author: PARRO, J. McCLENDON, J.,

text:
    Julie BOUDREAUX, Individually and on Behalf of Her Minor Children, Byron P. Gautreaux and Kayla Marie Gautreaux, et al. v. MID-CONTINENT CASUALTY, et al.
    No. 2005 CA 2453.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.
    Writ Denied Jan. 26, 2007.

      William D. Grimley, Baton Rouge, for Plaintiffs-Appellants Julie Boudreaux, et al.
    Morgan J. Wells, Jr., Christopher R. Pennison, Larzelere, Plcou, Wells, Simpson, & Lonero, L.L.C., Metairie, for Defendants-Appellees Mid-Continent Casualty Co. and Carol G. Harris.
    Carl T. Conrad, Joseph A. Reilly, Jr., Henderson, Reilly & Boudreaux, Houma, for Defendant-Appellee Stefan G. Pribil, M.D.
    Before: PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

lain this unusual appeal arising out of an automobile accident, the issue is whether the defendants can introduce evidence that certain surgical procedures performed on the injured plaintiff were not reasonable and necessary, despite the fact that all medical malpractice claims against the neurosurgeon who performed those procedures were dismissed on a motion for summary judgment. For the following reasons, we affirm the summary judgment in favor of the neurosurgeon and also affirm the denial of the injured plaintiffs motion in limine, which sought to exclude evidence that those surgical procedures were not reasonable and necessary.

FACTUAL AND PROCEDURAL BACKGROUND

Julie Boudreaux was involved in an automobile accident in November 1998, when the car in which she was a passenger was ■ rear-ended at a stoplight by Carol G. Harris. Boudreaux sued Harris and her automobile liability insurer, Mid-Continent Casualty Company (Mid-Continent), claiming damages for her personal injuries. In the course of her medical treatment following the accident, Boudreaux’s family doctor referred her to Dr. Stefan G. Pribil, a neurosurgeon who began treating her in March 1999 for back and neck pain. Her symptoms were not alleviated diming a year of conservative treatment, so in June 2000, Pribil performed a cervical anterior discec-tomy and fusion at C5-6 and C6-7. When this did not completely relieve her complaints of pain, he performed a second surgery in September 2000.

During discovery, Harris and Mid-Continent learned that another neurosurgeon, Dr. H. Carson McKowen, had previously treated Boudreaux for back problems unrelated to this accident. McKowen opined in a deposition that, based on the x-rays he had reviewed, Pribil’s surgery was unnecessary. Harris and Mid-Continent then filed an amended answer, affirmatively alleging that Pribil had performed unnecessary surgery that caused, exacerbated, and/or contributed to Boudreaux’s damages, for which they were “in no way” responsible. Boudreaux believed Pribil’s treatment of her, including [athe surgeries, was justified. However, in light of the affirmative defense, Boudreaux had no choice but to request a medical review panel to examine whether the surgery Pri-bil had performed on her was medically warranted. The panel found no malpractice, but the defendants’ allegation of third party fault regarding Boudreaux’s damages was still extant. Therefore, Bou-dreaux amended her petition to add Pribil as a defendant, alleging that if McKowen’s initial opinion were eventually proved correct, then Pribil had committed medical malpractice, and she had suffered additional injuries due to the unnecessary surgeries.

Eventually, Pribil moved for summary judgment, supported by the medical review panel opinion and claiming Bou-dreaux could not provide expert medical evidence sufficient to establish that his treatment of her fell below the standard of care. Boudreaux opposed the motion and, in the alternative, moved for summary judgment and/or to strike the defendants’ affirmative defense based on Pribil’s malpractice. Boudreaux obtained an affidavit from McKowen in which he reiterated his opinion that the surgery performed by Pri-bil was unnecessary, but also stated that another physician evaluating her condition could reach a different conclusion and that he did not think Pribil’s actions breached the standard of care. Based on this and the panel opinion, the court found Bou-dreaux had not provided any evidence that Pribil had breached the standard of care, granted Pribil’s motion for summary judgment, and in a judgment signed November 19, 2004, dismissed Boudreaux’s claims against Pribil.

In another judgment, signed December 6, 2004, the court also granted her motion to strike the affirmative defense of medical malpractice alleged by the defendants against Pribil. However, in discussing this issue in oral reasons, the court also stated that the defendants could present evidence at trial that the surgery was not reasonable or necessary. The explanation given was as follows:

The only way Dr. Pribil could be added to the line for the liability section of the [jury] interrogatory is if there was a breach in the standard of care Dthat caused her further injury. It does not prevent Mid-Continent from arguing that the surgery was unnecessary. But even if they argue that the surgery was unnecessary, that doesn’t add Dr. Pribil to the line of negligence.
# * ⅝
Now the argument that counsel and Mid-Continent can make at jury trial that the surgery was unnecessary remains. I don’t think they will be prevented any more than they would if this was a chiropractic case and a lawyer comes to court and says, well, the person didn’t really need to go but just kept going. Or if this was some other type of treatment issue. It’s not a fault issue. They may just claim that it was unnecessary. And the jury can consider that. But it’s not going [to add] another chair at the table or a line on the apportionment of fault.

Boudreaux filed a motion in limine, asking the court to exclude all testimony questioning the reasonableness and necessity of the surgery or, in the alternative, to reconsider its ruling on Pribil’s motion for summary judgment and reinstate the claims against him. In their response to this motion, Mid-Continent and Harris supported her request to reconsider the granting of Pribil’s motion for summary judgment, but opposed her motion in li-mine to exclude evidence that the surgery was unnecessary. Pribil, of course, opposed both requests. On March 14, 2005, the court denied the motion for reconsideration and maintained the summary judgment previously rendered in favor of Pri-bil. On March 31, 2005, the court denied the motion in limine and designated its judgment as final in accordance with LSA-C.C.P. art. 1915(B)(1).

Boudreaux appeals both judgments — the summary judgment in favor of Pribil and the interlocutory judgment on the motion in limine. She argues that the trial court was inconsistent in its decisions to grant summary judgment in favor of Pribil on the issue of medical malpractice, but still allow evidence at trial that the surgeries he performed were unnecessary. She contends that a physician’s surgical decision cannot be within the standard of care, while at the same time be unreasonable and unnecessary. She also assigns as error the court’s decision to grant summary judgment, claiming that unresolved genuine issues of material fact remain.

^SUMMARY JUDGMENT

Applicable Law

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Co-op., Inc., 01-2956 (La.App. 1st Cir.12/30/02), 836 So.2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

On a motion for summary judgment, if the moving party will not bear the burden of proof at trial on the matter that is before the court on the motion, the moving party must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. If the adverse party then fails to produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. See LSA-C.C.P. art. 966(C)(2); Gisclair v. Bonneval, 04-2474 (La.App. 1st Cir.12/22/05), 928 So.2d 39, 41.

Summary judgments are reviewed on appeal de novo. An appellate court thus asks the same questions as does the trial 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. Ernest v. Petroleum Serv. Corp., 02-2482 (La.App. 1st Cir.11/19/03), 868 So.2d 96, 97, writ denied, 03-3439 (La.2/20/04), 866 So.2d 830. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345 (La.App. 1st Cir.12/29/97), 706 So.2d 525, 528.

A plaintiff in a medical malpractice action is required to establish: (1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant | ^practices in a particular specialty and the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within the involved medical specialty; (2) that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and (3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred. See LSA-R.S. 9:2794(A). Summarizing, the plaintiff must establish the standard of care applicable to the doctor, a violation by the doctor of that standard of care, and a causal connection between the doctor’s alleged negligence and the plaintiffs injuries. Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228,1233.

To meet this burden of proof, the plaintiff generally is required to produce expert medical testimony. Lefort v. Venable, 95-2345 (La.App. 1st Cir.6/28/96), 676 So.2d 218, 220. Although the jurispru dence has recognized exceptions in instances of obvious negligence, those exceptions are limited to instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can. Pfiffner, 643 So.2d at 1234. The jurisprudence has thus recognized that an expert witness is generally necessary as a matter of law to prove a medical malpractice claim. Fagan v. LeBlanc, 04-2743 (La.App. 1st Cir.2/10/06), 928 So.2d 571, 575. Moreover, the jurisprudence has held that this requirement of producing expert medical testimony is especially apt when the defendant has filed a motion for summary judgment and supported such motion with expert opinion evidence that the treatment met the applicable standard of care. Id.; Lee v. Wall, 31,468 (La.App. 2nd Cir.1/20/99), 726 So.2d 1044, 1046-47.

Discussion

Boudreaux would have had the burden of proof at trial for her claim of medical malpractice against Pribil. Pribil, as the party bringing the motion for summary judgment, was required only to point out an absence of support for one or more elements essential to her claim against him. He did so by supporting his motion with | .Reposition testimony from all of the doctors on the medical review panel, in which they reiterated and explained their unanimous conclusion that his treatment of Boudreaux, including the surgical procedures, met the applicable standard of care. Pribil also submitted his own affidavit, in which he fully described his qualifications, the complete course of Boudreaux’s treatment, the reasons for the surgical procedures he had performed, and the results of those procedures. With this evidence, Pri-bil satisfied his burden of pointing out an absence of support for an essential element of Boudreaux’s claim, namely, that his treatment of her violated the applicable standard of care.

Boudreaux was at this point required to produce factual evidence sufficient to establish that she would be able to satisfy her evidentiary burden of proof on this issue at trial. Since the nature of her claim was not such that a lay jury could perceive negligence in Pribil’s conduct as well as any expert could, she had to provide expert medical opinion to support her claim that Pribil had breached the applicable standard of care. To meet this burden, she relied on the opinion expressed by McKowen, who stated in his affidavit that after a thorough review of Boudreaux’s medical records, he continued to believe that the surgery performed by Pribil was unnecessary. However, he also qualified that statement by noting, “Trying to translate my lone opinion into the standard of care is not a valid proposition.” McKowen further acknowledged that “Probably a third of neurosurgeons would have offered this patient surgery after failure of prolonged conservative care.”

Boudreaux argues that McKowen’s continued belief that the surgery was not necessary creates a genuine issue of material fact. She contends that treatment which is unnecessary can never fall within the standard of care and is malpractice. We disagree with this logic, as did the trial court and her own medical expert. The fact that surgery is ultimately determined not to have been necessary does not convert a well-considered decision to do that surgery, and the competent performance of it, into malpractice. As noted by McKowen in his affidavit, his conclusion that the surgery was not needed does not equate to a breach of the standard of care by Pribil.

Given that her own medical expert stated clearly, “I do not believe Dr. Pribil breached the standard of [care] by. doing the surgery, nor did I ever mean to imply |ssuch a position,” we agree with the trial court that Boudreaux faded to produce evidence that she would be able to establish such a breach at trial. Therefore, there was no genuine issue of material fact, and summary judgment was appropriate, as a matter of law.

MOTION IN LIMINE TO EXCLUDE EVIDENCE

Generally, all relevant evidence is admissible. LSA-C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. LSA-C.E. art. 401. Whether evidence is relevant is within the discretion of the trial judge, and his ruling will not be disturbed on appeal in the absence of a clear abuse of his discretion. Hunter v. State ex rel. LSU Med. Sch, 05-0311 (La.App. 1st Cir.3/29/06), 934 So.2d 760, 763.

The basis of Boudreaux’s motion in limine was that since the claims of medical malpractice against Pribil had been dismissed, any opinion evidence as to whether the surgery he performed was unnecessary and unwarranted was no longer relevant, and therefore, should not be allowed. We disagree. Like her argument concerning the motion for summary judgment, this contention is based on the false premise that if the surgery was not necessary, then it must have been malpractice to perform it. As discussed above, it is not necessarily a breach of the standard of care if a physician treats a patient for an extensive period of time, conducts diagnostic tests, and decides that a certain surgical procedure is warranted, but later the determination is made that such surgery was not actually necessary. Therefore, the fact that the medical malpractice allegations are no longer a part of the lawsuit does not render irrelevant all evidence concerning the justification for the surgical procedures that were performed on Boudreaux. As implied by the trial court in its observation that in certain cases, an argument might be made that “the person didn’t really need to go but just kept going,” such evidence may be relevant to a determination of which items of damages the jury may choose to award, depending on whether it believes Bou-dreaux’s injuries from the |9accident were so severe that the surgery was necessary. This evidence may also be relevant for consideration of whether all of Bou-dreaux’s complaints were caused by this particular accident, or whether there was a psychosomatic component to her symptoms.

We conclude that there are facts, other than whether Pribil’s treatment of Bou-dreaux constituted medical malpractice, which may tend to be proved or disproved by evidence concerning the justification for the surgeries. Therefore, the evidence is relevant, and we find no abuse of discretion in the court’s decision to allow it to be presented.

CONCLUSION

Based on the foregoing, the judgment of March 14, 2005, maintaining the November 19, 2004 summary judgment that dismissed all claims against Pribil, is affirmed. The judgment of March 31, 2005, denying the motion in limine, is also affirmed. All costs of this appeal are assessed to Boudreaux.

AFFIRMED.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurring.

LI respectfully concur in the denial of the plaintiffs motion in limine. However, I believe that the trial court must be very cautious and frame the issue of the recovery of medical costs only in terms of causation, and not malpractice. Although unnecessary surgery will, more often than not, equate to malpractice, the question of whether Dr. Pribil committed malpractice by performing “unnecessary” surgery has been resolved. The issue of causation remains. Without the requisite showing of causation, a plaintiff cannot recover medical costs from the tortfeasor or her insurer.

      . Boudreaux filed suit on her own behalf and on behalf of her minor children, Byron P. Gautreaux and Kayla Marie Gautreaux. Other plaintiffs, whose claims are not involved in this appeal, included the driver of the vehicle, Karla Boudreaux Harrison, and another passenger, Stella V. Boudreaux.

      . By this time, a motion for summary judgment on the issue of liability had been decided in Boudreaux’s favor, finding Harris was solely at fault in causing the accident and leaving only damages to be litigated.

      . These actions had to be taken, because the Louisiana Supreme Court had indicated in a recent case that with the advent of pure comparative fault, an original tortfeasor could no longer be held responsible for additional damages caused by subsequent medical malpractice in treating an injured plaintiff. Rather, the defendant could present evidence of a health care provider's fault as part of its defense, and if the fact finder concluded that the plaintiff's damages were caused by more than one person, then each joint tortfeasor would be liable only for its degree of fault and could not be held solidarily liable with another tort-feasor for damages attributable to that other tortfeasor's fault. See Dumas v. State ex rel. Dept. of Culture, Recreation & Tourism, 02-0563 (La. 10/15/02), 828 So.2d 530, 539.

      . She filed a pleading entitled, "Motion in Limine to Prevent Testimony on Whether the Surgery Performed was Reasonable and Necessary and in the Alternative, Motion to Reconsider.” We note that the Louisiana Code of Civil Procedure has no provisions for a "Motion to Reconsider.” The proper designation when seeking reconsideration of a judgment is a "Motion for New Trial.” See LSA-C.C.P. arts.1971-1979.

      . Of course, once the plaintiffs’ claims of medical malpractice had been dismissed on summary judgment, the court was correct in also striking the affirmative defense of medical malpractice.


source: Caselaw Access Project

author: GUIDRY, J. McCLENDON, J.,

license: Public Domain

text:
    In the Matter of the SUCCESSION OF Coley Austill SCOTT, Sr.
    No. 2005 CA 2609.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.
    Writ Denied Jan. 26, 2007.

      Thomas W. Acosta, Jr., Port Allen, Counsel for Appellee Dawn Scott.
    Carey J. Messina, Todd A. Rossi, Scott D. Huffstetler, Baton Rouge, Counsel for Appellants Katie Robison Scott, Coley A. Scott, Jr., and Charles Allen Scott.
    Gregory 0. Wilson, Baton Rouge, Counsel for Appellee Steven Scott.
    Forrest Scott, Denham Springs, Appel-lee In Proper Person.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

| ¡Appellants challenge a trial court judgment declaring that the income beneficiary of a testamentary trust was not a “named legatee” for purposes of the testament’s in terrorem clause. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On September 19, 2004, Coley Austill Scott, Sr., died at Our Lady of the Lake Hospital in Baton Rouge. A notarial testament executed by Mr. Scott on September 13, 2004, was filed for probate. After making particular bequests to certain individuals, the testament provided in pertinent part, as follows:

III.

I leave 50% of everything else that I own or have an interest in to my wife Katie Robison.

IV.

I leave the remaining 50% of everything else that I own or have an interest in to be divided equally by Coley A[.] Scott, Jr[.], Charles A[.] Scott, Steven Scott, Forrest Scott and to the Dawn Scott Trust created herein.
*****

VIII.

If any of the named legatees should contest any provision in this will, then the naming of that person in my will shall be struck and they shall not be considered to be a legatee.
* * * * ⅜

IX.

Trust provisions
I hereby create the following trust to be used to carry out the provisions of my will, said trust to take effect upon my death.

1 A- Trustee

I name Steven Scott and Forrest Scott as Trustees of this trust...

B. Trust Name

The name of the Trust created herein shall be the “Dawn Scott Trust”.

C. Trust Property

The trust property of the trust shall consist of all of those properties bequeathed to this trust in my will...

D. Beneficiaries

The Beneficiaries of this trust shall be as follows:

D- Dawn Scott shall be the income beneficiary of the trust for the remainder of her life and, thereafter, her children in being at the time of her death shall be the income beneficiaries.
D- The children of Dawn Scott in being at the time of her death, or the descendants of them, or the survivors of them if no descendants, shall be the principal beneficiaries of the trust.

Paragraph VIII of the will consists of an in terrorem clause. An “in terrorem clause,” also called a “no-contest clause,” is a testamentary provision providing for the revocation of a bequest if a legatee contests the validity of the will. BLACK’S LAW DICTIONARY 819 (6th ed.1990).

In June 2005, Mr. Scott’s daughter, Dawn Scott, filed a petition for a declaratory judgment seeking a declaration that she was not subject to the in terrorem clause in her father’s will because she was not one of the “named legatees.” Following a hearing, the trial court ruled in favor of Dawn Scott and granted the declaratory judgment. This appeal by Katie Robison Scott, Coley A. Scott, Jr., and Charles Allen Scott followed.

DISCUSSION

Controlling in this matter is La. C.C. art. 1611, which provides:

14A. The intent of the testator controls the interpretation of his testament. If the language of the testament is clear, its letter is not to be disregarded under the pretext of pursuing its spirit. The following rules for interpretation apply only when the testator’s intent cannot be ascertained from the language of the testament. In applying these rules, the court may be aided by any competent evidence.
B. When a testament uses a term the legal effect of which has been changed after the date of execution of the testament, the court may consider the law in effect at the time the testament was executed to ascertain the testator’s intent in the interpretation of a legacy or other testamentary provision.

Thus, if the language of the testament is unambiguous, the will must be carried out according to its written terms, without reference to extrinsic evidence. See Succession of Williams, 608 So.2d 978, 975 (La.1992). Based upon our review, we find no ambiguity in the will at issue herein. The in terrorem clause clearly prohibits “named legatees” from contesting the will. The term “named legatees” is not ambiguous.

According to La. C.C. art. 871, a succession “is the transmission of the estate of the deceased to his successors. The successors thus have the right to take possession of the estate of the deceased after complying with applicable provisions of law.” There are two kinds of succession: testate and intestate. La. C.C. art. 873. Accordingly, there are two kinds of successors: testate successors, also called legatees, and intestate successors, also called heirs. La. C.C. art. 876. Thus, a legatee, as that term is understood, is one entitled to take possession of the estate of the deceased pursuant to the terms of a testament.

In Succession of Carriere, 216 So.2d 616, 618-19 (La.App. 4th Cir.1968), appl. denied, 258 La. 639, 219 So.2d 175 (1969), the court noted the following:

A trust, as delineated in the Louisiana Trust Code, is the relationship resulting from the transfer of title of property to a | sperson to be administered by him as a fiduciary for the benefit of another. [La. R.S. 9:1781.] A trust may be created by testament, provided that the testament is confected in one of the forms prescribed by law for donations mortis causa. [La. R.S. 9:1732, 9:1733 and 9:1751.] Moreover, the trust instrument may dispose of property to the same extent that it may be alienated free of trust, and it may impose any condition not forbidden by law or against public morals.
Under the Trust Code, the trustee is vested with title to the trust property, which he must administer as a fiduciary. [La. R.S. 9:1781.]
‡ ⅝ ‡ ⅛ ⅛
The foregoing elucidation leads to the following conclusions. When property is bequeathed in a trust, title thereto vests in the trustee. The trustee is the proper person to sue to enforce the rights of the trust, and there is no provision in our law which prohibits the trustee, as a legatee under a testament, from filing a petition for simple possession in conformity with the rationale of Articles 3031-3035 of the Code of Civil Procedure.
⅜ * ⅝ * *
[W]e are convinced that the lower court erred in refusing to send the trustee of the trust created in the probated testament into simple possession, since all of the requirements therefor have been met and since the trustee is legally entitled to sue to enforce all rights of the trust, including the right to be placed in possession.

This court also recognized the distinction between the legal status of the trustee and that of the trust beneficiary in Succession of Harleaux, 351 So.2d 1267, 1270-71 (La.App. 1st Cir.1977), affd. in part, rev’d. in part, 359 So.2d 961 (La.1978), when it determined that a trust beneficiary, although benefiting from the testamentary trust established by the decedent, was “not a legatee under the will.” It follows then that it is the trustee, and not a beneficiary, who is a legatee under the will. It is presumed that an attorney knows the law and has clearly expressed the testator’s intent in 1 (¡drafting the will. Succession of Acy, 97-0661, p. 7 (La.App. 1st Cir.4/8/98), 711 So.2d 341, 345.

Simply put, the mere fact that Dawn Scott is a beneficiary of the trust does not render her a “named legatee.” The unnamed existing and future children of Dawn Scott are also beneficiaries of the trust, and' clearly they are not “named legatees.” Because Dawn Scott is not a “named legatee” as that term is unambiguously understood, the court cannot disregard the clear language of the will in an effort to ascertain the intent of the testator. Accordingly, we find that the trial court did not err in granting a declaratory judgment in favor of Dawn Scott.

CONCLUSION

For the foregoing reasons, the judgment appealed from is hereby affirmed and this case is remanded for proceedings consistent with this opinion. All costs of this appeal are assessed to appellants, Katie Robison Scott, Coley A. Scott, Jr., and Charles Allen Scott.

AFFIRMED AND REMANDED.

McCLENDON, J., dissents and assigns reasons.

McCLENDON, J.,

dissenting.

|TI must respectfully dissent, finding the term named legatee, as it relates to testamentary trusts, to be ambiguous. Therefore, I believe that the court should have examined the testator’s intent. See LSA-C.C. art. 1611.

      . Under Louisiana law, title to the trust property vests in the trustee alone, and a beneficiary has no title to or ownership interest in trust property, but only a civilian “personal right” vis-a-vis the trustee, to claim whatever interest in the trust relationship the settlor has chosen to bestow. Bridges v. AutoZone Properties, Inc., 2004-0814, p. 18 (La.3/24/05), 900 So.2d 784, 796-97.


author: PETTIGREW, J.

text:
    Sylvester PERKINS v. ALLSTATE INSURANCE COMPANY, Sharon Bunch and John Bunch.
    No. 2005 CW 2676 R.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Clarence T. Nalls, Jr., Baton Rouge, for Plaintiff-Respondent Sylvester Perkins.
    David C. Forrester, Mark G. Murphy, Baton Rouge, for Defendant-Relator Allstate Insurance Company.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

| ¡.In this case, defendant seeks review of the trial court’s judgment vacating a jury verdict and granting plaintiffs motion for new trial. For the reasons that follow, we reverse the trial court’s judgment and reinstate the jury verdict rendered in favor of defendant.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Sylvester Perkins, owner of a home insured by defendant, Allstate Insurance Company (“Allstate”), instituted this suit against Allstate after his home was destroyed by a fire and Allstate refused his claim. In response to Mr. Perkins’ suit, Allstate filed an answer and asserted the following three defenses: (1) arson; (2) breach of the obligation to cooperate; and (3) misrepresentation. The matter proceeded to trial by jury. At the conclusion of the evidence, the jury found in favor of Allstate on each of its three defenses. A judgment in accordance with the jury’s findings was signed by the trial court on July 1, 2005.

Mr. Perkins subsequently filed a motion for judgment notwithstanding the verdict and, in the alternative, a motion for new trial, attacking the jury verdict on several issues, including an allegation of jury misconduct. This allegation was based on the claim that Daryl May, the jury foreman, and Charlene Smith, the Mayor of Zachary and the owner of the Allstate agency where Mr. Perkins had obtained his homeowner’s insurance, had an intimate relationship that Mr. May failed to disclose at the time of trial. Mr. Perkins maintained that this relationship caused Mr. May “to be so biased so that it affected his ability to be fair and impartial.” There was also a claim that Mr. May had a Zachary address that he failed to disclose in an effort to conceal his relationship with Mrs. Smith. The motion was set for hearing at which time the trial court dismissed Mr. Perkins’ motion except as to the allegation of jury misconduct. The trial court deferred a decision on this issue, allowing plaintiff an additional 45 days to conduct discovery in order to present evidence to support the allegation of jury misconduct.

The hearing on the jury misconduct issue was held on for November 28, 2005, at which time the trial court heard argument from both sides and considered the depositions laof Mr. May and Mrs. Smith. Thereafter, the trial court granted Mr. Perkins’ motion for new trial, offering the following reasons: “Considering the totality of the issue raised, notwithstanding the inability to substantiate an alleged relationship, all things considered, the court will vacate the judgment of the jury and grant a new trial.” Judgment granting the new trial was signed on December 12, 2005.

Aggrieved by the trial court’s ruling, Allstate sought the supervisory review of this court. On February 21, 2006, this court denied the writ application, prompting Allstate’s writ application with the Louisiana Supreme Court. Perkins v. Allstate Ins. Co., 2005 CW 2676 (La.App. 1 Cir. 2/21/06)(unpublished). On May 26, 2006, the Louisiana Supreme Court granted the writ and remanded the matter to this court for briefing, argument, and an opinion. Perkins v. Allstate Ins. Co., 2006 CC 0627 (La.5/26/06)(unpublished). The sole issue for our review is whether the trial court erred in granting Mr. Perkins’ motion for new trial.

DISCUSSION

In support of his position that a new trial on the issue of jury misconduct was appropriate, Mr. Perkins asserts that Mr. May withheld evidence of his bias towards Allstate, in particular, his “intimate relationship” with Mrs. Smith. Mr. Perkins argues that as a result of Mr. May’s lack of candor, he was deprived, during the jury selection process, of his right to challenge Mr. May for cause. Thus, Mr. Perkins maintains a new trial was warranted.

To the contrary, Allstate argues the trial court erred in failing to give the jury verdict the great weight it is due. Allstate contends reversal is appropriate because Mr. Perkins failed to prove the allegation made in his motion for new trial, i.e., that Mr. May and Mrs. Smith had a romantic relationship. Moreover, Allstate emphasizes the fact that Mrs. Smith never had any contact with Mr. Perkins regarding his Allstate coverage or his claim and is not a named party to the suit. Because, in its view, Mr. Perkins did not establish jury misconduct or a miscarriage of justice, Allstate asserts the trial court erred in granting a new trial.

|4In its brief to this court, Allstate further argues that “[e]ven if this Court could find some level of juror misconduct in this case, the standard for granting a new trial requires the trial court, exercising its discretion, to be convinced by its examination of the facts that the judgment would result in a miscarriage of justice.” Allstate maintains that the trial court did not follow this standard as there was no finding of juror misconduct or any reference to a possible miscarriage of justice. Thus, Allstate asserts, the motion for new trial should not have been granted. Following a thorough review of the record before us, we agree.

It is well settled in Louisiana law that although the granting or denying of a motion for new trial rests within the wide discretion of the trial court, the discretion of the court is limited. Davis v. Wal-Mart Stores, Inc., 2000-0445, p. 10 (La.11/28/00), 774 So.2d 84, 93. As explained in Campbell v. Tork, Inc., 2003-1341 (La.2/20/04), 870 So.2d 968:

The fact that a determination on a motion for new trial involves judicial discretion ... does not imply that the trial court can freely interfere with any verdict with which it disagrees. The discretionary power to grant a new trial must be exercised with considerable caution, for a successful litigant is entitled to the benefits of a favorable jury verdict. Fact finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury’s responsibility.

Campbell, 2003-1341 at 3, 870 So.2d at 970 (citing Gibson v. Bossier City General Hospital, 594 So.2d 1332, 1336 (La.App. 2 Cir.1991)). Thus, the applicable standard of review in ruling on a motion for a new trial is whether the trial court abused its discretion. Application of this standard requires the balancing of two very important concepts: the great deference given to the jury in its fact finding role and the great discretion given to the trial court in deciding whether to grant a new trial. Davis, 2000-0445 at 11, 774 So.2d at 93-94. “The scales are clearly tilted in favor of the survival of the jury’s verdict, but the trial court is left with a breadth of discretion which varies with the facts and events of each case.” Id.

In Brown v. Hudson, 96-2087 (La.App. 1 Cir. 9/19/97), 700 So.2d 932, writ denied, 97-2623 (La.1/9/98), 705 So.2d 1103, cert. denied, 524 U.S. 916, 118 S.Ct. 1.2297, 141 L.Ed.2d 157 (1998), this court considered a claim of juror misconduct in a case involving an injured motorist who sued an automobile manufacturer alleging products liability. Following a jury trial, judgment was rendered in favor of the automobile manufacturer. Thereafter, the plaintiff filed motions for a judgment notwithstanding the verdict, or in the alternative, for a new trial based on her post-trial discovery that the jury foreman failed to disclose the fact that he had been named as a defendant in a personal injury lawsuit four and a half years earlier when specifically asked during voir dire if he had ever been involved in any lawsuits.

Early on in the opinion, this court noted a history of hesitancy on the part of Louisiana courts towards setting aside jury verdicts based on allegations of improper behavior.

Under Louisiana law, not every instance of jury or juror misconduct necessitates the granting of a new trial or the remand of a case for a new trial. The trial judge has much discretion in determining whether to grant a motion for a new trial. Instead, the burden falls upon the mover to prove that the level of the behavior was of such a grievous nature as to preclude the impartial administration of justice.
A decision to deny a motion for new trial based upon jury misconduct is reviewed pursuant to an abuse of discretion standard. La.Code Civ. P. article 1972 sets forth the peremptory grounds for a new trial and provides in pertinent part that “[a] new trial shall be granted, upon contradictory motion of any party, in the following cases: * * * (3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.” Improper behavior by a juror or jury is not defined and must be determined by the facts and circumstances of each particular case.
A review of Louisiana jurisprudence relative to juror or jury misconduct reveals that the courts of this state have been reluctant to set aside jury verdicts based upon allegations of improper behavior.

Brown, 96-2087 at 4-5, 700 So.2d at 935-936 (citations omitted). Next, it was noted that there was no debate about the untruthfulness of the jury foreman’s response to the question involving prior lawsuits. This court entertained the thought of whether the untruthfulness could have resulted from a willful attempt to mislead the court or from an innocent misunderstanding given that the suit in which he was named settled and never went to trial. Without resolving the issue, this court concluded that this act alone did not | ^constitute behavior of such a grievous nature so as to preclude the impartial administration of justice.

Our system of justice is centered around a search for the truth, and for this reason, we cannot condone this juror’s failure to disclose facts asked of him during voir dire. Nevertheless, we cannot accept Mrs. Brown’s argument that this juror was automatically biased and highly opinionated against her position at trial as a result of this earlier undisclosed and unrelated litigation. In our opinion, the fact that the juror failed to disclose he had been previously sued does not, by itself, constitute behavior of such a grievous nature so as to preclude the impartial administration of justice. For this reason, we cannot say that the trial court’s refusal to grant a new trial constituted an abuse of discretion.

Brown, 96-2087 at 8, 700 So.2d at 937.

In the instant case, both Mr. May and Mrs. Smith were deposed in an effort to explore the alleged juror misconduct. In her deposition, Mrs. Smith reported she maintains no daily involvement with the Allstate office she owns and has had no involvement with Mr. Perkins’ claim. She denied knowing Mr. May and testified she did not recall ever meeting Mr. May. Mrs. Smith admitted to filing for divorce from her husband of thirty-four years, Michael Smith, in February 2005. However, when asked if there was any truth to the allegation that the divorce was prompted by her husband discovering her in city hall with Mr. May in an inappropriate position, Mrs. Smith responded in the negative.

In his deposition, Mr. May, a builder, denied having a close relationship or a romantic relationship with Mrs. Smith, but acknowledged meeting her on a prior occasion at a fundraiser. He admitted frequenting the building permits office in the Zachary City Hall, which is where the mayor’s office is, but denied any interaction with or sightings of Mrs. Smith during these visits. He verified that he did reveal his contacts with the permits office during voir dire when asked if he knew anybody affiliated with the City of Zachary. Further along in his deposition, Mr. May denied ever having seen a sign on Main Street in Zachary that advertises Mrs. Smith’s Allstate business with her name included alongside the business name. As to his marital status, Mr. May reported that he divorced his wife in August 2005.

17As to the second basis of jury misconduct, Mr. May was questioned as to why he reported his address to be on Normandy Drive in Baton Rouge on the voir dire form, but stated in the deposition that his address was on Turnberry Avenue in Zachary. Mr. May explained that because he is a builder, he frequently moves as properties are sold. He further indicated that at the time of the trial, he was living on Normandy Drive. However, after the trial, he moved to Turnberry Avenue in Zachary when he became separated from his wife. He described this as a temporary residence. When informed by counsel for Mr. Perkins that records obtained from the Secretary of State’s Office showed the domicile address on Turnberry Avenue was incorporated in 1994, long before the trial, Mr. May conceded that was, in fact, the case. Thereafter, when asked why he failed to give the Turnberry Avenue address as his residence when asked during voir dire, he responded, “Because I probably was not [living there] at that time.”

As previously stated, the party seeking a new trial based on jury misconduct must prove that the level of behavior was of such a grievous nature as to preclude the impartial administration of justice. Brown, 96-2087 at 4, 700 So.2d at 935. This is a heavy burden to overcome. Moreover, the law does not favor a multiplicity of litigation; a litigant having been afforded a day in court will not be granted a second opportunity in the absence of good and compelling reasons. Bond v. City of Baton Rouge, 129 So.2d 887, 893 (La.App. 1 Cir.1961).

We have thoroughly reviewed the record before us and can summarize the evidence concerning the alleged juror misconduct as follows: (1) Mr. May admitted that he may have met Mrs. Smith on one occasion at a political fundraiser; (2) Mrs. Smith denied ever meeting Mr. May; (3) Both Mr. May and Mrs. Smith denied the existence of any romantic relationship between them; and (4) Mr. May acknowledged that he did in fact have a house located on Turnberry Avenue in Zachary that he moved into when he became separated from his wife. This evidence, when juxtaposed with the great weight to be afforded a jury’s verdict, falls far short of the substantial burden that must be met in order for a new trial to be granted on the basis of juror misconduct. Under the facts and circumstances presented herein, Mr. Perkins has failed to establish that Mr. May’s conduct | Swas of such a nature so as to have precluded the impartial administration of justice. Thus, the trial court abused its discretion in granting Mr. Perkins a new trial.

CONCLUSION

For the above and foregoing reasons, we reverse the trial court’s judgment granting Mr. Perkins’ motion for new trial and hereby reinstate the June 9, 2005 jury verdict in favor of Allstate. All costs associated with this appeal are assessed against Mr. Perkins.

REVERSED; JURY VERDICT REINSTATED.

GUIDRY, J., concurs in the result.


text:
    Robert J. NEIL v. Ronald ELLENDER, Lawrence Ellen-der, Jr., James J. Thames, Estate of Carl Ellender, Jr., Patricia Bou-dreaux, Estate of Lawrence Ellender, Sr., David Chauvin, Loretta Ellender Tanner, Ruby Ellender Portener and Louisiana Employment Security Federal.
    No. 2005 CA 1494.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2006.
    Rehearing Denied Jan. 24, 2007.

      Larry Patrick Boudreaux, Sr., Thibo-daux, for Defendant/Appellant, Donald T. Boudreaux.
    Paul Antoine Lapeyrouse, Chauvin, for Plaintiff/Appellee, Robert J. Neil.
    Panel composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, and Judge LEON A. CANNIZZARO, Jr., serving as Judges ad hoc by special appointment of the Louisiana Supreme Court.
   Chief Judge JOAN BERNARD ARMSTRONG, Judge, Ad Hoc.

It The defendant-appellant, Patricia El-lender Boudreaux, appeals a June 30, 2004 judgment denying her rule to order the plaintiff-appellee, Robert Neil, to deposit the additional sum of $24,510.95 into the court registry.

The plaintiff filed a petition for partition by licitation on April 25, 2001, naming eleven parties alleged to own immovable property to effect a partition. The property was ordered to be sold at public sale and one William Dunckelman, Notary Public, was appointed for a homologation.

On July 24, 2002, the plaintiff was the successful bidder for a sum of $666,000.00.

The record contains a process verbal of the sale filed with the court on August 2, 2002, showing that from the $660,000.00 purchase price, $24,510.96 was deducted for costs and commission, leaving a balance of $635,489.04 which was turned over to the plaintiff.

On August 9, 2002, Mr. Dunkleman filed a motion and order to deposit the net sale proceeds in to the court registry and for a concursus proceeding, which net proceeds (after Mr. Neil deducted what he claimed to be his share) Mr. Dunkleman states to be $327,085.75. There is nothing in the pleadings filed by Mr. Dunkleman to indicate that this figure does not include the $24,510.96 in costs and commission which should have been assessed entirely against the plaintiff, Mr. Neil, in accordance with the judgment of November 27, 2002, discussed below, but it is uncontested that | Jt does not. In other words, the amount paid into the registry of the court should have been $351,596.71 instead of the $327,085.75 that was actually paid in.

On August 13, 2002, the court signed the order authorizing the payment into the registry of the court without specifying any amount or approving any distribution amount. The motion requesting the order stated that: “Mover [Mr. Dunkelman] is unable to determine which claimants rightfully owns said funds and in what proportions.” The appellant asserts that this order was never served and the plaintiff does not contest that assertion. In fact, the plaintiff makes only two arguments in his appellate brief: (1) If there are expenses to be paid, those payments are made from the price of the winning bid. (2) The appellant failed to appeal the con-cursus order in a timely manner.

On August 28, 2002, the plaintiff filed a rule to show cause in which he “avers that he should be taxed 48% of the costs instead of all costs in this matter” which included court costs and sheriffs fees. In other words, the plaintiff petitioned the court to assess costs to all owners proportionately instead of assessing all costs to him alone.

On November 27, 2002, the trial court rendered judgment against the plaintiff, ordering:

“[T]hat there be judgment in favor of RONALD ELLENDER, ET AL. and against ROBERT J. NEIL, denying his rale to assess cost against the undivided interest owners of the property or to take cost from the gross proceeds prior to distribution |aof the funds.... Mr. Robert J. Neil will bear the costs of this litigation.”

The trial court’s simultaneously issued written reasons for judgment saying that:

The Court after considering the law, jurisprudence and memorandums submitted on the issue before the Court finds that court costs, fees and commission are payable by the successful bidder, Mr. Robert J. Neil. Therefore the Court will deny Mr. Neil’s rale to assess costs to the undivided interest owners.

The plaintiff appealed this decision, but he does not contest the fact that it was dismissed as abandoned.

The trial court judgment ordering the plaintiff to bear all costs and commission was rendered on November 27, 2002, after the August 18, 2002 order ordering the deposit into the registry of the court. From this we draw the conclusion that the order of August 13, 2002 was in no way intended to address the issue of costs and commission. Therefore, there was no reason for the appellants to appeal the August 18, 2002 order in reference to costs and commission.

As noted above, the amount deposited by Mr. Dunkelman into the registry of the court did not include the amount necessary to hold Mr. Neil accountable for the costs and commission. At the time the court had not yet rendered its November 27, 2002 judgment explicitly taxing those amounts against Mr. Neil exclusively.

On March 10, 2004, the appellants filed a rale to show cause seeking an order compelling the plaintiff to deposit the additional sum of $24,510.95 | Representing the costs and commission due from the plaintiff into the court registry. In opposition to this rule, the plaintiff filed exceptions of prescription, res judicata, non-joinder of a party, vagueness or ambiguity, improper cumulation of action, and no right and/or cause of action. The trial court in denying the appellants rule granted the plaintiffs exceptions of prescription, res judicata, and non-joinder of a party, but denied the plaintiffs exceptions of vagueness or ambiguity, improper cumulation of action, and no right and/or cause of action. This judgment was amended on October 21, 2005, pursuant to an order of remand from the First Circuit Court of Appeal, 2005-CA-1494 (10/17/05), adding language dismissing the appellants’ claims with prejudice at their costs.

We find nothing in the record nullifying, overruling, or superceding the judgment of November 27, 2002, ruling that Mr. Neil is responsible for all of the costs and commission. The plaintiff does not contend otherwise. We further note that the amount deposited into the registry of the court that did not include the court mandated costs and commissions was the amount calculated by plaintiff and turned over to Mr. Dunkelman. We do not believe that the plaintiff should be allowed to benefit from this calculation in the absence of any compelling legal reason for doing so.

For the foregoing reasons, we reverse the judgment of the trial court and render judgment in favor of the appellants and against the plaintiff-appellee, Mr. Neil, and hereby order Mr. Neil to pay the sum of $24,510.95 into the registry of the court, which funds are to be distributed in a manner |Rconsistent with these proceedings. Mr. Neil is to bear all costs of these proceedings.

REVERSED AND REMANDED

MURRAY, J., concurs in the result.

MURRAY, J., Concurs in the Result.

      . Mr. Neil does not dispute the amount of the costs and commission.

      . Emphasis in original.


author: ROLAND L. BELSOME, Judge.

text:
    Nicolas ESTIVERNE v. The TIMES-PICAYUNE, L.L.C., Keith O’Brien, Susan Finch and Their Insurers (Unknown at this Time), Charles Plattsmier, in his Individually Capacity.
    No. 2006-CA-0571.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 20, 2006.

      Nicolas Estiverne Houston, TX, In Proper Person, PlaintiffyAppellant.
    James R. Swanson, Loretta G. Mince, Lance C. McCardle, Correro Fishman Haygood Phelps Walmsley & Casteix, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

_J¿This appeal is taken from the trial court’s granting of a special motion to strike dismissing Nicolas Estiverne’s (“Mr.Estiverne”) claims against the Times-Picayune, L.L.C. and Susan Finch (collectively “The Times-Picayune”) and awarding The Times-Picayune attorney’s fees of $4,000.00 pursuant to Article 971 of the Louisiana Code of Civil Procedure.

FACTS

In 2000, the Office of Disciplinary Counsel (“ODC”) brought formal charges against Mr. Estiverne alleging that he fraudulently obtained a power of attorney from an elderly woman, Angelina Neil, suffering from Alzheimer’s and Fused it to empty her bank account. In 2003, Mr. Estiverne was criminally charged with exploitation of the infirm in connection with that matter.

On May 31, 2005, The Times-Picayune published a story about Mr. Estiverne’s case. The article reported facts contained in the ODC’s Formal Charge as well as information from the court record of the criminal proceeding. The article written by Susan Finch was titled “Ex-Lawyer accused of bilking ill senior; Secret assets drained in '90s, relative says”. On June 2, 2005, a second article was published reporting on the postponement of Mr. Esti-verne’s criminal trial until July 28, 2005. Shortly thereafter, on July 25, 2005, Mr. Estiverne reached a plea bargain with the district attorney’s office. Under the plea agreement, Mr. Estiverne pled guilty to the crime of theft under $100, La. R.S. 14:67(C). Mr. Estiverne was sentenced to 6 months incarceration at Orleans Parish prison, suspended, and 2 years inactive probation, was ordered to pay restitution in an amount of $98,774.00, and not own or possess a firearm while on probation.

On August 2, 2005, Mr. Estiverne filed a lawsuit, alleging that The Times-Picayune conspired with Chief Disciplinary Counsel Charles Plattsmier to defame him. Subsequently, The Times-Picayune published a third article regarding Mr. Estiverne’s guilty plea and sentence, “Ex-Lawyer pleads guilty to bilking senior”. Mr. Esti-verne supplemented and amended his petition asserting that the third article was defamatory. The Times-Picayune responded to the petition and its supplementation with special motions to strike pursuant to article 971. The trial 1¡¡court granted the motion, dismissing Mr. Esti-verne’s claims against The Times-Picayune.

On appeal Mr. Estiverne claims that the trial court’s ruling is contrary to the law and evidence. More specifically, Mr. Estiverne’s argument focuses on an affidavit submitted by The Times-Picayune. Although Mr. Estiverne’s assignment of error contains a broad statement, the only legal error addressed by Mr. Esti-verne was that the affidavit of The Times-Picayune’s head librarian, Nancy I. Burris, was not authorized by anyone in the corporation and thus, legally defective. The purpose of Ms. Burris’ affidavit was to essentially certify The Times-Picayune articles that are the subject of this lawsuit. As the head librarian she attested to the fact that she is entrusted with the care, custody and control of The Times-Picayune’s publication record. We find Mr. Es-tiverne’s argument to be without merit.

Louisiana Code of Civil Procedure article 971 requires that a defamation suit be stricken unless the plaintiff is able to establish a probability of success on his claim. In order for Mr. Estiverne to succeed in his defamation claim he must prove that The Times-Picayune, with actual malice or other fault, published a false statement with defamatory words, which caused Mr. Estiverne damages. See Sassone v. Elder, 626 So.2d 345, 350 (La.1993); Cangelosi v. Schwegmann Bros. Giant Swper Markets, 390 So.2d 196, 198 (La.1980); Ritchey v. Azar, 383 So.2d 360 (La.1980). The trial court was presented with all the documents evidencing the sources of the information reported on by The Times-Picayune. The evidence |4showed that all the information in the articles was extracted from public records. Mr. Estiverne provided no evidence to contradict the evidence presented by The Times-Picayune, nor was he able to present any evidence that would form a prima facie case for the allegations asserted in his petition other than his own deposition testimony. As the Louisiana Supreme Court stated, “a defamation plaintiff must produce evidence of sufficient quality and quantity to demonstrate that he will be able to meet his burden of proof at trial.” Sassone, 626 So.2d at 351. Mr. Estiverne did not provide the quality or quantity of evidence to establish a prima facie case on his behalf.

Mr. Estiverne also suggests that because he filed his lawsuit in forma pau-peris, the court should not have awarded attorney’s fees to The Times-Picayune. Clearly the statute calls for the prevailing party to be awarded attorney’s fees and costs. See La. C.C.P. art. 971(B). We recognize that in Stern v. Doe, 2001-0914 (La.App. 4 Cir. 12/27/01), 806 So.2d 98, this Court found a failure to assess attorney’s fees against a plaintiff in forma pauperis, under article 971, did not constitute an abuse of the judicial process. However, there is no jurisprudence to suggest that the awarding of attorney’s fees against a plaintiff proceeding in forma pauperis, when warranted by statute, is contrary to the law. Upon review of the trial court’s judgment for legal defects, we find none.

Accordingly, the trial court’s judgment is affirmed.

AFFIRMED.

      . Louisiana Code of Civil Procedure Article 971 reads in pertinent part:
      A. (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
      (2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
      (3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
      B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.

      . The ODC Formal Charge is a public record pursuant to Louisiana Supreme Court Rule XIX, section 16.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    John BOUTTE v. DEPARTMENT OF POLICE.
    No. 2006-CA-0859.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 2007.
    C. Theodore Alpaugh III, Claude A. Schlesinger, Guste, Barnett & Shushan, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Victor L. Papai, Jr., Assistant City Attorney, Penya Moses-Fields, City Attorney, Joseph V. Dirosa, Jr., Chief Deputy City Attorney, New Orleans, LA, for De-fendanVAppellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY and Judge LEON A. CANNIZZARO JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| plaintiff-appellant, John Boutte, appeals a decision of the Civil Service Commission suspending him for thirty days.

On December 12, 2005, the plaintiff-appellant, New Orleans Police Department Officer, John Boutte, received a letter from the Appointing Authority suspending him for thirty days for allegedly being absent without leave from September 3, 2005 through September 5, 2005, in the aftermath of Hurricane Katrina.

The investigation of Officer Boutte was assigned to the Public Integrity Bureau on September 21, 2005. His disciplinary hearing was not held until December 6, 2005. He appealed to the Civil Service Commission on January 10, 2006, contending, among other things, that the investigatory process took over sixty days in contravention of La. R.S. 40:2531(B)(7).

On March 31, 2006 the Appointing Authority filed a motion for summary disposition dismissing Officer Boutte’s appeal, arguing that Officer Boutte was a probationary employee and that only “regular” employees have the right under Rule II, Section 4.1 to appeal disciplinary actions of the Civil Service Commission.

| %On April 28, 2006, the Civil Service Commission granted the Appointing Authority’s Motion for Summary Disposition of the plaintiffs appeal based on the fact that the plaintiff was a probationary employee.

The plaintiff framed the case and his argument on page “1” of his brief:

Officer John Boutte does not deny that he was a probationary officer at the time his discipline was imposed. Nor, for that matter, does he deny that, as a general rule, probationary employees are deemed not to have a property interest in their jobs and, therefore, not to have any due process rights with regard to disciplinary matters. However, the legislature can nonetheless grant such rights to probationary employees, thus providing them with the right to due process. It is that grant of due process embodied in La. R.S. 40:2531, et. seq. which provides certain law enforcement officers like Officer Boutte with a property right and concomitant due process embodied rights that he may not ordinarily have because of his employment status at the time of the discipline.

In effect, counsel for Officer Boutte argues that La. R.S. 40:2531 applies even to probationary employees. We find the law to be otherwise.

In Moore v. New Orleans Police Dept., 01-0174, p. 7 (La.App. 4 Cir. 3/7/02), 813 So.2d 507, 511, this Court stated that:

Civil Service employees who have reached permanent status cannot be terminated without a lawful cause. Barquet v. Department of Welfare, 620 So.2d 501, 504 (La.App. 4 Cir.1993). See Louisiana Constitution Article X, Sec. 8. However, there is no such guarantee for probationary employees. [Emphasis added.]

See also Banks v. New Orleans Police Dept., 01-0859, pp. 4-7 (La.App. 4 Cir. 3/13/02), 813 So.2d 537, 540-542; Scott v. New Orleans Dept. of Finance, p. 4, 01-0907 (La.App. 4 Cir. 12/19/01), 804 So.2d 836, 838.

The summary dismissal of Officer Boutte’s appeal as a probationary employee to the Civil Service Commission is consistent with this Court’s ^declaration in Walton v. French Market Corp., 94-2457, p. 2 (La.App. 4 Cir. 4/26/95), 654 So.2d 885, 886:

If Walton is considered a probationary employee, he has no appeal rights and the case ends. Civil Service Rule II, § 4.1; Civil Service Rule VII, § 1.1.

See also Williams v. Chief Administrative Officer, 398 So.2d 1252, 1253 (La.App. 4 Cir.1981).

It is the opinion of this Court that had the legislature intended to make the sixty-day investigatory period found in La. R.S. 40:2531 applicable to probationary employees and thereby override Civil Service Rules and consistent jurisprudence of long standing concerning appeals, it would have used more explicit language in doing so. Officer Boutte cites no cases recognizing appeal rights for probationary employees under facts analogous to those of this case.

Additionally, we note that the Louisiana Supreme Court has just ruled that the sixty-day limit prescribed by La. R.S. 40:2531 is not mandatory; it is merely directory. Marks v. New Orleans Police Dept., 06-0575 (La.11/29/06), 943 So.2d 1028.

For the foregoing reasons, the decision of the Civil Service Commission is affirmed.

AFFIRMED.


author: EDWIN A. LOMBARD, Judge.

text:
    Ivonne BETETA v. CITY OF NEW ORLEANS.
    No. 2006-CA-0972.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 2007.

      Thomas H. Huval, Stephen C. Aertker, Jr., Christian A. Shofstahl, Huval Veazey Felder & Aertker, L.L.C., Covington, LA, for Defendant/Appellee.
    Melissia A. Buckhalter, Assistant City Attorney, Kimlin S. Lee, Deputy City Attorney, Albert A. Thibodeaux, Chief Deputy City Attorney, Penya M. Moses-Pields, City Attorney, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

11Defendant/Appellant, the City of New Orleans (“The City”), appeals the trial court’s judgment granting summary judgment to Appellee, former co-defendant Fine Photos, Inc. (“Fine Photos”). Because we find the trial court’s ruling was legally correct, we affirm.

Relevant Facts

Fine Photos, d/b/a A Gallery for Fine Photography, operates a gallery located at 241 Chartres Street in the New Orleans French Quarter. Plaintiff, Ivonne Beteta, alleges that on July 11, 2008, she was walking on the public sidewalk adjacent to Fine Photos when she tripped on a small metal hook imbedded in the concrete sidewalk and sustained personal injuries. Ms. Beteta initially sued the City of New Orleans, then later added Fine Photos as a defendant after learning that a certain city sanitation employee stated his belief that the metal hook was a stabilizing brace installed by Fine Photos. In its March 2005 responses to written discovery, the City admitted that it had no documentation to support the sanitation employee’s belief that Fine Photos installed the hook that caused Ms. Beteta’s accident. Fine Photos subsequently noticed the deposition of the city employee, which was to take place June 18, 2005, but the employee was placed on | ..extended leave and the city was given time to find a replacement witness. The city failed to produce a substitute witness that could testify as to Fine Photos’ liability by the time Hurricane Katrina struck New Orleans on August 29, 2005.

On December 29, 2005, Fine Photos moved for summary judgment on the basis that under Louisiana law, an abutting property owner is under no duty to repair or maintain public sidewalks. An attached sworn affidavit from the owner of Fine Photos attested to the fact that Fine Photos did not install, remove, repair, modify, or replace the “small hook” which Ms. Beteta claims caused her fall. Fine Photos asserted that there was no genuine issue of material fact as to its lack of liability in this case since the City had offered nothing more than an unsworn, uncorroborated, speculative statement from a former city employee to support its allegation that the defect in the sidewalk was caused by Fine Photos.

The matter came for hearing before Judge Nadine Ramsey on March 27, 2006 and again on May 5, 2006. At the March hearing, Judge Ramsey warned Ms. Bete-ta and the City that if they did not come up with a witness or other evidence that Fine Photos caused the defect in the sidewalk, she would grant Fine Photos’ Motion for Summary Judgment at the May hearing. At the May hearing, neither Ms. Beteta nor the City came forward with any evidence to oppose Fine Photos’ motion. At that time, the trial court granted Fine Photos’ Motion for Summary Judgment dismissing Ms. Beteta’s claims against it. The City, but not Ms. Beteta, appealed the judgment.

On appeal, the City argues that the trial court’s judgment was manifestly erroneous and should be reversed, and that the matter is not ripe for summary judgment because discovery was not complete. In response, Fine Photos argues that the trial court judge has great discretion in deciding whether to grant summary [¡¡judgment or to allow more time for discovery. Further, Fine Photos argues that the trial court’s judgment granting summary judgment was correct because neither Ms. Beteta nor the City provided any evidence to support a basis for liability on the part of Fine Photos, despite the fact that the hearing, on the motion was continued twice to afford them time to oppose the motion.

Law and Analysis

An appellate court reviews a trial court’s grant of summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Stewart v. ARA Leisure Services, Inc., 97-1926, p. 4 (La.App. 4 Cir. 10/29/97); 702 So.2d 75, 78. A motion for summary judgment will be granted if the “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to summary judgment as a matter of law.” La.Code Civ. Proc. art. 966(B). The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. La.Code Civ. Proc. art. 966(A)(2). “The burden of proof is with the movant to show that no genuine issue of material fact exists.” La Code Civ. Proc. art. 966(C)(2). If, as in this case, the mover will not bear the burden of proof at trial, his burden on the motion does not require him to negate all elements of the plaintiffs claim, but rather to point out that there is an absence of factual support for one or more elements essential to the claim. Id. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and the.mover is entitled to summary judgment. Id.

^Generally, tort liability arising from a defect in a public sidewalk lies with the municipality rather than the abutting property owner. Schully v. Hughes, 00-2605, p. 2 (La.App. 4 Cir. 6/5/02); 820 So.2d 1219, 1221. Moreover, an abutting property owner is generally not responsible for the repair or maintenance of a public sidewalk except where the defect in the sidewalk was caused by the abutting property owner. Id., citing, Randall v. Feducia, 86-2541 (La.06/01/87); 507 So.2d 1237. This exception is based on negligence under Louisiana Code of Civil Procedure Article 2315. Id., citing, Young-blood v. Newspaper Production Co., 135 So.2d 620, 622 (La.App.12/22/61).

Based on the foregoing law, Fine Photos had no duty to maintain the public sidewalk adjacent to its gallery unless it created the dangerous condition that caused Ms. Beteta’s accident. Fine Photos submitted a sworn affidavit from Joshua Pailet, the owner of Fine Photos, indicating that Fine Photos never installed, repaired, or modified the metal hook in the sidewalk adjacent to its 241 Chartres Street gallery. The burden then shifted to Ms. Beteta and the City to rebut this evidence. The parties had ample time to conduct discovery and locate a witness or documentation to indicate that Fine Photos created the defect in the sidewalk that caused Ms. Beteta’s fall. Despite the lapse" of twenty-seven months from the filing of the lawsuit to the May 2006 hearing on Fine Photos’ Motion for Summary Judgment, neither Ms. Beteta nor the City was able to come forth with any competent evidence to rebut the factual assertions found in Fine Photos’ affidavit that would show that Fine Photos installed, modified, or repaired the metal hook in the sidewalk.

We find no merit in the City’s argument that summary judgment was premature because discovery was not complete. Trial judges have wide discretion | (¡in setting and hearing motions for summary judgment, as in other actions relating to scheduling and docket management, and their decisions in such matters will be set aside by appellate courts only when there has been an abuse of that discretion. Kelley v. Hanover Ins. Co., 98-506, p. 3 (La.App. 5 Cir. 11/25/98); 722 So.2d 1133. It is not an abuse of the trial court’s wide discretion in discovery matters to entertain a motion for summary judgment when the parties have had adequate time to secure discovery. Shambra v. Roth, 04-0467, p. 5 (La.App. 4 Cir. 9/29/04); 885 So.2d 1257. Clearly, in this case, the parties were afforded ample time to locate any evidence to support their allegations against Fine Photos. Over five months had elapsed from the filing of the motion for summary judgment and the May 2006 hearing at which the motion was granted. Moreover, the trial judge twice allowed the parties a continuance on the hearing in order to allow them more time to oppose the motion. In fact, despite the passing of twenty-seven months since the filing of the lawsuit, Ms. Beteta and the City were never able to come forth with any competent evidence to support a claim against Fine Photos. Considering the circumstances, the trial judge did not abuse her discretion by granting Fine Photos’ motion instead of requiring further time for discovery. The City’s argument that this matter is not ripe for summary judgment is rejected.

Considering the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits provided, we find that there are no genuine issues of material fact regarding Fine Photo’s liability as an abutting property owner for the alleged defect in the public sidewalk, and that it is entitled to summary judgment as a matter of law. Therefore, the trial court’s judgment granting summary judgment and dismissing Ms. Bete-ta’s claims against Fine Photos is affirmed. Ms. Beteta may proceed with her claims against the City.

| ^AFFIRMED.


author: ROLAND L. BELSOME, Judge. LOMBARD, J., CANNIZZARO, J.,

text:
    BANK ONE, LOUISIANA, N.A. v. ANIOMA HOME HEALTH CARE AGENCIES, INC., I.C.A. Okpalobi and Paige Okpalobi.
    No. 2006-CA-0071.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 2007.

      Laura E.F. Thompson, Barry H. Grod-sky, Middleberg Riddle & Gianna, New Orleans, LA, for Plaintiff/Appellee.
    Pius A. Obioha, Pius A. Obioha & Associates, LLC, Baton Rouge, LA, for Defen-danVAppellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

|-i Gentilly Medical Clinic for Women (“Gentilly Medical”) appeals the district court’s judgment granting JPMorgan Chase’s petition to assess judgment against Gentilly Medical as the garnishee. We remand.

FACTS AND PROCEDURAL HISTORY:

Plaintiff JPMorgan Chase (f/k/a Bank One)(“Chase”) obtained a judgment against the defendants, Anioma Health Care Agencies, Inc., I.C.A. Okpalobi and Paige Okpalobi for a default on a note secured by a mortgage for property located at 3024 Gentilly Boulevard, New Orleans, Louisiana, in July 2001. The defendants then filed for’ bankruptcy. In October 2002, Chase subsequently obtained a judgment against defendant-in-rule Gentilly Medical, Mr. Okpalobi’s employer, ordering Gentilly Medical to garnish Mr. Okpalobi’s wages. The Okpalo-bis sold the mortgaged property to a third party in January 2005, and the equity proceeds of the sale were applied to their debt. Due to numerous outstanding tax liens, however, neither the sale of the property nor a subsequent reimbursement for a portion of the city taxes extinguished the Okpalobis’ debt at the time of the sale. Accordingly, although the sale of the property resulted in a cancellation of the mortgage itself, it did not satisfy the debt that continued as an in | personam liability, because both Mr. and Mrs. Okpalobi personally guaranteed the promissory note. Therefore, even after the sale of the mortgaged property, Gen-tilly Medical was legally obligated to continue garnishing Mr. Okpalobi’s wages until the debt to Chase was satisfied.

Gentilly Medical, however, failed to make the appropriate garnishment payments from January through May of 2005. As a result, Chase filed a rule to assess a judgment against Gentilly Medical. After a hearing on May 27, 2005, the trial court held Gentilly Medical liable for the full amount of the unpaid amount pursuant to Article 2412. The court also ordered Gentilly Medical to pay all past due payments within 30 days, and to continue the monthly garnishment payments under the terms of the original garnishment order until the debt was satisfied. The court further ordered attorney’s fees and costs and contempt sanctions in the amount of $500.00 each. The judgment stated the amount due as of May 31, 2005 as $396,184.12. This appeal followed.

We review this judgment to determine whether the trial court was manifestly erroneous in granting the Chase’s petition to assess judgment against the garnishee for the full amount of the balance due.

DISCUSSION:

The principal amount of the defendants’ debt was $824,958.17. After the sale of the property, Chase received $77,435.02 for the cancellation of past due taxes, and the sale proceeds of $116,354.89 were described on the HUD statement as “Payoff of First Mortgage to JPMorgan Chase Bank.” The sale of the property | .¡resulted in the cancellation of the mortgage; however, the in personam debt of defendants remained for the remainder of the balance due.

The Okpalobis assert that a deficiency judgment was in fact conducted through executory process, and moreover, that it was executed incorrectly, because no legal appraisal of the property was made. The Okpalobis further argue that the trial court did not credit them for the previously withheld garnished amounts. Neither of those issues, however, are the subject of the judgment presently before this Court.

Additionally, although the issue is not for review in this Court, Chase correctly notes that pursuant to La. C.C.P. art. 2771, a creditor may only obtain a deficiency judgment if the property is sold through executory process. Because the sale of the property was a private, rather than a judicial sheriffs sale, no deficiency judgment procedures were necessary in this case. Furthermore, the Okpalobis offered no proof that the plaintiff failed to credit the proper amounts to their debt, and, according to Chase, did not even request a statement of the amount due under the judgment. Thus, the argument that Chase failed to follow the procedures for a deficiency judgment is without merit.

Accordingly, despite the arguments set forth in the appellants’ brief, the only issue before this Court is whether the trial court’s judgment holding Gentilly Medical liable for the full amount of the unpaid judgment with interest and costs |4was proper. Under Louisiana law, a garnishee may be held responsible for withholding wages until the full amount of a judgment is paid:

In every case in which the wage or salary ... shall be garnished either under attachment or fieri facias or as otherwise provided by law, a judgment shall be rendered by the court of competent jurisdiction in which the garnishment proceedings may be pending fixing the portion of such wage, salary, commission, or other compensation as may be exempt, as provided by law, and providing for the payment to the seizing creditor of whatever sum for which judgment may be obtained, out of the portion of such compensation which is not exempt.

La. R.S. 13:3921(A)(2006)(emphasis added).

Louisiana law does not, however, specifically address the appropriate remedy for a garnishee that fails to make the ordered payments. The court in Smetherman v. Wilson Oil Company, Inc., 635 So.2d 593, 595 (La.App. 3 Cir.1994), No. 93-1165 4/6/94, a. case with a nearly identical fact pattern, noted this omission in the garnishment statutes. In that case, the Third Circuit found that under Louisiana law, a court may order a garnishee to enforce the garnishment order, and that a garnishee may be held liable only for the amount that it failed to collect. Id. In Smether-man, the plaintiff, Smetherman, instituted litigation to collect on a promissory note owed by J. Michael Wilson (“Wilson”). Id. at 594. The trial court granted summary judgment in favor of Smetherman. Id. Smetherman then instituted garnishment proceedings against Wilson, who was employed as the president of defendant Wilson Oil Company (“Wilson Oil”). Id. Interrogatories were issued to Wilson Oil, which were answered within the delays mandated by Article 2412. Id. A consent judgment was then granted whereby Wilson Oil agreed to garnish Wilson’s wages and to turn the seized money over to the sheriff. Id. As in this case, despite the court order, the garnishee failed to withhold the appropriate amounts. Id.

IfiSmetherman filed a rule to show cause, and the trial court held Wilson Oil Company liable for the full amount of the amount due on the note, including interest and attorney’s fees, pursuant to Article 2413. Id. On appeal, Wilson Oil argued that it should have been held liable only for the amount that it failed to withhold until the date of the judgment, as opposed to the entire balance owed by Wilson. Id. at 594-95. Significantly, the court noted that although garnishment is governed by both Article 2411 et seq. and La. R.S. 13:3921 et seq., “[n]either body of law provides for or specifies a penalty against a garnishee who fails to comply with a court ordered garnishment. Accordingly, ordinary contempt and/or collection proceedings must be invoked to enforce such a judgment.” Id. at 595 (emphasis added).

In this case and in Smetherman, the garnishees timely responded to the interrogatories and subsequently entered into a consent judgment for the garnishment procedure. Id. The court in Smetherman noted that the failure of the garnishee to withhold the ordered amounts was “even more egregious than [the conduct that is] penalized by Article 2413 [failure to answer garnishment interrogatories].” Id. The court further observed that “the law provides for no particular penalty for this conduct, and we know of no authority by which we can analogize the penal provisions of Article 2413 to the instant case.” Id. (emphasis added). Accordingly, the court found that “Smetherman is clearly entitled to judgment against Wilson Oil, but his judgment is not based on Art. 2413 because Wilsqn did not fail to answer interrogatories,” and thus limited the judgment to the amount that should have been withheld from the date of service of | Kthe garnishment proceedings. Id. Additionally, the court ordered Wilson Oil to continue garnishment payments until the debt was satisfied. Id.

No assertion has been made by Chase that Gentilly Medical did not timely answer the garnishment interrogatories; the record indicates that Gentilly Medical answered the interrogatories within the delays mandated by Article 2412. Thus, Gentilly Medical cannot be held liable for the full amount of the judgment under either arts. 2412 or 2413. Accordingly, because the only remedy provided by garnishment statutes is with respect to failure to answer interrogatories, this Court looks to the jurisprudence in determining the appropriate remedy for failure to make court-ordered garnishment payments. We find the Third Circuit’s reasoning limiting the enforcement of the judgment to the past due amounts and an order to continue garnishment payments persuasive.

The trial court shall therefore order the garnishee to pay the amounts that should have been withheld from the date of the original garnishment order and to continue garnishment payments until the debt to Chase is satisfied. Moreover, because the trial court’s judgment awarded attorney’s fees and contempt sanctions pursuant to Article 2413, we adopt the Third Circuit’s reasoning that such amounts may be awarded at the trial court’s discretion, but only through ordinary contempt and collection proceedings, and not pursuant to Article 2418. Therefore, we remand this matter to the trial court for a determination of the precise amount owed Chase by Gentilly Medical.

RDECREE:

Reversed and remanded to the trial court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

LOMBARD, J., concurs with reasons.

CANNIZZARO, J., concurs in part and dissents in part with reasons.

LOMBARD, J.,

concurs with reasons.

hi respectfully concur with the majority. I agree with Judge Cannizzaro’s concurrence with regard to each issue except that of penalties for contempt. Like the majority, I would reverse the award for penalties for contempt, but would do so on the basis that Gentilly Medical did not with willful disobedience to the court’s order to garnish Mr. Okpalobi’s wages. Gentilly Medical claims that it believed that the subsequent settlement funded by the proceeds of the private sale of the residence and the reversal of taxes owed satisfied the underlying mortgage debt owed to Chase. Therefore, I do not believe that Gentilly Medical’s failure to garnish Mr. Okpalobi’s wages was done intentionally, knowingly, and/or purposefully without justification. Accordingly, I would not hold Gentilly Medical in contempt nor impose penalties against it.

CANNIZZARO, J.,

concurs in part and dissents in part with reasons.

hi respectfully concur in part with the majority and dissent in part from the majority. I also note that I would first consider whether or not to review this case on appeal, because the assignment of error raised by the appellant did not address the real issue in this case. In Nicholas v. Allstate Insurance Co., 99-2522 (La.8/31/00), 765 So.2d 1017, the Louisiana Supreme Court addressed the issue of whether an appellant court can address an issue not assigned as error. The Supreme Court noted in that case that La. C.C.P. art. 2129 provides that an assignment of error is not necessary in any appeal. The Supreme Court also cited La. C.C.P. art. 2164, which provides that an appellate court “shall render any judgment which is just, legal, and proper upon the record on appeal.” Finally, the Supreme Court noted that the Uniform Rules of Louisiana Courts of Appeal, Rule 1-3, provides that “[t]he Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.”

Based on the code articles and Rule 1-3, the Supreme Court concluded that the appellate court in the Nicholas case had the authority to consider an issue that was not assigned as error. In the instant case, I believe that in the interest of | ¡Justice, we should review the record, despite the fact that the appellant’s brief did not raise a valid assignment of error.

With respect to the majority opinion, I concur in the majority’s determination that the amount of the judgment rendered by the trial court was incorrect. The judgment should have been in the amount of the installment payments that should have been withheld from the debtor’s wages for the months during which the garnishee failed to withhold and remit the garnishment installments rather than in the full amount of the debt owed by the debtor. Additionally, I concur in the majority’s finding that the installment payments should continue to be made until the debt- or’s debt is satisfied. I would not, however, reverse the trial court judgment. Instead, I would amend the judgment.

I also concur with the majority with respect to the reversal of the award of attorney’s fees by the trial court. However, rather than rely on the Smetherman case, a Third Circuit case, cited by the majority, I would base the reversal of the award on the Louisiana Supreme Court’s holding in Sun Sales Co. v. Hodges, 256 La. 687, 696, 237 So.2d 684, 688 (1970). The Supreme Court in the Sun Sales case stated:

In this Court, the garnishee seeks a judgment for reasonable attorney fees incurred by it in prosecuting the appeal. We know of no statutory authority for such an award. The garnishee cites LSA-R.S. 13:3927. This statute, however, authorizes only a fee for the filing of the answers to the garnishment interrogatories. Hence, the garnishee’s demand is rejected.

I would not rely on the Smetherman case, because I believe that the Third Circuit’s statement that “ordinary contempt and/or collection proceedings must be invoked to enforce such a judgment [a judgment against a garnishee who fails to comply Iswith a court ordered garnishment.]” 635 So.2d at 595, is incorrect with respect to a contempt judgment.

I dissent from the majority’s reversal of the judgment sanctioning the garnishee for contempt. La. C.C.P. art. 224 defines constructive contempt of court to include “[wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court.” In the instant case, the trial court found that the garnishee willfully disobeyed the garnishment judgment requiring it to make installment payments of the non-exempt portion of the debtor’s wages by not properly withholding and remitting the installment payments during a period of several months. La. C.C.P. art. 225(A) provides:

Except as otherwise provided by law, a person charged with committing a constructive contempt of court may be found guilty thereof and punished therefor only after the trial by the judge of a rule against him to show cause why he should not be adjudged guilty of contempt and punished accordingly.

I find no error in the trial court’s finding, after a hearing on the issue, that the garnishee was in contempt for willfully disobeying the court ordered garnishment. There was no need for the contempt judgment to have been rendered in an ordinary proceeding separate from the garnishment proceeding.

Based on the foregoing, I would amend the judgment to provide that the amount of the judgment is the amount of the installment payments that should have been remitted but were not, to provide that the installment payments should continue to be remitted until the debt is satisfied or until the debtor’s employment is terminated for a period of more than one hundred and eighty days, and to vacate the award of attorney’s fees. I would then affirm the judgment as amended.

      . The trial court judgment references Article 2412 as authority for holding Gentilly Medical Center liable for the full amount of the judgment; however, article 2412 merely sets out the rules for service of garnishment interrogatories to the garnishee and the delays for answering garnishment interrogatories. Article 2413 contains the penal provision: if the garnishment interrogatories are not answered pursuant to the time delays specified by Article 2412, then "the judgment creditor may proceed by contradictory motion against the garnishee for the amount of the unpaid judgment, with interest and costs.” La. C.C.P. art. 2413(A).

      . The original judgment against the defendants for their default on the promissory note did not limit Chase to an in rem recovery on the debt.

      . The statement of the amount due under the judgment would have listed all credits applied toward the Okpabolis’ principal debt.

      . The argument that an ordered garnishment is wrongful does not exempt a garnishee from withholding the required amounts. As the Smetherman court noted, "Louisiana law is clear that a garnishee is the legal custodian of the property at issue and must comply with the orders of the court immediately even if the garnishment turns out to be wrongful.” 635 So.2d at 595.

      . La. R.S. 13:3293 provides that a seizure by garnishment of the non-exempt option of a debtor’s wages shall cease upon the termination of the debtor’s employment with the garnishee, unless the debtor is reinstated or reemployed within one hundred and eighty days after the termination.