MRP opinion, it did not set forth a section of “Facts” in the opinion. Rather, the trial court simply repeats the “Contentions of the Plaintiffs,” followed by summaries of the expert testimony of Drs. Miedema and Nasraway, and the MRP conclusions. The trial court next concluded that the weight of the testimony given by plaintiffs’ experts far outweighed the findings of the defense experts. Accordingly, we conclude that the trial court must have adopted the factual contentions of the plaintiffs and the expert testimony of|sDrs. Miedema and Nasraway.

Our review of the entire record, including testimony and medical records of Dr. Lipka, the nurses’ notes and plaintiffs’ experts’ testimony reveal little or no disagreement regarding the events constituting the post-operative facts in this case. That is, there is no dispute over the day-to-day post-operative reports of the recovery progression of Ms. Wiley as reflected in Dr. Lipka’s notes and the nurses’ notes. The disagreement in this case concerns what these notes reveal about Ms. Wiley’s condition and Dr. Lipka’s interpretation and response to the symptoms exhibited by Ms. Wiley.

Dr. Lipka’s notes indicate that Ms. Wiley’s recovery was slow, and that she appeared to be hampered by a persistent fever, peritonitis and sepsis, the source of which Dr. Lipka was unable to ascertain with certainty through blood and radiological tests. Ms. Wiley also experienced tachycardia and tachypnea during the first week after the surgery. Her blood chemistry showed fluctuation and was slightly improving but still showed elevated white blood cell counts and elevated bandemia (immature white blood cells). Nevertheless, according to Dr. Lipka’s notes seven days after surgery, she appeared to have turned the corner toward recovery, although she continued to have fever and had a terrible surgical wound that was not healing. Dr. Lipka’s testimony indicates that he believed that this was partially due to lack of nursing skill in wound care of this type. She was moved from the ICU to the floor. Over the next few days, however, her | ^condition again appeared to worsen in some respects, while some clinical signs indicated improvement.

Dr. Lipka testified from his notes that on December 12, he felt she was doing better. Although her fever was 102 degrees, she had taken some food. Her surgical wound was not granulating, however, which meant it was not healing. Her liver function was normal, so that organ was not the source of her elevated bilirubin.

On December 13 (post-op day 9), Dr. Lipka’s notes indicate that the wound had some cloudy fluid and that it was granulating at the edges. He testified that it was significant that there was no fluid from the JP drain, which was located at the anasto-mosis (the place where the stomach now joined the intestine), and if there had been a leak from the suture lines there, one would expect to have seen fluids coming from the JP drain. He suspected that there was a subphrenic abscess due to the collection of fluid in the lower abdomen. His suspicion was confirmed that day by an abdominal CT scan that indicated a fairly significant subphrenic collection of fluid above and along the right side of the liver. He testified that if the fluid had been below the liver he would have suspected a leak.

On December 14, the subphrenic abscess was drained via CT guidance. Interpreting his handwritten notes at trial, Dr. Lip-ka said that Ms. Wiley (who had a history of asthma) continued to hear crackles in her lungs. She was not tachyeardic and her heart rate was 92. Her wound was granulating, indicating that it was beginning to heal. Although she |7continued to have a large number of bands in her white blood cell count, that could be explained by the abscess that had just been drained and would take time to normalize. A blood culture showed two types of bacteria: gram negative rods and gram positive cocci. He said she was receiving appropriate antibiotics.

On December 15, Dr. Lipka’s notes indicate that Ms. Wiley was feeling better. Her bowel was functioning. His impression was that she continued to be septic and had increased or elevated “bili” (biliru-bin). Her wound was granulating and the output from her drain was decreasing.

Although he noted on December 16 that Ms. Wiley said she felt better, she had a fever of 103 degrees the evening before. He also noted that she had significant drainage from the tube draining the sub-phrenic abscess. He ordered an upper GI series. The upper GI performed the following day, December 17 (post-op day 13), yielded “no evidence of extravasation.” Dr. Lipka wrote that he believed that Ms. Wiley was improving slowly. His notes also indicate that he discussed the case with L.W. Johnson and thereafter read: “ — feel like she is sick, subphrenic abscess, may have Duodenal stump fistula. Will treat with drainage. Repeat CT.... ” The notes of Dr. Lipka’s visit on December 18 indicate that Ms. Wiley continued to have a fever, noted to be 102 degrees.

On December 19, Ms. Wiley’s condition rapidly worsened. Dr. Lipka dictated notes twice on the afternoon of the nineteenth. The first set Vindicates that Ms. Wiley was comatose and in critical condition. The outlook was extremely dismal. Dr. Lipka suspected that she had undergone some kind of transfusion reaction unrelated to her recovery from the surgery. He initiated contact with Ms. Wiley’s family and told them of the seriousness of the situation.

Dr. Lipka dictated additional notes that afternoon and evening. Those notes state that while Ms. Wiley’s condition since the surgery had continued to clinically improve in terms of white blood cell count, ambulating and tolerating a diet, her fever persisted and the pigtail catheter continued to drain the subphrenic abscess. She had exudative material in her wound. The repeat CT scan showed no evidence of new fluid collection. Her ESR was elevated at 57. SLE was positive undilated. She had been receiving TPN, which he noted might be the source of sepsis, in order to give her gut a rest due to the question of a duodenal stump leak. He noted, however, that a stump leak could not be demonstrated radiographically with the repeat CT scan and upper GI.

Dr. Lipka stated in his notes that he was called about 6:25 that morning (December 19) and informed that Ms. Wiley’s blood pressure had dropped. Thinking that this might be a septic complication, he ordered one liter of saline to be given to her. Subsequently, a large amount of bloody | (¡material came from her free peritoneal space. Dr. Lipka believed that Ms. Wiley was having a chronic reaction to the blood products they had given her because she had a known Lewis antibody to blood products for which they had given her steroids. This might also have been partly the source of her fever, the continued dropping of her hemoglobin and her elevated bilirubin. However, he noted that they were forced to give her blood cells. He believed that the large amount of blood coming from her midline wound (from her surgery) indicated to him that Ms. Wiley was having a coagulopathic hemorrhage as an infusion reaction to the hemoglobin.

Ms. Wiley was transferred to the intensive care unit. She had decreasing blood pressure and lost her pulse. She was revived and had a second similar episode. She became tachycardic. She was receiving high dosages of norepinephrine and dopamine to keep her pressure up. Dr. Lipka stated in his notes that Ms. Wiley’s prognosis was grave. He did not expect her to survive and thought she might have brain injury. He also noted that she was not a candidate for a surgical procedure and he still believed that she did not need a surgical procedure. She had a drained abscess. He stated that she had some type of either septic or hematologic event that caused her to go into a state of unre-suscitative shock.

At 5:10 p.m. on December 19, 2001, Dr. Lipka noted that Ms. Wiley remained comatose, and he could not elicit any neurological activity. He noted that her pattern was that of a DIC. He stated that he firmly believed |Tnthat there was some autoimmune process that was hereditary in nature that led to her condition, the catalyst being unknown, possibly an endotoxin from one of the infections. He stated he did not believe she would survive the night.

Dr. Lipka’s notes state that tests later confirmed that Ms. Wiley was having a DIC. He obtained a DNR (acronym for DO NOT RESUSCITATE) directive from the family. Ms. Wiley died at 9:30 a.m. on December 20, 2001.

At trial he said that “ultimately what her demises [sic] was sepsis went from compensated to uncompensated sepsis and she went into unresuscitatable shock and expired.”

DR. MIEDEMA’S TESTIMONY

Dr. Miedema testified for the plaintiffs as an expert in general surgery. He stated that he had reviewed the hospital records on Ms. Wiley, Dr. Lipka’s depositions, the evidence submitted to the MRP, discovery responses and other material.

In Dr. Miedema’s opinion, on approximately December 11th or 12th, 2001, Ms. Wiley’s elevated white blood cell count, fever and drainage of bile material from her surgical wound indicated that she had developed a duodenal stump leak. This is a known complication that occurs when the line of sutures break down. It is the most common cause of death in these patients. When this occurred, he said, the bile and pancreatic secretions were going into Ms. Wiley’s abdomen, rather than staying in her |ngastrointestinal tract. He stated that Dr. Lipka recognized this when he ordered the CT scan on December 13 in response to the fluid collection in Ms. Wiley’s abdomen. Dr. Miedema felt that the drainage of this subphrenic abscess on December 14 was appropriate treatment.

However, relying largely on lab reports and on the notes of nurses attending to Ms. Wiley, Dr. Miedema concluded that Ms. Wiley did not improve after the drainage of the abscess. He stated that her white blood cell count continued to remain high and she continued to have fever. Her bowels stopped working and she began vomiting. The wound continued to drain bile. She had ongoing peritonitis that was causing sepsis. He said it was legitimate to treat a duodenal stump leak with drainage and antibiotics as long as the patient is getting better.' However, as in the case of Ms. Wiley, when the patient does not get better or begins to deteriorate, then an operation is mandatory. He stated that this is where the negligence in this case occurred. He stated his opinion that had a re-operation been performed, the fistula or stump leak could have been controlled with tubes and drains, and Ms. Wiley would have survived.

Dr. Miedema explained that peritonitis is simply an inflammation of the peritoneum, the inner lining of the abdomen and the lining over the intestines and intra-abdominal organs. This inflammation is caused by bacteria, bile or pancreatic fluid and causes abdominal pain. If it is not controlled, it usually gets infected with bacteria and leads to bacteria getting into the bloodstream causing sepsis, which leads to problems throughout the body and can cause death.

11¾Accor ding to Dr. Miedema, the most common cause of subphrenic fluid is a duodenal stump leak, although it is possible for an abscess without a duodenal leak. It is important to note that Dr. Miedema recognized that Dr. Lipka was looking for evidence of a duodenal fistula or leakage at the anastomosis by ordering the subsequent upper GI series and repeat CT scans with contrast. He opined that the failure of these tests to reveal leakage was not conclusive. In his opinion, surgery was required to discover the source.

Dr. Miedema testified that he reviewed the nurse records and that those records support the conclusion that the probable cause of Ms. Wiley’s subphrenic fluid was a duodenal stump leak. These records revealed that Ms. Wiley was leaking a light-greenish fluid from the wound that was consistent with the color of bile and a stump leak. Ms. Whey continued to have fever and abdominal distention consistent with peritonitis. Additionally, she was having trouble breathing, which is also consistent with peritonitis, inasmuch as it makes it painful to breathe deeply. He also noted that Ms. Wiley was being given two drugs to promote urination, whereas the peritonitis was causing a decrease in urination.

The nurse records of December 16 indicated that a sage-green drainage saturated the wound dressing and that there was a dull red drainage from the CT drain. This green drainage indicated to Dr. Miedema that the bile fluid was entering into the peritoneal cavity and coming out the abdominal wound. He opined that if the percutaneous drain that was placed to drain the abscess fluid was draining everything, then there would be nothing coming out of the abdominal wound. Instead, the percutaneous | i:idrain (CT tube) was draining only some bloody fluids, while the wound was draining green and yellow bile fluids, indicating to him that it was likely a duodenal stump leak as the source of the biliary fluids.

Dr. Miedema noted that the nurse records of December 17 reveal that Ms. Wiley continued to have fever and vomited a yellow, foul-smelling, cottage cheese-like fluid material. The percutaneous (CT) tube was now draining a brown fluid, which, along with Ms. Wiley’s distended abdomen, indicated to Dr. Miedema that the bile fluids were making their way downward. The foul-smelling fluids indicated an infection and are a known indicator in the natural history of peritonitis.

Dr. Miedema testified that by December 17, all these factors — elevated white blood cell count, fever, tachycardia, bile draining out of the abdominal wound, vomiting and bowels not working and abdominal distention — indicated that Ms. Wiley had ongoing uncontrolled peritonitis and a reasonably competent surgeon should have operated at this point.

On December 18, Ms. Wiley’s condition continued to worsen. Dr. Miedema said that her elevated blood sugar indicated sepsis. Additionally, her tachypnea indicated sepsis. He stated that Ms. Wiley was now showing signs of severe sepsis and her only chance of survival was another operation. Ms. Wiley was actively bleeding at this point, which Dr. Miedema said was because severe sepsis causes the coagulation factors in blood not to work. This resulted in bleeding from Ms. Wiley’s surgery wounds. Ms. Wiley subsequently went into shock, suffered the hypotensive events described above, and died.

luDR. NASRAWAY’S TESTIMONY

Dr. Stanley Nasraway also testified for the plaintiffs. He stated that most surgical patients who die in intensive care die from sepsis. Dr. Nasraway stated that soon after the surgery on December 4, Ms. Wiley began to develop fever and abdominal pain. This became particularly manifest around December 11. Dr. Lipka undertook a CT scan to identify a right subphrenic abscess — an abscess around the liver and the diaphragm, not far from the site of the surgery, and subsequently drained the abscess. However, Ms. Wiley continued to demonstrate an ongoing sepsis by having nausea and vomiting periodically. He noted that Dr. Lipka, in trying to understand this, undertook an upper GI series and a repeat CT scan with contrast on the 17th and 18th of December, respectively. Dr. Nasraway believed that these studies were incomplete, but Dr. Lipka, nevertheless, concluded that there was no need for further surgery. Ms. Wiley’s condition profoundly deteriorated on the morning of December 19, sustained cardiac arrest that morning as she was being transferred to intensive care and died within 24 hours thereafter.

Dr. Nasraway’s opinion regarding the need for Dr. Lipka to re-operate is essentially the same as that of Dr. Miedema. He also testified regarding the sources and treatment of infection. He stated that surgery is often the source of infection, because with surgery, there is the possibility of sutures coming undone in the peritoneal cavity at the anastomosis or at other suture lines. There is also the possibility of accidental perforation of the bowel missed during the surgery. He agreed with Dr. Lipka’s initial | ^choice of draining the abscess with the catheter. However, Dr. Nasraway testified that Dr. Lipka breached the standard of care first by not re-opening Ms. Wiley, and then by ordering ineffective antibiotics to fight an intra-abdominal infection. The antibiotics that Dr. Lipka ordered, according to Dr. Nasr-away, do not cover anaerobes and they do not cover other bacteria like enterococcus, typical of intra-abdominal infections, and which, in fact, grew from cultures of Ms. Wiley’s abdominal drainage from the sub-phrenic abscess. He further testified that Dr. Lipka breached the standard of care by insufficiently monitoring her and by not bringing in consults.

Having summarized the facts and opinions from the trial record, we turn now to the appellant’s assignments of error.

Discussion

The manifest error standard applies to our review of medical malpractice cases. Jackson v. Tulane Medical Center Hosp. and Clinic, 05-1594 (La.10/17/06), 942 So.2d 509; Wilhite v. Thompson, 42,-395 (La.App. 2 Cir. 8/15/07), 962 So.2d 493. Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). In order to reverse a factfinder’s determination, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the 11 (factfinder is clearly wrong or manifestly erroneous. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646; Stobart, supra. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217, (La.4/3/02), 816 So.2d 270. “The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Stobart, supra at 882.

Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, supra. Although the standard of review is high, it does not require this court to abdicate its responsibility to review the trial court’s findings, nor does it require this court to affirm a verdict that is manifestly erroneous. Gordon v. Willis-Knighton Medical Center, 27,044 (La.App. 2 Cir. 6/21/95), 661 So.2d 991, units denied, 95-2776 and 95-2783 (La.1/26/96), 666 So.2d 679. Where the fact finder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Ro-sell, supra.

The plaintiff bears the burden of proving that a doctor committed malpractice. Dr. Lipka practices in the specialty of general surgery. According to La. R.S. 9:2794(A), any medical malpractice claimant must 11 establish, by a preponderance of the evidence: (1) the defendant’s standard of care; (2) the defendant’s breach of that standard of care; and (3) a causal connection between the breach and the claimant’s injuries. Pfiffner v. Correa, 94-924, 94-963, 94-992 (La.10/17/94), 643 So.2d 1228.

In this appeal, Dr. Lipka alleges a single assignment of error; namely, that the trial court erred in finding that the plaintiffs carried their burden of proving that he breached the standard of care for general surgeons in this case. Specifically, he argues that Donna Wiley suffered a known complication of the procedure to which she consented; that there was no medical evidence to demonstrate that Ms. Wiley suffered from a duodenum stump leak; that the medical records reflect that his choice of antibiotic coverage was appropriate; and that Ms. Wiley suffered a sudden hypotensive event and his treatment was appropriate.

We note at the outset that the trial court misstated the law regarding the necessity of expert opinions in all medical malpractice actions, citing Frasier v. Department of Health and Human Resources, 500 So.2d 858 (La.App. 1 Cir.1986). The Louisiana Supreme Court in Pfiffner v. Correa, supra, held that expert opinion testimony is not always necessary in a medical malpractice case. However, this misstatement is of no Inconsequence in this case.

Turning now to defendant’s first argument that the complications Ms. Wiley suffered were a known risk from the surgery, the plaintiffs’ general surgery expert, Dr. Miedema, testified that a duodenal stump leak is a known complication from the surgery and that it can be fatal. Dr. Miedema clearly testified that he did not believe that Dr. Lipka breached a standard of care in the surgery that led to the duodenal stump leak since it is a known complication. Rather, he testified that Dr. Lipka breached the standard of care in his response to indications of continued duodenal stump leakage. Simply stated, Dr. Miedema testified that Dr. Lipka responded appropriately when the initial CT scan revealed the subphrenic accumulation of fluid in Ms. Wiley’s abdomen by draining the fluid percutaneously. However, he opined that Dr. Lipka breached the standard of care when he did not re-open Ms. Lipka and gain control of the duodenal stump leakage after she did not improve, and she continued to show signs of an uncontrolled leakage of bilious fluid in her abdomen.

Dr. Lipka contends, however, that there is no medical evidence that Ms. Wiley suffered from a duodenal stump leak. Our review of the record reveals otherwise. We observe that Dr. Lipka’s own notes on December 17, 2001, 18 days after the surgery, indicate that he discussed the case with L.W. Johnson and wrote: “ — feel like she is sick, subphrenic abscess, may 11flhave Duodenal stump fístula. Will treat with drainage. Repeat CT_” We note also that Dr. Lipka’s earlier notes on December 15 indicated his concern with elevated “bilí” and he noted that it would be “difficult to do ERCP, HIDA scan will not differentiate between duodenal stump and bile duct.”

Dr. Miedema testified that at this point, in view of the ongoing sepsis, Dr. Lipka departed from the standard of care. In his opinion, the evidence, although indirect, pointed to an uncontrolled duodenal stump leak or leakage from some other point in the GI tract that was not discovered by the CT scans or upper GI.

Accordingly, we find no error in the trial court’s acceptance of Dr. Miedema’s opinion and the conclusion that Dr. Lipka breached the standard of care in this case when he failed to re-operate on Ms. Wiley to determine the source of the subphrenic fluids.

Appellant next argues that the trial court erred in finding that the antibiotic treatment coverage was not appropriate. As recounted in the facts above, Dr. Nasr-away testified that the antibiotics used by Dr. Lipka did not cover two commonly found forms of bacteria in the abdomen in a patient suffering from peritonitis. On the other hand, Dr. Miedema expressed no concern over the antibiotics ordered by Dr. Lipka, and the physicians on the |gnMRP found that Dr. Lipka did not breach the standard of care when he addressed the situation by ordering antibiotic therapy and drained the abscess percutaneously.

Even when an appellate court might have ruled differently, there is no manifest error in the trial court’s finding if the trial court’s decision to give greater weight to one expert over others is not unreasonable. In this instance, we cannot say the trial court manifestly erred in this regard. Accordingly, this assignment is without merit.

Finally, defendant argues that Ms. Wiley suffered a sudden hypotensive event and this is what actually led to her death. Our review of the record indicates that there is no disagreement among the experts over the fact that a sudden hypoten-sive event, or several, ultimately led to Ms. Wiley’s death. However, our review of the record supports the trial court’s conclusion that the hypotensive events she suffered had a cause, and that the cause was an ongoing sepsis caused by peritonitis that more likely than not resulted from the leakage of biliary fluids from the duodenal stump or possibly the anastomosis that was not brought under control due to Dr. Lipka’s failure to re-operate.

Conclusion

After reviewing the record in its entirety, we hold that the trial court was not manifestly erroneous in finding that the plaintiffs proved by a preponderance of the evidence that Dr. Lipka breached the standard of care for general surgeons in his post-operative medical treatment of Donna Wiley. The expert testimony presented by plaintiffs indicates that this | ¡¡i conclusion was reasonable. The court was presented with differing views of the evidence regarding the post-operative complications suffered by Ms. Wiley. Thus, the trial court’s decision to credit the opinions of the plaintiffs’ experts is not manifestly erroneous.

For these reasons, the judgment of the trial court is affirmed. Costs of appeal are to be paid by the defendant.

AFFIRMED.

      . "Duodenum" comes from the Latin phrase, duodenum digitalis, which means "twelve finger-widths,” referring to the length of this part of the organ.

      . Plaintiff’s expert, Dr. Miedema, testified that most ulcers are caused by the H. Pylori bacte-ría and can be treated with antibiotics. However, this was not the case with Ms. Wiley. In her case, tests did not show the presence of the bacteria, which indicated that her ulcers were due to excess acid.

      . Inflammation of the organs in the abdomen.

      . Infection in the blood.

      .A subphrenic abscess is an abscess below the diaphragm. It is a known complication of abdominal surgery.

      . Literally, leakage of fluid from a container. In this case, he is likely referring to no evidence of leakage from the duodenum or the area of the anastomsis.

      . L.W. Johnson is the chief of surgery at E.A. Conway Hospital.

      . Fluid such as pus.

      . ESR stands for erythrocyte sedimentation rate. It is a nonspecific screening test that indirectly measures how much inflammation is in the body.

      . SLE (lupus) is an autoimmune disease. This means there is a problem with the body’s normal immune system response.

      . Total parenteral nutrition (TPN) is a method of feeding that bypasses the gastrointestinal tract.

      . Disseminated intravascular coagulation (DIC) is a serious disorder in which the proteins that control blood clotting are abnormally active. Small blood clots form throughout the body. Over time, the clotting proteins become “used up” and can result in clots or, more often, bleeding. Bleeding can be severe.

      . The court recognized several situations where expert testimony is not always needed:
      Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence. Failure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary are also examples of obvious negligence which require no expert testimony to demonstrate the physician’s fault. Likewise, where the defendant/physician testifies as to the standard of care and his breach thereof, or the alleged negligence consists of violating a statute and/or the hospital’s bylaws, (violation of LSA-R.S. 40:2113.4 which imposes a duty on a hospital to make emergency services available to all persons in the community without regard to income or insurance protection and hospital bylaws establishing duties for on-call physicians), expert testimony is also unnecessary to establish a malpractice claim. Pfiffner at 1233-34 (citations omitted).

      . ERCP (Endoscopic Retrograde Cholan-giopancreatography) combines the use of x rays and an endoscope to diagnose and treat conditions of the bile ducts, including, among other things, leaks from trauma and surgery. Through the endoscope, the physician can see the inside of the stomach and duodenum, and inject dyes into the ducts in the biliary tree and pancreas so they can be seen on x rays.

      . An HIDA scan involves injecting a dye or other chemical (radioactive tracer) into a vein whereby the tracer travels to the liver and then into the bile ducts. It is also used, among other things, to diagnose bile leaks.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Succession of Emile Joseph DOUCET, Jr. Beverly Sanders Doucet, Plaintiff-Appellant v. Dane Daryl Doucet, Defendant-Appellee.
    No. 42,963-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 6, 2008.
    Rick Lane Candler, for Appellant.
    Donald L. Kneipp, Monroe, for Appellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   MOORE, J.

L Beverly Sanders Doucet appeals a judgment that refused to probate a copy of the notarial will that her late husband executed naming her his sole universal legatee. Finding no manifest error in the district court’s conclusion that the decedent revoked his will by destroying the original, we affirm.

Factual Background

The decedent, Emile Joseph Doucet Jr. (referred to by his family as “EJ”), was a lifelong resident of Lincoln Parish. He was married twice, first to Bettye D. Collins, from whom he was divorced; of this marriage he had one surviving child, Dane Daryl Doucet, who was born in 1972. Dane admitted that he and his father had a strained relationship; he had not been to EJ’s house since 1995 or 1996, and not spoken to him since 2000. According to two of EJ’s friends, Horace “Dupey” Cobb and Robert Lonadier, EJ was convinced that Dane had stolen money from him and often declared emphatically that he wanted Dane to get nothing from him. EJ’s mother, Mary Simpson, testified that she tried to intervene and reconcile her son and grandson, but E J would not budge.

EJ married Beverly in September 2001, but she did not immediately move in with him. She testified, and other witnesses confirmed, that EJ was cantankerous, solitary and given to drink. After she moved in, in the summer of 2002, E J disliked how she redecorated the house and, according to some witnesses, despised Beverly’s dog. Beverly testified that she moved out in February or March 2004, but only because EJ really liked his | ^solitude and had rather asocial habits. Beverly insisted, nevertheless, that there was no change in their loving relationship.

EJ executed a notarial will on March 6, 2002, naming Beverly as his sole universal legatee; in the alternative, should Beverly predecease EJ, Dane was to get everything. Andrew Shealy, an assistant district attorney for the Third Judicial District Court, prepared the notarial will but had no personal recollection of it. His file showed that rather than handing the will directly to EJ after the execution, Shealy mailed it about a week later, and Beverly paid his fee. Beverly testified that in keeping with their usual practice, she wrote a check to Shealy but EJ reimbursed her in cash.

EJ’s health seriously declined in 2005. His mother, Mrs. Simpson, persuaded him to go to the hospital on Monday, October 10, 2005, but his condition was terminal and he died there on Friday, October 14, at age 69.

The following day, Beverly told Dane at the funeral parlor that EJ had written a will leaving her everything; according to Dane and Mrs. Simpson, this was the first they ever heard of a will. Beverly and Mrs. Simpson rode together to a flower shop and department store, and then to EJ’s house, to make further arrangements; Dane met them there. All agree that on arrival, Mrs. Simpson could not get the house key to open the front door, but that Dane took it from her, went to the garage, gained entrance and let the ladies in the front. This point was significant because at trial Beverly argued that before she arrived, Dane must have entered the house, ferreted out the will Land destroyed it, an accusation that Dane vehemently denied.

Once inside, the ladies went to EJ’s office, where Mrs. Simpson opened his lockbox and removed his checkbook. Meanwhile, Beverly opened the unlocked strongbox where she and EJ kept important papers, including his will. She took it out and showed it to Dane and Mrs. Simpson, who immediately dismissed it as just a copy because the notary seal was not embossed. Beverly recalled that Dane dismissed the will before he looked at it, stoking her suspicion that he had slyly spirited off the original. Mrs. Simpson also told Beverly that the signature on the copy did not look like EJ’s, and that she (Beverly) must have got him drunk to induce him to sign it. However, according to Beverly, Mrs. Simpson admitted thinking that EJ would leave her (Beverly) “all his money.” Despite the tension, they apparently finished EJ’s last rites without further incident.

Shortly after EJ died, Dane filed a petition to appoint a notary to search for a will. Beverly responded with the instant petition to probate the copy, which she contended was valid because E J had never revoked the original. Dane countered that because no original was ever found, EJ was presumed to have destroyed and revoked it.

Action of the District Court

The case was tried over two days in June and August 2006, with the evidence as outlined above. In addition to her own testimony that EJ was adamant about leaving nothing to Dane, Beverly called two of EJ’s friends, |4Cobb and Lonadier. Both confirmed that EJ was estranged from his son and often said he did not want Dane to receive anything; Cobb testified that EJ left a will to that effect. Dane, however, called another friend of EJ’s, Theresa Harrell, to whom EJ confided that he planned to get a divorce. According to Ms. Harrell, E J often said there were four people he did not want at his funeral, two of whom were Beverly and Dane. Mrs. Simpson testified that her son built his house on the old family home-place, part of a tract which her great-grandfather had homesteaded back in the 1800s. She obviously wished to keep this land “in the family.”

In written reasons for judgment, the court outlined the facts, procedural history and applicable law, specifically the rule that if no original will is found, the testator is presumed to have destroyed and revoked it. La. C.C. art. 1607(1); Succession of Talbot, 530 So.2d 1132 (La.1988). The court held that the proponent of the copy must show by clear and convincing evidence that the testator did not revoke the testament. Succession of Bagwell, 415 So.2d 238 (La.App. 2 Cir.1982). Beverly proved that EJ executed a will in proper notarial form, but failed to prove that he did not revoke it. EJ definitely received it, as shown by Shealy’s records, but it was never found, and the evidence was not convincing that Dane, Mrs. Simpson or anybody else destroyed it. “One simply does not know what happened to the will.” As for Cobb’s testimony that EJ said he was leaving everything to Beverly, this was credible but EJ had ample time after that statement to change his mind. Similarly, Lonadier’s testimony |swas credible but not probative: just because EJ said he did not want Dane to get anything did not mean he wanted Beverly to get it. Reiterating that “it is not clear what became of the will,” the court rejected Beverly’s claim for probate.

The court rendered judgment declaring the copy of E J’s will invalid and dismissing Beverly’s petition to probate it. Beverly appealed.

Discussion

By one assignment of error, Beverly urges the court erred in ruling that she failed to prove by clear and convincing evidence that EJ did not revoke the will. Contrary to the court’s findings, she contends that Mrs. Simpson never said her son spoke of divorcing Beverly; rather, he only said Beverly “wasn’t a wife to him.” She also cites the testimony of Lonadier, who said E J was adamant that Dane would not get anything. She concludes that it was unreasonable to find that EJ would destroy his will, knowing that his property would go to Dane by intestacy, when just days before his death he vowed that his estranged son would not get any of his estate. Finally, she shows that the court affirmed the probate of a copy of a will in Succession of Hatchell, 2003-0163 (La.App. 1 Cir. 11/7/03), 868 So.2d 36. She requests a judgment admitting the copy to probate.

Dane responds that the court’s findings are subject to manifest error review and that the proponent of a copy of a will must meet a remarkably heavy burden of proof. In support, he cites Succession of Justice, 28,363 (La.App. 2 Cir. 8/23/96), 679 So.2d 597, a case involving revocation by a subsequent, formally invalid will. A duplicate is admissible to the same | ^extent as an original “unless * * * the original is a testament offered for probate.” La. C.E. art. 1003(3). Dane reiterates that EJ’s will arose under suspicious circumstances, and even if it was valid, the evidence did not rebut the presumption that he destroyed it. He suggests that Cobb and Lonadier, while they tended to support Beverly’s position, were inconsistent and unpersuasive, while Mrs. Simpson and Ms. Harrell clearly showed that on the eve of his death EJ was most unhappy with Beverly. In support, he notes that EJ did not even give Beverly a key to the house or allow her to sign his checks. Dane seeks affir-mance.

A testator may revoke his testament at any time. La. C.C. art. 1606. Methods of revocation are outlined in La. C.C. art. 1607:

Revocation of an entire testament occurs when the testator does any of the following:
(1) Physically destroys the testament, or has it destroyed at his direction.
(2) So declares in one of the forms prescribed for testaments or in an authentic act.
(3) Identifies and clearly revokes the testament by a writing that is entirely written and signed by the testator in his own handwriting.

When a will cannot be found at the testator’s death, there arises a presumption that the testator destroyed the will with the intention of revoking it. Succession of Talbot, supra; Succession of Bagwell, supra. The presumption may be rebutted by clear proof (1) that the testator made a valid will, (2) of the contents or substance of the will, and (3) that the will was not revoked by the testator. Succession of Justice, supra, and citations therer in. The proponent of such a will assumes the burden of demonstrating that the testator did not intend to revoke it by destroying it. Succession of Talbot, supra. Clear and convincing proof that a person other than the testator destroyed the will without the direction, consent or permission of the testator would be sufficient to overcome the presumption that the testator revoked the will by destroying it. Succession of Bagwell, supra.

The district court’s findings of fact regarding the presumed revocation of a will by destruction are subject to manifest error review. Succession of Justice, supra.

After close review of this dense record, we are unable to detect any manifest error. EJ executed a will in March 2002; after his death 3⅜ years later, the original could not be found. Although Beverly has not specified it as error on appeal, we can only confirm the district court’s finding that the evidence does not show, one way or the other, what happened to the original. Although there may have been a window of opportunity, while EJ was at Lincoln General for his final illness and in the 24 hours after his death, for Mrs. Simpson or Dane to enter the house, locate and destroy the will, these are only circumstances and do not approach the clear and convincing proof needed to show that someone other than EJ destroyed it. As observed by the district court, we simply do not know what happened to that will. This activated the legal presumption that EJ himself destroyed and revoked it. Succession of Talbot, supra.

Beverly strongly relies on Lonadier’s testimony that, just a few days before his death, EJ said he did not want Dane to inherit anything. This conforms with everybody’s view that E J had an antagonistic relationship with his son. However, it does not rise to the level of clear and convincing |sproof that he would not have revoked the will that favored Beverly. Mrs. Simpson admitted that her son never used the word “divorce,” but a fair reading of her testimony is that EJ was very unhappy with Beverly and did not consider her a companion. Another witness, Ms. Harrell, explicitly recalled that EJ said it was “about time for a divorce.” These are sentiments that would support his inclination to revoke the will. We can only speculate whether EJ was less unwilling to let Beverly or Dane inherit his estate.

The evidence does not rebut, by clear and convincing proof, the presumption that E J himself destroyed and revoked the will. The district court was not plainly wrong in refusing to probate the copy.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the appellant, Beverly Sanders Doucet.

AFFIRMED.

      . Witnesses confirmed, for example, that EJ did not allow friends and family to use his bathroom; in an obsession to conserve water, he made them go to the back yard to relieve themselves.

      . A confrontation occurred, however, about six weeks later, when Dane angrily called Beverly several offensive sexual epithets and Beverly lunged at him, grabbing his face. Witnesses had different views of who provoked whom in that spat.

      . Cobb also thought that EJ intended to leave him (Cobb) two antique pistols.


author: MARION F. EDWARDS, Judge.

text:
    PARISH OF ST. CHARLES v. R.H. CREAGER, INC. and David B. McDonald Corporation.
    No. 07-CA-676.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 2008.
    Rehearing Denied March 10, 2008.

      Gregory A. Miller, Attorney at Law, Norco, Louisiana, for Defendants/Appellants.
    Don Paul Landry, Attorney at Law, Lul-ing, Louisiana, for Plaintiff/Appellee.
   Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.

MARION F. EDWARDS, Judge.

li>At issue in this appeal is the amount of damages awarded by the trial court in an expropriation matter. In July of 1990, the plaintiff/appellee, the Parish of St. Charles (“St. Charles Parish”), filed a petition for expropriation of land that constituted a portion of Parcel A-2, owned by defendants/appellants, R.H. Creager, Inc. (“Creager”) and Dianne and David McDonald (“McDonalds”). St. Charles Parish required the property for drainage improvement purposes. In September of 1990, the parties entered into a stipulation that confirmed ownership of the property and the immediate need for the expropriation. In conjunction with that stipulation, the parties entered into a consent judgment that was signed on September 28, 1990. The judgment granted full ownership of the property to St. Charles Parish subject to a reservation of mineral rights in accordance with LSA-R.S. 31:149. The consent judgment also reserved the defendants’ rights to compensation, attorney’s fees, costs, and legal interest resulting from the expropriation.

|sOn September 5,1991, Creager and the McDonalds filed an answer and reconven-tional demand in which they asserted that the expropriation of their land devalued the remainder of their property by making it less desirable for commercial or industrial purposes. Creager and the McDonalds asserted that Parcel A-2 is located behind Dianne Place Subdivision and is bounded on the south by the Illinois Central Railroad, on the north by Louisiana and Arkansas Railroad, (now Kansas City Southern Railroad), on the east by land owned by a third party, and on the west by property owned by St. Charles Parish. The only legal access to the property before the expropriation was at its southerly boundary through a private crossing and servitude of access across the Illinois Central Gulf Railroad from the end of Janet Drive. Since the portion of the land expropriated by the parish included this crossing, the pleading sought damages for the expropriated land as well as severance damages for diminishment of value of surrounding land.

The parties conducted a lengthy discovery and, on February 22, 2005, Creager and the McDonalds filed a motion for summary judgment seeking $477,360 in severance damages based on the petition filed. The matter was heard on May 26, 2005. On September 13, 2005, the court rendered a judgment that declared that the judgment of September 28, 1990 constituted a taking by expropriation and that the judgment did not provide Creager and the McDonalds with a servitude or right of passage over the property. The judgment also declared that Creager and the Mc-Donalds do not have legal access to the remainder of Parcel A-2 as a result of the taking by expropriation. The issue of damages was referred to the merits of the trial.

On November 30, 2006, the parties entered into a joint stipulation of fact. The stipulation by the parties included the following:

1.) 16,410.18 square feet of Parcel A-2 was expropriated.
_Jj2.) The remaining portion of Parcel A-2 contains 37.9223 acres.
3.) Experts for both sides agree that the fair market value of Parcel A-2 immediately prior to the taking was $12,000.00 per acre.
4.) The amount of compensation due to defendants for the 16,410.18 square feet expropriated is $4,520.00.
5.) As a result of the taking, the defendants do not currently have legal access from the remainder of Parcel A-2 to a public road.
6.) Defendants have a right to seek legal access to the remainder of Parcel A-2.

The parties also made a joint offer of exhibits which included the comprehensive appraisals of experts for both sides and maps of the area.

After a trial on the merits, the trial court rendered judgment in favor of Creager and the McDonalds for $56,883.45. All parties have appealed that judgment.

FACTS

At trial, J. Bradley Oubre (“Mr. Oubre”) testified as an expert real estate appraiser. He testified that, in 1990, the value assigned to the property was $12,000 per acre. Mr. Oubre explained that many appraisals were done at that time by the Department of Transportation and Development for construction of Interstate 310, and the range for property in that area was $9,000 to $12,000. Thus, the $12,000 figure was in line with other numerous expropriations. Additionally, Mr. Oubre had recently brokered a deal for land at $12,000 per acre just north of the track at issue herein.

Mr. Oubre explained that the Creager/McDonald track had a private crossing over a railroad track for access. That crossing was part of the parcel taken in the expropriation, leaving the remainder of the parcel landlocked. He estimated the severance damage about $1,500 to $2,000 per acre or about $58,000 total.

In calculating the severance damages, Mr. Oubre recanted his original estimation that the land was valued at $12,000 per acre before the sale. He stated that “after reviewing the thing and realizing the $12,000 an acre was not anywhere |sclose to reality, as far as value, then I ended up with a value in — at the very most of $2,000.00.” Mr. Oubre continued his testimony regarding the valuation of the property over a defense objection based on the stipulation of the property value. Mr. Ou-bre estimated the value of the remaining landlocked property at $500 per acre.

Mr. Oubre also testified that the property could be used for a subdivision at a cost of $35,694 after considering the fill and improvements necessary. But, he also stated that high cost would render the plan for a subdivision economically unfeasible. Mr. Oubre also testified that permits would be necessary to subdivide the land into individual lots. Such a procedure would be lengthy and permits could be denied if the area was zoned as wetlands.

Mr. McDonald testified that, in the 1970’s, his company, Dianne Properties, and other parties purchased Parcel A-2 and the adjoining Parcel A-l. The only access to both parcels was by a dedicated servitude at the end of Janet Drive across the private railroad crossing. Originally he planned to build a subdivision with the property. In the 1980’s, some of the parties involved in the development of the project had financial problems and the two parcels were divided and he kept Parcel A-2.

Because of the downturn of the economy in the 1980’s, only a portion of the subdivision was actually developed. Mr. McDonald considered other uses for the land such as aquaculture.

Mr. McDonald stated that, in 1989, the St. Charles Parish requested a portion of Parcel A-2 for the purpose of installing a drainage pump. Because selling the parish the land it wanted would leave the remainder of the property landlocked, Mr. McDonald was not inclined to sell the property. His request for accommodation to grant ingress and egress was declined by the parish and an ^expropriation action was filed. Mr. McDonald acknowledged signing the consent judgment reserving his right to collect severance damages.

Dr. Rodolfo Aguilar (“Dr. Aguilar”), an expert in real estate appraisals, testified that he was hired by Creager and the McDonalds to appraise the property taken by the parish. The appraisal was done in 2005 but valued as of the taking in September of 1990. He explained he was making a determination of the fair market value of the property taken and the changing market value on the portion of the property remaining. In making the deter-ruination, Dr. Aguilar relied on Mr. Ou-bre’s appraisal done in 1990 for the State. In that appraisal, Mr. Oubre provided a list of comparables that support the value of $12,000 per acre. One of the compara-bles used in Mr. Oubre’s appraisal was the sale of Parcel A-l on March 27, 1990 to the parish for $12,000 per acre and a sale in 1986 of a small portion of Parcel A-2 for $12,800 per acre. Dr. Aguilar also noted that the parish paid $12,000 per acre for the portion of Parcel A-2 it took in 1990. Ultimately, Dr. Aguilar concluded the value of Parcel A-2 at the time of the taking was $12,000 per acre.

Dr. Aguilar testified that, before the taking, the highest and best use of Parcel A-2 was either agriculture or residential if Janet Drive could be extended over the railroad track. He noted that the remaining portion of Parcel A-2 is narrow, only about 250 feet wide. It is a long tract located just north of Dianne Place Subdivision and appears similar.

Dr. Aguilar stated that the remaining property has no ingress or egress since the taking. Further, the parish has built a pumping station capable of moving 20,000 gallons of water a minute. Since no drainage canal has been dug to avert the water, it is being discharged onto Parcel A-l and A-2. This situation could cause flooding to the remaining property. Dr. Aguilar concluded that the highest |7and best use after the taking is wetlands. Dr. Aguilar could not find sales of landlocked low lands for value comparison; however, based on awards for damages caused to wetland areas, he estimated the value of the remaining land at $500 per acre.

Dr. Aguilar conducted a cost to cure analysis in which he concluded there was no viable alternative to cure the damages to the remainder of parcel A-2 because, in addition to having been landlocked by the St. Charles Parish taking, the remainder is situated downstream of a pump station capable of pumping 20,000 gallons of water per minute. Dr. Aguilar further testified that, before the taking, about two-thirds of the property was wet and one third, near the railroad track, was suitable for development.

Timothy Vial (“Mr. Vial”), the Chief Administrative Officer of St. Charles Parish, testified that he was familiar with the expropriations and the property in question. He testified about the permitting process necessary for getting a public railroad crossing necessary for developing a subdivision. He characterized the process as a “nightmare.” Applications made to the railroad are usually declined. In the few cases that the applications are granted, the process takes several years. Mr. Vial acknowledged that, since the taking, the remainder of parcel A-2 has no public access, and no agreement between the property owners and St. Charles Parish for access. However, Mr. Vial testified that, if the property owners requested access over the private railroad crossing, St. Charles Parish would allow it. It was also noted that the private nature of the crossing may put St. Charles Parish at risk for liability for any accident which may occur on the crossing.

\vLAWAND ANALYSIS

The only issue presented for our review is the amount of severance damages awarded by the court for the remainder of the property, which is now an enclosed estate by virtue of the expropriation.

At the trial, St. Charles Parish argued that Creager and the McDonalds have a right under Louisiana law to seek passage over other property because theirs is now an enclosed estate. Accordingly, the method of calculating damages is the cost to cure the situation. St. Charles Parish argued that Creager and the McDonalds simply have to avail themselves of Louisiana law which states that the owner of a closed estate has a right to obtain a right of ingress and egress.

Creager and the McDonalds argued that the damage should be calculated by using the pre-taking value of $12,000 per acre and subtracting the post-taking value of $500 per acre now that the land is landlocked. Thus, the landowners should be awarded $11,500 per acre. Their argument takes into account that the pre-tak-ing value is the subject of a binding stipulation between the parties. Thus, the only calculation necessary requires the establishment of the post-taking value and subtracting that from the $12,000 per acre value to which the parties have already stipulated.

After considering all of the expert testimony, the trial court found that diminution of value was due partly to the expropriation and partly due to the fact that the remaining property is wetlands now and was wetlands before the taking. Ultimately, the trial court awarded $1,500 per acre in damages.

In Reasons for Judgment and at the hearing on the motion for new trial, the trial court found the landowners did not bear their burden of proof that the diminution of value in the property was caused by the expropriation. The court ultimately awarded $1,500 per acre in diminution of value based of the current 1 svalue of $500 per acre and Mr. Oubre’s testimony that he now believes the property was only worth $2,000 originally.

Although the trial court stated that all parties were bound by the stipulation that the value of the property prior to the expropriation was $12,000, it stated:

Mr. Oubre did testify, although contrary to his appraisal and the stipulation of the parties, that he believed the value of the property before the taking was only $2,000.00 per acre. Although the parties and this court are bound by then-stipulations as to the values of the property, I interpret this statement of Mr. Oubre to mean that the portion of the diminution in value caused by the expropriation and land-locking of the remaining property is $1,500.00 per acre.

The trial court’s interpretation of Mr. Oubre’s testimony is unsupported. It is clear that Mr. Oubre reconsidered his 1990 appraisal of the property. His testimony was that he was wrong and that the value at that time was only $2,000. All parties agree that the current value is $500 per acre. Regardless of the phraseology of the Reasons for Judgment, it is clear that the trial judge used the $2,000 per acre pre-taking value in his calculation of diminution of value in contradiction to the stipulation. In his decision that the expropriation was not the cause of the diminution of value, the trial judge determined the character of the land was not changed as a result of the expropriation. It was wetlands before and after the taking. While that may be true, the determination of the nature of the land and its value before the taking is of no consequence at this point. The parties have stipulated that the value of the land pre-expropriation was $12,000, whatever its nature and use.

There is a clear stipulation that the value of the land prior to the expropriation was $12,000. A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party |inwho made it. A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. Stipulations between the parties in a specific case are binding on the trial court when not in derogation of law. Such agreements are the law of the case. It is well-settled that a stipulation amounts to full proof against those who made it. It has the effect of withdrawing a fact from issue and disposing wholly with the need for proof of that fact.

We find that the trial court erred in allowing testimony as to the pre-taking value, given the stipulation of the parties. Further, we find the court’s consideration of Mr. Oubre’s testimony that the property value pre-taking was only $2,000 to be legal error by the trial court. Where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the reviewing court should make its own independent de novo review and assessment of the record, and we now conduct such a review.

LSA-R.S. 48:453, in pertinent part, provides:

B. The measure of damages, if any, to the defendant’s remaining property is determined on a basis of immediately before and immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.
C. The owner shall be compensated to the full extent of his loss. The court shall include in its consideration the difference between the rate of interest of any existing mortgage on an owner-occupied residence and the prevailing rate of interest required to secure a mortgage on another owner-occupied residence of equal value.

The only issue before the court was the award of severance damages due for the remaining property. Evidence of value is $12,000 by way of stipulation. All Inparties agree that the value of the land after the taking is $500. The measure of damages pursuant to the above-cited statute is the difference between the value immediately before and immediately after the taking. Accordingly, the devaluation amounted to $11,500 per acre. Accordingly, we find the trial court erred in finding the award to be $1,500 per acre, and we hereby vacate that judgment. We find the amount due Creager and the McDonalds is $11,500 per acre for the remaining 37.9223 acres. We hereby remand the matter to the trial court with an order to render a judgment consistent with this opinion.

REVERSED; JUDGMENT VACATED; MATTER REMANDED WITH ORDER.

      . R.H. Creager, Inc. is the predecessor of the current owner, Richard H. Creager, Sr.

      . LSA-C.C. art. 1853.

        .R.J. D’Hemecourt Petroleum, Inc. v. McNamara, 444 So.2d 600, 601 (La.1983), cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 39 (1984).

      . Young v. Martinez, 98-674 (La.App. 5 Cir. 11/25/98), 722 So.2d 1143, 1145.

      . Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502.


text:
    STATE of Louisiana, Plaintiff-Respondent, v. Xavier Carva WILLIAMS, Defendant-Applicant.
    No. 43,270-KH.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 12, 2008.

      Xavier Carva Williams, Pro Se.
    Robert W. Levy, District Attorney, for Respondent.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   | Applicant seeks review of the trial court’s November 30, 2007 denial of his motion to correct illegal sentence. The motion is premised on his probation revocation and the trial court’s order that his original one-year hard labor sentence be executed.

Among other conditions of his active supervised probation, applicant was required to refrain from criminal conduct and to submit to periodic drug screening. The supplemented record reveals that applicant’s probation was revoked because he tested positive for Schedule I controlled dangerous substances (ie., marijuana) on four occasions during the term of his probation. The trial court admonished applicant at least twice in open court for his positive drug tests, and warned him that his probation could be revoked for future positive drug test results. The supplemented record also reveals that applicant failed to report to his probation officer for three consecutive months in 2007.

Applicant contends that his probation was revoked for a first technical violation and thus La. C. Cr. P. art. 900(A)(6) mandates no more than a 90-day sentence. At the time applicant pled guilty and was originally sentenced, La. C. Cr. P. art. 900 did not provide any limits on the incarceration period for technical violations of probation. In 2006, the | ^Louisiana legislature provided ameliorative changes to Article 900 that limited the incarceration period for a “first technical violation” to 90 days. A “technical violation” was defined as any violation of a probation condition other than being arrested, charged, or convicted of another crime, possession of a firearm, failure to appear at any court hearing, or absconding from the jurisdiction of the court. The Louisiana legislature further amended Article 900’s definition of “technical violations” in 2007, but those changes are not relevant to this case.

Although applicant tested positive for marijuana on numerous times, he was never “arrested, charged, or convicted” of any crime relating to the same. Thus, applicant’s positive drug test results and failures to report to his probation officer were “technical violations” of the conditions of his probation for purposes of Article 900. Nonetheless, the applicant’s probation was revoked for at least seven technical violations. Article 900(A) does not provide any limitation on the incarceration period for second or subsequent technical violations. The statute also contains no requirement that prior probation revocation proceedings be instituted before considering the most recent violation a second or subsequent technical violation (thus precluding application of the 90-day incarceration limit). Based on these facts, we do not find any illegality under La. C. Cr. P. art. 900.

Also, because the evidence sufficiently established that applicant committed a felony under the laws of this state, at least for purposes of probation revocation, it was within the trial court’s discretion to revoke his probation under La. C. Cr. P. art. 901 (revocation for commission of another offense) in any event. See, State v. Harris, 368 So.2d 1066 (La.1979); State v. Michael, 39,439 (La.App.2d Cir.1/7/05), 891 So.2d 109, writ denied, 2005-0354 (La.6/17/05), 904 So.2d 681.

Consequently, the writ is denied.


author: DREW, J.

text:
    Harry L. WOODALL, Plaintiff-Appellee v. Loy F. WEAVER and The 146, L.L.C., Defendant-Appellant.
    No. 43,050-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Jones, Odom, Davis, and Politz, L.L.P., by James Ward Davis, Shreveport, for Appellant.
    Chris Lane Bowman, Jonesboro, for Ap-pellee.
    Before GASKINS, DREW and MOORE, JJ.
   DREW, J.

[ | In April of 2004, a promissory note in the amount of $150,000 was executed in favor of Harry Woodall by The 146 L.L.C. (“LLC”). The note provided for 109 consecutive monthly payments beginning on May 1, 2004. The failure to pay any installment within 30 days of its due date gave Woodall the right to accelerate the entire note and seek the remaining balance and a 25% attorney fee on the amount collected.

Loy Weaver signed the note as the LLC’s manager, as well as individually and as guarantor. Woodall had been the owner of an 11% interest in the LLC. He sold this interest to the LLC for $165,000, $15,000 of which was paid in cash, and the balance to be paid in installments as reflected in the promissory note, which was paraphed Ne Varietur to the Act of Credit Sale of Membership Interest.

Woodall filed suit on the promissory note against Weaver and the LLC. Woo-dall alleged that defendants had made ten payments totaling $9,000 on the note, but had not made any further payments, leaving a balance of $141,000 still owed on the note. Defendants raised several affirmative defenses in their answer.

Woodall filed a motion for summary judgment on July 28, 2006. The hearing was fixed for September 25, 2006. Submitted in support of the motion were requests for admissions of fact and responses to the requests; a copy of the promissory note; a July 21, 2005, demand letter from Woodall’s attorney to Weaver; a standard loan analysis; a copy of a Membership Certificate showing the interest that Woodall once had in the LLC; and a |acopy of the act of credit sale of Woodall’s ownership interest. In their responses to the requests for admissions, defendants admitted that a true and' correct copy of the promissory note was attached to the petition, Weaver’s signatures on the note were authentic, Weaver received the demand letter, and only $9,000 in payments were made on the note.

On September 20, 2006, defendants faxed their memorandum in opposition to the motion for summary judgment to Woo-dall’s counsel. They contended in their memorandum that under the terms of the LLC’s operating agreement, Woodall’s interest had no positive value on the date when it was transferred. Attached to the memorandum were Weaver’s affidavit and the LLC’s Operating Agreement.

Woodall objected to the untimely filed opposition to his motion for summary judgment. Agreeing with Woodall, the trial court did not consider what defendants had filed in opposition to the motion. The trial court granted the motion for summary judgment and rendered judgment in favor of Woodall in the amount of $141,000, plus a 25% attorney fee on the unpaid balance. Defendants have appealed.

DISCUSSION

The primary issue on this appeal is whether the trial court erred in refusing to consider the untimely memorandum and affidavit submitted in opposition to the motion for summary judgment. As recognized by defendants in their brief before this court, the failure to consider their memorandum and affidavit resulted in no opposition to Woodall’s motion |sfor summary judgment, making the entry of summary judgment a foregone conclusion.

Opposing affidavits and any memorandum in support thereof shall be served pursuant to La. C.C.P. art. 1313 at least eight days prior to the date of the hearing unless the Rules for Louisiana District Courts provide to the contrary. La. C.C.P. art. 966(B). This time limitation is mandatory, and affidavits not timely filed can be ruled inadmissible and properly excluded by the trial court. Buggage v. Volks Constructors, 2006-0175 (La.5/5/06), 928 So.2d 536.

Defendants attributed the delayed filing of their opposition to a calendaring mistake on the part of their trial counsel, who confused this case with another pending case where trial counsel was the mov-ant and the hearing on the motion for summary judgment had been set for September 28. The preparation of an opposition to the motion for summary judgment would have been fairly straightforward in this case, as this is not an instance when the non-movant was dependent upon an affidavit from an expert witness. Weaver’s affidavit described in detail the parties’ motivations behind the promissory note and the act of credit sale, in particular, an alleged verbal agreement that the promissory note would be paid only from profits of the LLC. This affidavit was not executed until September 16, 2006, even though, as noted by the trial court, the defendants were served |4with the motion on August 1. We find no abuse of the trial court’s discretion in refusing to consider the late-filed opposition to the motion for summary judgment. The motion for summary judgment was properly granted.

The defendants next object to the amount awarded by the trial court in attorney fees, which was in adherence with the 25% fee fixed in the promissory note. It is well settled that courts may inquire into the reasonableness of attorney fees as part of their inherent authority to regulate the practice of law. Smith v. State, Dept. of Transp. & Development, 2004-1317 (La.3/11/05), 899 So.2d 516. A court may make this inquiry even when a contract between the parties fixes the amount of attorney fees. See City of Baton Rouge v. Stauffer Chemical Co., 500 So.2d 397 (La.1987).

Factors to be taken into consideration when determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5)the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances made; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge. State, Dept. of Transp. and Development v. Williamson, 597 So.2d 439 (La.1992).

A trial court is vested with considerable discretion when setting attorney fees. Minsky v. Shumate, 40,375 (La.App.2d Cir.3/10/06), 924 So.2d 488. Nevertheless, the record before us is not sufficient to perform a proper inquiry into the reasonableness of what will amount to a fee of approximately $35,000. Accordingly, we will remand to the trial court for a determination of the reasonableness of the amount awarded as attorney fees.

CONCLUSION

This matter is REMANDED to the trial court for a determination of the reasonableness of the award of attorney fees in the amount of 25% of the unpaid balance of $141,000. In all other respects, the judgment is AFFIRMED at appellants’ costs.

      . The first 50 installments were $900 each, with the next 58 installments being $1,800 each, and a final installment of $600. No interest was owed.

      . Service copies were hand-delivered to plaintiffs counsel the next day.

      . Because defendants presented no opposition to the motion for summary judgment, it was unnecessary for the trial court to consider the unsupported affirmative defenses raised by defendants in their answer. La. C.C.P. art. 967(B) provides that when a motion for summary judgment is supported, “an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial.” Our emphasis.