author:
CARAWAY, J.
      BROWN, Chief Judge,

text:
    Jacqueline LITTLE, Cynthia Little Cameron and Mark S. Little, Plaintiffs-Appellants, v. Dr. David G. POU and Christus Health Northern Louisiana d/b/a Christus Schumpert Health System, Defendants-Appellees.
    No. 42,872-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 30, 2008.
    Rehearing Denied March 13, 2008.

      Donald Brown, Anthony J. Bruscato, Monroe, for Appellants.
    Rountree & Guin by Gordon E. Roun-tree, Shreveport, for Appellee, David G. Pou, M.D.
    Mayer, Smith & Roberts by Mark A. Goodwin, Shreveport, for Appellee, Chris-tus Health Northern Louisiana d/b/a Christus Schumpert Health System.
    Before BROWN, STEWART and CARAWAY, JJ.
   CARAWAY, J.

hA wrongful death action was instituted against a doctor and hospital after the death of a patient who was hospitalized due to complications from sinus surgery. After three nights in the hospital, the decedent had just returned home when he died from blood clots in his lungs caused by deep vein thrombosis (“DVT”). The wife and children of the decedent sued for medical malpractice relating to the failure of the doctor and nursing staff to take the proper actions to test for and prevent the DVT during the patient’s period of immobilization following surgery. The doctor was dismissed on summary judgment, and the hospital received a favorable jury verdict dismissing the action. From these judgments, plaintiffs appeal. Finding no manifest or legal error in the judgments, we affirm.

Facts

Dr. David Pou performed outpatient sinus surgery on Henry Little on Friday, January 8, 1999 at Christus Schumpert Health System Hospital (“Schumpert”) in Shreveport. During the procedure, a known risk of surgery, the puncture of the cerebral dura, occurred. This complication required Little’s hospitalization over the weekend due to the risk of infection.

Initially, strict bed rest was prescribed. By Sunday, January 10, Little was given bathroom privileges. He was released Monday to travel home to West Monroe.

During the drive home, Little began complaining of leg cramps. In an apparent attempt to relieve his symptoms, Little soaked in a hot bath. As his 12wife assisted him in getting out of the tub, Little collapsed. He was rushed to a Monroe hospital where he died of an apparent heart attack. A later autopsy report revealed that Little suffered bilateral pulmonary emboli (blood clots in his lungs) caused by DVT.

Evidence contained in the record shows that DVT develops when the same clotting pattern that stops external bleeding occurs in the deep veins located in the arms, legs and pelvic area. A thrombus or clot formed in the veins can release to the lungs or heart causing life-threatening conditions. Age, weight, immobilization and length of surgery are risk factors for DVT, as well as some types of cancer. DVT risk factors can be assessed by nursing staff through dorsiflexion of the patient’s foot, also known as Homan’s sign, which reveals calf pain. Record evidence also shows that physical evaluation of the leg can disclose signs of DVT such as edema, temperature and color changes in the affected leg, redness of the calf and cyanosis of the foot. Intermittent or constant pain in the affected leg that develops quickly or worsens upon ambulation is also a sign of DVT. Likewise, tenderness or tight or heavy sensation of the limb or firmness in the affected leg may warn that DVT is present. Prophylactic measures for the prevention of DVT may include an-ticoagulation drugs, pumping of the foot and compression hose.

Attributing Little’s death to the failure of the medical providers to guard against DVT, his widow, Jacqueline Little, and two of his three children from another marriage, Mark Little and Cynthia Little Cameron (hereinafter collectively referred to as “plaintiffs”), filed a claim with the | ^Patient's Compensation Fund in January 2000 against Dr. Pou and Schumpert. Plaintiffs sought a medical review panel determination of whether Dr. Pou and Schumpert’s nursing staff fell below the standard of care in failing to identify Little’s risk for blood clotting and/or utilize precautions to prevent blood clotting which ultimately led to the emboli. On November 17, 2005, the medical review panel determined that the actions of Dr. Pou did not violate the applicable standard of care. Regarding Schumpert, the panel found a factual dispute as to whether or not Little complained of leg cramps on the evening of January 9,1999.

In this action following the medical panel review, the children and widow are represented by separate counsel — the children, by Anthony Bruscato, and Jacqueline, by Donald Brown. On November 7, 2006, Dr. Pou was dismissed from the suit by summary judgment on the strength of the opinion of the medical review panel. Plaintiffs presented no opposition medical expert because they claimed that Bruscato and Brown received insufficient notice of the hearing date for the motion for summary judgment which had been previously continued. The trial court denied plaintiffs’ motion for new trial on the summary-judgment at which time the issue of plaintiffs’ prior notice was reviewed. A formal judgment dismissing Dr. Pou was signed on March 2, 2007.

A jury trial against Schumpert began on February 12, 2007. The jury ruled in favor of Schumpert, finding that the nursing staff had not breached the applicable standard of care. The final judgment in conformance with the jury verdict was also signed by the court on March 2, 2007.

| .Appealing both judgments, plaintiffs argue that the trial court erred in failing to grant a new trial on the issue of Dr. Pou’s dismissal from the suit by summary judgment and that the jury erred in finding that the nursing staff of Schumpert did not violate the standard of care. In a third argument, Plaintiffs contend that the trial court erred in taxing the expert fees of certain witnesses as costs of the litigation.

Discussion

I.

Regarding the procedural notice for the summary judgment hearing, the record shows that the trial court’s first scheduling order fixed the trial date for October 16, 2006. On June 14, 2006, Dr. Pou filed a motion for summary judgment which the trial court set for hearing on August 28, 2006. Attorneys Bruscato and Brown concede that they received adequate notice of the order for this initial setting.

On August 18, 2006, Bruscato sent a letter to the court on behalf of all plaintiffs indicating that all counsel had agreed to an extension of the date for filing plaintiffs’ opposition. Subsequently, on August 24, 2006, however, both Bruscato and Brown moved for a continuance of the summary judgment hearing. Attached to the motion was a “Rule to Show Cause” (the “Requested Rule”) for a hearing on the requested continuance. This Requested Rule contained sendee instructions regarding the defendants and included the following in bold print:

Please notify Mr. Anthony Bruscato and Mr. Donald Brown at the address shown under their signatures in plaintiffs’ motion.

| ^Instead of a formal hearing on the Requested Rule for continuance, the court conducted a telephone conference on August 25, 2006, to address both the continuance of the summary judgment and the October trial setting. All attorneys participated in the telephone conference except Donald Brown. His client’s interest for the joint continuance was to be represented by Bruscato’s participation. In the telephone conference, the trial court granted continuances of both the trial and the summary judgment hearing, but the record reflects that the new dates for the proceedings were not fixed.

Nevertheless, the dates were soon fixed when the trial court issued a Memorandum Order later, on August 25, 2006. The Memorandum Order set the hearing on the motion for summary judgment on November 6, 2006 and the new trial date for January 22, 2007. The plaintiffs’ Requested Rule for the continuance was also lined-out by the district judge who wrote and initialed the following notation on the Requested Rule:

See Memo Order
8/25/06
CRS

Both Bruscato and Brown conceded that, in accordance with the instruction on the Requested Rule, they received by regular mail a copy of their lined-out Rule with the judge’s notation referencing the Memorandum Order. With only this reference in the notation, the Memorandum Order was not included with the Requested Rule. Instead, the trial court faxed a copy of the Memorandum Order to counsel in accordance with the understanding reached in the telephone conference, as follows:

^DISTRIBUTION:
Original to suit record Stamped “Filed” copy via fax to:
A. Bruscato/D. Brown 318 325-7532
G. Rountree 226-9200
M. Goodwin 222-6420

Despite this process for the resetting of the summary judgment hearing, neither Bruscato nor Brown appeared for the November 6, 2006 hearing and no opposition was filed by plaintiffs. The trial judge rendered summary judgment on November 7, 2006, in favor of Dr. Pou “after consideration of the Motion with supporting exhibits and Memorandum, and no Opposition filed by plaintiffs, and plaintiffs having presented no expert witness testimony via affidavit.”

On November 15, 2006, all plaintiffs sought a new trial on the summary judgment urging that Dr. Pou was not entitled to summary judgment which was “not secured in accordance with proper procedural laws.” At the hearing on the motion for new trial, the court summarized its actions in granting the summary judgment, as follows:

This was a summary judgment that was filed by Dr. Pou represented by Mr. Rountree. We had a telephone conference on this and there were some extensions made and I faxed a memo order. ... Back in August sometime, and I set the hearing for November 6th. I only faxed the affidavit to Mr. Bruscato. I faxed it to Mr. Rountree and probably to Mr. Goodwin. After that matter came upon November 6th. There had been no opposition filed by that time....

Thereafter, the court heard the arguments of counsel and the testimony of Bruscato regarding the claim of insufficient notice. Bruscato admitted to receipt by regular mail of the lined-out Requested Rule which included the judge’s notation. He also testified that he saw the Requested |7Rule and made a mental note that notice of the hearing date should be coming to his office. Although Bruscato admitted that his office received the faxed copy of the Memorandum Order, he had no recollection of seeing it until he looked in his file the day after the hearing. Brus-cato agreed that the trial judge granted his motion for continuance in the phone conference, but did not set the date. He had informed Brown’s office that he would attempt to obtain another hearing date, so that Brown did not participate in the phone conference.

On January 29, 2007, the trial judge ruled orally on the motion for new trial during a hearing on three motions in li-mine. The court made the following ruling in open court:

The motion for new trial will be denied. I am satisfied from reviewing my notes of the proceedings of December 18 and the Court’s record, that Mr. Brusca-to was participating in a telephone conference that allowed the plaintiffs additional time.
The telephone conference, I am satisfied, did not set the motion for summary judgment date. However, pursuant to the telephone conference, I issued a memorandum order and I faxed that memorandum order to Mr. Bruscato and to Mr. Brown, basically at Mr. Brusca-to’s fax number. I did not send it to a separate fax number for Mr. Brown. I also faxed it to Mr. Goodwin and Mr. Rountree.
Thereafter the Clerk mailed notices referring to my note on pleadings, please see, or words to that affect (sic), please see the memo dated August 25, 2006. That memo order did set a summary judgment date. On the date for summary judgment, which was to be submitted on briefs without oral argument, the plaintiffs at that time had not submitted any proof pursuant to Articles 966 and 967 of the Louisiana Code of Civil Procedure that would show that they could prove that Dr. Pou failed to meet the standard of care. Accordingly, I granted the motion for summary judgment.
I’m satisfied that Mr. Bruscato had actual notice of the hearing for summary judgment, and that the plaintiffs had acquiesced in Mr. Bruscato speaking on behalf of all the plaintiffs. For those reasons the motion for new trial is denied.

|sThe trial court signed a written final judgment denying the new trial on March 2, 2007.

Trial courts are vested with authority to grant new trials under La. C.C.P. art.1972 on peremptory grounds which appear to have no application in this instance. Under La. C.C.P. art.1973, a new trial may be granted in any case if there is good ground therefor. The standard of review of a denial of a motion for new trial on discretionary grounds is that of abuse of discretion. Drapcho v. Drapcho, 05-0003 (La.App. 1st Cir.2/10/06), 928 So.2d 559, writ denied, 06-0580 (La.5/5/06), 927 So.2d 324; Smith v. Alliance Compressors, 05-855 (La.App. 3d Cir.2/1/06), 922 So.2d 674.

Due process at a minimum requires deprivation of life, liberty or property be preceded by notice and an opportunity to be heard at a meaningful time. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Patrick v. Patrick, 227 So.2d 162 (La.App. 2d Cir.1969), writ refused, 255 La. 238, 230 So.2d 91 (1970); Zachary Taylor Post No. 3784 v. Riley, 481 So.2d 699 (La.App. 1st Cir. 1985). The notice given must be reasonably calculated under all the circumstances to apprise interested parties of the pen-dency of the action and afford them an opportunity to present their objection. Armstrong, supra.

La. C.C.P. art. 1571 requires district courts to prescribe the procedure for assigning cases such that all parties receive adequate notice of trial. La. C.C.P. art. 1572 provides for written request of notice of trial as follows:

|9The clerk shall give written notice of the date of the trial whenever a written request therefor is filed in the record or is made by registered mail by a party or counsel of record. This notice shall be mailed by the clerk, by certified mail, properly stamped and addressed, at least ten days before the date fixed for the trial. The provisions of this article may be waived by all counsel of record at a pre-trial conference.

A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. La. C.C.P. art. 1841. La. C.C.P. art.1914 provides for notice of interlocutory judgments in pertinent part, as follows:

A. Except as provided in Paragraphs B and C of this Article, the rendition of an interlocutory judgment in open court constitutes notice to all parties.
B. The interlocutory judgment shall be reduced to writing if the court so orders, if a party requests within ten days of rendition in open court that it be reduced to writing, or if the court takes the interlocutory matter under advisement. The clerk shall mail notice of the subsequent judgment to each party.
D. Except as provided in Paragraph C of this Article, each party shall have ten days either from notice of the interlocutory judgment, or from the mailing of notice when required to take any action or file any pleadings in the trial court; however, this provision does not suspend or otherwise affect the time for applying for supervisory writs, nor does it affect the time for appealing an interlocutory judgment under Article 2083.
⅜ ⅜ ⅜ ⅜ ⅜

Plaintiffs argue that the provisions of La. C.C.P. arts. 1313 and 1314 apply to the resetting of the hearing for summary judgment. Pursuant to these provisions, plaintiffs argue that they were entitled to receive notice by certified or registered mail or sheriffs service. Plaintiffs also argue that | i0they were entitled to receive the lined-out Requested Rule by certified mail pursuant to La. C.C.P. art. 1572 because they included the written request quoted above for notice of the hearing date on the order. Thus, according to plaintiffs, the mailing of the lined-out Requested Rule by the clerk of court provided insufficient notice. Finally, Donald Brown argues that the fax to Bruscato of the Memorandum Order was insufficient notice to him.

Articles 1313 and 1314 pertain to service of pleadings from the moving party to adverse parties. Also, service of incidental orders setting a hearing date obtained by the moving party are addressed in those provisions. Initially, Article 1314 would have applied to Dr. Pou for the first setting of the August 28, 2007 hearing on his motion for summary judgment. However, plaintiffs admittedly received notice of Dr. Pou’s pleading and notice of that initial hearing date. The second setting occurred as the result of the plaintiffs’ own pleading for a continuance. Accordingly, we find that Articles 1313 and 1314 do not govern the issue of notice to the plaintiffs.

The relief which the plaintiffs requested was granted in the written Memorandum Order which reflected the pre-trial phone conference grant of their motion for continuance. It simply reads: “The motion to continue the summary judgment is granted and the summary judgment is fixed for the 6th day of November, 2006....” We view this as an interlocutory judgment, granting the continuance and rescheduling a hearing date as “preliminary matters in the course of the action.” La. C.C.P. art. 1841. Accordingly, Innotice of the interlocutory judgment was required under Code of Civil Procedure Article 1914.

Subpart A of Article 1914 recognizes the notice received by the party in open court when the trial court renders an order. Subpart B requires notice by mail from the clerk of court when the trial court takes the interlocutory matter under advisement and renders a written order or judgment. The notices of the trial court’s action received by Bruscato and Brown in this instance were provided within the context of both of these provisions. First, although not in open court, the district judge granted the continuance for the hearing on the motion for summary judgment in the phone conference. This oral ruling was received by Bruscato on behalf of all plaintiffs by his participation in the conference. The actual dates for resetting the motion and the jury trial were identified later on the day of the conference by the written Memorandum Order of the trial court. Therefore, a second notice pertaining to the Memorandum Order was given in keeping with Article 1914(B) when the clerk mailed to both attorneys their lined-out Requested Rule with the trial judge’s written notation to “see memo order.” As the moving parties, they received written notice of a resetting which they had requested. Moreover, in the telephone conference, the district judge received Bruscato’s fax number and a file stamped copy of the Memorandum Order was faxed to Bruscato, who was acting on behalf of all plaintiffs at the conference. Although the November 6 date of the resetting was not mailed to Brown, his receipt of the trial court’s notation to see the Memorandum Order and the faxed notice of the resetting date to Bruscato 112satisfy the notice requirements of due process to Brown’s client under these facts.

Finally, since we find Article 1914 controlling, and in view of the pre-trial conference and the agreed upon process for faxing the notice of the setting, we do not find the formal procedure for notice of trial under Article 1572 applicable. In any event, the written request for notice of the trial date envisioned in that provision was not made by plaintiffs.

As the moving parties who received clear notice that the trial court had granted them a continuance, the determination of a new date for the matter was not something the plaintiffs could simply assume might never occur. Yet, plaintiffs waited 73 days, attempting no review of the matter, with the original October setting for jury trial of the entire case having come and gone. The trial court’s reflections on the process indicate that the determination of the date for the resetting was clearly understood as imminent at the close of the phone conference. The date was selected that very day, and its identification in the Memorandum Order was transmitted adequately to the attorneys for the moving parties. The trial court’s ruling not to reopen the matter after this procedural default was not an abuse of discretion. The assignment of error regarding the summary judgment dismissal of Dr. Pou is without merit.

II.

Plaintiffs next contend that the jury verdict was in error in finding that the nursing staff of Schumpert did not breach the standard of care regarding Little’s DVT development potential. At trial, the parties | ^.presented the testimony of fact and expert witnesses in support of their positions.

It is well settled that a hospital is liable for its employee’s negligence, including its doctors and nurses, under the re-spondeat superior doctrine. Wright v. HCA Health Services of Louisiana, 38,427 (La.App.2d Cir.6/23/04), 877 So.2d 211; Williams v. Memorial Medical Center, 03-1806 (La.App. 4th Cir.3/17/04), 870 So.2d 1044, writ denied, 04-0963 (La.6/4/04), 876 So.2d 93.

In a malpractice claim against a hospital, the plaintiff is required to prove by a preponderance of the evidence, as in any negligence action, that defendant owed plaintiff a duty to protect against the risk involved (or the applicable standard of care), defendant breached its duty (or the applicable standard of care), and the injury was caused by the breach. La. R.S. 9:2794 A; Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228; Ball v. Charter Forest Behavioral Health System, Inc., 41,329 (La.App.2d Cir.8/23/06), 938 So.2d 1092; Hinson v. The Glen Oak Retirement System, 37,550 (La.App.2d Cir.8/20/03), 853 So.2d 726, writ denied, 03-2835 (La.12/19/03), 861 So.2d 572.

Nurses who perform medical services are subject to the same standards of care and liability as are physicians. Cangelosi v. Our Lady of the Lake Medical Center, 564 So.2d 654 (La.1989); Hinson v. The Glen Oak, supra; Ewing v. Aubert, 532 So.2d 876 (La.App. 1st Cir.1988), writ denied, 551 So.2d 1333 (La.1989); Gibson v. Bossier City General Hosp., 594 So.2d 1332 (La.App. 2d Cir.1991). The nurse’s duty is to exercise the |14degree of skill ordinarily employed, under similar circumstances, by members of the nursing or health care profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his or her best judgment, in the application of his or her skill to the case. Ball v. Charter Forest Behavioral Health System, supra; Hinson v. The Glen Oak, supra, and citations therein.

Injury alone does not raise a presumption of negligence. La. R.S. 9:2794 C; Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502; Fluck v. Coffman, 37,739 (La.App.2d Cir.12/12/03), 862 So.2d 1105. Hindsight or subsequent events cannot be considered when determining whether the actions of the nursing staff were reasonable and met the standard of care. Instead, the professional judgment and conduct of the nurses is evaluated under the then existing circumstances, not in terms of result or in light of subsequent events. Ball v. Charter Forest Behavioral Health System, supra; Hinson v. The Glen Oak, supra, and citations therein.

The jury’s finding in a medical malpractice case is subject to manifest error review: it cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646; Jackson v. State, 39,759 (La.App.2d Cir.6/29/05), 907 So.2d 250, writ denied, 05-2021 (La.9/29/06), 937 So.2d 850. In order to reverse the jury’s finding of fact, the appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Salvant v. State, supra. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270. Where there are two permissible views of the evidence, the jury’s choice between them cannot be manifestly erroneous or plainly wrong. Id.

Dr. Pou was tendered as an expert in the field of otolaryngology (“ENT”). He testified that he saw Little for chronic sinus problems and eventually recommended sinus surgery. Little reported no blood clotting problems and provided no history of leg or muscle cramps, although he had high blood pressure and diabetes. Blood work showed that Little’s platelet count was normal.

Dr. Pou testified that Little’s surgery on Friday, December 8, lasted a little less than two and one-half hours. The complication did not lengthen the surgery for more than three or four minutes, although it required Little’s hospitalization for an estimated forty-eight hours. Pou admitted Little for observation for fever and infection, the administration of antibiotics and bed rest.

Dr. Pou stated that because sinus surgery patients experience head pain, he ordered Little’s head elevated to lower his cerebral spinal pressure to prevent leakage. He also ordered strict bed rest although Little was permitted to move his legs in bed. Dr. Pou testified that during his entire hospital stay, Little never complained of leg pain and was able to move his legs in bed. Dr. Pou never examined Little’s legs, cheeked his Homan’s |1Rsign or ordered the nurses to exercise Little’s legs. Dr. Pou did not prescribe compression hose, sequential compression devices or anti-coagulants. Dr. Pou released Little on Monday, January 11, after Little’s nose was irrigated in the emergency room. During the twenty minute procedure, Little did not complain of leg pain. He put weight on and moved his legs.

Dr. Pou testified that in his opinion, Little was not at high risk for DVT. Dr. Pou stated that DVT and pulmonary embolism following sinus surgery is exceedingly rare and that he had never seen these conditions develop in a sinus patient during his twenty-two years of practice.

Jacqueline Little testified concerning her husband’s complications after surgery. She recalled that Little’s head was elevated and his feet were flat. They were instructed he was not to move from that position. She stayed with him on Friday night and he complained of head pain. The following day, she traveled back to West Monroe, leaving the hospital in the morning and returning around 3:00 or 4:00 in the afternoon.

Jacqueline recalled that about 7:30-8:00 p.m. on Saturday evening, Little began to complain of leg cramps but he refused to summon a nurse. Jacqueline remembered the pain occurred for about 30 minutes and worsened. The couple opted for putting hot towels on his legs before calling a nurse for pain medicine. Jacqueline claimed that she called a nurse about 8:30 p.m. and informed her that Little was having leg pain. The nurse suggested Tylenol #3. Jacqueline continued to administer hot towels on Little’s legs. Jacqueline testified that at some point when she was in the |17bathroom, a nurse came into the room with medicine. She testified that Little informed the nurse that his legs were cramping and she did not examine his legs. Jacqueline could not recall that any nurse examined Little’s legs during the entire time she was with him at Schumpert. According to Jacqueline, the incident on Saturday evening ended upon Little’s falling asleep.

On Sunday morning, Jacqueline testified that Little was doing better. Dr. Pou gave Little bathroom privileges. Nothing was said to Dr. Pou about Little’s leg cramps. Little’s son came to visit and assisted him to the bathroom although Little did not ambulate otherwise during the day. At approximately 7:30-8:00 p.m., Little again began to complain of leg cramps. Admittedly, however, the Littles did not report the cramps to the nurses.

On Monday morning, Jacqueline testified that Little suffered from a headache and was apprehensive about a procedure he was to undergo before discharge. She called the nurses’ station and Little was administered pain medication. Earlier that morning, Little went to the bathroom; he had no problem walking to and from the bathroom with Jacqueline’s assistance and made no complaints of leg pain. Little was transported downstairs for the nose washing procedure and afterwards, he came back to the room. At approximately 9:00 a.m., she assisted Little in getting dressed, and they left the hospital with instructions to keep his head above his waist. Jacqueline recalled that Little complained of a headache.

After the Littles arrived in West Monroe, Jacqueline assisted him out of the car. Little complained of leg cramping at that time but he refused her | ^request to call the doctor. Little sat down in his recliner. After Jacqueline finished unloading the car, she checked on Little. He complained of leg cramps and wanted to take a hot bath. As she helped him out of the tub, he collapsed. She dialed 911 and Little was transported to a Monroe hospital where he died.

On cross-examination, Jacqueline testified that Little was approximately six feet tall and weighed about 230-240 pounds. He was a diabetic since 1996 and had high blood pressure. To her knowledge, he did not have cancer and had no history of blood disorders. She was not aware of the fact that Little had taken quinine in the past for leg cramps until she saw his medical records. She did not know he saw his primary care physician for leg cramps in December of 1997 and September of 1998. She admitted that Little sometimes complained of pain in his legs after doing yard work and that leg cramps were not unusual for him. She stated that the cramps he had in the hospital were like those he experienced at home.

Nurse Lanelle Boyet testified that she was a registered nurse who worked for Schumpert from 1991 to the present. Boyet took care of Little on the Saturday 3-11 shift. Boyet testified that she did an opening narrative entry in Little’s chart at 4:00 p.m. She also filled out his Patient Assessment Form which was part of the nurse’s notes and contained the results of physical assessments by the nurse of the patient’s skin, neurological, musculoskele-tal, gastrointestinal, respiratory, cardiovascular and genitourinary systems and the patient’s psychosocial condition. The | ^cardiovascular assessment portion of the form contained the following language:

ASSESSMENT NORM:

Regular apical pulses. SI and S2 normal in all valve areas. Neck veins flat at 48°. Peripheral pulses palpable. No edema. No calf tenderness.

For normal results, the nurse placed a check mark in the box which corresponded with the shift in which the assessment was done. Boyet also placed her initials in the box. For an abnormal assessment, an asterisk was placed in the box with a note explaining the abnormality. The assessment form from the Saturday 3-11 shift documents that Boyet performed every relevant assessment of Little including cardiovascular. Boyet testified that she generally asked the patient relevant questions. She acknowledged that the cardiovascular assessment included a determination of whether a patient had calf tenderness. She did not as a matter or practice touch the calves of the patient. Regarding her assessment of Little, Boyet testified that she found no abnormal findings, including her evaluation of his lower extremities. Specifically, she found no swelling or calf tenderness in his legs.

Boyet reported that Little complained of a slight headache at 8:00 p.m. and she gave him Lortab. She returned to see him at 9:15 p.m. and the pain was undiminished. She called Dr. Greer and he ordered Demerol and Phernergan. Boyet was concerned about the head pain because of the surgery complication. She revisited Little at 10:30 p.m. and observed he was sleeping and his pain appeared to be gone. She did not re.call Little complaining of any leg pain during her shift. Boyet did not recall | ¾) Jacqueline administering warm towels to his legs. If she had seen this, she would have informed the Littles not to administer the hot towels unless the doctor ordered them. If she knew he was having leg cramps, she would have asked about any history of cramps. Boyet testified that she probably would not have called a physician for a one-time complaint of leg pain but she would have examined his legs to see if anything was wrong.

Nurse Boyet reviewed in her testimony her knowledge of the medical symptoms and treatment of DVT. Boyet testified that she would not generally do leg exercises with a patient who is capable of moving his legs. She routinely asked every patient to dorsiflex his or her foot, but she did not remember if she asked Little to do so. Boyet testified that a nurse can instruct a patient to pedal with his feet without a doctor’s order.

Nurse Nathan Owers attended Little on the Sunday 3-11 shift when the patient had been given bathroom privileges. Ow-ers agreed that age and immobility are risks associated with DVT. Owers testified that he did a full assessment of Little and that his calf assessment would have involved touching Little’s calf. Owers’ assessment record showed that Little had no swelling or calf tenderness.

Nurse Kim Eustis cared for Little on the morning of his release, Monday, January 11, 1999, and handled his discharge. Eustis’s assessment form contained no mark for the cardiovascular evaluation. Nurse Eustis explained that she erred in failing to mark the box, although she believed she assessed Little in that regard. She testified that it was her routine to ask the patient to press his foot onto her hand to determine calf tenderness, but 12]that it was not her practice to feel the patient’s calf. Nurse Eustis had no independent recollection of Little and she admitted that it was possible that she was interrupted during Little’s assessment and neglected to do the cardiovascular assessment. She admitted that positive calf tenderness indicated the possibility of DVT.

Nurse Nancy Darland, who taught nursing for over twenty years, testified as the plaintiffs’ expert in the field of nursing. In her opinion, the Schumpert nursing staff did not properly assess Little for certain risk factors, did not perform a formal nursing assessment and did not institute appropriate measures to aid in the prevention of DVT. Darland further explained that age, weight, immobilization and length of surgery are risk factors for DVT. She opined that in Little’s case, all of these factors were present and should have alerted the nurses to make a DVT assessment and intervene to reduce those risks. Darland testified that the nursing staff should have conducted the Homan’s sign test and that any failure to touch the patient’s calf while asking the patient to flex the foot fell below the standard of care. Also, merely touching the calf without conducting the Homan’s sign maneuver was insufficient.

Darland reviewed Nurse Eustis’s assessment form from December 11. She noted Eustis’s omission in reporting a cardiovascular assessment and testified that the issue of calf tenderness and edema would have been relevant for Little. Because Little was being discharged, a more stringent assessment was called for. Darland also testified that in her opinion, the nursing staff should have instructed Little to do calf pumping exercises due l^to his immobility. Darland concluded that the nurses’ failure to conduct the Homan’s sign and to do the cardiovascular assessment before Little’s discharge fell below the standard of care and related to his death.

In her testimony, Darland reviewed a 1994 nursing magazine article concerning DVT assessment (hereinafter the “Hickey Article”). Darland testified that it was part of basic nursing care to require calf pumping exercises be done on a patient like Little who exhibited increased risk factors for DVT. The Hickey Article gave nurses a guide for reviewing a patient’s individual risk factors. Darland concluded that the Hickey Article was authoritative in its conclusion that nearly all patients are at some risk for DVT. Through the checklist, the nurse would be able to rate the patient’s risk by examining certain factors. Nevertheless, she admitted that the Hickey Article indicated that the Homan’s sign would be positive in only ten to twenty percent of DVT cases, and that nothing in Little’s chart indicated a positive Homan’s sign. Nurse Darland testified that nurses chart by exception, meaning that only abnormal findings are reported. She agreed that Little’s chart showed no evidence of leg cramping and that Little was capable of moving his legs and dorsiflexing his feet. She found no charting errors regarding Little’s activity levels.

On cross-examination, Darland testified that in her opinion, in 1999 nurses should have assessed the risks of all patients who were hospitalized for two to three days. She agreed that if a nurse determined that a patient did not have risk factors, the Homan’s sign procedure would not be required under the standard of care. Dar-land testified that if a patient does not 12?,complain of pain on dorsiflexion of the foot, then the Homan’s sign is negative. Nurse Darland did not label Little as obese; she listed obesity as a factor in his case because his chart characterized him as such. However, she felt that his age and immobility were risk factors. She did not believe that Dr. Pou’s repair of the leak greatly extended the time of the surgery. She did not know of any literature listing ENT surgery as a DVT risk factor. She also agreed that Little might have developed blood clots even if the nurses had assessed Homan’s sign and instructed him to perform calf pumping exercises. She was aware of no patients who had undergone sinus surgery who had experienced pulmonary embolism.

Elizabeth Neidlinger, Schumpert’s expert witness in the field of nursing, is the director of progressive care and progressive care in central telemetry at Schum-pert. She serves as co-chairman of the DVT Task Force. Nurse Neidlinger testified that she has treated patients with CSF leaks after sinus surgery and was familiar with the standard of care applicable to nurses providing post-operative treatment to patients after ENT surgery in 1999.

Nurse Neidlinger testified that in her opinion, the Schumpert nursing staff met the standard of care applicable to nurses in 1999 in treating Little. She explained that in 1999 there was no protocol for assessing the risk of DVT. She also testified that in January of 1999, Schumpert had no written policy relating to the care of post-operative patients who may have been placed on strict bed rest.

Neidlinger testified that nurses physically re-assessed a patient on every shift. She testified that while it was a nurse’s duty to physically | ^assess the patient, the assessment of risk is primarily a physician’s duty. This was true of assessing the risk of DVT in 1999. She testified that the chart demonstrated that the nursing staff did the physical assessments in accordance with the standard of care.

Although Neidlinger admitted that the Hickey Article discussed the assessment of risks for DVT and suggested a strategy for assessing patients, it established no standard of care for 1999 because one article alone does not create a standard of care. Neidlinger agreed with the article which stated that day surgery and immobility are risks for the development of DVT. She testified that even at the time of her trial testimony, there was no national standard for the treatment or prevention of DVT. She again pointed out that the Hickey Article considered a 72-hour length of stay a risk factor. Here, it was anticipated that Little would require only a 48-hour hospital stay, and he was able to get out of bed during that time.

Further, Nurse Neidlinger testified that in 1999, checking the Homan’s sign was not part of the routine nurse’s assessment of medical/ surgical patients such as Little unless the patients presented with symptoms. It was the standard of care in 1999 for nurses to notify the physician only if a patient exhibited symptoms of DVT. Likewise in 1999, it was not the standard of care for nurses to instruct a patient, like Little, who had undergone ENT surgery to exercise or move his legs or engage in calf pumping exercises.

Regarding Jacqueline’s claim that Little complained of leg pain on Saturday night, Nurse Neidlinger testified that DVT is generally exhibited |⅞⅛ only one extremity. Here, because Jacqueline reported leg cramps in both legs, DVT would not have been her first consideration. The lack of nurses’ notes documenting the leg cramps led Neidlinger to believe that they were not reported to the nurses.

The defense also called Todd Little (“Todd”) to testify on cross-examination. Todd was the sole heir who did not join in the suit. Todd visited with his father on Sunday. He arrived with his wife and children at approximately 11:30 a.m. and stayed about an hour. His stepmother, Jacqueline, was present during the visit. Todd testified that his father had complaints relating to the sinus surgery but not to his legs and he was able to get out of bed. Todd assisted him to the bathroom. His father was able to bear weight on both legs and had no problems walking to the bathroom. His father returned to bed by himself.

Todd testified that he spoke with Jacqueline about his father’s leg cramps after his father’s death. Todd recalled that Jacqueline told him that his father had leg cramps on the day that he died, and also before his admission to Schumpert on January 8. Todd testified that Jacqueline never told him about his father having leg cramps during his hospital stay.

Dr. Keith Christy, a member of the medical review panel that evaluated Little’s case, testified as an expert ENT and an expert in the standard of care applicable to post-operative ENT surgery nursing care. Dr. Christy explained that the medical review panel found no recommendation, rule or guideline which would have required Schumpert to have in place a policy for prophylactic treatment against DVT. Thus, the panel found no lament to plaintiffs’ claim against the hospital regarding a requirement that the hospital have such a policy on this issue.

Dr. Christy explained that deep vein clots develop in the legs, arms and pelvis as well as the abdominal area. In Little’s case, there was no way of knowing where the clots originated. Dr. Christy testified that Little’s autopsy showed evidence of pancreatic and prostate cancer and he noted that, in particular, pancreatic cancer patients are likely to develop blood clots.

Dr. Christy testified that in January of 1999, it was not his practice to order hose or compression devices for ENT surgery patients, except those with cancer. Nor was it his practice to check the legs of his post-operative ENT patients. He testified that pulmonary emboli following sinus surgery is extremely rare. Dr. Christy testified that in this specific case, Little was not at high risk for DVT. In Dr. Christy’s opinion, it was not the standard of care for nurses caring for a post-operative ENT patient to check the legs of such patients absent a complaint or sign or symptom of clotting.

From this evidence, we find that the jury could reasonably conclude that both the standard of care and the facts observed by the nurses or reported to them did not reveal malpractice on the part of Schumpert’s nursing staff. The standard of care was not so clearly defined by medical authority to require the more extensive DVT assessment defined by Nurse Dar-land. The defense expert testimony was that the assessments given to Little by the various nurses who attended him were sufficient to alert the staff to the possibility of DVT, such that an appropriate standard of care was 127met under the circumstances of his hospitalization. The key to the nursing staff’s observations of their patient was the lack of any reports of leg pain. The jury could conclude that the Saturday night incident described by Jacqueline was never reported to Nurse Boyet. It is reasonable to conclude that had the incident been reported, the cardiovascular assessment checklist would not have reported “no calf tenderness” and the reason for the required pain medications given that evening would have been related to leg pain. The testimonies of Jacqueline and Nurse Boyet were at odds, and the jury could choose Nurse Boyet’s testimony which finds corroboration in the contemporaneous medical records. While there was one charting omission on Monday morning as Little prepared to leave the hospital, there was no report by Jacqueline indicating Little’s leg pain on that morning prior to his leaving the hospital.

Finding no manifest error in the jury’s verdict, the plaintiffs’ assignment of error is without merit.

III.

Regarding the disputed expert witness fees assessed to plaintiffs, the record shows that the trial court rendered final judgments on the merits and plaintiffs’ motion for new trial on March 2, 2007. The judgment on the merits generally assessed all court costs against plaintiffs, but did not specifically fix any expert witness fees. Thereafter, plaintiffs were granted a devolutive appeal of the judgments on March 22, 2007.

On May 14, 2007, Schumpert filed a Motion to Tax Costs requesting the court to assess certain expert witness fees and trial expenses as costs | ^against plaintiffs. The trial court rendered judgment in favor of Schumpert on June 11, 2007, setting three expert witness fees as costs. Plaintiffs never appealed that judgment.

The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to set and tax costs and expert witness fees. La. C.C.P. art.2088. A judgment for costs rendered after the final judgment on the merits is a separate and appealable judgment. In re Succession of Pitman, 42,654 (La.App.2d Cir.10/24/07), 968 So.2d 871; Hoyt v. State Farm Mutual Automobile Insurance Co., 628 So.2d 651 (La.App. 1st Cir.1993), writ denied, 629 So.2d 1179 (La.1993).

According to this jurisprudence and the clear implication of Article 2088, an assessment of costs which proceeds separately from the prior appeal of the judgment on the merits requires a separate appeal. Because plaintiffs failed to appeal the judgment which assessed the expert witness fees as costs against plaintiffs, the judgment became final, and plaintiffs are precluded from raising any error in the judgment on appeal.

Conclusion

For the foregoing reasons, the summary judgment, jury verdict judgment and judgment on motion to tax costs are affirmed. Costs of this | ^appeal are assessed against plaintiffs.

AFFIRMED.

BROWN, Chief Judge, concurs with written reasons.

BROWN, Chief Judge,

Concurring.

|TI disagree with this court’s refusal to address the disputed expert witness fees. The final judgment on the merits assessed all court costs to plaintiffs. This judgment was appealed by plaintiffs. Thereafter, a motion was filed in the trial court to determine the dollar amount of the expert witness fees. Plaintiffs objected to the inclusion of two of the expert witness fees as court costs. Requiring a second appeal to proceed on a separate track would be awkward and, of course, impose an additional expense. The majority cites only two cases to support its position. In Re Succession of Pitman involved a case in which only the allocation of court costs was appealed. The other case, Hoyt v. State Farm, is not convincing.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, CARAWAY and PEATROSS, JJ.

Rehearing denied.

      . La. C.C.P. arts. 1313 and 1314 provide for the service of pleadings subsequent to the original petition by mail or other delivery methods or by the sheriff.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    Paul Nicholls DeBAILLON, Bankruptcy Trustee, et al. v. CONSOLIDATED OPERATING CO., INC., et al.
    No. 07-1117.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.

      Cliffe Edward Laborde III, Louis Simon II, Brandon W. Letulier, LaBorde & Neuner, Lafayette, LA, for Defendants-Appellees, Island Operating Company and Greg H. Falgout.
    David Patrick Keating, Attorney at Law, Opelousas, LA, for Plaintiffs-Appellants, Paul Nicholls DeBaillon, Bankruptcy Trustee, Frederick W. Chapman, III, and Jane Elizabeth Chapman.
   Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.

PICKETT, Judge.

_JjThe plaintiffs-appellants, Paul DeBail-lon, Frederick Chapman III, and Jane Elizabeth Chapman appeal a judgment granting an exception of no cause of action and dismissing with prejudice their petition to annul a judgment.

STATEMENT OF THE CASE

The underlying actions in this suit date back to 1989. In a nutshell, the Estate of F.W. Chapman Jr. sued Consolidated Operating Co., Inc. (Consolidated), alleging breach of contract. After years of complicated legal wrangling, the heirs of F.W. Chapman Jr. were substituted as the plaintiffs, and several defendants were added. One of those heirs, Frederick Chapman III, filed for bankruptcy. When he tried to assign his rights in the action to another party, the defendants filed an exception of no right of action, alleging that the proper party to assert the claim was the bankruptcy trustee. The trial court delayed ruling on the exception until the bankruptcy trustee could be notified. When contacted, Paul DeBaillon, who had been appointed bankruptcy trustee, was no longer the trustee because the bankruptcy case had been closed. The trial court granted the exception of no right of action and dismissed Frederick Chapman III from the suit.

Soon thereafter, the plaintiffs hired new attorneys. After the judgment was signed dismissing Frederick Chapman III from the suit, he petitioned the bankruptcy court to reopen his Chapter 7 claim. The bankruptcy court reopened the claim and reappointed Paul DeBaillon as trustee. The attorneys representing the other plaintiffs were hired by DeBaillon to represent the bankruptcy estate. These attorneys then filed a supplemental and amending petition seeking to add as a plaintiff the bankruptcy trustee on April 5, 2005. The defendants objected, since trial was set to Lbegin on June 1, 2005. The trial court allowed the amending petition. On May 27, 2005, the defendants then filed exceptions of res judicata and judicial es-toppel alleging that the dismissal of Frederick Chapman III and the failure of the bankruptcy trustee to participate in the case after being notified had already been litigated and that DeBaillon should be released from the suit.

On June 1, 2005, trial began in the suit and the parties argued the exceptions to DeBaillon’s participation to the suit. The trial court overruled the exceptions, and the other preliminary trial matters proceeded. During the lunch break, the plaintiffs and defendants entered into settlement negotiations. The defendants agreed to settle the claims with Jeri Chapman. The defendants asked the trial court to reconsider its ruling earlier in the day on whether DeBaillon should be dismissed from the suit. The trial court reconsidered its earlier ruling and granted the exceptions and dismissed DeBaillon from the suit with prejudice. A judgment granting the exceptions of res judicata and judicial estoppel and dismissing all claims brought by DeBaillon was signed on August 27, 2005. This judgment was not appealed and is a final judgment.

On August 28, 2006, DeBaillon, Frederick Chapman III, and Jane Elizabeth Chapman filed a Petition to Annul Judgment, alleging that the August 27, 2005, judgment was obtained by fraud or ill practices and should be annulled pursuant to La.Code Civ.P. art. 2004. The defendants filed an exception of no cause of action, arguing that the claim was preempted under the provisions of La. Code Civ.P. art. 2004(B), which states that an action to annul the judgment must be brought within one year from the date the fraud or ill practices was discovered or should have been discovered. They argued that DeBaillon’s attorneys knew about the settlement and the terms thereof on June 1, 2005, the date the settlement was reached, and that [.¡¡knowledge was imputed to him. Therefore, a petition to annul filed on August 28, 2006, was untimely. The trial court held a hearing on February 5, 2007, and sustained the exception of no cause of action. A judgment in conformity with that ruling was signed on February 8, 2007. On February 22, 2007, DeBaillon filed a motion for a new trial, alleging that he had discovered new evidence. The trial court denied the motion in a judgment dated March 28, 2007. De-Baillon, Frederick Chapman III, and Jane Elizabeth Chapman now appeal.

ASSIGNMENTS OF ERROR

The plaintiffs-appellants, Paul DeBail-lon, Frederick Chapman III and Jane Elizabeth Chapman, assert six assignments of error:

1. The Trial Court erred in ruling that knowledge to plaintiffs counsel was knowledge to plaintiff under the facts of this case.
2. The Trial Court did not accept the well-pleaded facts of the petition as being true.
3. The Trial [Court] did not accord every reasonable interpretation of the language of the original petition in maintaining the sufficiency of the petition and affording the plaintiffs the opportunity to present evidence at trial.
4. The Trial Court erred in not following Louisiana Code of Civil Procedure article 934 in allowing any amendments to the pleadings to cure the exceptions of no cause of action.
5. The Trial Court erred in ruling that Paul N. DeBaillon, Bankruptcy Trustee, Frederick W. Chapman, III and Jane Elizabeth Chapman had knowledge of the settlement and the method and manner in which the dismissal occurred prior to August 27, 2005.
6. The Trial Court erred in finding that even though plaintiffs’ counsel:
(a) agreed to a settlement that did not include Paul N. DeBaillon, Bankruptcy Trustee, Frederick W. Chapman, III and Jane Elizabeth Chapman;
(b) did not correspond or communicate with Paul N. DeBaillon, Bankruptcy Trustee, Frederick W. Chapman, III and Jane Elizabeth Chapman regarding the settlement or dismissal;
|4(c) executed confidentiality agreements that specifically prohibited plaintiffs’ counsel from discussing or disclosing the settlement with Paul N. DeBaillon, Bankruptcy Trustee, Frederick W. Chapman, III and Jane Elizabeth Chapman; and
(d) intentionally and purposefully failed to disclose the settlement and the manner in which the dismissal occurred with Paul N. DeBaillon, Bankruptcy Trustee, Frederick W. Chapman, III and Jane Elizabeth Chapman
that knowledge to plaintiffs’ counsel would still be imputed to Paul N. De-Baillon, Bankruptcy Trustee, Frederick W. Chapman, III and Jane Elizabeth Chapman so as to commence the per-emptive period.

DISCUSSION

The supreme court discussed appellate review of a judgment granting an exception of no cause of action in Badeaux v. Southwest Computer Bureau, Inc., 05-0612, p. 7 (La.3/17/06), 929 So.2d 1211, 1217:

[A]n exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Industrial Cos., [Inc. v. Durbin, 02-0665, p. 6 (La.1/28/03), 837 So.2d 1207, 1213], The exception is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. Id. In reviewing a district court’s ruling sustaining an exception of no cause of action, appellate courts conduct a de novo review because the exception raises a question of law and the district court’s decision is based only on the sufficiency of the petition. Id. An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Id. at p. 7, 837 So.2d at 1213; Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007, 1018 (La.1993). If the petition states a cause of action on any ground or portion of the demand, the exception should generally be overruled. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1236 (La.1993). Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Industrial Cos., 02-0665 at p. 7, 837 So.2d at 1213.

Louisiana Code of Civil Procedure article 2004 states:

A. A final judgment obtained by fraud or ill practices may be annulled.
|bB. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
C. The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.

The trial court ruled that the appellants have no cause of action because under 2004(B) they had knowledge of any fraud or ill practices more than one year before the suit was filed, and thus their claim for nullity is preempted.

In their first, fifth, and sixth assignments of error, the appellants argue that the trial court incorrectly imputed the knowledge of their attorney about the settlement and the means by which it was confected to them, given that those same attorneys and that settlement caused the dismissal of the appellants from the underlying suit. According to the petition, the appellants could have known as early as June 1, 2005, that DeBaillon’s attempt to intervene as bankruptcy trustee would be denied. The record supports the defendants’ assertion that the attorneys for Jeri Chapman and DeBaillon assured the trial court on the record that they had informed DeBaillon about the settlement. The judgment formally dismissing him was not signed until August 27, 2005.

We find that we agree with the first circuit when it stated, “the improper representation or misconduct of the moving party’s attorney is not a legally recognized basis for granting an action in nullity.” Stroscher v. Stroscher, 01-2769, p. 5 (La.App. 1 Cir. 2/14/03), 845 So.2d 518, 524. Furthermore, “[t]he law is well settled that notice to an attorney of record is notice to the client.” Barber v. Testa, 331 So.2d 139, 140 (La.App. 3 Cir.1976). Thus, in this case, even though the appellants assert their attorneys were the source of the fraud or ill practices, we find that they as to the judgment which they seek to have annulled, they had knowledge of the alleged | ¿fraud or ill practices because their attorneys of record had knowledge of the fraud or ill practices. Thus, while they may have an action for legal malpractice, an action does not lie to collaterally attack the judgment through a nullity action.

We also disagree that the trial court did not properly consider the allegations of the petition as true, as argued in assignment of error two. We find that even assuming as fact the well-pleaded allegations in the petition, that the action for nullity cannot properly be brought in this case. For the same reason, this assignment of error three lacks merit.

The appellants failed to brief their fourth assignment of error, in which they argue that the trial court should have allowed them to amend their petition. “All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.” Uniform Rules — Courts of Appeal, Rule 2-12.4. Thus, we will consider this assignment of error abandoned.

Finally, the defendants-appellees seek attorneys fees pursuant to La.Code Civ.P. art. 2004(C). As the appellees did not filed an appeal with the trial or an answer to the appeal filed by the plaintiffs-appellants, we cannot consider this argument. La.Code Civ.P. art. 2133.

For the foregoing reasons, the judgment of the trial court is affirmed in all respects. Costs of this appeal are assessed to the appellants.

AFFIRMED.


author: DECUIR, Judge.

text:
    Randy LACOMBE v. Marvin F. CARTER, Jr., et al.
    No. 07-1063.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.

      Robert G. Nida Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendants/Appellants, Shawn N. Daze and Brian Mabou.
    Rodney M. Rabalais, Attorney at Law, Marksville, LA, for Plaintiff/Appellee, Randy Lacombe.
   Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.

DECUIR, Judge.

| TThis is a trespass action based on the defendants’ refusal to remove duck blinds and other structures from the plaintiffs property.

FACTS

Plaintiff, Randy Lacombe, purchased property adjacent to Saline Bayou. A portion of the purchased property is inundated by water due to a control structure built by the State in the 1960s. Prior to Lacombe’s purchase, the defendants, Shawn N. Daze, Brian Mabou, Marvin Carter, Jr., and William L. Smith, .had erected duck blinds and a floating boathouse on the property. Subsequently, La-combe asked the defendants to remove the structures. They refused, and Lacombe filed this suit alleging trespass on the part of the defendants. Defendants then circulated flyers and posted signs stating that Lacombe was endangering hunting and fishing rights in the Saline Bayou area.

Subsequently, the defendants answered and filed an exception alleging that the inundated area is a navigable waterway and that the State of Louisiana (State) owns or has a servitude over the property and is, therefore, an indispensable party. The trial court granted the exception, and the State was joined as a party. Lacombe amended his petition to seek a declaratory judgment declaring him to be owner of the property. In addition, Lacombe requested that, if and only if the State disputed the boundary between the parties, the court fix the boundary.

The trial court declared the boundary to be as that presented in evidence, ordered the defendants to vacate Lacombe’s property and remove existing structures, and enjoined them from future entry.

In addition, the trial court concluded that the defendants did trespass on La-combe’s property and awarded. Lacombe damages of $5,000.00 from each of the defendants.

|2The defendants, Daze and Mabou, lodged this appeal.

TRESPASS

The defendants assert that the trial court erred in finding they had committed a trespass and in awarding excessive damages. In their brief, the defendants at once allege navigability as an issue and later decry it as a “red herring.” We think they are correct in the latter instance. In the midst of much discussion about boundaries, navigable waterways, and hunting rights, the trial court was faced with a simple action in trespass. Accordingly, we will focus our attention on the tort of trespass.

In discussing trespass, this court has said:

A trespass occurs when there is an unlawful physical invasion of the property or possession of another person. Additionally,

In an action for trespass, it is incumbent upon the plaintiff to show damages based on the result or the consequences of an injury flowing from the act of trespass. The damages must be proved by a preponderance of the evidence, and this burden of proof may be met by either direct or circumstantial evidence. One who is wronged by a trespass may recover general damages suffered, including mental and physical pain, anguish, distress, and inconvenience.

Griffin v. Abshire, 04-37, p. 11 (La.App. 3 Cir. 6/2/04), 878 So.2d 750, 757-58, writ denied, 04-1663 (La.10/8/04), 883 So.2d 1018. (Citations omitted).

In the case before us, Lacombe is in actual possession of the property in question, and the defendants do not claim ownership in themselves. The appropriate burden of proof for Lacombe is well settled in our law.

Under these circumstances, it is not necessary that plaintiff should show a title perfect in all respects; and, even if there be defects in plaintiffs title, they are not available as a defense to defendant company, a mere trespasser. Jamison v. Smith, 35 La. Ann. 609; Stille v. Schull, 41 La. Ann. 816, 6 So. 634; Vicksburg, S. & P.R. Co. v. Sledge, 41 La. Ann. 896, 6 So. 725; Gould v. Bebee, 134 La. 123, 63 So. 848.

River & Rail Terminals v. La. Ry. & Nav. Co., 171 La. 223, 236, 130 So. 337, 341 (1930). “A prima facie title is good against trespassers.” Gould v. Bebee, 134 La. 123, 126, 63 So. 848, 849 (1913).

The question for this court is whether the trial court correctly concluded that the defendants had committed a trespass. The trial court summarized the evidence in its written reasons for judgment as follows:

Mr. Lacombe produced deeds, a survey, official state maps, and testimony showing he has title to the land where the defendants blinds and floating structures are located. He produced the expert testimony of Jessie Lachney, showing the defendants[’] blinds and floating structure are located on land, acquired and included in the 2000 sale. Lachney used a GPS unit to locate the exact position of the blinds and floating structure relative to Lacombe’s property line. The State’s representative, John P. Evans, Jr., P.L.S. Chief, Titles, Surveys & GIS of the State Land Office, also testified that the defendants^] blinds and floating structure are on Lacombe’s land and that the State makes no claim to Lacombe’s inundated land.

After reviewing the evidence, it is clear that Lacombe has met his burden of proof with regard to his title and its limits. The defendants have produced no evidence that establishes the boundary is not as agreed by Lacombe and the State and represented in the judgment of the trial court. Moreover, this court has consistently held that a trial court’s determination of a boundary location is a finding of fact which will not be disturbed on appeal unless it is manifestly erroneous. Lamson Petroleum Co. v. Hallwood Petroleum, Inc., 99-1444 (La.App. 3 Cir. 5/24/00), 770 So.2d 786, writ denied, 00-2568 (La.11/27/00), 775 So.2d 448; see also Barker v. Quality Builders, Inc., 503 So.2d 1170 (La.App. 3 Cir.1987); Broussard v. Coleman, 479 So.2d 1016 (La.App. 3 Cir.1985), writ denied, 481 So.2d 1354 (La.1986). Accordingly, we find no manifest error in the trial court’s determination that the defendants committed a trespass on Lacombe’s property.

|4We next turn to defendants’ claim that the trial court’s damage award was excessive. In an action for trespass, the plaintiff must show damages based on the result or the consequences of an injury flowing from the act of trespass. Bell v. Sediment Removers, Inc., 479 So.2d 1078 (La.App. 3 Cir.1985), writ denied, 481 So.2d 1350 (La.1986). The damages must be proved by a preponderance of the evidence, and this burden of proof may be met by either direct or circumstantial evidence. Id. One who is wronged by a trespass may recover general damages suffered, including mental and physical pain, anguish, distress, and inconvenience. Ard v. Samedan Oil Corp., 483 So.2d 925 (La.1986). Mental anguish does not result of necessity from a trespass or the encroachment on a person’s property. Even though mental anguish may be compensa-ble, it must be proven with sufficient evidence. Bell, 479 So.2d 1078. However, mental anguish does not require proof that medical or psychiatric care was required as a result of the incident, but minimal worry and inconvenience should not be compensated. Phillips v. Town of Many, 538 So.2d 745 (La.App. 3 Cir.1989).

In the present case, Lacombe was prevented from using or leasing his property to the fullest extent by the presence of defendants’ blinds and floating structure. In addition, the defendants intentionally set out to attack Lacombe’s standing in the community by placing flyers naming him as a party seeking to take away the hunting and fishing rights of sportsmen. La-combe testified that some individuals quit frequenting his hardware business because of the flyers produced by the defendants. Under these circumstances, we do not find the trial court’s damage award to be manifestly erroneous.

[.BOUNDARY

The defendants’ remaining assignments of error contest the boundary set by the trial court. At the outset, we note that this boundary is established solely for purposes of this tort action. The action for the tort of trespass is not one of the real actions provided for in the Louisiana Code of Civil Procedure. Brown v. Bedsole, 447 So.2d 1177 (La.App. 3 Cir.), writ denied, 450 So.2d 358 (La.1984). In addition, this court has held that those who hunt or fish on land that is inundated by waterways belonging to the State do not have a right of action to fix boundaries between the State and a private landowner. Schoeffler v. Drake Hunting Club, 05-499 (La.App. 3 Cir. 1/4/06), 919 So.2d 822. In the present case, neither Lacombe nor the State has disputed the boundary between them. We have found no manifest error in the trial court’s determination of the boundary for purposes of this trespass action. Likewise, we find no grounds for allowing defendants to convert this tort action into a real action to force the State to fix a boundary between it and a private landowner. Accordingly, these assignments of error have no merit.

FRIVOLOUS APPEAL

Lacombe requests that we award attorney fees for frivolous appeal. Under the circumstances of this case and given the lack of clarity with regard to the law as it involves inundated lands, we do not believe an award of attorney fees is warranted.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to defendants Shawn N. Daze and Brian Mabou.

AFFIRMED.


author: WILLIAMS, J. GASKINS, J., CARAWAY, J.,

text:
    Thomas K. SWOBODA and Karen L. Swoboda, Plaintiff-Appellee, v. SMT PROPERTIES, L.L.C., Defendant-Appellant.
    No. 42,746-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 30, 2008.
    Rehearing Denied March 13, 2008.

      Thomas N. Thompson, Lafayette, for Appellant.
    Franklin H. Spruiell, Jr., for Appellee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   WILLIAMS, J.

hThe defendant, SMT Properties, L.L.C., appeals a judgment in favor of the plaintiffs, Thomas and Karen Swoboda. The trial court awarded plaintiffs $30,308.28 in damages. For the following reasons, we amend and affirm as amended.

FACTS

In 2002, SMT Properties, L.L.C. (“SMT”) began construction of a house on Lot 11 in a new subdivision in Caddo Parish. Kevin Schmidt was the sole member and manager of SMT. The subdivision, known as “Lakeside on Long Lake,” was owned and developed by AOK, L.L.C. (“AOK”). Robert Aiello was the manager of AOK. The subdivision was subject to a declaration of covenants and building restrictions, which among other things required a setback of at least ten feet from the interior, or side, property lines of each lot. One of the members of AOK, Ronald Turner, individually provided SMT with financing to build the house. During construction, Schmidt allowed 40% of the house foundation to be improperly placed across the property line onto the adjacent Lot 12. This error was discovered by Aiello while driving through the subdivision.

Instead of demolishing the foundation, Aiello suggested that SMT purchase Lot 12 and the two lots were “re-subdivided” into Lots 122 and 123 of Lakeside on Long Lake, Unit 2. After filing the re-subdivision plat, Aiello purported to grant verbal variances reducing the side setback from ten feet, as required by the declaration of covenants, to five feet for both Lots 122 and 123. These variances were never reduced to writing, were not reflected on the re-subdivision plat, and were not a matter of public record. |2After the house was completed, SMT then allowed a portion of the bricked flower bed, two sprinkler heads and some sod to be improperly placed across the revised property line. This error was not discovered at the time.

In July 2003, Turner, who was not the legal owner of Lot 122, hired a realtor, Lynn Roos, to sell the property. Turner completed and signed a “Seller’s Disclosure Statement,” which noted the presence of an oil pipeline next door and stated that “Lot 11 has been subdivided thus making it much larger.” However, the document did not disclose the variance that reduced the side setback to five feet for both lots. That month, Karen Swoboda was looking for a house in Shreveport and hired Kandy McEachern, a realtor in the same office as Roos. Swoboda looked at the SMT-built house on Lot 122 and was given copies of the declaration of covenants and restrictions and the re-subdivision plat.

After reviewing these documents and the disclosure form, Swoboda instructed the realtor to have the boundaries of the lot marked and signed a contract to buy the house. On August 11, 2003, AOK instructed Charles Coyle, a surveyor, to mark the property corners of Lot 122. AOK paid the invoice for this work.

Later in August 2003, Dr. Thomas Swoboda and Karen Swoboda met their realtor at the house and observed survey stakes, which indicated a property line running at an angle away from the house that appeared to conform with the placement of the flowerbed and sod. At the closing on August 27, 2003, the Swobodas first met Schmidt, who signed the seller’s disclosure form without mentioning either the five-foot variance of the side ^setback or the encroachment of the landscaping and sprinklers onto the adjacent lot. The Swobodas paid $395,000 for the house.

The problem with the west property line surfaced in April 2004, when a prospective purchaser, attorney James Davis, ordered a survey of Lot 123 after he was informed by Aiello of the original foundation problem and the setback variance. This survey reflected that the boundary line was only five feet from the Swobodas’ house running through the bricked flower bed, and that two sprinkler heads were located on Lot 123. At that time, the Swobodas first learned of the verbal variances granted by Aiello that subjected their lot to a side setback of only five feet. The Swobodas attempted to buy a strip of land as a buffer along the property line, but the adjacent landowner was unwilling to sell. As a result, the Swobodas bought the entire adjacent lot for $49,950.

In March 2005, the plaintiffs, Thomas and Karen Swoboda, filed a petition for damages against the defendant, SMT, alleging fraudulent misrepresentation. The plaintiffs sought damages including the purchase price of the adjacent lot, interest and attorney fees, but did not seek rescission of the sale or reduction of the purchase price. Following a trial, the district court issued a written ruling finding that although the plaintiffs had failed to prove fraud, the defendant had breached its duty to plaintiffs under LSA-C.C. art. 2529, because the property sold was not of the kind represented by defendant.

Considering the circumstances of the case, the trial court concluded that plaintiffs were entitled to recover one-half of the purchase price of the ^adjacent lot in the amount of $24,975, closing expenses of $2,500, property taxes of $1,573.28 and homeowner assessments of $1,260. The court declined to award attorney fees. Accordingly, the court rendered judgment awarding the plaintiffs damages in the total amount of $30,308.28. The defendant appeals the judgment.

DISCUSSION

The defendant contends the trial court erred in awarding damages to the plaintiffs. Defendant argues that Article 2529 is not applicable because the property received by plaintiffs did not differ in kind or quality from that described in the sale contract or deed and defendant did not make any verbal representation to plaintiffs about the quality of the lot they purchased.

When the thing delivered by the seller, though in itself free from redhibi-tory defects, is not of the kind or quality specified in the contract or represented by the seller, the buyer’s rights are governed by other rules of sale and conventional obligations. LSA-C.C. art. 2529. A trial court’s factual findings will not be reversed unless clearly wrong. A reviewing court does not decide whether the factfinder was correct, but whether its findings were reasonable based upon the record. Stobart v. State DOTD, 617 So.2d 880 (La.1993).

In the present case, the subdivision property was subject to a declaration of covenants, servitudes and building restrictions. The declaration provided that all of the lots would be owned, occupied, improved, sold and conveyed subject to the listed covenants and restrictions. Article five, section four of the declaration provided that no |fibuilding could be built on any lot “nearer than ten feet (10’) from interior property lines.” The architectural control committee or AOK could “waive in writing” any setback requirement.

Aiello testified that after the lots were re-subdivided, AOK granted a variance to Lot 122 reducing the side setback to five feet instead of the ten feet required by the declaration of covenants. However, Aiello acknowledged that this purported variance was never reduced to writing.

The declaration of covenants expressly stated that any waiver, or variance, of the setback requirement must be “in writing.” Thus, the verbal variance granted to defendant allowing the house on Lot 122 to be built five feet from the property line was not a valid waiver of the requirement for a setback of ten feet. In addition, the defendant never disclosed to plaintiffs the existence of any such variance. Consequently, at the time of sale the defendant represented that the house complied with the setback of ten feet required in the declaration of covenants. Based upon this record, we cannot say the trial court erred in concluding that pursuant to Article 2529, the defendant breached its duty to plaintiffs by delivering a house that was actually only five feet from the property line. The court found that such a deviation was material to plaintiffs decision to buy their home and this finding was not clearly wrong. The assignment of error lacks merit.

Damages

The defendant contends the plaintiffs failed to satisfy their burden of proving they were damaged. Defendant argues that plaintiffs failed to present evidence to show that they suffered an actual loss or to establish the | (¡value of any such loss.

Damages are measured by the loss sustained by the obligee and any profit of which he was deprived. LSA-C.C. art. 1995; Cook v. Stowe, 40,372 (La.App.2d Cir.10/26/05), 914 So.2d 1135. An obligee must make reasonable efforts to mitigate the damages caused by the obligor’s failure to perform and if the obligee fails to make these efforts the amount of damages will be reduced. LSA-C.C. art.2002. Much discretion shall be left to the court for the reasonable assessment of damages which are insusceptible of precise measurement. LSA-C.C. art.1999.

In the present case, the plaintiffs presented evidence that defendant’s conduct created the need to re-subdivide the original Lots 11 and 12 and resulted in the construction of plaintiffs’ house five feet from the revised property line. Plaintiffs testified that they suffered financial loss because they were forced to buy the adjacent lot for $49,950 to prevent construction of a building only ten feet from their home, a circumstance which they believed would reduce the value of their substantial investment. The record supports the trial court’s finding that the defendant’s failure to disclose the material information regarding the setback variance was a significant factor in causing the plaintiffs to incur that additional expense.

In its appellate brief, the defendant contends that even if plaintiffs are entitled to recover damages, any award must be reduced to reflect their own negligence in failing to obtain a survey of their lot and in failing to read the warnings to do so in the documents they signed in completing the purchase of their house. Contrary to defendant’s contention, the plaintiffs made a |7request through their real estate agent that the property owner mark the boundary lines of their lot. The trial court found that the plaintiffs’ request that the property lines be marked was the equivalent of a survey in this case, rejecting defendant’s assertion that plaintiffs were precluded from recovery. On this record, the trial court’s finding was not clearly wrong.

Additionally, the defendant contends the plaintiffs failed to attempt to mitigate the damages suffered as a result of buying the lot with a smaller side setback than required by the declaration of covenants. Defendant argues that under Article 2002 the damage award should be reversed because plaintiffs took no steps to sell or further subdivide the adjacent lot they purchased after learning of the variance.

We note that in its written ruling, the trial court expressly considered the plaintiffs’ conduct in assessing damages. The court found that plaintiffs derived some benefit from their purchase of the adjacent lot in that they gained a larger yard and retained the option to further subdivide the property and sell the remaining lot. The trial court noted that plaintiffs had not taken any steps to mitigate their damages by attempting to sell the adjacent lot. The record demonstrates that the trial court considered and weighed the plaintiffs’ comparative negligence and lack of mitigation in the award of damages by limiting their recovery to one-half of the price they paid to purchase the adjacent lot.

However, considering the benefit to plaintiffs in- maintaining ownership and possession of the adjacent lot, we conclude that plaintiffs are not entitled to reimbursement for the amounts paid in 2005 and 2006 for ^property taxes and homeowner assessments related to Lot 123. Consequently, we shall amend the award by deleting the amounts of $1,573.28 for property taxes and $840 for homeowner assessments for 2005-2006, reducing the plaintiffs’ total damage award to $27,895. In all other respects, the judgment will be affirmed.

CONCLUSION

For the foregoing reasons, the trial court judgment is hereby amended to delete the amount of $2,413.28, and plaintiffs are awarded the sum of $27,895 in damages. The judgment is otherwise affirmed. Costs of this appeal are assessed to the appellant, SMT Properties, L.L.C.

AMENDED AND AFFIRMED AS AMENDED.

GASKINS, J., concurs with reasons.

CARAWAY, J., dissents with written reasons.

GASKINS, J.,

concurs.

|TI respectfully concur with the opinion that La. C.C. art. 2529 addresses the situation at hand. Not only did the buyers find that the property was not the kind represented by the seller, the seller’s manager also appears to be confused himself about the boundary.

This case is not just about a variance to a covenant. Because of the particular facts of this case, the problems arising out of the variance affect the efficacy of the contract.

Normally, we would rescind the sale or reduce the purchase price to remedy a problem arising under La. C.C. art. 2529. Neither party argues that the sale should be rescinded.

In this case, we have the perfect storm of facts, which makes the remedy an appropriate one. Those factors include:

(1)A variance to the covenant was properly given, but not written, as required.
(2) Landscaping and a sprinkler system visually indicated the lot had a bigger side yard.
(3) After the buyers requested the boundary be marked, stakes were positioned that were consistent with the landscaping.
(4) The character of the neighborhood is one in which the houses are built more than 10 feet apart. Not only was plaintiffs’ house five feet from the property line, the prospective house next door would also be five feet.
(5) Because of the seller’s negligence, the adjoining lot was much smaller than originally intended. Mr. Davis had refused to sell the plaintiffs a strip of land, because his house would not have fit these even smaller dimensions.
(6) Mr. Davis had already received a variance to build a smaller house than that contained in the covenants. No evidence showed that, after the plaintiffs added 10-15 feet to their side | ¡.yard, any further variance to house size would be granted or that a viable house could be built on the remaining land.

The trial court fashioned a remedy that protected the value of the house while maintaining the integrity of the subdivision. Had the trial court, instead, reduced the purchase price on the house, it is likely the damages would have been consistent with the amount actually awarded.

I agree with the writer to affirm, as amended.

CARAWAY, J.,

dissenting.

|TI respectfully dissent.

There are puzzling aspects of the plaintiffs’ action. First, in the “Seller’s Disclosure Statement,” the seller advised the buyers to “obtain a survey.” The inaccurate, ambiguous staking at the site observed by plaintiffs was not a survey and was never clearly shown to be the product of the agents of the seller, SMT. Therefore, though plaintiffs may have recourse against a surveyor, that is not their claim against SMT. Next, the plaintiffs did not seek rescission of the sale of the house even though the flowerbed’s encroachment on the adjoining lot (Lot 123) indicates that both parties were in mutual error regarding the object of the sale. Last, when damages are sought against SMT for a flowerbed encroachment, the value of one-half of Lot 123 has no relevance to the measure of those damages which can otherwise be remedied by downsizing the flowerbed.

While I will consider the remedies of rescission and damages below, the majority’s error is in finding the wrong breach of the sales contract. The majority concludes that SMT obligated itself to provide a 10-foot setback and only delivered a house set back 5 feet from the side lot line. Under Civil Code Article 2529, this 10-foot setback promise is viewed by the majority as a “specified” or extra “quality” of the object of the sale as represented by SMT.

An examination of the parties’ deed and all written representations of the seller reveals no such setback warranty. The deed conveys Lot 122, “together with all buildings and improvements located thereon.” It then | ¡¡provides only that the property was “conveyed subject to all recorded servitudes, restrictions, rights-of-way and easements.” SMT’s deed and other written representations never specify that the house was constructed 10 feet away from the common lot line. When a deed says “subject to all recorded restrictions,” that is not a warranty for extra qualities in the home; it is notice of limitations upon the extent of ownership conveyed. With that “subject to” language, SMT did not convey ownership of Lot 122 with complete unfettered use for the plaintiffs, but with limited use. Therefore, this commonly inserted provision in the description portion of the deed relates to the setback restriction, only in that the seller is warning buyer, do not build a structure within 10 feet of the property line unless you get a variance.

The provision of the recorded building restrictions and protective covenants regarding the setback states as follows:

No building or any part thereof, including but not limited to, porches, patios, decks, steps, stoops, verandas, garages or hand rails shall be located, erected, or altered on any Lot in contravention of the applicable setback lines set out on the Subdivision plats, nor nearer than ten feet (10’) from interior property lines. Nevertheless, the Architectural Control Committee or Declarant may waive in writing any setback requirements if, in its opinion, the location of said dwelling is aesthetically acceptable and in harmony with other dwellings in the neighborhood.

The waiver or variance process envisioned by this covenant is one that occurs completely outside of the public records. The variance for the setback, which unquestionably was granted in this case, did not just occur by the subdivider’s unrecorded agreement for the 5-foot variance. Most importantly, it resulted on the ground by the physical construction of the Rhouse. The majority’s reasoning implies that a written waiver should have been recorded in the conveyance records even though the recorded building restrictions make no such requirement. To the contrary, the possibility for an unrecorded setback waiver as revealed in the recorded protective covenants required a physical inspection by the purchaser to determine exactly where the house was located on the lot.

It cannot be argued that at the time of this sale, the location of plaintiffs’ house encroached upon the setback rights of the owner of Lot 123. In fact, SMT was then the owner of Lot 123. Therefore, as to SMT’s general warranty obligation of delivery of peaceful possession of the home on Lot 122 under Civil Code Article 2475, the plaintiffs’ home has never threatened any violation of the setback rules of the subdivision. Accordingly, there being no express or implied warranty for a home to be set back 10 feet from Lot 123, and the home posing no encroachment to the setback restriction of the subdivision, SMT did not breach its contract regarding the home’s location on Lot 122.

The plaintiffs were, nevertheless, entitled to relief in this case. A claim for the greatest relief could have been made to set the sale aside for the parties’ mutual error over what was sold. SMT constructed a flowerbed and placed the lawn sprinkler system partially encroaching on Lot 123. The possibility for rescission of the sale is supported by the jurisprudence. Young v. Stevens, 252 La. 69, 209 So.2d 25 (1967); Hunley v. Ascani 174 La. 712, 141 So. 385 (1932); Jacobs v. Freyhan, 156 La. 585, 100 So. 726 (1924). The question presented would involve whether the encroaching Lflowerbed in this case was such a material cause or motive for the parties’ agreement to render their contract ineffective for mutual error. In the words of Hunley, supra, did “the proposed vendor [have] a good title to everything the plaintiff saw and wanted to purchase”?

Having chosen not to seek a rescission of the sale for the parties’ mutual error, the plaintiffs could claim damages for the alterations necessary to the flowerbed and sprinkler system to curtail their encroachment on Lot 123. Those relatively minor items were attendant to the sale of the home and were not appropriately delivered by SMT. There was a breach of contract for those items. Yet, regarding the measure of damages now applied for this breach of contract, there is a disconnect between the value of one-half the neighboring lot ($27,895) and the expense of a newly reduced flowerbed. This is “apples and oranges.”

In summary, the trial court and this court, including myself, agree that the plaintiffs were entitled to relief. Yet, I find that recorded subdivision restrictions do not create the type of warranty obligation recognized by the majority in the sale of a home, certainly when that home poses no violation of the subdivision restrictions which could be enforced against the vendee by his neighbors. Although the plaintiffs may have been successful in totally rescinding the sale for mutual error, they should not be allowed to create a grossly disproportionate damage claim for landscaping revision by purchasing the neighboring lot.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, CARAWAY and DREW, JJ.

Rehearing denied.

CARAWAY, J., would grant rehearing.