text:
    Gregory LEWIS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Warren Lewis and Jay Adams.
    No. 05-CA-807.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      David W. Bernberg, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant, Gregory Lewis.
    David A. Strauss, Lindsay A. Larson, Christian A. Garbett, King, Leblanc and Bland, New Orleans, Louisiana, for Defendants/Appellees, State Farm Mutual Automobile Insurance Company, Warren Lewis and Jay Adams.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

IgThis is a personal injury suit arising from an automobile accident. The plaintiff appeals a judgment, based on a jury verdict, that awarded him $400.00 for medical expenses, but awarded nothing for other elements of damage or costs. We affirm.

The parties stipulated to liability at the commencement of the trial, so the only issues for the jury were the damages sustained by the plaintiff. The jury found that as a result of the accident, the plaintiff suffered a neck injury, but no back injury. The jury awarded $400.00 for past medical expenses, but zero for general damages, past lost wages, future lost wages (diminished earning capacity), and future medical expenses. The trial court adopted the verdict as the judgment of the court, adding “with each party to bear their own costs.”

The plaintiff filed a motion for a new trial and/or a judgment notwithstanding the verdict, which the trial court denied. The plaintiff also filed a motion to set expert witness fees, but the trial court never ruled on that motion.

On appeal the plaintiff raises the following assignments of error:

1. The jury erred in its failure to award general damages to the plaintiff, given the fact that they found liability against the defendants and found that the plaintiff had sustained objective and actual physical injuries as a result of the accident.
|s2. The presiding judge erred in failing to award court costs and expert witness fees to the plaintiff.

FACTS

The following facts were in the evidence the jury heard at trial. The plaintiff, Gregory Lewis, was a passenger in a Ford F-350 dually truck that was struck from the rear by a Toyota Tacoma truck on October 8, 2003. At the scene, the plaintiff told the driver of the Toyota, Warren Lewis, that he was initially unaware that an accident had occurred. Similarly, Lemuel Spears, driver of the Ford truck in which the plaintiff was riding, also was initially unaware there had been a collision.

At the scene the plaintiff denied being injured,. and did not request emergency medical care. None of the other three persons involved in the accident complained of injury at the scene or sought medical care.

State Trooper Eugene Narcisse, who investigated the accident, testified that the vehicle in which the plaintiff was riding had been pushed forward five feet. His police report indicated the driver of the following vehicle (Warren Lewis) said he was traveling 30 miles per hour at the time of the accident. The report also indicated that it was not raining and the roadway was not wet.

In contrast, the driver of the following vehicle, defendant Warren Lewis, testified that his speed was five miles per hour, at most ten, at the time of impact. His air bags did not deploy and he knew his speed because he looked at the speedometer. He also testified that his vehicle was not pushed forward and that he had not told the police officer the vehicle he struck was pushed forward. He said further that the roadway was wet at the time of impact because it had rained.

|4The plaintiff admitted that the vehicle in which he was riding did not sustain much damage. Photographs of both vehicles show little damage. The defendant’s truck, the Toyota, sustained some damage to the left front side; the Ford truck in which the plaintiff was riding, however, sustained only some scratches and paint streaks on its rear bumper.

On October 10, 2003, two days after the accident, the plaintiff saw Dr. Leia Fricke, a general practitioner who primarily treats patients for soft-tissue injuries, on referral by his attorney. Dr. Fricke had treated the plaintiff previously for back pain following a December 2001 slip-and-fall accident. She had last seen him in January 2002, at which time she considered his back still problematic and recommended he return for further treatment. However, he made no further visits to Dr. Fricke until October 2003, when he complained of neck pain from the accident involved here.

At that time he told her his 2001 back injury had resolved. He complained of neck pain, which Dr. Frieke diagnosed as cervical sprain. Dr. Frieke saw and treatr ed the plaintiff nine times between October 10, 2003 and May 3, 2004. During that time, he never complained to her of back pain or back problems but only of neck pain.

The plaintiff saw Dr. Kenneth Vogel, a neurosurgeon, on June 1, 2004, with complaints of neck and right arm pain only. The plaintiff told Dr. Vogel he had been in good health until the accident involved here. Dr. Vogel determined that the plaintiffs post-accident MRI tests revealed cervical and lumbar abnormalities. He found the plaintiffs signs and symptoms to be causally related to this accident. He admitted, however, that he could not determine from the MRIs alone when the injuries occurred or whether the abnormalities were painful, but had to rely on the patient’s subjective statements.

| fiThe plaintiff told Dr. Vogel he first started suffering back pain three months after the October 2003 accident. On his first visit to Dr. Vogel, however, the plaintiff only complained of neck pain and did not mention back pain until his second visit. Dr. Vogel said the right arm pain was consistent with neural irritation in the neck and that the plaintiff had herniations at several levels in the cervical spine. Dr. Vogel opined that the plaintiff was unsuitable for employment, that he had reached his maximum benefit from physical therapy, and that he needed more aggressive treatment, including CT scan, myelogram, and surgery. The plaintiff did not return to Dr. Vogel after July 2004.

The plaintiff underwent an independent medical examination by Dr. Claude Williams, an orthopedist, on September 13, 2004. Dr. Williams determined that the plaintiffs MRI showed a herniated cervical disc. He testified that the plaintiff would need additional medical care and treatment in the form of a myelogram and CT scan, as well as possible surgery.

The plaintiffs post-accident MRIs showed disc pathology in both his back and his neck. However, all three doctors agreed that a positive MRI finding does not establish a causal link to a particular accident. Doctors Frieke and Vogel both testified initially that the neck injury findings were causally related to the accident in October 2003. Subsequently, however, Dr. Frieke admitted that if she had known of the plaintiffs prior history, which he had not disclosed to her, she might have found differently.

The plaintiff testified on direct examination that at the time of trial he was suffering severe, constant pain in his neck and back that had been ongoing since the 2003 accident. He admitted that he was having back problems prior to the 2003 accident, although he claimed. the back problems came and went and had existed for almost 20 years. He admitted that while in prison, he worked in fields Rand always had back problems. He also admitted undergoing a prior lumbar MRI in 2001. Nevertheless, he failed to advise Dr. Frieke of most of his prior back problems.

Further, he was impeached with records of his medical treatment at Charity Hospital, which showed that only six months after the accident, when he was seeking alcohol and drug rehabilitation at Charity, he said he had no pain and no ongoing pain.

In addition, the plaintiff lied at trial about his pre-accident injury history. He denied having been injured in 1998, when he fell to the road out of a moving police car. He also denied having filed a personal injury suit regarding that accident, but was impeached with a copy of a handwritten lawsuit petition, which he personally had drafted and filed, in which he sought $130,000.00 for various injuries, including spinal injuries.

In addition, the plaintiff testified to a 2001 job-related injury, for which he eventually saw Dr. Frieke. On cross he admitted he was still having back pain when he stopped seeing Dr. Frieke in 2002. The plaintiff also denied another low-back injury that he sustained in 1999 while he was incarcerated. He was impeached with records proving the 1999 accident occurred and necessitated hospitalization and medical care for his low back.

There also was evidence that he sustained a job-related back injury in October 2001. Further, there was testimony that the plaintiff had received several gunshots to his back and torso and that two bullets were still lodged along his spine.

The plaintiff also was untruthful about his substance abuse. He testified on direct- that he was drug-free prior to the accident, but he was impeached with medical records that showed he failed two random drug tests shortly before the 17accident at issue, and lost two jobs as a result. The plaintiffs Charity Hospital records showed that for over a year prior to May 2004, the plaintiff stated he used cocaine and drank large amounts of alcohol every day.

Dr. Frieke admitted that the plaintiff exhibited drug-seeking behavior while under her care. She was not aware of his prior substance abuse or prior injuries. Upon learning the information at trial, she stated she was concerned about the plaintiffs credibility regarding his subjective complaints of neck pain, as well as of the alleged cause for the pain.

In addition, the plaintiff testified that he suffered back pain almost immediately after the accident. However, the records and medical testimony showed he made no complaints of back pain until almost nine months after the accident. Further, he testified at trial that during the accident he was pushed forward and backward, which motion caused his neck injury. However, Dr. Fricke’s records and testimony showed he told her three days after the accident that he moved side-to-side during the impact, not front-to-back.

Further, the defense established that the plaintiff was untruthful in seeking significant past and future lost wages due to his alleged disability. On cross examination, the plaintiff admitted that he was incarcerated for 16 years, between 1985 and 2001. At the time of this accident, he had been out of prison for only two years. He claimed on direct that he had been steadily employed during that two-year period, but on cross he was impeached. In contrast to his claim to have worked for one employer, Tosh, Inc., for seven months, the defense used the plaintiffs deposition to impeach him and establish that he had really only worked there for seven weeks. He also admitted he had worked at two other jobs for only a few months before being fired from each for failing random drug tests, with his most recent dismissal being three weeks before the accident at issue here.

|RIn addition, the plaintiff admitted he had lied to several employers about his physical condition. He said he could not be totally honest with his applications because if he were, he would “never get a job.”

The plaintiff also denied that he had an alcohol or drug problem at the time of the accident. He was impeached, however, with Charity Hospital records showing that in May 2004 (seven months post-accident), he went to Charity because of a drug problem. He admitted he was honest at Charity and told the truth about his drug problem, stating that he was an intravenous drug abuser and used crack cocaine. The Charity record indicated he had needle tracks on his skin at the injection sites. He also admitted the Charity record was correct that he stated he drank a fifth of whiskey and two to three quarts of beer every day since 2000, about the time he was released from prison. He denied that he actually used that much alcohol, however, indicating he had made those statements because he was trying to get help.

Notably, during his Charity visit in May 2004 he denied that he was in pain or that he had ongoing pain, in contrast to what he claimed at trial of this matter, as well as in contrast to what he claimed to Dr. Vogel.

Dr. Williams’ testimony also impeached the veracity of the plaintiffs testimony. The plaintiff had denied to Dr. Williams that he had any pre-accident back or neck problems. Dr. Williams had the opportunity to review the plaintiffs medical records, however, which showed that the plaintiff complained of leg pain in March 1999, and again complained of low back pain with left leg numbness in October 2001.

Dr. Williams said that trauma such as falling from a moving car could cause a neck injury, especially since the plaintiff had sustained a broken or dislocated collar bone. Similarly, the plaintiff reported to Dr. Williams that his alcohol use |3was moderate, which Dr. Williams said was inconsistent with the plaintiffs statement on the Charity medical record. The plaintiff told Dr. Williams he was in recovery from narcotic use and had prior trouble with narcotics even before the accident involved here.

Dr. Williams stated that in his September 2004 examination, he found no objective evidence of a back or neck injury. Dr. Williams admitted the plaintiffs 2004 lumbar MRI showed significant changes from the 2001 test. However, Dr, Williams characterized these as degenerative changes. Becáuse an MRI cannot determine when the pathology occurred, Dr. Williams emphasized the doctor must rely on the patient’s subjective statements regarding when he became symptomatic. Hence, a patient must be truthful for a doctor to determine causation.

DAMAGES AWARD

In Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, our supreme court addressed the question of whether a factfinder errs as a matter of law when it declines to award general damages after finding the defendant at fault for the plaintiffs injuries and awarding special damages for the plaintiffs medical expenses.

Prior to the Wainwright decision, the courts of appeal had frequently held that it was error of law for a jury to award special damages without awarding an amount for general damages as well, especially where there was objective evidence of injury.

At the same time, in another line of cases, some courts of appeal had held it permissible for a jury to award medical expenses for an examination and/or hospital visit, while making no award for general damages, where there was serious question as to whether the plaintiff had sustained any injury in the accident. |10In those cases, the courts reasoned the jury could reasonably have found that the plaintiffs did not sustain injury, but were justified in being examined following the accidents.

In Wainwright, the supreme court held,

[A] jury, in the exercise of its discretion as factfinder, can reasonably reach the conclusion that a plaintiff has proven his entitlement to recovery of certain medical costs, yet failed to prove that he endured compensable pain and suffering as a result of defendant’s fault. It may often be the case that such a verdict may not withstand review under the abuse of discretion standard. However, it would be inconsistent with the great deference afforded the factfinder by this court and our jurisprudence to state that, as a matter of law, such a verdict must always be erroneous. Rather, a reviewing court faced with a verdict such as the one before us must ask whether the jury’s determination that plaintiff is entitled to certain medical expenses but not to general damages is so inconsistent as to constitute an abuse of discretion. Only after the reviewing court determines that the factfinder has abused its much discretion can that court conduct a de novo review of the record.

Wainwright v. Fontenot, 00-0492, pp. 8-9 (La.10/17/00), 774 So.2d 70, 76.

The plaintiff argues that he had objective evidence of injury to his cervical spine, in that both Dr. Fricke and Dr. Vogel observed spasm in the area, and as such he is entitled to recover general damages. In addition, he asserts the $400.00 awarded by the jury is an arbitrary amount, not based on any of the facts in the record, nor on any of the exhibits and medical bills presented at trial.

In contrast, however, the defense points out there was testimony that the plaintiff contacted the defendant insurer, State Farm, and requested $1,000.00 for medical expenses so he could be examined and treated for his alleged injuries. Instead, State Farm sent him a check for $400.00. The plaintiff, however, never In cashed it, because he was under the impression that to do so would waive his right to further recovery.

The assessment of “quantum,” or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. As such, “the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.” Moreover,
before a Court of Appeal can disturb an award made by a [factfinder,] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.

[Citations omitted.]

Wainwright v. Fontenot, 00-0492, p. 5 (La.10/17/00), 774 So.2d at 74.

The onus was on the plaintiff to affirmatively establish, by a preponderance of the evidence, that he was entitled to general damages for pain and suffering. The conflicts in the testimony — not only the numerous instances in which the plaintiffs own testimony was impeached, but even the conflicts between the defendant driver’s testimony and the state trooper’s testimony-establish that this case turned strongly on the jury’s determinations of witness credibility.

Our review of the record shows us no manifest error and convinces us the jury’s award in this case is not an abuse of the great discretion accorded the trier of fact in these matters.

COSTS AWARD

La.C.C.P. art.1920 provides, “Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. | ^Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”

The plaintiff complains that since the jury rendered the verdict in his favor, the trial court should have awarded him his expert witnesses’ fees.

The party cast in judgment is generally taxed with costs; however, the trial court has the discretion to assess costs of a suit in any equitable manner. Scramuzza v. River Oaks Inc., 03-959, p. 14 (La.App. 5 Cir. 3/30/04), 871 So.2d 522, 531, writ denied, 04-1088 (La.6/25/04), 876 So.2d 839. Likewise, the fixing of expert fees is within the discretion of the trial court and that award will not be disturbed on appeal unless there is an abuse of discretion. Id.

For the foregoing reasons, the judgment is affirmed. The plaintiff-appellant is cast with the costs for this appeal.

AFFIRMED.

      . The record does not indicate that defendant Warren Lewis is related in any way to Gregory Lewis, the plaintiff.

      . That was the rule within this circuit. See, e.g., Bienvenu v. State Farm Mut. Auto. Ins. Co., 545 So.2d 581 (La.App. 5 Cir.1989). See also, cases cited in Wainwright, 774 So.2d at 75.

      . See cases cited in Wainwright, 774 So.2d at 76.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    BOES IRON WORKS, INC. v. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA.
    No. 05-CA-782.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      Wayne J. Jablonowski, Slidell, Louisiana, for PlaintiffAppellant.
    R. Gray Sexton, Tracy Meyer Walker, Baton Rouge, Louisiana, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| ^Plaintiff appeals from a judgment granting defendant’s exception of improper venue. For the reasons stated herein, we vacate the trial court’s judgment and remand the case for further proceedings.

Factual and Procedural History

Boes Iron Works, Inc. (“Boes”) filed the instant petition for damages in the 24th Judicial District Court for the Parish of Jefferson against Travelers Casualty and Surety Company of America (“Travelers”). In its petition, Boes alleged the following facts: On February 10, 1999, MAPP Construction, Inc. (“MAPP”) entered into a construction contract with the Jefferson Parish Council for the construction of a parking garage at the East Jefferson General Hospital. In connection with this project, Travelers issued a payment bond naming MAPP as principal which obligated Travelers to pay all sums due and owed to subcontractors for this project.

|sIn connection with this project, MAPP entered into a subcontract with Boes whereby Boes was to furnish labor and material for the project. Although Boes performed the work specified under the subcontract, there allegedly remains a past due balance in the amount of $316,783.50. Boes alleged that Travelers, as the surety, is obligated to Boes for payment of this sum as well as attorney’s fees and penalties pursuant to La. R.S. 38:2246 and La. R.S. 9:2784.

In response to this petition, Travelers brought a declinatory exception of improper venue on the basis that venue in the 24th Judicial District is improper and that the only proper venue is in the 19th Judicial District Court in the Parish of East Baton Rouge. In support of this argument, Travelers relied on the provisions of the subcontract entered into between MAPP and Boes governing the parties’ obligations in connection with this project. Travelers argued that based on a forum selection clause contained in that contract, any action arising out of the agreement must be brought in the 19th Judicial District Court.

Boes opposed this exception on the basis that the subcontract does not control venue in this matter involving the payment bond where MAPP is not a party to the lawsuit. Boes also argued venue is proper in Jefferson Parish pursuant to the provisions of La. C.C.P. art. 76.1 and the Public Works Act, La.R.S. 38:2241, et seq.

Following a hearing, the trial court granted the exception of improper venue and transferred the matter to the 19th Judicial District Court. In its reasons for judgment, the trial court relied on the venue provisions of the subcontract executed between MAPP and Boes. Boes now appeals from the trial court’s judgment.

J ¿Law and Discussion

Because venue is a question of law, an appellate court should conduct a de novo review of the record. Bloomer v. Louisiana Workers’ Compensation Corp., 99-0707 (La.App. 1 Cir. 5/12/00), 767 So.2d 712, 714. Venue.means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject. La. C.C.P. art. 41. The general venue exception pertaining to contracts is contained in La. C.C.P. art. 76.1, which provides:

An action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.

Further, the rules of venue governing public contracts are contained in La. R.S. 38:2181, which provides in part:

A suit arising under any public contract regarding the construction, alteration, or repair of any public works or for the purchase of materials or supplies, may be instituted either in the parish in which the public entity is located or in any other parish where, by law, such action may be instituted.

In addition, La. R.S. 38:2243 authorizes the public entity or any claimant to file a petition in the proper court of the parish where the work was done directly against the surety on the bond to collect unpaid sums on any filed and recorded claims. See also, La. R.S. 38:2247, which provides a claimant with a right of action against the surety on a bond furnished pursuant to the Public Works Act.

Pursuant to these statutory provisions governing either general contracts or public contracts, an action on a contract executed or performed in Jefferson Parish may be brought in Jefferson Parish. Further, under |Rcertain circumstances, a subcontractor may file a claim directly against a surety under the statute without inclusion of the contractor or the public entity.

However, Travelers cites to the provisions of the subcontract between MAPP and Boes as governing venue in this case. Travelers contends that the forum selection clause contained in that contract is applicable to this lawsuit and requires it to be brought in East Baton Rouge Parish. Travelers contends that forum selection clauses are legal and binding and should be enforced unless enforcement would be unreasonable or against public policy. Travelers also contends that a plaintiff trying to set aside such a clause has a heavy burden. Digital Enterprises, Inc. v. Arch Telecom, Inc., 95-30 (La.App. 5 Cir. 06/28/95), 658 So.2d 20; Pitts, Inc. v. Ark-La Resources, L.P., 30,836 (La.App. 2 Cir.08/19/98), 717 So.2d 268, 269.

Our review of the present case indicates that we are unable to address the issues raised by this appeal because the record is not complete. First, although plaintiff alleges in brief that its claim was filed pursuant to the Public Works Act and that venue is proper under this statute in Jefferson Parish, the record fails to contain sufficient evidence that this statute is applicable to the facts of this case. The only specific reference to the Public Works Act in plaintiffs petition is the claim for attorney’s fees pursuant to La. R.S. 38:2246. We note that plaintiff also seeks attorney’s fees under the statute governing general contracts, La. R.S. 9:2784.

Further, a copy of the subcontract relied upon by the defendant and the trial court is not contained in the" record. Although the parties referred to the contract during the exception hearing and the trial court relied on the contract in its reasons for judgment, the transcript of the exception hearing vindicates that no exhibits were introduced at the trial level. The record also reflects that the contract is not attached to any of the pleadings filed by the parties, and is not found in the record lodged in this court.

We are a court of record and must limit our review to the evidence in the record on appeal. As an appellate court, we cannot review evidence that is not in the record on appeal and we cannot receive new evidence. Littlejohn v. Quiram, 01-0075 (La.App. 4 Cir. 10/24/01), 800 So.2d 73, 74.

This principle has been further explained as follows:

Pursuant to LSA-C.C.P. art. 2164, an appellate court must render judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, judgments and other rulings, unless otherwise designated. LSA-C.C.P. arts. 2127 and 2128. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Augustus v. St. Mary Parish School Board, 95-2498 (La.App. 1st Cir.6/28/96); 676 So.2d 1144, 1156. The appellate briefs of parties are not a part of the record on appeal, and this court has no authority to consider on appeal facts referred to in appellate briefs, or in exhibits attached thereto, if those facts are not in the record on appeal. Augustus v. St. Mary Parish School Board, 676 So.2d at 1156; Dawson v. Cintas Corp., 97-2275 (La.App. 1 Cir. 6/29/98), 715 So.2d 165, 167. In fact, the Louisiana Fifth Circuit Court of Appeal has held that “an appellate court is forbidden by the law and jurisprudence to consider evidence which is outside the record on appeal.” Barrois v. Wal-Mart Stores, Inc., 97-636 (La.App. 5 Cir. 11/25/97), 703 So.2d 798, 799.
Littlejohn v. Quiram, supra, 800 So.2d at 74.

Although we find that venue in this proceeding may be proper under the general venue exception relating to actions on contracts, we are unable to determine the applicability of La. R.S. 38:2181 because plaintiff has failed to assert a sufficient factual allegations in its petition regarding the Public 17Works Act. Further, without a copy of the subcontract which allegedly contains the forum selection clause, we are unable to determine whether that agreement is binding between the parties in this case.

Accordingly, because the record on appeal in this case is insufficient to rule on the exception of improper venue, this court is compelled to vacate that judgment and remand to the trial court for further proceedings. On remand, because an exception of venue is dependent upon the cause of action asserted, it must be determined whether plaintiff is asserting its claims under the Public Works Act or under general contractual provisions.

VACATED AND REMANDED.

      . Under most circumstances, suits instituted on different theories of recovery may be brought in the venue which is proper for any theory alleged in the suit. Hebert v. Myers, 449 So.2d 185 (La.App. 3d Cir.1984); Hamm v. Amy, 544 So.2d 691 (La.App. 3d Cir.1989); Marston v. Premier Bank, N.A., 27,794 (La.App. 2 Cir. 12/6/95), 665 So.2d 725, 728; La. C.C.P. art. 45. Thus, if it is determined that plaintiff’s petition states claim under both the Public Works Act and general contractual provisions, venue in Jefferson Parish would be proper under both La. R.S. 38:2181 and La. C.C.P. art. 76.1


author: MARION F. EDWARDS, Judge.

text:
    Paul SEIDL v. ZATARAIN’S, INC.
    No. 05-CA-780.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      John B. Fox, Robert W. Booksh, Jr., John Fox <& Associates, L.L.C., New Orleans, Louisiana, for PlaintiffiAppellant.
    Andre C. Gaudin, Charles W. Farr, Bur-glass & Tankersley, L.L.C., Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

| gin this workers’ compensation case, the plaintiff, Paul Seidl, appeals from two rulings by the trial court, which respectively held that Seidl’s claim for attorney’s fees had prescribed and further granted summary judgment in favor of the defendant on the issue of Seidl’s entitlement to Supplemental Earnings Benefits. For the reasons that follow, we affirm both judgments.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Paul Seidl (“Seidl”), was employed by defendant, Zatarain’s, Inc. (“Za-tarain’s”), when he became injured during the course and scope of his employment on December 3, 2001. From December 4, 2001 through February 25, 2002, Seidl was paid total disability benefits. After returning to work at Zatarain’s, Seidl voluntarily left his employment there on May 13, 2002.

After Seidl filed a Disputed Claim for Compensation with The Office of Workers’ Compensation, District 7, Zatarain’s filed an answer, along with ¡^Peremptory Exception of Prescription, as to Seidl’s claim for permanent partial benefits due to scarring. The exception was granted through a consent judgment on January 10, 2005.

Thereafter, Zatarain’s filed a Motion for Summary Judgment regarding Seidl’s claim for Supplemental Earnings Benefits (SEB), and a Peremptory Exception of Prescription in opposition to Seidl’s claims for penalties and attorney’s fees. Following a hearing on May 20, 2005, the workers’ compensation judge granted both Za-tarain’s Exception of Prescription and its Motion For Summary Judgment in an order dated May 20, 2005.

Seidl timely filed the present appeal.

LAW AND ARGUMENT

On appeal, Seidl raises two assignments of error: (1) The lower court erred in holding that general tort law prescription of one year applies to bar the claims for penalties and attorney’s fees filed within three years of the last payment of medicals, and (2) The trial court erred in granting summary judgment on the issue of entitlement to SEB benefits where there was a genuine issue of material fact in relation to the medical evidence presented.

The appellate court’s standard of review in a workers’ compensation case is governed by the manifest error or clearly wrong standard. This standard precludes setting aside a trial court’s or a jury’s finding of fact in absence of manifest error or unless it is clearly wrong. In applying the manifest error-elearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. The reviewing court is compelled to review the record in its entirety to determine whether the trial | court’s finding was clearly wrong or manifestly erroneous. The Louisiana Supreme Court has emphasized that it is crucial that the reviewing court keep in mind that “if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”

In his first assignment of error, Seidl contends that that trial court erred in holding that general tort law prescription of one year applies to bar the claims for penalties and attorney’s fees filed within three years of the last payment of medical expenses. At trial, Seidl argued that he was entitled to penalties and attorney’s fees because of an alleged late payment of his medical expenses and prescription costs by Zatarain’s.

The trial court, in its Reasons for Judgment, succinctly framed the argument of both Seidl and Zatarain’s on this issue:

In his memorandum, Claimant’s counsel states the obvious: that when medical payments have been made in a workers’ compensation claim, prescription tolls three years after the making of the last payment of medical benefits. And the Court agrees, this is a well-settled jurisprudential rule in Louisiana. However, he then makes a quantum leap into an area where no court has gone before, and asserts that ANY claim which arises out of a claim for medical benefits must also be allocated the three year prescriptive period of Section C of R.S. 23:1209. Therefore, [Seidl contends] he has three years after the untimely payment of a medical benefit in which to assert his claim for penalties and/or attorney fees.
Defendant maintains that any claim for penalties and attorney fees for alleged violation of R.S. 23:1201(E) has prescribed. As authority, he cites the only case on point which the Court has been able to find: In Craig v. Bantek West, Inc., 03-2757 (La.App. 1 Cir. 9/17/04), 885 So.2d 1234, that court held that a claim for penalties and attorney fees brought pursuant | sto R.S. 23:1201 is subject to a one year prescriptive period for delictual actions found in La. Civ.Code art. 3492. Thus, [defendant contends] any claim for penalties and attorney fees must be filed within one year of the alleged wrongful conduct.
Claimant’s counsel characterizes the court in the Craig case as having reached an absurd result by allowing different prescriptive periods to apply to claims arising out of the same factual circumstances. Claimant’s counsel chooses to ignore the fact that R.S. 23:1209 itself provides for different prescriptive periods for claims arising out of the same factual circumstances, as for instance between temporary total disability benefits and supplemental earnings benefits, or between indemnity benefits and medical benefits. The legislative will expressed in the statute is that there are many different prescriptive periods for claims arising out of the same factual circumstances.

On appeal, Zatarain’s still contends that Seidl’s action for attorney’s fees and penalties is governed by LSA-R.S. 23:1201 which states, in relevant part:

E. Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.
F. Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 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....

Seidl maintains, however, as he did in the lower court, that LSA-R.S. 23:1209, the workers’ compensation prescription statute, should have guided the trial court’s decision. That statute, in relevant part, reads:

C. All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation | (¡shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

(Emphasis added.) After a review of the record before us, we begin our analysis with a finding that LSA-R.S. 23:1201 governs the issue.

In a case involving a similar issue to the one at bar, Craig v. Bantek West, Inc., cited by the trial court, the plaintiff in a workers’ compensation suit sought penalties and attorney’s fees for what he contended to be late payment of medical benefits by his employer. In analyzing the prescriptive period for such an action, the First Circuit provided the following reasoning, which we find illustrative:

The prescriptive period applicable to claims for workers’ compensation benefits is set forth in La. R.S. 23:1209. Pursuant to section A of this statute, claims for workers’ compensation benefits are barred unless filed within: (1) one year from the date of the accident; (2) one year from the last compensation payment for total disability or three years from the last payment for partial disability; or (3) one year from the time the injury develops if not immediately manifested, but, in any event, no more than two years after the accident. However, there is no reference in this statute to the prescriptive period applicable to claims for penalties and attorney fees.

Pursuant to La. R.S. 23:1201(F), penalties and attorney fees may be awarded as follows:

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....

As set forth in La. R.S. 23:1201(F)(1), “[s]uch penalty and attorney fees shall be assessed against either the employer or insurer, depending upon fault.” Moreover, no such penalties and attorney fees can be awarded “if the claim is reasonably controverted or if such nonpayment results from conditions over 17which the employer or insurer had no control.” La. R.S. 23:1201(F)(2).

The statutes providing for penalties and attorney fees are penal in nature and must be strictly construed. Barber Bros. Contracting v. Young, 2003-0747, p. 7 (La.App. 1 Cir. 2/23/04), 873 So.2d 677, 681, writ denied, 2004-0704 (La.5/7/04), 872 So.2d 1084.
It is well settled in Louisiana jurisprudence that the purpose of a prescription statute is to afford a defendant economic and psychological security if a cause of action is not pleaded timely and to protect the defendant from stale claims and the loss of relevant proof. Terrel v. Perkins, 96-2629, p. 4 (La.App. 1 Cir. 11/7/97), 704 So.2d 35, 38. As previously noted, a claim for penalties and attorney fees necessitates an inquiry into the fault of Bantek and/or its insurer and a determination of whether the parties’ actions clearly negate good faith and just cause with respect to the handling of Mr. Craig’s workers’ compensation claim. Although such a claim is delictual in nature, it is “integrally related to the judicious administration of workers’ compensation claims” and properly arises under the jurisdiction of the workers’ compensation courts. See Clarendon Nat. Ins. Co. v. Weston, 97-1089 (La.App. 1 Cir.5/15/98), 712 So.2d 628, supra. Thus, we find no error in the application of the one-year prescriptive period set, forth in Article 3492 to Mr. Craig’s claims herein for penalties and attorney fees.

(Emphasis added.) In spite of the fact that the Louisiana Supreme Court left the First Circuit’s decision in Craig stand by denying writs in that case, Seidl argues on appeal that Craig is fundamentally flawed. We disagree:

In its Reasons for Judgment in the present case, the trial court wrote that “This Court concluded that based upon the law and the jurisprudence that the claims for penalties and attorney fees for the nonpayment of certain medical bills and prescriptions in this matter are barred by the liberative prescription of one year.” In applying the holding in Craig to the present facts, we find no error on the part of the lower court, and, accordingly, we uphold the Exception of Prescription.

In his second assignment of error, Seidl asserts that the trial court erred in granting summary judgment on the issue of his entitlement to SEB benefits. | ¡^Conversely, Zatarain’s argues that Seidl did not suffer a loss of earning capacity as a result of the accident and that, because he voluntarily left his employment, Seidl’s claim for SEB was properly dismissed on summary judgment.

It is well settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Thus, this Court must consider whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Moreover, the summary judgment procedure is favored, and shall be construed, as it was intended, to secure the just, speedy, and inexpensive determination of most actions.

The record in this case shows that Seidl injured his left hand on December 3, 2001 while working as a mixer operator for Zatarain’s for a wage of $7.45 per hour. Seidl received temporary total disability from December 4, 2001 through February 25, 2002, though he had returned to light-duty work with Zatarain’s prior to that date. Dr. Jonathan Boraski, Seidl’s treating physician, released Seidl to full-duty work on March 21, 2002, and, at that time Seidl returned to his former position, earning his prior wage for the same amount of hours worked. Dr. Boraski had assigned a five percent impairment to Seidl’s hand, a three percent of the upper extremity, and three percent to the person as a whole. Seidl resigned his position with Zatarain’s on May 13, 2002. According to his deposition testimony, he voluntarily left his job because he felt that his supervisors were uncaring about him.

Following his departure from Zatarain’s, Seidl obtained two additional medical opinions regarding his impairment rating. After an examination on June | a20, 2002, Dr. John Lindsey opined that Seidl had sustained two percent impairment of the upper extremity and one percent impairment of the person as a whole. Dr. Lindsey did not place any restrictions on Seidl’s ability to work. A third opinion from Dr. Harold Stokes reported that Seidl had ulnar nerve neuropathy that was unrelated to his employment with Zatarain’s. Dr. Stokes opined that Seidl could work as a machine operator.

At the hearing on Zatarain’s Motion for Summary Judgment, the following exchange took place between the Court and plaintiffs counsel:

THE COURT:
One of the things I noticed is that nowhere is there any contradictory medical evidence. And as you know, SEB says that one is not capable of earning at least 90 percent of his pre-injury wage because of the injury.
Now, here, I was struck by the fact that after Dr. Boraski assigned a disability rating — and Mr. Seidl was not happy with that, obviously — he goes on his own to Dr. Lindsey, who gives him an even lesser disability rating. And then to Harold Stokes, who is the “gold” standard in this community for injuries involving the hand or wrist. And Harold Stokes says, “He can do anything he wants to.” So, where is there any medical evidence that says that Mr. Seidl would be prevented because of this injury, from earning at least 90 percent?
PLAINTIFF’S COUNSEL:
Well, you see, he wanted to go back to work. We don’t have the medical evidence, but he was — you know, he started suffering, you know, substantial pain in his hand, trying to make — lift and utilize it. And there was numbness and pain in his hand that caused him to have to give up the work.
THE COURT:
And yet he saw these two people subsequent to leaving his position, who said “no restrictions.” You know, so, that’s—
PLAINTIFF’S COUNSEL:
I have no medical evidence.

|inAfter considering the evidence presented, the trial court stated in its Reasons For Judgment:

The purpose of supplemental earnings benefits is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. A workers’ compensation claimant seeking supplemental earnings benefits has the burden of proving by a preponderance of the evidence that a work-related injury prevents him from earning 90% or more of his pre-injury wages. Derrick v. Yamaha Power Sports of New Orleans, 03-184 (La.App. 5 Cir.6/19/03), 850 So.2d 829[sic]. Where the claimant has been released to light-duty work and refuses his employer’s offer of light-duty work at the same wages and hours, he is not entitled to SEB. Id.
In the instant case, Seidl was released to return to work, first to light duty and then to full duty, by Dr. Jonathan Bora-ski. Zatarain’s made work available for him, and he actually returned to work in the same position, earning the same wages and earning the same amount of hours ... Seidl continued working at Zatarain’s until May 13, 2002, when he voluntarily quit him employment. He testified the reason he quit was not because of his inability to perform his work, but because he felt that his supervisors did not care about him. Regardless, the evidence establishes that he was capable of and actually did return to work at no wage loss after he was released to return to work by his treating physician. His decision- to quit his job for purely personal reasons does not entitle him to SEB.
Regardless of the reasons why Seidl quit his job, he is unable to meet his burden of proving that his injuries prevent him from earning 90% or more of his pre-injury wages. Every physician who examined Seidl has concluded that he is capable of returning to work at full duty with no restrictions. Without medical evidence to establish that he has a disability that prevents him from earning 90% or more of his pre-accident wages, Seidl cannot meet his burden of proving entitlement to SEB.

As correctly noted by the trial court, the claimant in a supplemental earnings benefits case must prove by a preponderance of the evidence that his work-related injury rendered him unable to earn ninety percent of his pre-injury wages. Because this is a question of fact the appellate court may not set aside the hearing officer’s findings in this regard absent manifest error or unless the findings are clearly l^wrong. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong.

After a review of the record in this case, we cannot say that the trial court erred in finding that no genuine issue of material fact existed that would have precluded summary judgment. When Seidl was released back to work following his injury, Zatarain’s offered him both light and full duty employment at his previous rate of pay. The record reflects that Seidl left his employment voluntarily. As correctly noted by the Worker’s Compensation Judge, this Court has held that where the claimant has been released to light-duty work and refuses his employer’s offer of light-duty work at the same wages and hours, he is not entitled to SEB.

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed. Appellant is to bear the costs of this appeal.

AFFIRMED.

      . Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992).

      . Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State Through Dep't of Transp. and Dev., 617 So.2d 880 (La.1993).

      . Mart v. Hill, 505 So.2d 1120 (La.1987).

      . Rosell v. ESCO, supra.

        . Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990).

      . 2003-2757 (La.App. 1 Cir. 9/17/04), 885 So.2d 1234, writ denied, 2004-2995 (La.3/18/05), 896 So.2d 1004.

      . 885 So.2d at 1237, 1240-41.

      . Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 750.

      . Smith, supra.

      . LSA-C.C.P. art. 966(A)(2).

      . Hurst v. Baker Sand Control, 94-2463 (La.App. 1 Cir. 10/6/95), 671 So.2d 408, 412.

      . Derrick v. Yamaha Power Sports of New Orleans, 03-184 (La.App. 5 Cir.6/19/03), 850 So.2d 829.


author: CLARENCE E. McMANUS, Judge.

text:
    Diana E. BONNER v. Joseph MARTINO, Tamara Martino and USAA Insurance Co.
    No. 05-CA-701.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.
    Pius A. Obioha, New Orleans, Louisiana, for Plaintiff/Appellant.
    Peter J. Wanek, Lynda A. Tafaro, Me-tairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

| ^Plaintiff, Diane Bonner, appeals the grant of a summary judgment dismissing her claims against Joseph and Tamara Martino and their liability insurer, USAA Insurance Co. For the reasons that follow, we affirm the decision of the trial court.

Ms. Bonner was employed by Mr. and Mrs. Martino as a housekeeper. While she was working for them, the Martinos obtained, as a pet, a Doberman Pinscher named Jerry. On August 10, 2001, Ms. Bonner arrived at the Martino house in the early evening. She entered the front door and went to the rear of the house where Linda Williams, also employed by the Martinos, was present. After speaking to Williams, Ms. Bonner opened the door to the back where Mrs. Martino was. The dog ran to the door, and jumped on it. The door went back and struck Ms. Bonner in the face, causing injury.

Bonner filed suit against Mr. and Mrs. Martino and USAA, alleging that the dog was unreasonably dangerous, and had caused her injuries. Defendants filed for summary judgment, arguing that the undisputed facts would not support a finding of unreasonable risk of harm, and would show that the accident at issue was unforeseen. The trial court rendered judgment in favor of defendants, finding [ sthat plaintiff could not establish unreasonable risk of harm. In this appeal, plaintiff alleges that the trial court erred in failing to find that genuine issues of material facts existed with regard to the issue of whether the dog posed an unreasonable risk of harm.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Underwood v. Best Western Westbank, Inc., 04-243 (La.App. 5 Cir. 8/31/04), 881 So.2d 1271.

This court’s review of a grant or denial of a motion for summary judgment is de novo. We ask the same questions as the district court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Government, 04-0066 (La.7/6/04), 880 So.2d 1. LSA C.C. art. 2321 provides

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person’s provocation of the |4dog. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

To establish a strict liability claim against a dog owner under art. 2321, the plaintiff must prove that his person or property was damaged by the owner’s dog, that the injuries could have been prevented by the owner, and that the injuries did not result from the injured persons’ provocation of the dog. To show that the owner could have prevented the injuries under art. 2321, the plaintiff must prove that the dog presented an unreasonable risk of harm. Pepper v. Triplet, 03-0619 (La.1/21/04), 864 So.2d 181, Andrus v. L.A.D. Corp., 03-1488 (La.App. 5 Cir. 5/26/04), 875 So.2d 124, writ denied 04-2095 (La.11/15/04), 887 So.2d 483.

The criterion for determining whether defendants’ dog posed an unreasonable risk of harm to plaintiff is a balancing of claims and interests, a weighing of the risk and gravity of harm, and a consideration of individual societal rights and obligations, similar to that ■ employed in determining whether a risk is unreasonable in a traditional negligence problem, and in deciding the scope of duty or legal cause under the duty risk analysis. Pepper, supra, citing Boyer v. Seal, 553 So.2d 827 (La.1989).

Plaintiff, in her deposition, stated that she saw that the dog was outside when she arrived at the house. When she opened the back door, she saw the dog run from around the side of the house toward the door. She admitted that she did not try to shut the door when she saw the dog coming towards it. The dog jumped against the door and the door moved back, hitting her in the face. The dog did not make contact with her in any way. Ms. Bonner stated that the dog was allowed to roam freely in the house and yard. She further stated that she was not afraid of the dog.

| sLinda Williams stated in her deposition that she was cautious around large dogs in general. She was not afraid of the dog, and he was allowed to roam free inside the house. To her knowledge, the dog had never bitten or attacked anyone. When Ms. Bonner opened the door, the dog jumped on it, in an attempt to get into the house. His weight pushed the door back onto Ms. Bonner.

Mrs. Martino testified that the dog weighed between sixty and eighty pounds. He had never attacked or bitten anyone, and was allowed to roam the house freely. Ms. Martino did not see the accident occur.

Ms. Bonner did not seek medical treatment until the next day. After the accident, she remained at the Martino home, and attempted to perform her duties. The dog was roaming freely in the house at that time, and she did not request that the dog be put outside or restrained.

Plaintiff bears the burden of proving by a preponderance of the evidence that the dog caused her injuries, which the owner could have prevented and which did not result from her provocation of the dog. To show whether the owner could have prevented the injury, the plaintiff must establish that the dog posed an unreasonable risk of harm. Pepper, supra. We find that, under the undisputed facts of this case, the trial did not err in determining that the plaintiff could not make a showing that the dog presented an unreasonable risk of harm to her or to the public.

For the above discussed reasons, the decision of the trial court is affirmed.

All costs are assessed against appellant.

AFFIRMED.


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

text:
    Cabot CORSO and Patricia Corso Personally and on Behalf of Their Minor Daughter, Alison Corso v. Kirk D. LABORDE, Personally and as Administrator of the Estate of His Minor Son Gerard M. Laborde, Liberty Mutual Insurance Company, Allstate Insurance Company, Tracey Duhe Fontenot, ABC Insurance Company, Entergy Corporation, South Central Bell Corporation and the State of Louisiana Through the Department of Transportation and Development.
    No. 05-CA-511.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.
    Raymond A. Pelleteri, Jr., New Orleans, Louisiana, for Plaintiff/Appellee.
    John H. Ayres, III, Counsel for State of Louisiana through The Department of Transportation and Development, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
   EDWARD A. DUFRESNE, JR., Chief Judge.

12This is an appeal by the State of Louisiana, through the Department of Transportation and Development, defendant, from a JNOV in favor of Alison Corso and her parents, Cabot and Patricia Cor-so, plaintiffs, in this defective highway case. The plaintiffs have answered the appeal. A jury returned a verdict finding the DOTD negligent, but exonerating it from liability on grounds of causation. The district judge set aside this finding and rendered judgment against it for thirty percent of plaintiffs’ damages. For the following reasons we set aside that judgment and render judgment dismissing plaintiffs’ claims against DOTD as per the jury verdict.

The facts of the accident are not in serious dispute. At about midnight, Alison Corso got a ride home from a party with Gerard Laborde, another guest. It was an extremely foggy night and Laborde took a route that he had not driven | sbefore. As they proceeded along they hit an almost impenetrable patch of fog shortly before an abrupt left turn in the road. Laborde perceived the turn too late to negotiate it properly and ended up making the turn, but off the pavement. He hit a telephone pole and Alison was injured. The speed limit on the road was 35 MPH, but the warning speed sign for the curve was 10 MPH. All experts agreed that he was traveling about 19-20 MPH at the point of collision.

This is an expert witness case. Plaintiffs called John Bates as an expert in traffic accident reconstruction, and evaluation of highway design and maintenance. Bates testified that his review of the evidence showed that there was a “very dense fog” and basically that Laborde had overrun the curve, but turned to the left off the pavement where he hit the pole. He estimated the speed at impact was 19 MPH, and that there were no skid marks on the grass of the road shoulder, indicating that the driver had not slammed on the brakes. His examination of the history of the roadway led him to conclude that it underwent a major upgraded from gravel to asphalt in the 1940’s and at that time it should have been widened and the curve stretched out with a longer turning radius so as to conform to the AASHTO national highway building standards. He also determined that in its present condition a safe speed at which to negotiate the turn was about ten MPH. At the scene he observed a 10 MPH warning sigh prior to the curve, but noted that it was 400 feet before the curve, rather than 200 feet which he deemed the distance called for in proper highway design. His ultimate opinion was that the above design defects were a contributing cause of the accident.

DOTD called as its expert David Hall, whose expertise was the same as that of John Bates. This expert testified that the road had never undergone a major upgrade, but had rather evolved from a dirt track to a gravel road which was then simply covered in' asphalt in the 1940’s. As to the applicability of the AASHTO 14standards, he noted that Louisiana did not adopt those standards for its roadways until 1968. His analysis of the curve indicated a safe speed of 10 MPH, and he estimated that Laborde was going 20 MPH when he hit the pole. The fact of the 10 MPH sign being 400 rather than 200 feet from the curve was of no consequence in his opinion because Laborde said that he never saw the sign in the fog. His opinion was that Laborde was traveling too fast for the foggy conditions and should have stopped and pulled off the road when he could no longer safely drive.

On the above evidence the jury determined that the DOTD was negligent, but that this negligence was not a cause of the accident. Plaintiffs urged a motion for JNOV which was granted. The trial judge entered judgment for the plaintiffs, reduced by 70% for Laborde’s negligence. The total adjusted award against DOTD was $52,820.37. DOTD now appeals, and plaintiffs have answered the appeal.

The standard of review for determining when a JNOV has been properly granted was thoroughly restated in Martin v. Heritage Manor South, 2000-1023 (La.4/3/01), 784 So.2d 627, 631, n. 3, as follows:

The motion [for JNOV] should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motions should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that “when there is a jury, the jury is the trier of fact.” (citations omitted)

In the present case, plaintiffs’ expert testified that that DOTD was negligent in not bringing the road up to AASHTO standards for major redesign when it applied asphalt to the surface in the 1940’s. This would have required that the traffic lanes be widened, and that the curve be designed with a wider radius. He |Balso determined that 10 MPH was the appropriate warning speed for the curve as presently configured, but that the placement of the sign 400, rather than 200, feet from the curve was improper. While he noted that Laborde was traveling at about 19 MPH upon impact, almost twice the posted speed, he was still of the opinion that DOTD’s failures were at least contributing causes of the accident.

DOTD’s expert testified, to the contrary. His opinion was that there had never been a major redesign of the road, but rather only an evolving improvement of its surface probably going from a dirt track to a gravel road, and finally to an asphalt surface. He also stated that Louisiana did not adopt the AASHTO standards for its roads until 1968, long after the resurfacing of the 1940’s. It was his opinion that the AASHTO standards were not applicable here. He agreed that the proper safe speed for the curve was 10 MPH, and also agreed that Laborde was traveling about 20 MPH at impact. As to the placement of the 10 MPH sign, he found that fact irrelevant because Laborde said that he did not see the warning sign and therefore its precise location would have made no difference. His ultimate conclusions were that because of the fog Laborde should have stopped and pulled off the road when visibility dropped to almost zero, and that the design of the highway was not a contributing cause of the accident.

On the above evidence, and resolving all reasonable inferences and factual questions in favor of the non-moving party, a reasonable person could well have determined that the road was improperly designed, or at least that the sign was improperly located, thus justifying the jury’s determination that DOTD was negligent. Such a person could also reasonably have found that the cause of the accident was that Laborde failed to slow down sufficiently in the fog and thus run off the road, rather than that the configuration of the roadway or the placement of | ¿the warning sign contributed to the accident. In this circumstance, we hold that the JNOV was improperly granted.

For the foregoing reasons, the JNOV is hereby vacated, and judgment in entered dismissing plaintiffs’ suit against the State of Louisiana through the Department of Transportation and Development, as per the jury verdict.

JUDGMENT VACATED, SUIT DISMISSED.


author: JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Vondetta P. McLAURIN.
    No. 05-CA-857.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      Kenneth J. Beck, Gretna, Louisiana, for Appellant.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.
   JAMES L. CANNELLA, Judge.

1?A bail bonding company, Banker’s Insurance Company (Banker’s), appeals from the trial court judgment denying its Motion to Set Aside Judgment of Bond Forfeiture pertaining to the bond it posted on behalf of Vondetta McLaurin (McLaurin). For the reasons which follow, we reverse and remand.

Following McLaurin’s arrest for theft of goods valued at over $500, she posted an appearance bond on September 27, 2001 in the amount of $5,000. It was a commercial bond and the surety on the bond was Banker’s. On the bond, it was specified that McLaurin was to appear in court on “Tuesday, November 13, 2001 at 10:00 A.M.” According to a subpoena contained in the record, the date was changed to November 15, 2001. Rather than being served by mail at the address given by McLaurin on the bond, personal service on her was attempted by the Sheriffs office. The subpoena was returned unserved and marked “Not At This |3Address” with a hand written notation that it was a “New Building” and “Under Construction.” Banker’s was not served with the change of date for McLaurin’s appearance.

Banker’s contends that McLaurin did appear in court on the original date on which she was ordered to appear, November 13, 2001, and at that time filled out a change of address form. The change of address form contained in the record is dated November 13, 2001, but has no official date stamp. On November 15, 2001, when McLaurin did not appear in court for her arraignment, an attachment was issued for McLaurin and the bond was ordered forfeited. After being provided with the notice of bond forfeiture judgment, Banker’s filed a Motion to Set Aside Judgment of Bond Forfeiture. A hearing was held on the motion after which the district court denied the motion to set aside the bond forfeiture. It is from this ruling that Banker’s appeals.

On appeal Banker’s argues that the trial court erred in denying its motion to set aside the bond forfeiture because proper procedure was not followed preceding the judgment of forfeiture. Banker’s points out that there is no showing in the record that McLaurin was given notice of the change in her court date and no proof in the record that Banker’s was delivered or mailed notice of the changed date. Banker’s contends that, absent record proof of delivery or mailing of the court date to the principal and the surety, the judgment of forfeiture was improperly rendered and the trial court erred in denying its motion to set it aside.

The State contends that Banker’s argument that the bond forfeiture was improperly granted because it was not notified of the change of date was not raised in the trial court and therefore cannot be raised on appeal. Further, the State argues that an unsatisfied attempt of personal service of the change of court date complies with the statutory requirements.

14There are three pertinent provisions relating to the issue before us. La.C.Cr.P. art. 344, providing for the right to notice of time and place of a defendant’s required appearance, provides:

A. When a bail bond fixes the initial appearance date, no additional notice is required to be given to the defendant or the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety, if the defendant appears as ordered. If a defendant fails to appear when a bail bond fixes the initial appearance date, no additional preforfeiture notice for that date is required to be given to the defendant or the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety. The bond shall be forfeited forthwith as per R.S. 15:85.
B. (1) When a bail bond does not fix the appearance date, and the presence is required of a person who has been released on bail, the defendant and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety, shall be given written notice of the time, date, and place the principal is required to appear.
(2)The notice may be delivered to the defendant and the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety by an officer designated by the court, at least two days prior to the day set for the appearance; or this notice may be mailed by United States first class mail to the defendant and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety, at least three days prior to the day set for the appearance. The notice shall be mailed to the defendant and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety to the address designated pursuant to Article 322.
(3) If the defendant appears as ordered and the proceeding is continued to a specific date, the defendant and the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety need not be given notice of the new appearance date. If the defendant fails to appear as ordered, or the proceeding is not continued to a specific date, the personal surety or the agent or bondsman who |fiposted the bond for the commercial surety shall be given notice of the new appearance date.
(4) Failure to give notice, as required by this Paragraph, relieves the surety from liability on a judgment of bond forfeiture for the defendant’s nonappearance on that particular date. (Emphasis added.)

La.C.Cr.P. art. 322, concerning the declaration of residence by the defendant, provides in pertinent part:

A. The defendant when signing a bail bond shall write under his signature the address at which he resides. The address shall be conclusively presumed to continue for all proceedings on the bond, until he files in the proceeding in which the bond was given a written declaration changing the address.

La. R.S. 15:85, on the procedure for forfeiting an appearance bond, provides in pertinent part:

All bonds taken to secure the appearance of any person before any court executed in the state of Louisiana shall be forfeited and collected as follows:
(1) Failure to appear and answer. If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence including: the bail contract; the power of attorney if any; and the notice to the defendant and the sure ty as required by Article ⅜⅜ of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond. (Emphasis added.)

In considering how these statutes apply to the facts of this case, we are mindful that bond forfeitures are not favored by law. State v. Hathaway, 403 So.2d 737 (La.1981); State v. Rotramel, 95-1074 (La.App. 3rd Cir.1/31/96), 670 So.2d 378. Strict compliance with the statutes is required. Banker’s Ins. Co. v. Kemp, 96-0469 (La.App. 1st Cir.12/20/96), 686 So.2d 111; State v. Lanns, 95 0781 (La.App. 1st Cir.11/9/95), 665 So.2d 66. Thus, the State must strictly comply with the statutory procedure in bond forfeiture actions in order to obtain a valid bond forfeiture. State v. DeLaRose, 391 So.2d 842 (La.1980); State v. Rotramel, 95-1074 (La.App. 3rd Cir.1/31/96), 670 So.2d 378.

Applying the above precepts to the case before us, we find that the bond was improperly forfeited and the trial court ruling denying Banker’s motion to set aside the bond forfeiture was erroneous. In reading the applicable statutes together, it is clear that a judgment of bond forfeiture is only to be rendered upon proof of delivery or mailing of notice of the appearance date to the surety, when that date has been changed from the one listed on the appearance bond. The record in this case does not show that the prosecuting attorney, prior to entry of the bond forfeiture judgment, presented evidence that Banker’s was notified of the changed appearance date for McLaurin, nor does anyone allege herein that Banker’s was given such notice. Failure to give the statutorily required notice relieves the surety of liability on the bond. The purpose of enforcing strict compliance with notice provisions in bond forfeiture statutes is to provide prompt and adequate notice to the surety so the surety can quickly identify its bond obligation, locate the defendant, and surrender them to the court for trial. In re Bond Forfeitures Against Indiana Lumbermens Mut. Ins. Co. in Baton Rouge City Court, 633 So.2d 715 (La.App. 1st Cir.1993), writ denied, 94-0245 (La.3/18/94), 634 So.2d 859, certiorari denied, 513 U.S. 822, 115 S.Ct. 85, 130 L.Ed.2d 37. Because Banker’s was not notified of the change in the appearance date, it was deprived of the chance to ensure the principal’s appearance in court, thwarting the purpose of the statute. Thus, we find that where, as here, there is no evidence that the surety was provided notice of the changed appearance date, under the clear wording of the statute, the | judgment of bond forfeiture was erroneously rendered and should have been set aside upon Banker’s motion.

The State argues that, because this argument was not raised in the district court at the hearing to set aside the forfeiture judgment, it cannot now be raised. We disagree. First, it can be argued that counsel for Banker’s did attempt to raise this very point at the hearing but was cut off. During the argument phase of the hearing, counsel for Banker’s admitted that McLaurin had breached her obligation to the court, but tried to draw a distinction between her and Banker’s concluding, “[tjhat’s why the statute is written the way it does and says that there has to be notice.” Thus, when read in context, it does appear that the issue of lack of notice to Banker’s was raised. Second, we find that the statute setting out the procedure for bond forfeiture is mandatory and, absent compliance, where the bond forfeiture is timely challenged, as was the case here, and the record does not evidence compliance with the statutory mandates, it cannot stand.

Accordingly, for the reasons stated above, the ruling denying Banker’s motion to set aside the bond forfeiture is reversed based on our finding that the judgment forfeiting the bond was not in compliance with the statutory requirements and was, therefore, erroneously rendered. The case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . In view of our finding on this point, that the bond forfeiture judgment was erroneously entered, we do not review the argument concerning improper notice to McLaurin. However, we note that where the record indicates that she appeared on the originally specified date (November 13, 2001) and filed a change of address form on that date, an earlier attempt of personal service of notice of the changed appearance date was not effected and McLaurin has since appeared in court, and considering that bond forfeiture provisions are not favored and are to be strictly construed, it is doubtful that these facts would support a forfeiture judgment.


author: THOMAS P. DALEY, Judge.

text:
    CITY OF KENNER v. Placide JUMONVILLE.
    No. 05-CA-860.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      Kurt C. Garcia, James D. Maxwell, Ken-ner, Louisiana, for Plaintiff/Appellee.
    . Jan P. Jumonville, Covington, Louisiana, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLÁ, THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.
   THOMAS P. DALEY, Judge.

| ^Defendant, Placide Jumonville, Jr., appeals a judgment granting the City of Kenner’s Petition for Permanent Injunction against him, ruling that he is permanently enjoined from violating several ordinances in the City of Kenner Code of Ordinances relative to trash, debris, excessively high grass, and the condition of the fence and garage at residential property located at 50 Granada, Driftwood Subdivision, in Kenner. Mr. Jumonville appeals, arguing several Assignments of Error:

1. The trial court erred in finding that Jumonville was the owner of the property, and erred when it denied his Motion for Directed Verdict;
2. The trial court erred in granting the permanent injunction against defendant because plaintiffs claims have prescribed or have been abandoned pursuant to LSA-C.C. arts. 781-782;
3. The trial court erred in allowing plaintiff to expand the pleading to allege Code violations that were not pleaded;
4. The trial court erred in finding sufficient evidence of violations under
Code of Ordinances Section 5-86(a) and Section 9 ½ — 7(3);
|s5. The trial court erred in sustaining plaintiff City of Kenner’s objections to the admissibility of evidence regarding the pending case in the 24th JDC and the testimony of Mr. Jumonville regarding the condition of the fence; and
6. The trial court erred in granting the permanent injunction against defendant because the alleged violations did not exist at the time of trial.

The record shows that the City of Ken-ner filed its Petition for Permanent Injunction in First Parish Court on February 23, 2005, contending that Mr. Jumonville was in violation of City of Kenner Ordinance 5-86(a), by not maintaining his fences and all accessory structures, including detached garages and sheds, in structurally sound condition and in good repair. The Petition also alleged a violation of Ordinance 9½ - 7(3), by

... permitting the growth of grass or weeds upon the property and/or upon the area abutting said property between the front lot line and the street, at a height of more than seven (7) inches, and by permitting the deleterious or unhealthful growth or trash, debris, refuse, discharge [discarded] or noxious matter on his property.

Trial was held on April 12, 2005. At the close of plaintiffs case, Mr. Jumonville moved for a directed verdict, arguing that he was not the owner of the property. The Motion was denied. After the close of the defense’s case, the trial court ruled in favor of the City of Kenner, issuing a judgment enjoining Mr. Jumonville from violating the particular ordinances, and giving him thirty (30) days in which to comply.

After a thorough consideration of the record, we affirm the judgment.

This Court takes judicial notice of the extensive history of litigation between these parties, both in state and federal court, regarding numerous legal violations concerning the condition of the house on this property. In City of Kenner v. Jumonville, 97-125 (La.App. 5 Cir. 8/27/97), 701 So.2d 223, this Court affirmed |4a district court judgment that ordered the Jumonvilles to complete renovations on this property according to a Consent Judgment confected between the City of Kenner and the Jumonvilles. In that same opinion, this Court affirmed two rulings of the trial court holding the Jumon-villes in contempt of court for failure to comply -with the Consent Judgment. This opinion reveals that the Jumonvilles purchased the house in 1987 and performed sporadic renovations until 1993, when they applied for a building permit to renovate the house at 50 Granada. In 1995, the City of Kenner first sued the Jumonvilles for their failure to proceed with the renovations in accordance with the building permit. The parties entered into the above mentioned Consent Judgment in 1996, which set forth various schedules by which the renovations would proceed and also established deadlines when certain phases would be completed. The contempt judgments and further litigation resulted when the Jumonvilles continually failed to comply with the Consent Judgment.

In City of Kenner v. Jumonville, 00-1696 (La.App. 5 Cir. 4/11/01), 793 So.2d 574 (unpublished opinion), the Jumonvilles appealed a judgment of the district court ordering them to pay fines in the amount of $37,950.00 into the registry of the court, for their failure to complete renovations to the home by a new deadline of January 3, 2000, that was reached via mediation in U.S. District Court. This Court affirmed, finding that the only issue before it was the calculation of the fines, all other issues raised by the Jumonvilles on appeal to be res judicata. It is noteworthy that in that case, Mrs. Jumonville argued that she should not have been assessed fines for contempt by the state district court since she had since transferred her interest in the property to her husband and co-defendant, Placide Jumonville. This Court held that Mrs. Jumonville’s transfer of her interest in the | .^property to Mr. Jumonville, after she had entered into the state Consent Judgment, did not relieve her of her obligations arising from that judgment.

The photographic evidence introduced in the instant case shows that as of the trial date in this case, the renovations at the Jumonville home at 50 Granada have not yet been completed. The interior pictures show that the house remains uninhabitable, some 13 years after the Jumonvilles acquired their building permit and 10 years after the entry of the Consent Judgment.

ASSIGNMENTS OF ERROR

In defendant’s first Assignment of Error, he argues that the trial court erred in denying his Motion for Directed Verdict because the trial court failed to prove that he was the owner of the property cited for the violations of the ordinances. In defendant’s Answer, he alleged that he was not the owner of the property at 50 Granada Drive.

During the plaintiffs case, counsel for Mr. Jumonville entered into evidence a document entitled Act of Donation, whereby Mr. Jumonville purported to donate this property to his son, Placide Jumon-ville, III. The Act of Donation was dated September 22, 2004, but was not recorded in the conveyance records of Jefferson Parish until April 7, 2005, which was five days prior to trial, well after the alleged violations of the Kenner City Ordinances, and likewise, well after suit was filed in February of 2005.

Mr. Patrick Norris, a Code Enforcement Officer who testified for the City of Ken-ner, stated that he checked the property’s ownership record with the Assessor’s Office in Gretna approximately two weeks prior to trial. '

The trial court denied the Motion for Directed Verdict, noting that until the Act of Donation was filed into the public records, it was not effective as to third | ^parties. The trial judge further found that the dates of the alleged violations were clearly prior to the recordation date of the Act of Donation, while Mr. Jumon-ville was the record owner of the property. The trial court noted that Mr. Jumonville did not file a Declinatory Exception.

We see no error in the trial court’s denial of the Motion for Directed Verdict. Mr. Jumonville clearly owned the property at the time of the violations, when the citations were issued, and the time suit was filed. Injunction is an appropriate remedy to prevent future violations of city ordinances. Hernandez v. Richard, 2000-471 (La.App. 3 Cir. 12/6/00), 772 So.2d 994.

In his case, Mr. Jumonville admitted that he had an “interest” in this property and that he was the person who maintained the property and responded to citations regarding the grass height and trash, since his son, to whom he donated the property, lived in China or somewhere in Far East. As between Mr. Jumonville and his son, ownership passed in September of 2004, yet Mr. Jumonville, the father, clearly is the party who responded to and remedied the citations received after that date and which were the basis for this suit. Clearly Mr. Jumonville’s testimony revealed that he is the “agent” for his son, who is now the record owner of the property.

Next, Mr. Jumonville argues that the Judgment was in error because the City of Kenner’s claims have prescribed or been abandoned. Defendant cites Civil Code articles 781 and 782, pertaining to building restrictions. Defendant also claims that the testimonies of Mrs. Black, the Kenner City Councilwoman for the district, and Mr. Norris reflect that the City of Kenner had no noticeable violations at 50 Granada for over two years.

|7Mr. Jumonville has mischaracterized the case and the evidence. Mr. Jumonville and the property at 50 Granada were cited for violations of City of Kenner Ordinances, not building restrictions. Further, the witnesses did not state that more than two years had elapsed since the City of Kenner had noticeable violations at this property. The witnesses clearly stated that the property was last cited in February of 2005 for the grass height. Mr. Jumonville acknowledged receiving this citation in February of 2005, after which he arranged for the grass to be cut. Photographs entered into evidence at trial, identified by Mr. Norris and taken less than a week prior to trial, depict other violations described below.

The record is clear that the City of Kenner has not abandoned any of its claims to have Mr. Jumonville maintain this property, nor have such claims prescribed. The record and the prior litigation noted above show Kenner’s great diligence to have Mr. Jumonville comply with various judgments and ordinances in this matter, as it likewise shows Mr. Jumon-ville’s persistently obstructionist conduct.

Next, defendant argues that the trial court erred in allowing plaintiff to expand the pleading to allege Code violations that were not pleaded. Specifically, he argues that the trial court erred in admitting evidence regarding trash on the interior of the house not covered in the specific City of Kenner Ordinances for which he received a citation and which were pled in the Petition.

Our review of the record shows that while Kenner’s witnesses may have discussed trash they saw in the interior of the home, the pleadings were not expanded. The judgment against Mr. Jumonville, now on appeal, does not order him to remove any trash from the interior of his property. The judgment specifically orders him to comply with Kenner Code of Ordinances 5-86(a) and 9½—7(3), and orders him to “not [permit] the deleterious or unhealthful growth or |strash, debris, refuse, discharge [discarded] or noxious matter on his property.” In addition, the trial court’s comments, when it made the oral ruling against Mr. Jumonville, do not reference trash inside the home. Therefore, any testimony or evidence of trash inside the home was not prejudicial to defendant. This Assignment of Error is without merit.

Next, the defendant argues that the trial court erred in finding sufficient evidence of violations under Code of Ordinances Section 5-86(a) and Section 9⅛ -7(3).

Mr. Jumonville argues that the trial court erred in finding that his garage’s lack of a door is a violation of 5-86(a). He argues that under the trial court’s interpretation of that ordinance, people with open carports would be in violation.

This ordinance requires that fences and accessory structures, including detached garages, be maintained in a structurally sound condition and in good repair. What constitutes “structurally sound condition” and “good repair” will necessarily vary with the type of structure cited. Mr. Jumonville compares his garage with an open carport, but this Court finds the comparison is inapplicable because those structures are not similar. Mr. Jumonville’s garage, as evidenced by the photos, is a detached garage, but is fully enclosed with four walls. The pictures entered into evidence do not show an opening through which a vehicle could enter, but shows an open doorway that once had a regular “house” type door, which was missing in the photograph, but had allegedly been replaced immediately prior to trial by a plywood sheet. See in particular Exhibit K-7. Since it is clearly contemplated that this garage have a door in that place, and since Mr. Jumonville testified that, in fact, a door once existed there before it was removed by vandals, the lack of a door or another type of structure to prevent unauthorized entry rendered the garage in violation of the ordinance.

|flThe trial court did not specifically reference the garage or the fence in its oral reasons at the time of its ruling. We note that the trial court’s judgment generally enjoined Mr. Jumonville from violating these ordinances and gave him 30 days within ■ which to comply with the ordinances. The judgment did not penalize him for a specific violation.

Mr. Jumonville next argues that Kenner failed to prove that the fence was not structurally sound and in good condition. Mr. Jumonville specifically references Exhibit K-8. Mr. Jumonville next notes that he has replaced the fence many times due to the sunken street causing erosion and flooding, essentially blaming the City of Kenner for the condition of his fence. Mr. Jumonville testified at length regarding the “dead man” that secures his fence, which he erected sometime in 2004.

Exhibit K-8 shows that a gate in the fence is missing, allowing access to that portion of the lot immediately behind the enclosed garage, where someone has dumped a basketball goal (to which Mr. Jumonville denied ownership). The lack of a gate where one once existed could have constituted the violation, though the trial court does not specifically state this. Other evidence of the fence’s noncompliance exists, however.

Mr. Pat Norris, the Code Enforcement Officer for the City of Kenner, testified that he last visited the property the Friday prior to trial. He identified Exhibit K-8, and stated that he was present when the photograph was taken. The picture showed that the fence had been broken and missing between the garage and the neighbor’s property, at the rear of the yard at 50 Granada. It also showed the presence of the discarded basketball goal to which Mr. Jumonville denied ownership. Exhibit K-9, another photograph taken with Mr. Norris present, depicted the fence line running down Gelpi Street southward going towards |1flGranada. Mr. Norris testified that the fence was leaning and not stable; that it was tied with a rope from the fence pole to a piling that was sticking up out of the ground in the rear yard. He testified that the maintenance of the fence was not up to code.

Mr. Jumonville merely argues that his “dead man” arrangement is secure. He did not refute Mr. Norris’s evidence that the fence was leaning. Mr. Norris clearly saw the “dead man” arrangement, yet disagreed that the fence complied with code standards. Mr. Jumonville’s defense in this matter consisted of blaming street flooding for the fence’s condition. We find that the trial court did not err in finding that Mr. Jumonville’s fence’s condition violated Ordinance 5-86(a).

The evidence and testimony clearly show trash and debris on the property. Mr. Jumonville did not deny that a discarded basketball goal lay on his property, nor that other debris, such as old used tires, has been found on his property in the past. Jumonville’s defense was to blame the neighbors. In her cross examination of Mr. Norris, defense counsel wanted to know why Mr. Norris had not asked the next-door neighbors if they owned the goal. Mr. Norris replied that the goal did not have a name and address on it, and since it was located on the Jumonville property, he assumed it belonged to them. Defense counsel also wanted to know why Mr. Norris had not attempted to determine the ownership of other debris located on the property at 50 Granada, such as old tires, since Mr. Jumonville denied owning the debris located on his property. Mr. Jumonville also argued that other neighboring properties were in similar violation. The trial court disallowed this testimony, noting that whether other properties were cited for violations had no bearing on whether Mr. Jumonville’s property was in violation of the cited ordinances.

In This Court finds, as did the trial court, that it is no defense to blame others for the debris on this property. Owners and their agents are responsible to remove debris from their property. Nor is it a defense to claim that other properties may be in violation of ordinances.

Mr. Jumonville argues next that the trial court erred in sustaining the City of Ken-ner’s objection when his counsel asked him if the yard was secured from entry other than unusual criminal activity. Kenner objected on the grounds of relevancy, arguing that this issue went to the case in the 24th JDC, not the instant proceeding, and went beyond the scope of the pleadings. The trial court sustained the objection, finding the line of questioning to be beyond the scope of this proceeding, to which Mrs. Jumonville replied, “All right.” Mr. Jumonville’s counsel was permitted to ask him if the house was secured from entry. We note that elsewhere, Mr. Ju-monville did testify that the fence was in good repair, when he described the “dead man” with which he had secured the fence. There is no merit to this Assignment of Error.

Last, the defendant argues that the trial court erred in rendering a permanent injunction against him because the alleged violations did not exist at the time of trial. On the contrary, this record shows that several violations continued to exist at the time of trial, most notably the condition of the fence, and the location of debris on the property. Mr. Jumonville produced evidence that he had the grass cut immediately prior to trial. The evidence at trial showed that Mr. Jumonville had a clear history of allowing violations to recur, most notably the uncut grass and accumulation of debris and garbage on the property, and would remedy them only in the event of a citation by the City of Kenner. Accordingly, we find that the trial court did not err in issuing the injunction against Mr. Jumonville.

|12We note that Mr. Jumonville repeatedly advanced the “defense” that neighboring properties were also in violation of the ordinances. The trial court was correct in sustaining objections to this sort of testimony. Whether another property is in violation is no defense to the violations found at 50 Granada.

Like the trial court, this Court finds that the issuing of the injunction in this case is only “an affirmation of what a citizen, should be doing anyway.” We also, like the trial court, find it “curious that any citizen would object to agreeing to follow the laws and violate regulations of a city in which they owned property.” The trial court found it “perplexfing] as to why there’s so much incredible effort put forward to defend a code violation notice when the City of Kenner was simply asking for compliance.” It is “not only a civic duty but a legal duty to comply with the rules and regulations of the property.” We agree.

This Court notes that the Kenner Code of Ordinances gives additional remedies to the City of Kenner in the event of continuing violations of Ordinance 9½-7⅛)(3). If violations are not remedied, after the notice requirements of 9½-7(c) are given, the city may proceed to have the necessary work done (9 ½-7®) and charge the owner for the necessary work (9 ½ — 7(f)). If the charges are not paid within a certain time period, the charges shall be included in and form part of the taxes due on the said property by the owner. (9½ — 7(f)).

The judgment is affirmed. All costs are taxed to, defendant.

AFFIRMED.

      . writ denied, 97-2890 (La. 1/30/98), 709 So.2d 718, cert. denied, 524 U.S. 953, 118 S.Ct. 2371, 141 L.Ed.2d 739 (1998).

      . Eastern District of Louisiana (Jumonville v. City of Kenner, et al., 98-0220 (E.D.La), and 97-1662.)

      . LSA-R.S. 9:2721.

      . We note that defendant failed to cite in his brief to the page numbers of the record for this Assignment of Error, a violation of Uniform Rules of the Court of Appeal, Rule 2-12.4. This testimony occurred at pp. 137-138.