text:
    Maria Charlotte LOWREY, Plaintiff-Appellant v. Dr. Blaine M. BORDERS, et al., Defendant-Appellee.
    No. 41,852-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 7, 2007.

      Allan L. Placke, West Monroe, for Appellant.
    Brian E. Crawford, Jefferson B. Joyce, Monroe, for Appellee, Dr. Blaine M. Borders and Louisiana Medical Mutual Insurance Company.
    Bruce M. Mintz, Monroe, for Appellee, Dr. John Michael Barraza, Radiology Associates and St. Paul Fire & Marine Insurance Company.
    Before BROWN, WILLIAMS and LOLLEY, JJ.
   WILLIAMS, Judge.

liThe plaintiff, Maria Lowrey, appeals a judgment dismissing her medical malpractice lawsuit against the defendants, John Michael Barraza, M.D., Physicians Management Company of Monroe, Inc. d/b/a Radiology Associates (“Radiology Associates”) and St. Paul Fire and Marine Insurance Company (“St. Paul”). The district court granted defendants’ motion for summary judgment. For the following reasons, we affirm.

FACTS

On the morning of February 23, 2000, 37-year-old Maria Charlotte Lowrey was transported by ambulance to the emergency room of the St. Francis Medical Center in Monroe, Louisiana. The emergency room report reflects that she complained of left facial numbness, vertigo and nausea. Her medical history included a prior heart surgery to correct tachycardia. Dr. Dennis Sullivan examined Ms. Lowrey and then asked Dr. Thomas Gulick, a neurologist, to evaluate her for a possible neurological problem.

Dr. Gulick ordered a CT scan of Ms. Lowrey’s head and chest and an MRI scan of her head. The brain scans were negative. The CT scans were performed at approximately 1:30 p.m. Dr. John Barraza, a radiologist, evaluated the CT scan of Ms. Lowrey’s chest. Dr. Barraza reported the CT findings as “suspicious for a small limited Type II dissection of the ascending aorta.” However, he stated that the findings were not convincing and suggested the CT scan be repeated later.

Dr. Gulick then consulted Dr. Blaine Borders, a cardiac surgeon. A second CT scan was performed and was again interpreted by Dr. Barraza as suspicious for an aortic dissection. Dr. Borders agreed that the scan showed |2an abnormality, but observed that Ms. Lowrey did not fit the typical presentation of a patient with an aortic dissection; she did not have chest pain or shock.

Dr. Borders ordered an aortogram to further diagnose Ms. Lowrey’s problem. In his deposition, he explained the differences of the tests:

[CT] scans are a hundred percent sensitive for finding an aortic dissection, but they’re only ninety-six percent specific.... If there’s an aortic dissection there and it shows it on the [CT] scan, ... a hundred percent of the time it’s possible, but ... it can show it on a[CT] scan and five percent or four percent of the time it not be an aortic dissection ... Aortography has the other flip side to it, that it’s only ninety-five percent specific, but it’s a hundred percent sensitive if it’s there, okay,' but if it’s not there on the aortography, there is a chance that it is there.

The aortogram showed no evidence of an aortic dissection. Dr. Borders next ordered a transesophageal echocardiogram (TEE). This test showed no abnormality but, as Dr. Borders explained in his deposition, this test was the least sensitive of the tests for the aortic area in question.

At 8:00 p.m. on February 23, Ms. Low^ rey signed a written consent to a surgical procedure described as “ascending aortic repair / replacement.” The form listed several risks from the procedure, including death, brain damage, quadriplegia, loss of arm or leg and disfiguring scars. With the cause of Ms. Lowrey’s symptoms still unclear, Dr. Borders admitted - her to the intensive care unit on beta-blocker therapy and scheduled another CT scan for the next day.

On the morning of February 24, Ms. Lowrey was complaining of chest pains. The third CT scan was performed and interpreted by Dr. Barraza, who reported, “Findings within the ascending aorta persist on three ^studies and must be considered an aortic dissection (DeBakey Type II).” Because an aortic dissection is a life-threatening problem if left untreated, because the CT scans all showed an abnormality in Ms. Lowrey’s aorta, and because Ms. Lowrey had begun to complain of chest pain, Dr. Borders concluded that the only way to conclusively rule out the condition was to perform surgery — a sternoto-my — and examine the area. When Dr. Borders performed the operation, he found that Ms. Lowrey’s aorta was normal. Both Dr. Borders and Dr. Barraza explained that the abnormal appearance of the aorta shown on the CT scans could have been the result of a pulsation artifact caused by the movement of the aorta during the CT scan.

-Shortly after Ms. Lowrey was discharged from the hospital, she sought a medical review panel regarding the actions of the hospital and the doctors. The panel found no breach of the standard of care by the hospital, Dr. Barraza or Dr. Borders. The panel issued an opinion finding that the evidence did not support the conclusion that Dr. Barraza failed to meet the applicable standard of care in treating Ms. Lowrey. The panel stated the following reasons for this conclusion:

(1) A CT scan of the chest was performed three (3) times within twenty-four (24) hours. Each of these studies showed similar findings such that diagnosis of aortic dissection of the ascending aorta must be considered.
(2) Additional studies were performed in an attempt to confirm a diagnosis of aortic dissection of the ascending aorta which were appropriate. However, even though these additional studies were negative, a diagnosis of aortic dissection of the ascending aorta could not be ruled out.
(3) Consultation was obtained with several other radiologists who concurred in Dr. Barraza’s opinion.

|4In May 2002, the plaintiff, Ms. Lowrey, filed a petition for damages against the defendants, Dr. Borders, his medical malpractice insurer, Dr. Barraza, Radiology Associates and their insurer, St. Paul. The plaintiff alleged that Dr. Borders and Dr. Barraza breached the applicable standard of care in failing to properly diagnose and treat plaintiff. In 2003, Dr. Borders and his insurer filed a motion for summary judgment, which was denied by the district court. In 2004, plaintiff moved for a partial summary judgment alleging that the defendants failed to obtain her informed consent to the surgery. The court denied this motion as well.

In 2006, Dr. Barraza, his employer and their insurer filed a motion for summary judgment seeking dismissal from the lawsuit. In support of his motion, Dr. Barra-za relied upon, inter alia, the deposition testimony of the plaintiffs’ radiology expert, Dr. Charles Matthews, a diagnostic radiologist in New Orleans, who had reviewed the CT scans of plaintiffs chest. Dr. Matthews concluded that the dark line on the aorta in the scans was a pulsation artifact caused by the movement of the aorta during the scan.

Dr. Barraza also offered the affidavit of Dr. Clifton Coffman, a radiologist who served on the medical review panel in this case. Dr. Coffman restated the conclusions of the panel that a diagnosis of aortic dissection could not be ruled out in plaintiffs case despite the other studies that were done that produced negative results. Additionally, Dr. Barraza offered an excerpt from the deposition of plaintiffs other medical expert, Dr. James Weiss, a clinical cardiologist and professor of cardiology at Johns Hopkins Hospital, who stated that he was not an expert CT reader and | ^always obtained help from a radiologist in looking at CT scans. In opposition to summary judgment, plaintiff filed the complete depositions of the parties’ medical witnesses.

After a hearing on Dr. Barraza’s motion for summary judgment, the district court stated:

I find that Dr. Barraza, that everyone agrees that his interpretation was reasonable of the CT scan. I find that it was not his decision to operate, nothing in the record would substantiate that, and that there is no genuine issue as to any material facts and thus I am going to grant the motion for summary judgment.

The plaintiff appeals the summary judgment dismissing her claims against Dr. Barraza, his employer and their insurer.

DISCUSSION

The plaintiff contends the district court erred in granting the motion for summary judgment. Plaintiff argues that a genuine issue of material fact exists as to whether Dr. Barraza breached the standard of care in finding a greater than 50% chance that an aortic dissection was present based on CT scans, despite the negative results of all other diagnostic tests.

Appellate courts conduct a de novo review of summary judgment under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Welch v. Technotrim, Inc., 34,355 (La.App. 2d Cir.|1/24/01),6 778 So.2d 728, writ denied, 01-0512 (La.6/15/01), 793 So.2d 1232.

The burden of proof remains with the mover. LSA-C.C.P. art. 966(C)(2). However, when the moving party will not bear the burden of proof at trial on the matter before the court on summary judgment and points out an absence of factual support for one or more elements essential to the adverse party’s claim, the non-moving party must produce factual support sufficient to show that he will be able to satisfy his evidentiary burden at trial. Otherwise, there is no genuine issue of material fact for trial, and summary judgment is appropriate. LSA-C.C.P. arts. 966 and 967; Welch, supra.

In a medical malpractice action, the plaintiff must prove the applicable standard of care, the breach of this standard of care, and the causal connection between the breach and the resulting injury. LSA-R.S. 9:2794(A); Britt v. Taylor, 37,378 (La.App. 2d Cir.8/20/03), 852 So.2d 1128; Orea v. Brannan, 30,628 (La.App. 2d Cir.6/24/98), 715 So.2d 108. Generally at trial, a plaintiff must prove the applicable standard of care through expert medical testimony unless, “the physician does an obviously careless act ... from which a lay person can infer negligence.” Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228 at 1233; Strange v. Shroff, 37,353 (La.App. 2d Cir.7/16/03), 850 So.2d 1077.

Expert opinion testimony in the form of an affidavit or a deposition may be considered in support of or opposition to a motion for summary judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226. The opinion of the medical review panel may be considered by the court when ruling on a summary judgment motion. Henderson v. Homer Memorial Hospital, 40,585 (La.App. 2d Cir.1/27/06), 920 So.2d 988, writ denied, 2006-0491 (La.5/5/06), 927 So.2d 316.

From our review of the evidence submitted in favor of summary judgment, we conclude that Dr. Barraza successfully pointed out an absence of factual support for plaintiffs claim that Dr. Barraza failed to meet the applicable standard of care. In finding that Dr. Barraza did not breach the standard of care as a radiologist, the medical review panel observed that the three CT scans of plaintiffs chest showed similar findings such that the diagnosis of an aortic dissection could not be ruled out. Further, the panel found that the additional tests performed during the course of treatment, although negative, likewise did not exclude a diagnosis of aortic dissection. Finally, the panel noted that Dr. Barraza consulted with other radiologists during the process and that these persons concurred with his opinion. In his deposition, Dr. Barraza maintained that the CT scans were suspicious for an aortic dissection. This evidence was sufficient to shift the burden of production to the plaintiff on this issue.

Plaintiffs radiology expert witness was Dr. Charles Matthews, who was firmly of the opinion that the CT scans showed a pulsation artifact rather than an aortic dissection, in light of the normal results obtained from the angiogram and TEE study. However, Dr. Matthews also stated that the findings of the successive CT scans would have continued the suspicion that a dissection was present:

| A: [The presence of the abnormality on the second CT scan] continues the question of whether or not it’s there. Someone could reasonably interpret, well, I see the same thing again. It really is there.
Q: So based on that, it would not be a breach of the standard of care of radiology to again say that it was suspicious for an aortic dissection?
A: That’s a reasonable interpretation to say there is a possible dissection there.

Although Dr. Matthews reiterated his impression that the CT scans and the other tests demonstrated that there was no dissection, he stated:

[Assuming the other tests were done] if [Dr. Barraza’s] interpretation was there was a possible dissection, I can go along with that. I think in the end it’s going to be the correct conclusion.

Dr. Matthews said that interpreting a CT scan for a pulsation artifact can be “tricky” and agreed that different radiologists could read it differently and still be within the standard of care. In addition, Dr. Matthews acknowledged that he did not know whether the plaintiff had complained of chest pain and was not aware of plaintiffs complete clinical picture.

In her supplemental brief, the plaintiff argues that Dr. Barraza is hable for her damages because of his participation in the decision to perform surgery, citing Hernandez v. Chalmette Medical Center, 01-0074, 03-1169, 03-1456 (La.App. 4th Cir.2/4/04), 869 So.2d 141, writ denied, 04-0517, 04-0546 (La.4/8/04), 870 So.2d 277, 279. However, the factual situation in Hernandez, supra, can be distinguished from that of the present case. In Hernandez, the medical review panel concluded that the radiologist had breached the standard of care by incorrectly interpreting the x-ray films. Here, in contrast, the panel and even plaintiffs expert, Dr. Matthews, |flopined that Dr. Barraza’s interpretation of the CT scan results was reasonable under the circumstances. Thus, plaintiffs argument lacks merit.

Based upon this record, the plaintiff has not produced expert opinion concluding that Dr. Barraza’s interpretation of the CT scans fell below the standard of care for a radiologist. The expert witness evidence shows that the CT scans could reasonably be interpreted to show evidence of an aortic dissection even if that interpretation later proved to be wrong. Thus, the plaintiff has failed to show that she would be able to carry her burden of proving at trial that Dr. Barraza’s conduct fell below the applicable standard of care. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the district court’s summary judgment in favor of the defendants, Dr. John Barraza, Physicians Management Company of Monroe, Inc. d/b/a Radiology Associates and St. Paul Fire and Marine Insurance Company, is affirmed. Costs of this appeal are assessed to the appellant, Maria Charlotte Lowrey.

AFFIRMED.


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    BASS, LTD. v. Tim GERALD, et al.
    No. 2006-1125.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.
    Rehearing Denied May 9, 2007.

      George J. Tate, Abbeville, Louisiana, for Defendant/Appellant, Triangle Venture Associates, Inc.
    Lamont P. Domingue, Voorhies & Labbe, Lafayette, Louisiana, for Plaintiffs/Appellees, Bass, Ltd. Charles Bernard.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

[! This is a case of competing billboard leases. Defendant appeals the trial court’s holding that Plaintiffs lease is valid and its lease is invalid. For the following reasons, we affirm the judgment of the trial court.

Facts

In early 2004, Bass, Ltd. (Bass) and Triangle Venture Associates, Inc. (Triangle) were interested in leasing property along Interstate Highway 49 in St. Landry Parish for the placement of billboards. Bass instructed its employee, David Sonnier, to begin working toward this goal. Mr. Sonnier contacted Mr. Charles Bernard, who, along with his wife, owned property which suited Bass’s needs. Mr. Sonnier negotiated a lease with Mr. Bernard. On February 11, 2004, Mr. Bernard signed his name and his wife’s name on the lease. Bass recorded the lease in the public records of St. Landry Parish on April 5, 2004. It also filed an application for a billboard permit with the Department of Transportation and Development (DOTD) that same day.

Tim Gerald is an independent contractor who often provides services to Triangle. After learning of Triangle’s interest in leasing property on Interstate Highway 49, Mr. Gerald also contacted Mr. Bernard and negotiated a lease with him. Mr. and Mrs. Bernard signed the lease on March 25, 2004. On April 1, 2004, Mr. Gerald applied to DOTD for a permit for the placement of a billboard on the Bernards’ property. He recorded Triangle’s lease on April 6, 2004. When he recorded the lease, Mr. Gerald checked the conveyance records for any other transactions concerning the Bernards’ property and found that Bass had recorded its lease with the Bernards the day before. DOTD issued Triangle a permit for the issuance of a billboard on April 8, 2004.

| ^Stephen Sonnier of Bass contacted Mr. Gerald on April 5, after he learned that Bass’s permit application was not the first permit application filed with DOTD for the Bernards’ property. He also contacted Stephen Scott, president of Triangle, and advised him that Triangle’s permit application pertained to property leased by the Bernards to Bass. Mr. Gerald and Mr. Scott testified that they believed Triangle’s lease and permit application did not pertain to the same property leased by Bass. Mr. Bernard testified that Mr. Gerald told him that Bass’s lease was not valid because Bass could not get a billboard permit.

Triangle began construction of its billboard structure on April 15, 2004. On April 20, 2004, Bass filed a Petition for Preliminary Injunction, Permanent Injunction, Tortious Interference with a Contract, Unfair Trade Practices, Declaratory Judgment and, in the alternative, Interferences with Peaceful Possession of Leased Premises against Triangle, Mr. Gerald, and the Bernards. Triangle and Mr. Gerald filed answers in which they denied Bass’s claims and asserted cross-claims against the Bernards. Sometime later, Triangle filed an exception of no cause of action which was tried in conjunction with the trial on the merits. Before trial, the Bernards assigned their rights in and to their lease with Triangle to Bass. In exchange, Bass agreed to waive all of its claims against them.

After a trial on the merits, judgment was rendered in favor of Bass declaring Bass’s lease with the Bernards valid and enforceable. The judgment granted a permanent injunction prohibiting Triangle from performing, enforcing, or acting upon its rights and obligations under its lease with the Bernards. Bass was awarded damages against Triangle for interference with its peaceful possession of the leased location. Bass’s claims for damages for unfair trade practices and for tortious Jjinterference with its contract were dismissed. Judgment was rendered in favor of Triangle on its third party demand against the Bernards in the amount of $8,000.00, the rent paid by Triangle to the Bernards under its lease.

Triangle filed a motion for new trial which was denied after a hearing. It then perfected this appeal in which it assigns five errors. Our findings on the following assignments negate the need to address all of them:

1) The trial court erred in granting a declaratory judgment in favor of Bass which declares Bass’s lease “valid and enforceable” and Triangle’s lease “void and unenforceable.”
2) The trial court erred in failing to sustain its affirmative defenses.
3) The trial court erred in all of its findings regarding Bass’s ability to obtain a billboard permit from DOTD.

Standard of Review

Recently, in Cosby v. Holcomb Trucking, Inc., 05-470 (La.9/6/06), 942 So.2d 471, the supreme court reiterated that reversal of a trial court’s findings of fact is warranted only after the appellate court has performed a complete review and determined that the trial court’s finding of fact is manifestly erroneous or clearly wrong. The appellate court cannot reweigh the evidence or substitute its own findings, and where there are two permissible views of the evidence, the fact finder’s choice cannot be manifestly erroneous or clearly wrong. Id.

Discussion

Bass’s Lease

Triangle’s first assignment of error is that the trial court erred in finding Bass’s lease “valid and enforceable” and its lease “void and unenforceable.” The trial court specifically addressed three arguments urged by Defendants regarding the validity of 14Bass’s lease: 1) Mr. Bernard signed Mrs. Bernard’s signature on the lease; 2) Mr. Bernard testified that he did not believe he was signing a binding lease with Bass; and 3) Bass’s lease required annexation of the leased property which was an impossible condition.

The trial court made two findings with regard to Mr. Bernard having signed Mrs. Bernard’s name to Bass’s lease: 1) while Mrs. Bernard’s concurrence in the lease was required by La.Civ.Code art. 2347, she ratified Mr. Bernard’s signing her name thereto as provided in La.Civ.Code art. 2353 and 2) even if she did not ratify Mr. Bernard’s signing her name, she was the only person who could claim the lease was null without her signature, and neither she nor her successors have done so.

Article 2031 of the Louisiana Civil Code provides:

A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made. A contract that is only relatively null may be confirmed.
Relative nullity may be invoked only by those persons for whose interest the ground for nullity was established, and may not be declared by the court on its own initiative.

The trial court correctly determined that only Mrs. Bernard or her representative could urge the invalidity of Bass’s lease because she did not sign it. See also, Rowan v. Town of Arnaudville, 02-882 (La.App. 3 Cir. 12/11/02), 832 So.2d 1185, where this court held that the plaintiff, who was not a party to the lease contract, could not attack the validity of the lease.

Triangle next urges that Mr. Bernard did not know what he was signing when he signed Bass’s lease and, therefore, he did not consent to Bass’s lease. As previously discussed, only Mr. Bernard could invoke nullity of the lease; he did not. Additionally, the trial court correctly concluded that by signing the lease Mr. Bernard |fiwas presumed to know what he was signing and that his signature on a letter to DOTD which stated in part: “I have [entered] into a new lease with Bass LTD. of New Iberia, La. and they will assume the same [l]ocation and build a new [djisplay,” three weeks after he signed the lease evidenced that he knew he signed a lease with Bass.

Triangle also argues that Bass’s lease is invalid for a number of other reasons: 1) the lease is subject to a suspensive condition—installation of a billboard structure— which has not been satisfied; 2) the lease cannot be performed without a DOTD permit, which it cannot obtain; and 3) the lease requires annexation of the lease property by the City of Opelousas, which cannot be accomplished.

The trial court did not address items 1) and 2) in its Reasons for Judgment. However, Triangle is neither a party to Bass’s lease nor a third-party beneficiary of the lease. Therefore, it does not have the right to attack the validity of the lease. Doland v. ACM Gaming Co., 05-427 (La.App. 3 Cir. 12/30/05), 921 So.2d 196, writ not considered, 06-797 (La.6/2/06), 929 So.2d 1239. Furthermore, Triangle’s claims are without merit.

Initially, Bass could not accomplish the first two conditions because of an existing billboard on the Bernards’ property which had to be removed before DOTD would grant another permit for the construction of a permit on the property. Before the existing billboard was removed, Mr. Bernard signed a new lease with Triangle, which allowed Triangle to obtain a permit and begin construction of a billboard structure before Bass. When a condition is not fulfilled due to the fault of a party not obligated to satisfy the condition, the condition is deemed fulfilled. La.Civ. Code art. |fi1772. Mr. Bernard prevented Bass from fulfilling these two conditions by entering into a lease with Triangle; therefore, they are deemed fulfilled.

The trial court determined that annexation was not an issue because the need for annexation was obviated when the Ber-nards sold the property to their niece and her husband and Mr. Bernard testified that he, would have done the same for Bass. This conclusion is not clearly wrong based on the evidence.

For these reasons, we find no error with the trial court’s determination that Bass’s lease is valid and enforceable.

Triangle’s Lease

Triangle assigns as error the trial court’s finding that its lease is invalid and unenforceable. It contends that its lease with the Bernards and its DOTD permit are valid because it “obtained a valid lease and permit before Bass ever publicly recorded its lease or filed its application for a permit with DOTD.” The trial court found mutual error vitiated the parties’ consent to Triangle’s lease and held the lease invalid.

Louisiana Civil Code Article 1949 provides: “Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party.” Error which bears on a thing that is “the contractual object” of a contract bears on a cause of the obligation. La.Civ.Code art. 1950.

Triangle wanted to lease the property to construct billboards and generate revenue. Mr. Gerald and Mr. Scott believed that Triangle’s lease covered property different from that leased to Bass. Mr. Bernard testified that he wanted to lease the property to provide income for his niece and her husband who later purchased the | property. He also testified that he signed Triangle’s lease because Mr. Gerald told him Bass’s lease was not for the same location it was leasing and Bass could not get a permit for the billboard.

Based on this testimony, there is no error with the trial court’s finding that “both parties thought that the Bernard property was available for lease and was not encumbered by the Bass lease” nor its conclusion that mutual error vitiated the Bernards’ and Triangle’s consent to the lease.

Recordation

The trial court determined that, even if Triangle’s lease was valid, Bass’s lease primed it because Bass’s lease was recorded first in the public records of St. Landry Parish. Triangle argues that the public records doctrine has no bearing in this matter because the Bass lease is unenforceable under DOTD regulations, and Bass failed to perform under the lease. We- have already determined that Triangle has no right to complain about Bass’s performance under the terms of the lease and need not address this issue again.

With regard to Triangle’s claims concerning DOTD regulations, Bass sought an explanation from DOTD as to why its application for a permit was denied. DOTD responded that the permit was denied only because Triangle had already obtained a permit for that location. Wanda Bou-dreaux, an employee of DOTD’s District Four, testified that, if a court determines a permit was issued to a party not legally entitled to it, DOTD cancels that permit and issues a permit to the applicant whose lease is determined to meet DOTD’s administrative requirements and all legal requirements.

| ^Triangle’s lease has been found to be invalid. Bass’s lease has been found to be valid, and prior to this litigation, DOTD determined that Bass’s lease satisfied its requirements. This argument is without merit.

Triangle also argues that Bass’s purchase of the Bernards’ rights and interests in their lease with Triangle resulted in Bass losing its rights under the public records doctrine. It cites Canco, Inc. v. Outdoor Systems Advertising, 96-559 (La.App. 4 Cir. 9/18/96), 681 So.2d 38, in support of this argument. In Canco, the plaintiff purchased real estate which was the subject of an unrecorded outdoor advertising lease. In the act of sale, the plaintiff acknowledged the lease and assumed the obligations of the vendor/lessor. Thereafter, the plaintiff argued that it was a third-party purchaser entitled to rely on the public records doctrine because the lease did not put third parties on notice that the lessee owned the billboard structure, not the lessor. The court held that the plaintiff was not a third party to the lease because it assumed the unrecorded lease when it purchased the real property.

The plaintiff in Canco sought to apply the public records doctrine because it wanted to avoid application of the terms of an unrecorded lease. That is not the case here, and the Bernards’ assignment did not affect the ranking of the two leases.

Disposition

The judgment of the trial court is affirmed. All costs of this appeal are assessed to Triangle Venture Associates, Inc.

AFFIRMED.


author: AMY, Judge. COOKS, J.,

text:
    Scott HARRISON v. LAKE CHARLES MENTAL HEALTH, et al.
    No. 2006-434.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.
    Rehearing Denied May 9, 2007.

      Colleen McDaniel, Assistant Attorney General, Louisiana Department of Justice, Division of Risk Litigation, Lafayette, LA, for Defendants/Appellees, Lake Charles Mental Health, et al.
    Scott Harrison, General Delivery, Kerr-ville, TX, for Plaintiff/Appellant, In Proper Person.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, MARC T. AMY, ELIZABETH A. PICKETT, and BILLY H. EZELL, Judges.
   AMY, Judge.

|TThe plaintiff filed a petition asserting entitlement to damages related to termination of services by the Lake Charles Mental Health Care Center. The defendants construed the claim as one for medical malpractice and filed an exception of prematurity due to the failure to request review by a state medical review panel. The trial court granted the exception. The plaintiff appeals this determination. In this court, the defendants have filed an exception of prescription. For the following reasons, we grant the exception of prescription and dismiss the plaintiffs claim with prejudice.

Factual and Procedural Background

The record indicates that the plaintiff, Scott Harrison, filed the petition instituting this matter on August 20, 2002. In that petition, Mr. Harrison asserts that he had been treated as an outpatient at the Lake Charles Mental Health Care Center for an alleged mental health condition, but that the treatment was terminated on August 21, 2001. Thereafter, he was unable to receive the medication he asserts is necessary for his condition. This initial petition indicates that Mr. Harrison received notice of the termination of treatment on September 10, 2001. The Lake Charles Mental Health Care Center, the State of Louisiana, the Department of Health and Hospitals, and various personnel were named as defendants.

The defendants filed an initial exception of prematurity in September 2002, noting that the matter had not been submitted to a state medical review panel as is required by La.R.S. 40:1299.39.1. The exception of prematurity was granted by the trial court by judgment entered January 24, 2003.

Thereafter, on June 16, 2005, the defendants again filed an exception of prematurity, stating that, in May 2005, the plaintiff filed a Request for Expert Medical | gReview Panel. According to the defendants, the filing was again a complaint regarding denial of psychiatric medication and, as the claim had not yet been presented to a state medical review panel as is required by La.R.S. 40:1299.39.1, it remained premature. Following a hearing, the trial court granted the exception of prematurity and dismissed the plaintiffs claim without prejudice.

The plaintiff appeals the dismissal and appears to generally argue that his allegations raise claims of intentional tort and, therefore, are beyond the scope of the medical malpractice act.

For the first time on appeal, the defendants have filed an exception of prescription, and seek dismissal of the plaintiffs claim with prejudice.

Discussion

We begin by stating that review of the plaintiffs petition reveals no error in the trial court’s treatment of this case as one for medical malpractice. While the plaintiffs assertions are wide ranging, they stem from his claims of termination of his treatment and his inability to obtain psychiatric medication. Thus, we turn to the exception of prescription. Louisiana Code of Civil Procedure Article 2163, permits the pleading of prescription in an appellate court in the following circumstances:

The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.
If the ground for the peremptory exception pleaded in the [..¡appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.

As the defendants’ exception of prescription was timely filed prior to submission of this case for a decision, we turn to consideration of whether the proof of the exception appears in the record.

A one-year prescriptive period is applicable in medical malpractice cases. See La.R.S. 9:5628(A). As this case is one involving state entities, this one-year period of La.R.S. 9:5628(A) is considered in light of La.R.S. 40:1299.39.1. Entitled “State Medical Review Panel,” La.R.S. 40:1299.39.1 provided as follows at the time in which suit would have been timely:

A. (1) All malpractice claims against the state, its agencies, or other persons covered by this Part ... shall be reviewed by a state medical review panel established as provided in this Section, to be administered by the commissioner of administration, hereinafter referred to as commissioner.
(2)(a) The filing of the request for a review of a claim shall suspend the time within which suit must he instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in Subsection J of this Section, to the claimant or his attorney of the issuance of the opinion by the state medical review panel, in the case of the state or persons covered by this Part, or, in the case of a health care provider against whom a claim has been filed under the provisions of this part who has not qualified under this Part, until sixty days following notification by certified mail to the claimant or his attorney by the commissioner that after requesting evidence of such qualifications under this part and waiting the passage of at least ninety days, the commissioner has not received a certificate or other evidence sufficient to establish that the person is covered by this Part. The filing 14of a request for review of a claim shall suspend the running of prescription against all joint or solidary ob-ligors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are subject of the request for review. Filing a request for review of a malpractice claim required by this Section with any agency or entity other than the division of administration shall not suspend or interrupt the running of prescription.
(b) The request for review of the claim under this Section shall be deemed filed on the date of receipt of the complaint stamped and certified by the commissioner, or on the date of mailing of the complaint if mailed to the commissioner by certified or registered mail.
B. (l)(a)(i) No action against the state, its agencies, or a person covered by this Part, or his insurer, may be commenced in any court before the claimant’s complaint has been presented to a state medical review panel established pursuant to this Section.

(Emphasis added.)

The above provision indicates that no action may be commenced in court before a plaintiffs complaint is presented to a state medical review panel. See La.R.S. 40:1299.39.1(B)(l)(a)(i). The details for requesting review are specifically addressed by La.R.S. 40:1299.39.1(A)(2). There is no indication in the record that the plaintiff complied with the above filing requirements in a timely fashion. Other than a brief reference at a 2002 hearing that the initial petition was served on “Mark Dren-nan”, this general information fails to indicate that the specific requirements of La. R.S. 40:1299.39.1(A)(2) were either satisfied or satisfied in a timely fashion. Any filings outside the division of administration, including those in the trial court, did not suspend or interrupt the running of prescription.

Given the lack of indication that the necessary filing was timely made with the Division of Administration, the plaintiffs claim has prescribed. Nor has the plaintiff demonstrated that he can sustain his burden of coming forward with evidence to | .^indicate that it has not prescribed. See In re Medical Review Panel for Claim of Moses, 00-2643 (La.5/25/01), 788 So.2d 1173.

We note that La.Code Civ.P. art. 2163 provides that, when an exception of prescription is filed for the first time on appeal, “the plaintiff may demand that the case be remanded to the trial court for trial of the exception!.]” Here, the plaintiffs brief inadequately requests this procedure, only briefly referencing the possibility of remand in this situation. In light of this failure and the lack of indication that the plaintiff would be able to satisfy his burden on remand, we grant the exception of prescription and dismiss the plaintiffs claim.

DECREE

For the foregoing reasons, the exception of prescription filed by the defendants is granted. The plaintiffs claim is dismissed with prejudice. Ml costs of this proceeding are assessed to the plaintiff, Scott Harrison.

EXCEPTION OF PRESCRIPTION GRANTED. CLAIM DISMISSED WITH PREJUDICE.

COOKS, J., dissents and assigns written reasons.

SAUNDERS, J., dissents.

COOKS, J.,

dissents.

_JjI respectfully dissent from the majority opinion finding Mr. Harrison’s claim has prescribed because he did not file a request for a medical review panel before September 10, 2002, which the majority acknowledges is the applicable prescriptive date. The State admitted the Division of Administration received Mr. Harrison’s petition timely and the petition would be treated as a request for a medical review panel. A brief review of the procedural history of this case is in order.

Scott Harrison was a patient at the Lake Charles Mental Health Center beginning in 1986. In June 2001, he received notice that the Center was going to conduct an independent assessment as to whether his continued treatment was warranted. On September 10, 2001, he received the official notice that he was being discharged from the Center and would no longer received treatment. On August 20, 2002, he filed a petition in district court against the Center, several physician employees and the State alleging he was improperly discharged and refused psychiatric medication. The State filed an Exception of Prematurity alleging the claim must first be submitted to a medical review panel. At the hearing, Mr. Harrison asserted he did file a request for a medical review panel by sending a copy of his petition to the Clerk of Court to be served on the Division of Administration. In fact, at the hearing the State admitted: (1) Mr. Harrison’s petition was served on the Division of Administration through its Commissioner, Mark Drennan; and, (2) the ^petition could be treated as a request for a medical review panel. The following exchange occurred in open court between the trial court, Mr. Harrison and counsel for the State:

MR. HARRISON: At this time I have not tried to actually enforce the law- • suit without having a copy of the lawsuit served on Mark Drennan, the Medical Review Panel, in Baton Rouge. I filed a document right here which is in the court record to have the Clerk’s Office serve a copy of the lawsuit upon these people in Baton Rouge, and I’m waiting for them to get back with me.
THE COURT: All right. This is what we’ll do. The defense’s objection as to the Exception as to Prematurity is valid, and the Court will stay these proceedings and transfer this case to the Medical Review Panel. Is there a procedure or can the Clerk’s office do that, Mrs. Hollins?
MRS. HOLLINS: He served Mark Drennan, therefore it can become that, and I would continue to be the attorney to handle this as a malpractice.
THE COURT: All right. So, we will keep your lawsuit viable. We will then allow the Medical Review Panel to do whatever it has to do with this matter. And whenever they finish, whatever they say, then we will return back to your lawsuit.

A judgment was signed on January 14, 2003, in accordance with the facts presented at the hearing. The judgment granted the State’s Exception of Prematurity and stayed the proceedings in district court pending review by the panel. The judgment further ordered that “Mr. Harrison shall receive representation from the Mental Health Advocacy Center on the issue of whether or not Mr. Harrison can receive medication and/or treatment at the Lake Charles Mental Health Clinic pending a final ruling in this case. The court will contact the Mental Health Advocacy Clinic to arrange the representation prior to a trial on this issue.” The State did not appeal the judgment of January 14, 2003, finding a valid panel request was filed by Mr. Harrison, or make any objection to the order which stayed proceedings in district court pending the outcome of the medical review panel. Further, the State did not raise the exception of prescription at the trial level or on appeal in response to the trial judge’s decision to keep the “lawsuit” alive by staying the proceedings in | adistrict court to await review by a medical review panel.

It appears no representation was provided to Mr. Harrison from the Mental Health Advocacy Center, as ordered by the trial court, nor was a medical review panel ever convened to review his complaint. When Mr. Harrison received nothing from the Division of Administration, he returned to district court by filing another pleading entitled “Request for Expert Medical Review Panel.” This pleading was filed under the same docket number as the first petition. The trial court treated this pleading as a second petition. The State again filed an Exception of Prematurity asserting Mr. Harrison never filed a request for a medical review panel. The trial court granted the exception of prematurity. Mr. Harrison appealed. The State answered the appeal and asserted, for the first time on appeal, an Exception of Prescription. The State argued that August 21, 2001 was the applicable prescriptive date. Alternatively, the State argued Mr. Harrison failed to submit $100 to the Division of Administration, which fee is required to convene a medical review panel.

The majority opinion finds September 10, 2001 and not August 21, 2001 is the applicable prescriptive date. However, the majority treats Mr. Harrison’s pleading entitled “Request for Expert Medical Review Panel” as a second petition and grants the State’s Exception of Prescription finding he did not file a request for a medical review panel prior to September 10, 2002. In so doing, the majority fails to address the primary issues in this case, namely, (1) the effect of the judgment of January 14, 2003, which stayed the proceedings in district court and ordered that Mr. Harrison receive representation; and, (2) the State’s admission in open court that Mr. Harrison’s original petition was received by the Division of Administration and could be treated as a request for a medical review panel. The majority opinion acknowledges there was a “brief reference at a 2002 hearing that the initial petition was served on ‘Mark Drennan.’ ” However, the majority concludes “this information |4fails to indicate that the specific requirements of La.R.S. 40:1299.39.1(A)(2) were either satisfied or satisfied in a timely fashion.” Contrary to the majority’s conclusion, I am satisfied the record sufficiently rebuts the State’s position that prescription has run in this case. The record clearly shows the pleading he filed with the trial court on August 20, 2002 was received by the Division of Administration. For the first time, on appeal, the State “argued” without any offer of proof that Mr. Harrison did not submit the $100 fee with the original filing and, therefore, the panel was not convened. Louisiana Revised Statutes 40:1299.39.1(A)(3)(b) requires the Commissioner to “notify the claimant of the amount of the filing fee due and the time frame within which such fee is due to the commissioner.” The notice must inform the plaintiff that the failure to comply will render the request for a medical review panel “invalid and without effect.” The State has provided no proof that such notice was sent to Mr. Harrison. The filing of the petition with Mr. Drennan was sufficient to invoke the medical review panel process and Mr. Harrison’s “Request for Expert Medical Review Panel” should have been treated as a writ of mandamus directing the Division of Administration to convene a medical review panel in accordance with the judgment of January 14, 2003. See Munden v. State, Div. of Admin., 01-2326 (La.App. 1 Cir. 5/9/03), 849 So.2d 639, writ denied, 03-1532 (La.10/3/03), 855 So.2d 310. I respectfully dissent from the majority opinion dismissing Mr. Harrison’s claim on an exception of prescription.

      . We note that the appellate record does not contain the May 2005 filing referenced in the exception. It is, however, affixed to the defendants’ exception of prescription and reference has been made to the document for discussion purposes only. There appears to be no dispute that the request was filed in the district court.

      . Furthermore, the transcript contains discussion between the trial court and the Assistant Attorney General representing the defendants indicating that the trial court has ruled on those claims falling outside of the Medical Malpractice Act.

      . The statute provides:
      (A) No action for damages for injury or death against any physician ..., nurse ..., psychologist ..., hospital ... duly licensed under the laws of this state ..., whether based on tort, or breach or contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.


author: SAUNDERS, Judge.

text:
    Dannie COTTLE v. CONAGRA POULTRY COMPANY.
    No. CA 2006-1160.
    Court of Appeal of Louisiana, Third Circuit.
    March 14, 2007.

      William Preston Crews, Jr., Natchitoch-es, LA, for Defendani/Appellee: ConAgra Poultry Company.
    William J. Joyce, Jones, Walker, New Orleans, LA, for Intervenor/Appellee: Union Central Life Ins. Co.
    Mark Kenneth Manno, Fischer & McMahon, Shreveport, LA, for Plain-tiflyAppellant: Dannie Cottle.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   SAUNDERS, Judge.

|! This is a personal injury action where a truck driver was injured on the premises of one of her employer’s clients. Plaintiff contended that her injury was caused by the negligence of the premises owner in failing to remedy a situation that created an unreasonably dangerous, unsafe, and hazardous condition on the premises. Specifically, employees of the premises owner had placed a wooden pallet at the foot of a flight of stairs, and the premises owner knew that people would use the pallet to reach the stairs.

The trial court found that the truck driver fell and injured herself partially due to her own negligence and partially due to the negligence of the premises owner. In its judgment the trial court awarded plaintiff lost wages.

Plaintiff appealed the amount of lost wages the court awarded, arguing that the amount of lost wages was improperly calculated in two ways: (1) the average weekly wage used by the trial court was incorrect and (2) the length of disability that the court found was manifestly erroneous. We agree with both assertions. We vacate the trial court’s findings regarding plaintiffs average weekly wage and length of disability. We render an accurate average weekly wage and length of disability, and we recalculate the damages due plaintiff for lost wages. We amend the trial court’s judgment to reflect these renderings. Amended.

FACTS AND PROCEDURAL HISTORY:

On April 22, 2002, Dannie Cottle, (hereinafter “Cottle”) was employed by Edgmon Trucking as a truck driver. On that day, Cottle was to pick up a load of chickens from the ConAgra Poultry Company (hereinafter “ConAgra”).

In order for Cottle to perform her duties as a truck driver that day, she was required to traverse a set of steps located on the property of ConAgra in order to give | aand receive paperwork pertaining to her load. For Cottle to use those steps, she had to cross a makeshift bridge fashioned to avoid walking in standing water that had accumulated at the foot of the stairs. This makeshift bridge was a wooden pallet placed at the base of the stairs by employees of ConAgra.

Cottle crossed the pallet three times. On her fourth trip across the pallet, she lost her footing, fell and injured her head, neck, back and various other parts of her body. Cottle received medical treatment from that date of the accident, April 22, 2002, until January 2004. Cottle filed suit against ConAgra for the damages she suffered due to her accident.

After a trial on the merits, the trial court found that Cottle was 30% at fault for the accident and ConAgra was 70% at fault. In its judgment, the trial court awarded special damages to Cottle, including an award for lost wages. The trial court found that Cottle was disabled from work for four months and that her average weekly wage was $433.00. The trial court used these findings to award Cottle lost wages of $7,500.00.

Cottle appeals the trial court’s judgment, citing only errors in the trial court’s calculation of lost wages. Cottle contends (1) that the trial court made an error in the calculation of her average weekly wage and (2) that the trial court manifestly erred in finding that she was only disabled from work for four months due to her accident. We agree with both contentions. Thus, we vacate the trial court’s finding that Cottle’s average weekly wage was $433.00 and render a judgment that Cot-tle’s average weekly wage is amended to $520.38. We also vacate the trial court’s finding that Cottle was disabled for three months and render a judgment that Cottle was disabled from April 22, 2002, to October 9,-2002. After recalculation of damages, we amend | ..¡the trial court’s award to reflect that Cottle is entitled to $12,801.35 in lost wages from ConAgra.

ASSIGNMENTS OF ERROR:

1. Did the trial court err by awarding only $7,500.00 in lost wages due to miscalculating Ms. Dannie Cottle’s pre-injury weekly wage to be $433.00 per week?
2. Did the trial court err in awarding only $7,500.00 in lost wages due to a manifestly erroneous finding that the length of Cottle’s disability caused by her accident on April 22, 2002, was only four months?

ASSIGNMENT OF ERROR# 1:

Cottle argues that the trial court erred in awarding only $7,500.00 in lost wages. First, Cottle argues that the trial court erred by miscalculating her pre-injury average weekly wage to be $433.00. We agree.

Special damages, which are those damages that can be established to a reasonable mathematical certainty, include awards for past and future lost earnings. Myers v. Broussard, 96-1634 (La.App. 3 Cir. 5/21/97), 696 So.2d 88. When a trier of fact assesses special damages, the discretion is more limited or narrower than the discretion to assess general damages. Eddy v. Litton, 586 So.2d 670 (La.App. 2 Cir.1991), writ denied, 590 So.2d 1203 (La.1992). The standard of review, however, is still that of abuse of discretion. Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70.

A plaintiff has the burden to prove that he or she sustained a loss of income. Carter v. State Farm Mut. Auto. Ins. Co., 548 So.2d 53 (La.App. 3 Cir.1989). An award for lost past wages can be calculated as the amount a plaintiff would have in all likelihood earned had he or she been able to work. Taylor v. Premier Ins. Co. of Mass., 98-1934, 98-1935, (La.App. 3 Cir. 6/30/99), 742 So.2d 35.

| ¿Despite the fact that Cottle and ConA-gra submitted exhibits regarding the five weekly pay periods prior to Cottle’s injury, the trial court calculated Cottle’s lost wages by first looking to her gross income from 2002, derived from her W-2 form filed with her income taxes that year. Cottle’s 2002 W-2 form showed that she earned a gross income of $5,181.00. The trial court then rounded that figure up to $5,200.00. Next, because the trial court reasoned that Cottle had only worked four months in 2002, and because Cottle had earned $5,200.00 in those four months, the trial inexplicably divided $5,200.00 by 12 weeks, rather than the 16 weeks in a normal four month period, to get $433.33. The court rounded that amount down to $433.00 per week. Finally, the trial court, based on its finding that Cottle was unable to work for four months, found that $433.00 per week over four months was about $7,500.00. Because of these calculations, the trial court awarded Cottle $7,500.00 in lost wages.

The trial court is afforded much discretion in choosing how to calculate lost wages. But because there were mathematical errors committed by the trial court, and there is much more accurate information in the record as to how much Cottle would have in all likelihood earned had she been able to work, we vacate the trial court’s finding that Cottle earned an average weekly wage of $433.00 and conduct a de novo review of the record to find the average weekly wage that is due Cot-tle.

Both Cottle and ConAgra submitted exhibits as to how much Cottle had earned in the five pay periods prior to her accident. Each argues that the exhibit it submitted should be used to calculate Cot-tle’s average weekly wage. ConAgra submitted a letter from Cottle’s employer, Edgmon Trucking, wherein the following was listed as Cottle’s wages in the five pay periods prior to her accident:

Period: Date: Amount:
(1) 3-25-02 $484.02
15(2) 4-01-02 $544.12
<§) 4-11-02 $481.40
(4) 4-16-02 $529.06
(5) 4-21-02 $563.32

Cottle submitted a copy of her pay stubs from several pay checks prior to her accident. We look only to the following checks as they are the checks from the same five pay periods listed above in Con-Agra’s exhibit:

Check#: Date: Amount:
12303 3-25-02 $771.94
12327 4-01-02 $762.58
12361 4-11-02 $661.24
12374 4-16-02 $743.97
12392 4-22-02 $702.83

There is obvious discrepancy between the exhibits, considering that each purports to reference the same pay periods. A closer examination of the payment stubs submitted by Cottle reveals how Edgmon Trucking arrived at the numbers listed on its letter. Edgmon Trucking apparently took Cottle’s commission and subtracted her mileage from her commission.

For example, when looking at Cottle’s March 25, 2002, pay stub, we see that her commission was $709.32 and her mileage was $225.30. When one subtracts the mileage from the commission the result is $484.02, exactly what Edgmon has listed as Cottle’s income for that pay period.

Cottle argues that if we use the payment stubs she submitted to calculate her average weekly wage, we should simply take her commission and add the reimbursement to her commissions earned in order to determine what her net pay was on each of her checks. We do not agree.

The actual payments to Cottle include payments labeled “REIMB,” which stands for reimbursement. Reimbursement is defined in Black’s Law Dictionary (8th | (¡ed.2004) as “1. Repayment. 2. Indemnification.” Because reimbursement requires one to put forth something in order to be paid something back, the result is neither a net gain nor a net loss, but simply a zero sum. As the record is devoid of any evidence that reimbursement to Cottle is anything but her company placing her in a zero sum position from money she paid beforehand, we find that Cottle’s contention that we should include reimbursement in our calculations of her lost wages is without merit.

Cottle also argues that we should consider the sums listed as mileage as part of her income. She bases this argument on the fact that Edgmon takes out, then puts back in her mileage on her paychecks. Cottle contends that we should do that same to calculate her income. Again, we do not agree.

First, Cottle had the burden to prove that mileage is part of her lost income. There is no evidence in the record that indicates that mileage is part of Cottle’s income with Edgmon Trucking. Because we are left unmoved from center as to whether mileage should be considered part of Cottle’s income, Cottle did not carry her burden to prove that mileage should be included in any calculations for average weekly wage.

Moreover, the W-2 that Cottle submitted in her income tax return, indicates income of $5,181.00. When we look to the pay stubs Cottle submitted, if we add up all the commissions she earned and then subtract all of her mileage, we end up with $5,181.28. If Cottle did not consider her mileage as income when her income tax returns were prepared, we cannot consider that same mileage as part of her lost wages. Therefore, rather than accepting the figures submitted by Cottle in her pay stubs, we instead look to the exhibit presented by ConAgra via a letter from Edg-mon Trucking to discern Cottle’s average weekly wage as follows:

RDate: Income:
“⅞25-02 $484.02
4-01-02 $544.12
4-11-02 $481.40
4-16-02 $529.06
4-22-02 $563.32

Next, we figure the sum of the income of those dates as follows:

Date: Income:
3-25-02 $ 484.02
4-01-02 $ 544.12
4-11-02 $ 481.40
4-16-02 $ 529.06
4-22-02 $ 563.32
TOTAL $2,601.90

Now we take the total income earned over those pay periods and divide it by the number of pay periods, five:

Total Net Wages: $2,601.90
Pay Periods: 5

This results in an average weekly wage of $520.38. We find that this is the most accurate calculation that can be made from the evidence in the record and gives the best indication of what Cottle would have likely earned had she been able to work. As such, we amend the trial court’s judgment to reflect that Cottle’s average weekly wage is $520.38, and will recalculate the lost wages that Cottle is due.

ASSIGNMENT OF ERROR# 2:

In her second assignment of error, Cot-tle argues that the trial court was manifestly erroneous or clearly wrong in its judgment that Cottle’s length of disability due to her accident was four months. We agree.

The standard of review for reviewing the length of disability of a plaintiff is that of abuse of discretion. Wainwright v. Fontenot, 774 So.2d 70.

IsCottle first contends that the trial court committed manifest error as to the length of her disability due to an incorrect finding regarding the final date she received medical treatment. In its reasons for ruling the trial court stated that Cottle was treated for her injuries from April 22, 2002, through January of 2003. This is incorrect. Instead, Cottle’s medical records indicate that she received medical treatment from April 22, 2002, through January of 2004.

Nevertheless, while the trial court erroneously stated that Cottle discontinued treatment in January 2003, the misstatement regarding this date had no bearing on the trial court’s finding that Cottle could have returned to work four months after her accident. The trial court stated in its reasons for ruling that it made its finding regarding length of disability based on the records of Dr. Calodney, specifically those medical records of October 9, 2002. It was the substance of the records, wherein Dr. Calodney stated that Cottle had unexplained symptoms and showed exaggerated pain responses to tests, that prompted the trial court to make its finding. There is no indication in the record that the length of treatment sought by Cottle had any bearing on the court’s finding regarding this issue. Therefore, the trial court’s error of how long Cottle received medical treatment is harmless with respect to its finding regarding the length of Cottle’s disability.

Cottle also argues that even if the trial court’s error as to the length of her treatment had no bearing on its finding regarding length of disability, it abused its discretion in finding that Cottle was entitled to lost wages for only four months. We agree.

18There is no evidence in the record that provides the trial court a reasonable basis to find that Cottle could return to work after four months. Because of this lack of evidence, we conduct a de novo review of Cottle’s medical records to find at what point Cottle could return to work.

The medical records of Dr. Kamm, on May 15, 2002, and May 29, 2002, specifically stated that it was his professional opinion that Cottle should remain off of work. Dr. Kamm then determined on June 12, 2002, that Cottle should see a specialist, namely Dr. Aaron Calodney, and stated that Cottle should stay off work until she could see Dr. Calodney. After Cottle did see Dr. Calodney, the only time Dr. Kamm referenced work with regards to Cottle was in a warning that the muscle relaxer prescribed to Cottle may cause drowsiness and it would be unsafe to drive when taking the muscle relaxant if it did indeed cause drowsiness. This warning about the potential side effects of her muscle relaxant, namely drowsiness, is what Cottle claims is the evidence we should use in finding that Cottle could not return to work until January of 2004. We do not agree.

When Cottle saw Dr. Calodney on October 9, 2002, the medical records indicate that Cottle specifically stated that she was on muscle relaxants, and that she did not have any significant side effect from taking those muscle relaxants. As such, a finding that Cottle could not work because of her use of those muscle relaxants would be unfounded. Rather, the facts in the record dictate that Cottle could have returned to work on October 9, 2002.

At that date and onward, there was no objective test performed on Cottle that could explain why she was experiencing pain. Cottle had undergone X-rays, an MRI, a Myelogram, and a Cat Scan of the spine, all of which were normal. Further, it is Instated in Dr. Calodney’s medical records from October 9, 2002, that there was no explanation of Cottle’s symptoms and that she showed exaggeration in response to pain tests.

Therefore, we find that given the totality of the medical testimony in this case, Cot-tle could have returned to work on October 9, 2002. This entitles Cottle to lost wages from April 22, 2002 to October 9, 2002, a period of 123 work days, or 24.6 weeks of wages that she missed due to her injury.

Because of our findings above, we amend the trial court’s judgment awarding Cottle lost wages. Using the correct average weekly wage of $520.38 and multiplying that by the 24.6 weeks of work that we find Cottle missed due to her injury, we find that Cottle is entitled to $12,801.35 in lost wages from ConAgra. The judgment of the trial court is amended as such.

CONCLUSION:

The judgment of the trial court is affirmed as amended. The costs of this appeal are to be paid by ConAgra.

AFFIRMED AS AMENDED.

      . Perhaps the trial court was confused as to when Cottle last sought treatment from the testimony of Cottle herself wherein she stated that she last saw Dr. Richard C. Kamm, the last physician to treat her, in January of 2003.


author: DREW, J.

text:
    Deona L. CYRUS, et al., Plaintiffs-Appellants v. U.S. AGENCIES INSURANCE COMPANY, et al., Defendants-Appellees. Takeisha Sumler, Plaintiff-Appellee v. State Farm Mutual Automobile Insurance Company, et al., Defendants-Appellees.
    Nos. 41,826-CA, 41,827-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 14, 2007.

      William Edward Armstrong, Monroe, for Plaintiff-Appellant, Deona L. Cyrus.
    Hayes, Harkey, Smith & Cascio, by Harry McClellan Moffett, IV, Monroe, for Defendanh-Appellee, Deona L. Cyrus.
    Street & Street, by Daniel Randolph Street, Monroe, for Plaintiff-Appellee, Ta-keisha Sumler.
    Hudson, Potts & Bernstein, L.L.P., by Mark Jeffrey Neal, Ethan A. Hunt, Monroe, for Defendants-Appellees, U.S. Agencies Casualty Insurance Company, Inc. and Shelly M. Ridley.
    Gregory George Elias, Monroe, for Defendant-Appellee, Shelley M. Ridley.
    Before DREW, MOORE and LOLLEY, JJ.
   DREW, J.

hln her appeal, the left-turning motorist complained that the trial court erred in finding her 100% at fault in causing the collision that totaled both vehicles and resulted in personal injuries and other damages to both drivers and a guest passenger. Our review of this record shows that the assessment of 100% fault on the left-turning motorist was manifestly erroneous. Both drivers were inattentive. Therefore, the judgment of the trial court is amended to cast the southbound driver with 50% of the responsibility in causing this collision while reducing the fault of the left-turning motorist to 50%.

FACTUAL AND PROCEDURAL BACKGROUND

At 11:15 p.m. on July 17, 2004, Deona Cyrus was traveling north on Warren Drive (a four-lane street) in West Monroe and turned left across the two southbound lanes into Johnny’s Pizza store. Shelley Ridley and Takeisha Sumler, her guest passenger, were driving south on Warren Drive and collided with the Cyrus vehicle in the outside southbound lane. Neither driver nor the guest passenger saw the other vehicle prior to the crash. Cyrus contended Ridley was operating her car without headlights, a claim disputed by Ridley and her passenger.

The left-turning motorist, Cyrus, and Mona Menyweather, owner of the Cyrus vehicle, sued Ridley, who reconvened against Cyrus and State Farm Mutual Automobile Insurance Company for her damages. Ridley’s passenger, Sumler, sued both Cyrus and State Farm along with Ridley and U.S. Agencies Casualty Insurance Company for her damages. Sumler and U.S. Agencies dismissed their appeal with prejudice in this court on |2November 2, 2006, since they settled. The file also contains a letter from State Farm stating State Farm dismissed its appeal at the trial level. Therefore, this appeal is limited to Cyrus’s complaint about being held 100% at fault.

TESTIMONY

Michael J. Rigal, a detective with the West Monroe Police Department, stated he investigated the accident and recorded what he learned in his accident report which stated that the headlights of Rid-ley’s southbound vehicle were not on. Cyrus did not see the Ridley vehicle and turned left across the southbound lanes to enter a parking lot. The left front corner and left front fender of the Ridley vehicle struck the front and left front corner of the Cyrus car. Impact was in the outside southbound lane. Rigal cited Ridley for careless operation for driving without headlights.

The officer testified:

• He had no independent recollection of the accident and relied upon his accident report which contained “pretty much exactly” what the two drivers told him.
• If Ridley had denied her lights were off, he would have included that in his report and would not have written her a citation; the officer did not independently recall whether Ridley or her passenger told him her headlights were on or off.
• He did not recall checking the light switch position on the Ridley vehicle, his normal procedure in a dispute.
• Cyrus, Ridley, and Sumler were taken by ambulance to the hospital.
• Cyrus told him she did not see the Ridley car which had no headlights.
|?* The report did not state that the officer interviewed Sumler, the passenger in the Ridley car, although Rigal said he would have talked to Sumler.
• As an accident investigator, his-job was to ascertain what happened but not to determine fault.
• He estimated that the collision occurred 350 feet south of the intersection with Wellerman Road, but the distance could have been less; a nursing home is located between the intersection and the accident scene on the same side of the street. The other side of the street was residential.
• The streetlights in the area were operating and the Johnny’s Pizza sign at the scene gave light to the parking lot and the street.
• The Ridley car was moving straight down the street and the Cyrus car turned left across the path of Ridley’s car.
• The collision was not low impact and the Ridley vehicle was pushed onto the shoulder/sidewalk next to the street.

Deona Cyrus testified she was driving to Johnny’s Pizza from her home and turned left into the parking lot when she was struck by the Ridley car which had no headlights. Cyrus stated:

• Because she did not see the Ridley car before the crash, she concluded that Ridley’s headlights were not on.
• The very hard impact damaged the front left side of her car, which was totaled in the collision.
• Her head hit the steering wheel and her left knee hit the dashboard.
• The air bags did not deploy.
• She sustained additional injuries to her lower left back, her left neck, and left ankle. She had pain from the July accident until Christmas.
• She opined that the area was not well lighted and said the street lights illuminated the sidewalks. The Johnny’s Pizza sign illuminated the side of the sign only.
• While waiting to turn into Johnny’s, Cyrus let one southbound vehicle pass, looked and did not see another car before she turned left into Johnny’s.
14* Following the July 17 accident, Cyrus’s treating physician, Dr. Warren Daniel, released her to work on August 18, 2004. Cyrus described herself as 60% well at that point.
• The same day Dr. Daniel released Cyrus, she was in another accident and continued treatment with her doctor. Cyrus stated she did not re-injure any of the areas hurt in the July crash but injured her right knee, for which she received treatment for about a week.

Cynthia Bond, a night delivery driver at Johnny’s, had traveled south on Warren Drive and turned right into the Johnny’s lot just prior to the impact. When turning, Bond noticed Cyrus’s vehicle was stopped and signaling a left turn into Johnny’s Pizza. Bond saw no vehicles behind her on Warren. She estimated that five to fifteen seconds after turning in, she heard the impact as she was reaching into her back seat for her pizza bags. She immediately went inside to call for police and ambulance assistance. She spoke briefly with Cyrus before leaving for another delivery. According to Bond, the Cyrus vehicle had on lights and turn signal while the Ridley car had no lights, front or back. After impact, the Ridley car moved south, jumped the curb and came to rest on some bushes in the Johnny’s lot.

Shelley Ridley testified that she left work at the nursing home about a block from Johnny’s Pizza. She turned right onto Wellerman Road and right onto four-lane Warren Drive. Moving at about 25 mph, Ridley did not see Cyrus’s vehicle, which she struck in the outside southbound lane without applying her brakes. Her passenger, Takeisha Sumler, did not give any type of warning before the wreck. Ridley testified both that her headlights were not on when her car came to rest in front of Johnny’s Pizza and that the lights were on when she was pulled out of her car after the crash. Ridley said neither she nor anyone else turned off the manually-operated lights after | ¡¿he accident. She did not recall if the police officer questioned her about her headlights.

Ridley stated on direct examination that she started her car, put on her seat belt, and turned on her lights with her left arm. After stopping at the red light at the intersection and seeing no traffic, she turned right on red from Wellerman onto Warren. Following the crash, all she remembered was a man assisting her from her car and speaking to ambulance personnel. Her testimony was that her first conversation with the officer was when he gave her the ticket in the emergency room for having no lights. Ridley stated she told him her lights were on but the officer left. At her deposition a year earlier, Ridley stated she believed the officer asked her at the scene if her headlights were on and she told him that the lights were on. Ridley’s car was totaled in the accident. She stated she had low back injury, although her medical records referred to neck and shoulder injuries.

Takeisha Sumler, Ridley’s guest passenger, testified at trial that she saw Ridley push or pull a button to turn on the headlights'. She contradicted her assertion at the pretrial deposition that she knew the lights were on but never saw Ridley do anything. Sumler then explained at trial she thought the lights came on automatically and she noticed the lights reflecting off a building. Sumler never saw the Cyrus car before impact, as she was picking up her keys from the floor. While acknowledging there were street lights and the Johnny’s Pizza lighted sign, Sumler did not think there was enough light for someone to drive without headlights. At her previous deposition, she stated there was sufficient light to see. At trial, Sumler was positive RRidley’s lights were on. Sumler’s account was that Ridley’s vehicle was in the left inside, southbound lane when the wreck occurred.

REASONS FOR JUDGMENT

The trial court decided that:

• Ridley’s headlights were on prior to impact, notwithstanding Bond’s testimony that Ridley’s lights were off after the wreck.
• Ridley could not have traveled the distance from her place of employment to the point of impact without noticing her lights were off.
• Cyrus failed to prove that Ridley’s lights were off.

Among the reasons cited by the trial court were Sumler’s testimony that she observed the headlights reflecting off the building as they were leaving work. Based upon its familiarity with the area of the collision and the five- to fifteen-second delay from Bond’s turning until she heard the crash, the court speculated that Ridley may not have turned off Wellerman Road onto Warren when Bond turned into the Johnny’s parking lot. The trial court also noted that the policeman estimated the distance from the Wellerman Road intersection to Johnny’s was 350 feet but it could have been less.

The trial court dismissed Ridley’s failure to see the Cyrus vehicle prior to the collision because Ridley was on a favored street and Cyrus had a higher duty of care as a left-turning motorist. Based upon Cyrus’s not having preempted the favored traffic, the amount of damage, and the distance traveled by the Ridley vehicle after impact, the trial court found Cyrus to be solely at fault. The trial court awarded Ridley $5,000.00 in ^general damages and special damages of $5,926.30 for medicals, property damage, and lost wages.

FAULT

In Toston v. Pardon, 2003-1747 (La.4/23/04), 874 So.2d 791, 799-800, the supreme court reversed this court’s 100% assessment of fault to the drunk driver and re-allocated the fault between the driver and DOTD. The supreme court explained:

The initial inquiry to determine if a party may be liable under the duty-risk analysis is cause-in-fact. A party’s conduct is a cause-in-fact of the harm if it was a substantial factor in bringing about the harm. The act is a cause-in-fact in bringing about the injury when the harm would not have occurred without it. While a party’s conduct does not have to be the sole cause of the harm, it is a necessary antecedent essential to an assessment of liability.
Whether an action is the cause-in-fact of the harm is a factual determination that is left to the factfinder. This court posited a two-part test for the appellate review of facts:
(1) The appellate court must find from the record that there is a reasonable factual basis for the finding of the trial court, and
(2) The appellate court must further determine that the record establishes that the finding is not clearly wrong or manifestly erroneous.
When the district court has allowed both parties to present their experts before making its factual determinations, the factfinder’s choice of alternative permissible views cannot be considered to be manifestly erroneous or clearly wrong. However, where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error even in a finding purportedly based on a credibility determination. (Citations omitted.)

Notwithstanding the deference due the factual findings of the trier of fact, our examination of this record reveals manifest error in casting Cyrus with 100% fault for the wreck. No reasonable view of the evidence supports this result. The trial court disregarded the significant and disinterested ^testimony of both the investigating officer, who arrived a minute after the accident, and Bond, the independent witness, who saw no headlights behind her as she drove south and turned into Johnny’s Pizza. Bond also observed Ridley’s car with no lights while it was still in motion after the crash.

In addition to stating headlights on the Ridley vehicle were off when he arrived, the officer testified that his practice was to ask drivers if their headlights were on. The officer frankly admitted he had limited recollection of the event and properly relied upon his accident report in testifying. La. C.E. art. 803(5). Had Ridley replied her headlights were on, the officer stated he would have noted the dispute in his report and, according to his normal procedure, he would not have issued Rid-ley a citation for careless operation due to driving without headlights. The officer said his report was written while fresh on his mind based upon his conversations with the drivers and his conclusions.

Ridley herself gave contradictory testimony about her interactions with the policeman at the scene; she indicated at her deposition she believed that the officer asked whether her lights were on, while at trial she stated the only time she saw the policeman was at the hospital. In spite of the officer’s testimony about his normal investigative techniques and practices and his frank admission of his limited memory of this particular accident, the trial court concluded the officer failed to speak to Ridley, a conclusion that is not supported by this record.

The trial court also erred in interjecting its personal “extra judicial familiarity” with the accident area in deciding that Ridley could not have traveled from her work to the accident site without realizing her lights were | soff. The trial court also improperly speculated that the reason the witness, Bond, did not see Ridley’s headlights was because Ridley had not turned onto Warren Street when Bond turned into Johnny’s Pizza. The officer’s estimation that the distance from the intersection to Johnny’s Pizza was 350 feet or perhaps less belied this theorization. The trial court improperly made factual findings based upon its personal perceptions of the relevant streets. In addition to relying on personal speculation, the trial court ignored relevant disinterested testimony in favor of contradictory testimony about Ridley’s headlights. The conclusions that Ridley’s headlights were illuminated and that Cyrus was solely at fault in the accident were manifestly erroneous.

Having found the trial court was clearly wrong in finding Cyrus 100% at fault and in failing to find Ridley at fault, we re-allocate fault as instructed by the supreme court in Toston v. Pardon, 874 So.2d at 803.

After an appellate court finds a clearly wrong apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion. In applying the manifest error standard of review to the factfinder’s allocation of fault in Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967, 974 (La.1985), this court stated as follows:
In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed..
In assessing the nature of the conduct of the parties, various factors may influence the degree of fault 110assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties. (Citation omitted.)

In Slagel v. Roberson, 37,791 (La.App. 2d Cir.11/18/03), 858 So.2d 1288, 1290-1291, writ denied, 2003-3508 (La.3/12/04), 869 So.2d 824, this court explained:

Before attempting a left turn, a motorist should ascertain whether it can be completed safely. In a vehicular collision case, plaintiffs are afforded the benefit of a presumption of the defendant’s negligence when they prove that the defendant executed a left hand turn and crossed the center line at the time of the impact. The burden rests on the motorist who desires to make a left turn to explain how the accident occurred and to show that he is free from negligence.
Likewise, jurisprudence has established that an oncoming driver has a right to assume that the left-turning motorist will obey the law in allowing him to continue in his proper lane of travel and will yield to his right-of-way.
Nonetheless, all motorists on Louisiana highways must drive with due regard for the traffic on the highway and have an affirmative duty not to drive faster than is reasonable and prudent under the conditions and potential hazards existing at the time. La. R.S. 32:64(A). Thus, notwithstanding the presumption of negligence attributed to a left-turning driver, a favored motorist can still be assessed with comparative fault if his substandard conduct contributed to the cause of the accident.
Pursuant to Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985), the trier of fact will compare the relative fault of the parties in the assessment of liability. The law of comparative negligence is applicable to situations involving automobile accidents. The allocation of fault is a factual determination subject to the manifest error rule.
A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. The task of a reviewing court is to assess |nwhether the fact finder’s resolution of conflicting evidence was reasonable in light of the record as a whole.
CCitations omitted.)

Both drivers stated that neither saw the other vehicle until impact. Neither took evasive action. Both were inattentive. Neither driver saw what she should have seen and that failure on both their parts resulted in this crash. Cyrus, the left-turning driver, admittedly failed to yield the right of way to the southbound Ridley and turned into Ridley’s path. Even if we were to assume that Ridley’s headlights were not illuminated, Cyrus was on a lighted street with her own headlights to assist her. Clearly, she should have seen Rid-ley’s car and avoided the wreck. We agree with the trial court’s finding that her negligence was a cause of this crash.

Ridley’s inattention, like Cyrus’s, amounted to careless operation of her vehicle because she failed to drive her car in a careful and prudent manner. See La. R.S. 32:58. It is undisputed that Cyrus’s headlights and turn signal were operating. Ridley admitted she never saw Cyrus’s car and did not apply her brakes before impact. Had Ridley maintained a proper lookout and seen what she should have seen, the accident could have been avoided. Cyrus’s stopped car had to move across the entire inside southbound lane before impact in the outside southbound lane. Even though Ridley was in the favored lane of travel, Ridley’s failure to see this lighted vehicle move into her path was substandard conduct and an equal contributing factor to this mishap.

In summary, had either of these drivers seen what she should have seen, this accident could have been avoided.

DAMAGES

|19Where a fact finder does not reach an issue because an earlier finding disposes of the case, the appellate court must make a de novo determination of undecided issues from the facts in the record. This court must make a fair and just award to Cyrus for damages established in the record. Holt v. Bethany Land Co., 36,888 (La.App. 2d Cir.4/9/03), 843 So.2d 606.

At trial Cyrus introduced into evidence without objections and by stipulation her medical records, her doctor’s deposition and the following itemized medical expenses: hospital bill ($1,611.00), Dr. Warren Daniel’s bill ($2,342.00), ambulance bill ($495.25), two Radiology Consultants bills (totaling $168.00), pharmacy bill ($319.30), and a medical records charge ($43.82). Her special medical expenses totaled $4,953.57. Cyrus placed into the record proof of lost wages from Johnny’s Pizza and the Dollar General Store of $597.50 plus deposition costs of $561.00, which included an expert witness fee of $400.00 for Dr. Daniel and $161.00 for the court reporter.

The parties also stipulated that Mona Menyweather sustained only property damage consisting of her $500.00 insurance deductible and $171.00 for car rental. Only Deona Cyrus filed this devolutive appeal, which did not include Mona Meny-weather. Cyrus is (apparently on behalf of Menyweather) seeking to recover the $671.00 in property damage stipulated to have been sustained by Menyweather. Because Menyweather did not appeal the judgment, this court will not address that element of damages.

Following the accident, Cyrus was treated with medication and physical therapy and was released to return to work about a month after the ha accident. Cyrus testified that she had residual pain and problems from the July accident until about Christmas of that year. Under the circumstances presented, we award Cyrus $5,000.00 in general damages. In addition, Cyrus is granted special medical damages of $4,953.57, lost wages of $597.50, and deposition costs of $561.00.

DECREE

The judgment of the trial court is amended to reduce the allocation of fault against Deona Cyrus from 100% to 50% and to cast Shelley Ridley with 50% of the fault in causing this collision. The trial court’s damage award to Shelley Ridley totaling $10,926.30 was not at issue in this appeal but is reduced by 50% to reflect Ridley’s comparative fault. Deona Cyrus is awarded general and special damages of $11,112.07, as set out above; this award is reduced by 50% to reflect Cyrus’s comparative fault in causing this accident. Cyrus and Ridley are to bear the costs of the appeal equally.

AMENDED AND RENDERED.

      . The accident report and accompanying diagram were filed into the record and incorporated as part of Cyrus’s petition.

      . See discussion in Elliott v. U.S. Fidelity & Guar. Co., 568 So.2d 155 (La.App. 2d Cir.1990), stating that resolution of disputed issues of material fact by judicial notice is improper. Disputed facts are not in the same vein as the laws of nature, geographic and historical facts, time, laws and other matters of common knowledge.

      . In the dissent in McElroy v. Wilhite, 39,393 (La.App. 2d Cir.5/18/05), 903 So.2d 627, Judge Caraway opines that the appellate court should give no deference to the trial court when it fails to find a co-tort-feasor negligent but notes that view was tacitly overruled by the supreme court in Toston v. Pardon, supra.


author: WILLIAMS, Judge.

text:
    FIRST THRIFT AND LOAN, L.L.C., Plaintiff-Appellee, v. Leonard James GRIFFIN, Jr. and Dawn Savitra Rabon Griffin, Defendant-Appellant.
    No. 41,666-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 14, 2007.

      Thomas W. Rogers, Ruston, for Appellant.
    Philip T. Deal, for Appellee.
    Before WILLIAMS, GASKINS and SEXTON (Pro Tempore), JJ.
   WILLIAMS, Judge.

hThe defendants, Leonard Griffin, Jr. and his wife, Dawn Griffin, appeal a judgment in favor of the plaintiff, First Thrift and Loan, L.L.C., in the amount of $30,856. The trial court found that plaintiff, which paid laborers in exchange for acts of assignment, was entitled to assert a claim for the price of work performed in the construction of defendants’ home. For the following reasons, we reverse and render.

FACTS

On March 1, 1996, Leonard and Dawn Griffin signed a contract with John Bass, d/b/a John L. Bass Construction Company, for the construction of their home in Calhoun, Louisiana. The total price of $131,800 was to be paid in installments, or draws, as the work progressed. The1 parties did not file notice of the contract in the property records of Ouachita Parish. Bass entered into an informal arrangement with First Thrift and Loan, L.L.C. (“First Thrift”), which advanced money to Bass for construction of' the premises. Bass then reimbursed First Thrift upon receipt of the draws from the Griffins.

After paying, several draws requested by Bass, the Griffins became dissatisfied with his alleged failure to follow the house plans, his failure to properly supervise the work and failure to pay the laborers. On July 16, 1996, the Griffins paid a draw of $15,750, which was the last payment to Bass. From July 24, 1996 through November 1996, First Thrift paid the laborers directly and obtained assignments from them of any rights they possessed against Bass and the Griffins. In December 1996, Leonard Griffin spoke with Bass, expressed concern about his performance and said Rthat he would make payments to the workers. Bass stopped working at the construction site.

In February 1997, First Thrift filed a “labor lien affidavit” with the Ouachita Parish clerk’s office. Subsequently, the plaintiff, First Thrift, filed a petition to enforce the lien against the defendants, Leonard and Dawn Griffin, seeking payment of $30,856. The defendants filed an exception of no cause or no right of action, which was denied. After a trial, the district court issued a written ruling, finding that the statement of claim filed by First Thrift satisfied the statutory requirements and that it was entitled to recover based on the laborers’ assignments of rights. The court rendered judgment ordering defendants to pay $30,856 to First Thrift. Defendants appeal the judgment.

DISCUSSION

The defendants contend the trial court erred in allowing First Thrift to assert the claims of laborers based on alleged acts of assignment. Defendants argue that since none of the laborers actually filed a lien against defendants, they did not have any claims to assign to First Thrift.

When an owner contracts for the improvement of an immovable with a contractor, the Louisiana Private Works Act, LSA-R.S. 9:4801 et seq., grants laborers or employees of the contractor or subcontractor a claim against the owner and the contractor to secure payment of the price of work performed at the site of the immovable. LSA-R.S. 9:4802. The claims against the owner shall be secured by a privilege on the immovable upon which the work is performed. LSA-R.S. 9:4802(B). Those persons granted [sa claim and privilege by Section 4802 for work arising out of a general contract, notice of which has not been filed, shall file a statement of their claims and privileges within 60 days after substantial completion or abandonment of the work. LSA-R.S. 9:4822.

The Private Works Act creates a right against an owner in favor of a laborer, even though the laborer does not have a contractual relationship with the owner, by virtue of the worker filing a lien. However, until the laborer files this claim, he never achieves the status of creditor. Pringle-Associated Mortgage Corp. v. Eanes, 254 La. 705, 226 So.2d 502 (1969). The legislative intent and fundamental aim of the Private Works Act is to protect laborers and subcontractors who engage in construction and repair projects. Hibernia National Bank v. Belleville Historic Development, L.L.C., 01-0657 (La.App. 4th Cir.3/27/02), 815 So.2d 301, writ denied, 02-1177 (La.6/14/02), 818 So.2d 785.

In the present case, the parties do not dispute that the laborers who performed the work never filed a statement of lien. The testimony showed that the laborers were paid for their work. Consequently, as stated in Pringle, supra, since the laborers never filed a claim they cannot be considered creditors of the defendants. Thus, the laborers did not have a valid claim under the statute to assign to First Thrift, which cannot have any greater right than the laborers. Accordingly, we shall reverse the judgment.

In its brief, First Thrift contends that Pringle is not applicable because this case involves written assignments of rights and not subrogation. First Thrift’s position is not supported by the applicable law.

|4In an assignment, the assignee is sub-rogated to the rights of the assignor against the debtor. LSA-C.C. art. 2642. Subrogation is the substitution of one person to the rights of another. LSA-C.C. art. 1825. Thus, contrary to First Thrift’s contention, in obtaining assignments from the laborers it sought subrogation by substituting itself to the rights of another. However, since the laborers in this case did not file liens, they never possessed any rights against the defendants that could be assigned. First Thrift’s contention lacks merit.

In reaching the conclusion that First Thrift did not obtain a valid lien through the purported acts of assignment of the laborers, we pretermit a discussion of the defendants’ remaining assignments of error.

CONCLUSION

For the foregoing ' reasons, the trial court’s judgment is reversed and judgment is hereby rendered in favor of the defendants, Leonard Griffin, Jr. and Dawn Griffin, dismissing plaintiffs claims. Costs of this appeal are assessed to the appellee, First Thrift and Loan, L.L.C.

REVERSED AND RENDERED.