author: LEON A. CANNIZZARO, JR., Judge. KIRBY, J. GORBATY, J.

text:
    Brad A. ADAMS (W-3 and W-4), S.T. Alcus, III (W-17), Danny Allday (W-10), American International Travel, Inc., Norman Augusta (N-16), A. Baumer (W-7), Richard H. Barker, IV (W-16), Otto Candies, Jr. (N-14), Fairview Realty, L.L.C., et al. v. The BOARD OF COMMISSIONERS FOR The ORLEANS LEVEE DISTRICT.
    No. 2005-CA-1159.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 29, 2007.

      John W. Hite, III, Lisa A. Valley, Salley, Hite, Rivera & Mercer, LLC, New Orleans, LA, for Plaintiffs/Appellants, Brad A. Adams (W-3 — W-4), S.T. Alcus, III (W-17), Danny Allday (W-10), American International Travel, Inc., Norman Augusta (N-16), A. Baumer (W-7), Richard H. Barker, IV, (W-16), Otto Candies, Jr. (N-14), Fairview Realty, L.L.C. et. al.
    Gerard G. Metzger, Gerard G. Metzger, APLC, New Orleans, LA and Frank A. Milanese, Frank A. Milanese, PLC, New Orleans, LA, for Defendant/Appellee, Board of Commissioners of the Orleans Levee District.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

| Jhis case involves an appeal by certain of the original plaintiffs in this case. The appellants’ brief lists the appellants as Brad A. Adams, S.T. Alcus, III, Danny Allday, American International Travel, Inc., Alvin Baumer, Richard H. Barker, IV, Otto Candies, Jr., Fairview Realty L.L.C., Douglas and Dixie Depp, Candy Fleet Corporation, Clifford Duplessey, Kohlie Frantsen, G.M. Haydel, Dieter M. Hugel, Rustin D. Johnson, Cris Mandry, W.H. Metcalf, Jr., Douglas Moore, Christopher Quebedeau, Richard L. Rubin, William M. Ruddy, Jr., Lawrence Sintes (the “Appellants”), and Everett C. Pitmann, Jr. Each of the Appellants is appealing a trial court judgment denying a claim for declaratory relief regarding a lease agreement executed by and between the Appellant and the Board of Commissioners of the Orleans Parish Levee District (the “District”).

| .FACTS AND PROCEDURAL HISTORY

Marina Leases

The District, a political subdivision of the State of Louisiana which is governed by the Board of Commissioners of the District (the “Board”), owned a marina located in New Orleans. The District was permitted by statute to lease the land and water bottoms at the marina for the mooring of boats and the construction of boathouses. The marina contained “boathouse shells,” which were covered spaces designed to provide a place, where vessels could be moored, and there was space adjacent to the “boathouse shells” that could be used to construct boathouses.

In 1971 and 1972, the District leased to the Appellants space in the marina that included the water bottoms and the land on which “boathouse shells” were built as well as the space for the construction of boathouses. The leases originally had terms of twenty years.

Pursuant to a Board resolution that was adopted in 1973, the Appellants were given the option to extend their leases for three additional five-year periods. As consideration for the option, the Appellants agreed that the rent under their leases would be adjusted every five years based on increases in the Consumer Price Index. After the additional three five-year options were exercised, the expiration dates of the leases were in 2006 and 2007.

Many of the Appellants constructed substantial boathouses on the leased premises. Although the boathouses that were built on the premises were owned by the Appellants during the term of the lease, the lease agreements contained a ^reversion provision pursuant to which all boathouses on the leased premises became the property of the District upon the expiration of the leases. During the terms of then-leases, the Appellants could sell the boathouses on the leased premises, and the purchaser of a boathouse would be assigned the rights under the seller’s lease. When the leases ended in 2006 or 2007, all of the boathouses would become the property of the District.

At the trial in the instant case, Albert Pappalardo, a professional realtor who advised the Board with respect to the District’s real estate holdings, testified that the closer it was to the expiration of the lease agreements, the more difficult it would be for the Appellants to sell the boathouses on the leased premises and to assign their leases. The value of the boathouses to the Appellants would diminish as the lease agreements approached their expiration dates. Thus, it was to the advantage of the Appellants to continue leasing the marina property as long as possible. Gary Benoit, an attorney employed by the District, who ultimately became senior counsel for the District, also testified, and his testimony agreed with Mr. Pappalar-do’s testimony on the diminishing value of the boathouses to the Appellants.

Because the boathouses that the Appellants had constructed at their own expense would belong to the District at the termination of the leases, the Board could then lease the marina property and the boathouses. Because the original leases did not take into account the value of the boathouses that the Appellants 14would construct and would own until the expiration of the leases, the rental value of the leased premises would increase greatly once the boathouses were owned by the District.

199⅛ Resolution

Mr. Pappalardo testified that some of the marina lessees approached him and some of the Board members about the possibility of extending the lease agreements beyond the 2006 and 2007 expiration dates. Mr. Pappalardo further testified that these lessees were concerned about “their ability to market their properties in the future.”

In response to the lessees’ concerns about marketing the boathouses that they had constructed, the Board passed a resolution (the “1994 Resolution”) on February 23, 1994. The 1994 Resolution authorized the “granting of three additional five year options, with the cost to extend the first five year option to be $1,000, the cost to extend the second five year option to be $1,000, and the cost to extend the third five year option to be $2,000, under terms to be developed by the Marina Committee.” The 1994 Resolution further provided that the Board’s offer to grant the additional options would be open to all lessees “for a period of 90 days from the first of March, 1994.”

The Fourroux Lease Amendments

At the trial in the instant case, Mr. Benoit, the District’s attorney, testified that only six of the lessees of the marina sites responded to the option offered pursuant to the 1994 Resolution. Leases were executed by the responding lessees on a form that was prepared by Kermit A. Fourroux, one of the responding lessees. The record contains a letter from Mr. Fourroux to Mr. Benoit in which Mr. Fourroux states that he is enclosing an amendment to his lease that he drafted to | ¿incorporate the provisions of the 1994 Resolution. The lease amendment that Mr. Fourroux prepared included a specified rental amount of thirty cents per square foot of leased area.

The validity of the lease amendments executed by Mr. Fourroux and three other lessees of the marina property (the “Four-roux Leases”) was litigated, and this Court found that the Fourroux Leases were valid in Fourroux v. Board of Commissioners for the Orleans Levee District, 02-0374 (La.App. 4 Cir. 1/8/03), 837 So.2d 698. At the trial in the instant case, however, James P. Huey, the then Board president, testified that the Fourroux Leases “were done incorrectly and inappropriately.”

1996 Resolution

Mr. Benoit testified that because of the limited response to the option offer contained in the 1994 Resolution, the Board adopted another resolution on February 28, 1996 (the “1996 Resolution”). The 1996 Resolution was adopted in response to interest in additional lease options that was expressed by lessees who had not responded to the initial option offer made pursuant to the 1994 Resolution. The 1996 Resolution reopened to the lessees, who had not responded to the offer in the 1994 Resolution, the Board’s offer under the 1994 Resolution to grant three additional five-year lease options to the lessees. The offer remained open for a period of one hundred and twenty days, and most, if not all, of the lessees who had not accepted the option offer in 1994 did accept the offer in 1996. The only thing added to the 1994 Resolution by the 1996 Resolution was that the option fees would be payable on or before the date that the options were exercised.

| $000 Resolution

Mr. Benoit testified at the trial that the Board was not yet in a position to execute new leases or lease amendments with the Appellants until the Board had adopted a resolution authorizing the “terms to be developed by the Marina Committee” in accordance with the 1994 Resolution. He testified that the 1994 Resolution required the successor committee to the Marina Committee to develop the terms, including the new rental amounts, of the new leases. He further stated that the Board would then have to adopt the terms that had been developed before any new leases could be executed.

Mr. Pappalardo testified at the trial that he conducted a study on the market rental values of the marina property based on not only the rental value of the land and water bottoms but also on the rental values of the boathouses on the leased premises, the ownership of which would revert to the District upon the expiration of the marina leases in 2006 and 2007. He used a price per square foot methodology in determining the rental values. Legal counsel for the District, the District’s staff, and Mr. Pappalardo prepared a report that was presented to the successor to the Board’s Marina Committee. The report contained recommendations for the terms of the lease agreements for the extension options that would begin in 2006 and 2007. The report was adopted by the successor committee and was recommended to the Board for its consideration.

Both Mr. Benoit and Mr. Pappalardo testified that the phrase “terms to be developed” that was used in the 1994 Resolution included the rental amounts for the new leases. Even Brad A. Adams, one of the Appellants, admitted at the trial that the “terms” of a lease are generally understood to include the amount of rent under the lease.

17Based on the recommendations of the successor committee to the Marina Committee and on an opinion of the Office of the Attorney General for the State of Louisiana to the effect that the Board was required to receive serious consideration for the new leases that took into account the value of the boathouses that would become the property of the District in 2006 and 2007, the Board adopted a resolution on September 20, 2000 (the “2000 Resolution”). The 2000 Resolution approved “the recommendations on rental rates and general terms for the Orleans Marina leases contained in the Reports submitted by the OLD [Orleans Levee District] Staff and Board’s Real Estate Consultant and Legal Counsel dated July 12, 2000 and July 19, 2000.” The 2000 Resolution also approved “a 30-year lease, consisting of an initial term of five (5) years and five (5) five-year renewal options, for the leaseholds in the Orleans Marina under the terms set forth in the Reports approved and adopted by the Board.”

In November of 2000, the Board wrote a letter to the Appellants enclosing a draft of a lease amendment prepared in accordance with the requirements of the 2000 Resolution. The letter also explained that the Appellants could elect to sign a néw thirty-year lease in lieu of the lease amendment. The letter further required the Appellants to give written notice of their intention to execute the new lease amendment or the thirty-year lease no later than January 2, 2001. Failure to give notice would result in the forfeiture of the extension options and of the right to execute a new thirty-year lease.

Within the applicable- time period for giving notice, the Appellants, through their attorney, notified the Board that they intended to execute the new lease amendments, but the letters notifying the Board also stated that the Appellants neither waived nor forfeited the right to exercise three five-year extension options |Ras offered under the 1994 Board Resolution. The only Appellants who executed lease agreements containing the rental and other terms adopted in the 2000 Resolution were Otto Candies, Jr., Candy Fleet Corp., Fairview Realty, L.L.C., and Clifford Duplessy (the “Transferee Appellants”).

The Transferee Appellants

The Transferee Appellants executed lease agreements that contained the terms and provisions that were approved in the 2000 Resolutions. The Transferee Appellants had purchased boathouses, and the Board would approve the assignments of the leases of the property where the boathouses were located only if the Transferee Appellants signed lease agreements containing the terms, including the rentals, that were included in the 2000 Resolution.

The Instant Case

The Appellants filed suit against the Board seeking, among other things, a declaratory judgment that the Appellants were entitled to sign lease agreements in the form of the Fourroux Leases, which did not include the increased rental rates adopted in the 2000 Resolution. The Board filed a reconventional demand seeking, among other things, a declaratory judgment that the Board had the legal right under the terms of the 1994 Resolution to adopt increased rental rates for the three five-year options authorized in the 1994 Resolution.

Trial Court Judgment

The trial court denied the Appellants’ request for a declaratory judgment. In her reasons for judgment, the trial court explained that the most recent amendments to the lease agreements that were executed by the Appellants (other than the Transferee Appellants) did not contain a provision addressing the rental to be paid pursuant to the 1994 Resolution.

19Therefore, the trial court judge reasoned that because there was no rental specified for the three five-year options terms that would begin when the leases otherwise expired in 2006 and 2007, there was no valid lease agreement that covered the option terms. The trial court judge based her conclusion on the legal requirement that for a lease to be valid, three things are necessary: the thing to be leased, the amount of the rental, and the consent of the parties. La. Civil Code art. 2668. The trial court judge found in the instant case that there was no specified rental amount for the option terms. Thus, there was no agreement of the parties.

DISCUSSION

The Appellants make five arguments in their appellate brief. They assert in then-arguments that the trial court judge erred in her decision and in the reasoning upon which her decision was based.

Argument No I: The trial court improperly found that the offer to renew was void.

The Appellants argue that because the option agreements were for extensions of existing leases, the rental set forth in the existing leases was the applicable rental. While we agree that the options authorized in the 1994 Resolution would extend the existing leases, we disagree that the rental set forth in the existing leases would be the rental for the options. The 1994 Resolution clearly stated that the Board had authorized three additional five-year options to extend the marina leases, and the cost of each of the three options was stated. The 1994 Resolution also stated, however, that the options would be “under terms to be developed by the Marina Committee.” The terms of a lease, whether it is a lease extension or an original lease, include the rental under the lease. Clearly, the 1994 | inResolution contemplated that the rental terms of the lease extensions were to be developed in the future by the Marina Committee.

Additionally, the last amendment to the existing leases that the Appellants (other than the Transferee Appellants) executed contained the following provision:

III.
Lessee recognizes and understands that Board Resolution No. 11-022394 [the 1994 Resolution] provides that the granting of three (3) additional five (5) year options to the South Roadway and West Roadway boathouse leases, and for the purposes of this Amendment, to this Lessee in particular, is done under terms to be adopted by resolution of the Board of Commissioners of the Orleans Levee District. Lessee agrees that this Amendment is subject to and conditioned upon the above-mentioned terms. The parties agree that, upon the development of said terms, as ratified by the full board, a Sixth Amendment shall be entered reflecting these terms. Lessor agrees that such terms, while applicable and determinative of the granting of the aforesaid options, shall not displace, disturb, alter or change in any manner the terms indicating the number of additional options, or their length, or the requirement of the payment of the Option Fee, or of any other terms as stated both in this Amendment and in Board Resolution No. 11-022394.

This provision clearly sets forth the intent of the parties that the terms of the lease extensions were to be developed and would be finalized only after the Board had adopted a resolution setting forth the exact terms of the lease extensions. The amount of the rental for the option terms was not contained in either the lease amendment or the 1994 Resolution. Therefore, the lease rental was one of the terms that was required to be finalized and authorized by the Board before the lease options could be confected.

The lease amendment provision quoted above clearly contemplated that the rental and other terms of the options would be determined in the future and would Inbe memorialized in writing. Hence, there was the reference to the “Sixth Amendment” that would reflect the terms, including the rental for the option periods, for the lease options. We find that the Appellants’ argument on this issue is without merit.

Argument II: The Fourth Circuit has already held that the offer to extend/renew the lease was unambiguous and properly contained the rental terms.

The Appellants argue that Fourroux v. Board of Commissioners for the Orleans Levee District, 02-0374 (La.App. 4 Cir. 1/8/03), 837 So.2d 698, should govern the lease extensions to be executed by the Appellants. The lessees under the Four-roux Leases executed a lease amendment that was clearly distinguishable from the lease agreements executed by the Transferee Appellants and the lease amendments executed by the rest of the Appellants. The lease agreements executed by the Transferee Appellants contained the rental terms and other provisions adopted by the Board in the 2000 Resolution. The lease amendments signed by the remainder of the Appellants contained no rental amount, whereas the lease amendments signed by the lessees under the Fourroux Leases contained a specified amount for the rent.

The lease amendments executed by the lessees under the Fourroux Leases provided a rental price for the option periods of thirty cents per square foot for the total leased area, which rental price was to be adjusted every five years according |1?.to changes in the Consumer Price Index. The amendments executed by the lessees under the Fourroux Leases stated that “[bjeginning with the first additional option period, the rental shall then be adjusted in accordance with the Consumer Price or other similar Index on October 17, 2010, October 17, 2015 and October 17, 2020.” Thus, it is clear from the lease amendment that the rental amount stated in the amendment would apply to the extension options. Otherwise, there was no need to refer to the Consumer Price Index in any years beyond 2006 or 2007, when the Four-roux Leases would otherwise expire. Additionally, this Court recognized that fact when it stated in the Fourroux case that in October of 1995, “each individual Appellee signed an amendment to the original lease (hereinafter the “Lease Amendments”) that expressly provided for the amount of rent to be paid.” 02-0374, p. 2, 837 So.2d at 700

Unlike the lease amendments signed by the lessees under the Fourroux Leases, the lease amendments signed by the Appellants (other than the Transferee Appellants) did not specify an objectively determinable rental rate for the option periods. Instead, the rental terms were to be developed by the Marina Committee and adopted by the Board. Therefore, these lease amendments did not comply with the requirement of La. Civil Code art. 2676 that the rent “shall be fixed by the parties in a sum either certain or determinable through a method agreed by them” or that the rent may “be fixed by a third person designated by them.”

There is no evidence in the record before us that any of the Appellants other than the Transferee Appellants executed a lease amendment that specified a rental rate. Therefore, a valid lease contract for the option periods at issue in the instant case does not exist with respect to the Appellants other than the Transferee Appellants. Based on the distinction between the lease amendments signed by the |ialessees under the Fourroux Leases and the lease amendments signed by the Appellants (other than the Transferee Appellants), we find that the Fourroux case is inapplicable to the instant case. In the case of the Transferee Lessees, we find that they have executed a valid lease agreement that is binding upon them. None of the Appellants is entitled to a declaratory judgment to the effect that they are entitled to execute lease agreements based on the rental rates and other terms set forth in the amendments executed by the Fourroux Lessees.

Argument III. The District cannot unilaterally alter the terms of the lease.

The Appellants argue that the Board has unilaterally altered the terms to which the Appellants agreed. The Appellants (other than the Transferee Appellants) never agreed to the terms for the option periods except as expressly set forth in the lease amendment quoted above and in the 1994 Resolution. Although the Appellants argue that the terms of the amendments signed by the lessees under the Fourroux Leases are the terms to which the Board and the Appellants mutually agreed regarding the option periods, we do not find that to be the case. The amendments that were signed by the Appellants (other than the Transferee Appellants), not the Four-roux Leases, set forth the mutual agreement of the parties.

, The lessees who signed the Fourroux amendments executed a lease amendment in the form of a counteroffer prepared by Mr. Fourroux. That counteroffer contained a rental amount for the option terms extending beyond 2006 and 2007. The amendment signed by the Appellants, however, did not contain a rental amount. Had the Appellants accepted the option offer in the 1994 Resolution when the lessees under the Fourroux Leases did, the Appellants might well have signed lease amendments in the form of the Fourroux Leases. Instead, l14they signed a lease amendment that did not contain the same terms as the Fourroux Leases. Therefore, this argument has no merit.

Argument IV: The actions of the District violate the Equal Protection Clause.

The Appellants argue that they have been denied equal protection by the District in violation of U.S. Const. Amend. XIV and La. Const. art. 1, § 3. Section 1 of the Fourteenth Amendment to the United States Constitution provides in relevant part that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” La. Const, art. 1, § 3 provides in relevant part as follows:

No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations

In Morgan v. Whaley, 99-1103 (La.App. 4 Cir. 5/31/00), 765 So.2d 408, this Court considered the rights of a citizen to equal protection in the context of the rules and fees imposed by the Board of Commissioners of the City Park Improvement Association and its Tennis Committee for the use of the tennis courts at City Park in New Orleans. The plaintiffs alleged that the tennis courts and related facilities at the park were operated under arbitrary guidelines and regulations that were not uniformly applied to all citizens, including tennis instructors, such as the plaintiffs, who were not members of the City Park teaching staff. The plaintiffs further alleged that their constitutional rights were thereby violated.

This Court in Morgan stated:

|1sBoth the Fourteenth Amendment of the United States Constitution and Article I, Section 3 of the Louisiana Constitution provide that all persons are entitled to equal protection of the law. These provisions mandate “that persons similarly situated receive like treatment.” Whitnell v. Silverman, 95-0112, pp. 9-10 (La.12/6/96), 686 So.2d 23, 29-30. While claims may be subject to a different analysis under the federal and state guarantees, a minimal standard of review applies under both provisions where, as here, there is no fundamental right, suspect class, or enumerated characteristic alleged as the basis for discrimination. Progressive Security Ins. Co. v. Foster, 97-2985, pp. 17-19 (La.4/23/98), 711 So.2d 675, 685-87. Under these standards, an individual claiming an equal protection violation has the burden of establishing that a discriminatory classification “is not rationally related to any legitimate governmental interest” or that it “does not suitably further any appropriate state interest.” Id.

99-1103, pp. 10-11, 765 So.2d at 414. This Court found that the rules and regulations in the Morgan case did not violate the plaintiffs’ constitutional right to equal protection.

In Moore v. Ware, 01-3341 (La.2/25/03), 839 So.2d 940, the Louisiana Supreme Court stated that “the equal protection provisions of the state and federal constitutions do not require absolute equality or precisely equal advantages.” 01-3341, p. 14, 839 So.2d at 949. In Med Express Ambulance Service, Inc. v. Evangeline Parish Policy [sic] Jury, 96-0543 (La.11/25/96), 684 So.2d 359, the Supreme Court also stated:

[T]he crux of the Due Process Clause of the Fourteenth Amendment, is protection from arbitrary and unreasonable action and when the ordinance or statute does not affect fundamental rights, but rather is merely economic or social regulation, it need only have a rational relationship to a legitimate governmental interest.

96-0543, p. 8, 684 So.2d at 365, citing City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976).

In Progressive Security Insurance Co. v. Foster, 97-2985 (La.4/23/98), 711 So.2d 675, the Louisiana Supreme Court discussed the scrutiny to be given to the disparity in treatment in connection with an alleged violation of La. Const. art. 1, § 3. The Supreme Court stated:

La. Const. Art. I, § 3 provides for three levels of constitutional review or scrutiny. Laws which classify individuals based on race or religious beliefs are repudiated completely. An intermediate level of scrutiny is reserved for laws which classify persons on the basis of birth, age, sex, culture, physical condition, or political ideas or affiliation. The lowest level of scrutiny applies to laws which classify persons on any basis other than those enumerated in La. Const. Art. I, § 3. Such laws need only be rationally related to a legitimate governmental purpose, and a person attacking the constitutionality of such a classification has the stringent burden of demonstrating that the law does not suitably further any appropriate state interest.

97-2985, p. 17, 711 So.2d at 686 (emphasis in original).

Based on the foregoing we find that the proper level of scrutiny to be given to the claim of denial of equal protection in the instant case is the lowest level, because the parties in the instant case were classified on a basis other than those enumerated in La. Const, art. 1, § 3. The distinction between the two classifications of parties in the instant case, the lessees under the Fourroux Leases and the Appellants, is simply based on the dates upon which the parties indicated their acceptance of an offer to extend their marina leases and on the lease amendments those parties executed. Thus, if the grounds upon which the distinction was made was rationally related to a legitimate government purpose, the Appellants’ equal protection claim must fall.

We find that there were rational bases upon which the distinction was made between the lessees under the Fourroux Leases and the Appellants. The lessees l17under the Fourroux Leases accepted the offer of the additional lease options during the period for acceptance set forth in the 1994 Resolution whereas the Appellants waited to do so until after the 1996 Resolution reopened the period. The first lessees to accept the option offer could legitimately be treated differently from those who waited to accept the option offer.

Additionally, there was testimony at the trial to the effect that the lease amendments in the Fourroux case were, in fact, executed in error and should not have been executed by the Board. It appears that was the case, because the 1994 Resolution clearly contemplated the development by the Marina Committee of lease terms for the option periods, but when the lease amendments in the Fourroux case were executed, the Marina Committee had not yet developed those terms. The Board was certainly not required to compound its earlier error by allowing the Appellants to sign the same form of lease agreement that had been erroneously executed previously.

Further, the lease amendments in the Fourroux case were executed prior to the time the Board obtained an opinion of the Louisiana attorney general that indicated that the Board would be making an unconstitutional donation of public property were it not to charge rent during the option terms beginning in 2006 and 2007 based on the value of the boathouses on the marina property. Although this Court in the Fourroux case did not decide the constitutional issue of whether there might be an unconstitutional donation of public property under the Fourroux Leases, and although we need not and will not do so now, the fact that the Board relied on the opinion constitutes a rational basis for treating the lessees under the Fourroux Leases differently from the Appellants.

|1RWe find that the Appellants were not denied equal protection. Therefore, this argument is without merit.

Argument V: The trial court failed to address the Appellants’ Alternative Claims for Damages.

The Appellants argue that they should be compensated for any amounts expended on the boathouses after they accepted the options that are at issue in the instant case. The Appellants argue that because they expected to lease the marina sites until 2022 under the options, they should be compensated when they lose possession of the leased premises if the lease agreements ■ terminate earlier. The 1994 Resolution clearly stated that the lease options would be on terms to be developed in the future by the Marina Committee. Therefore, when the Appellants made improvements to the boathouses after 1996, prior to the confection of an agreement setting forth the terms that were to be developed, they should have known that there was a possibility that they might not be able to come to an agreement with the Board and that, in such a case, the ownership of the boathouses would become vested in the Board at the expiration of their leases in 2006 or 2007. We find this argument to be wholly without merit.

Argument VI: The trial court failed to address Appellants’ constitutional claims.

The Appellants argue that the re-versionary provision of the marina leases would result in a taking without compensation in violation of La. Const, art. 1, § 4(B)(1), which provides in relevant part that “[pjroperty shall not be taken ... by the state or its political subdivisions except for public purposes and with just compensation paid to the owner....” The Appellants and the Board entered into a lease agreement pursuant to which ownership of any improvements constructed on |1flthe leased premises would become the property of the Board upon the termination of the lease agreement.

There was testimony at the trial that a reversionary provision such as the one in the lease agreements in the instant case is a common provision in leases. The Appellants entered into an arm’s length transaction with the Board, and there was no taking without compensation. In fact, the Appellants benefited from being able to lease prime real estate upon which they could build boathouses for :their enjoyment, and they knew from the beginning that ownership of the boathouses would vest in the District when the leases expired. Further, there was testimony at the trial that the increase in rentals based on the Consumer Price Index did not result in rentals at the market rate, because the increase in the value of the leased premises was not necessarily related to the increase in the Consumer Price Index. The Appellants received the benefit of their lease agreement with the Board. We find that this argument is without merit.

CONCLUSION

We agree that declaratory judgment in the instant case should have been denied to the Appellants. The judgment of the trial court is, therefore, affirmed.

AFFIRMED.

KIRBY, J., concurs in part and dissents in part and assigns reasons.

GORBATY, J., dissents.

KIRBY, J.

concurring in part and dissenting in part.

In Fourroux v. Board of Commissioners for the Orleans Levee District, 02-0374 (La.App. 4 Cir. 1/8/03), 837 So.2d 698 this court held that the OLD resolution of 1994, extending the lease of certain water bottoms, and accepted by plaintiff-lessees, clearly set forth rental rates and contained no ambiguity regarding rental terms. In Fourroux the plaintiffs accepted the offer to extend their leases past their 2007 expiration date. This extension was based on Resolution No. 11-022394. Plaintiffs brought suit after the Board adopted the 2000 Resolution , increasing the rental in the amended leases. This court affirmed the trial court, holding the lease agreements were unambiguous and set forth clear rental rates through July 2022. 2002-0374 (La.App. 4 Cir. 1/08/03) at 6; 837 So.2d 698 at 702. Further, the court stated that “terms and conditions” of the 1994 Resolution were to be determined by the Marina Committee, not the Board. Id. Because the Marina Committee did not develop the increased rental provisions adopted in 2000, the rent must be determined from reading the monetary consideration expressed in the contract.

|aCourts are bound to give legal effect according to the intent of the parties to the contract and the intent must be resolved by the words of the contract when the words are clear, explicit, and lead to no absurd consequences. Kennedy v. Sanco Louisiana, Inc., 573 So.2d 505 (La.App. 4 Cir.1990). Additionally, the rule of the strict construction of a contract does not allow the distortion of language or the creation of ambiguity where none exists. Id. It also does not allow the courts to make a new contract or introduce specific terms where the language used expresses the true intent of the parties. Id. Fourroux, supra, established that the extension resolutions passed by the Board and accepted by the plaintiffs in 1995 should be strictly construed and that they do contain the true intent of the parties in establishing the rental rate. The plaintiffs in the present matter accepted the same offers of extension as the- Fourroux plaintiffs did one year earlier; therefore, the resolutions being questioned in the present matter should be determined to be binding and valid, as we determined them to be in the Fourroux decision.

OLD successfully argued to the court below that it could not apply Fourroux to the present matter because that would violate the parol evidence rule. Appellee likens applying Fourroux here to calling an attorney to testify as an expert witness on the law. See Martello v. City of Ferriday, 01-1240 (La.App. 3rd Cir.3/6/02), 813 So.2d 467, asserting Louisiana courts have held it is proper to exclude such evidence in limine. However, applying prior appellate decisions to a pending trial court case is permitted as a persuasive source of law. Further, the Louisiana Supreme Court has established that while prior judicial decisions are persuasive and not conclusive because they can be overruled or distinguished, adopting a position contrary to an existing decision is inappropriate in the absence of some compelling reason for change. State of Louisiana v. South Central Bell Telephone Company, 619 So.2d 749 (La.1993).

LThe decision in Fourroux was a reasonable one that determined that the lease was governed by the “Fourroux ” lease amendments and not the more recent more expensive amendments the Board wanted to impose. Because the same issue was presented in this case, the trial court should have applied the Fourroux rationale to the present matter. To reiterate, I find these lease terms and extensions to be indistinguishable from those in Fourroux. Therefore, I find the trial court erred in arriving at a contrary result.

Leaseholds Purchased in 1999 & 2000

Nevertheless, I would distinguish the cases of plaintiffs Otto Candies, Jr., Fair-view Realty, Candy Fleet Corporation and Clifford Duplessey. The original 1972 lease prohibited the transfer or assignment of the lease without the lessor’s approval. These plaintiffs purchased their leaseholds in 1999 and 2000. As a condition of the Board’s approval of their purchase and assumption of the lease, the Board required the foregoing plaintiffs to execute a letter agreeing to the new terms, including the increased rental, that are at issue in this suit.

In the same way that OLD and the Board are bound by their prior agreements as we found in Fourroux, so too are these plaintiffs bound by their agreements. Therefore, as concerns this subset of plaintiffs, I would affirm the trial court judgment and dismiss their cases.

GORBATY, J.

dissenting.

hi respectfully dissent for the reasons assigned by Judge Kirby in his dissent.

      . The Appellants are the parties against whom the trial court judgment was rendered, although originally there were other plaintiffs in the suit. After the appeal was lodged, the claims of three of the plaintiffs named in the trial court judgment, Everette C. Pitmann, Jr, Kohlie Frantzen, and G.M. Haydel, were dismissed with prejudice.

      . All but one of the Appellants were successors in interest to the original lessees under the lease agreements. Therefore, depending on the context in which it is used, the term “Appellants” may include the original lessees under the lease agreements or the successors in interest to the original lessees or both.

      . Representative lease agreements, rather than all of the lease agreements with all of the Appellants, were introduced into evidence.

      . La. R.S. 38:336(B)(4).

      . Because some of the original leases began in 1971, and others began in 1972, the original leases expired either in 1991 or 1992.

      . The leases provided:
      At the expiration of this lease or the cancellation or termination thereof for other lawful cause, the title to all improvements or construction placed on the leased site by Lessee, shall, ipso facto, be vested in the Lessor, without payment or compensation for the costs or value thereof.

      . A lease amendment dated October 17, 1995, and signed by Kermit A. Fourroux was entered into evidence in the instant case as an example of the Fourroux Leases that had been signed.


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    Mason ALEXIS, III v. ALTON OCHSNER FOUNDATION HOSPITAL.
    No. 2007-CA-0355.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 29, 2007.

      Scott P. Shea, New Orleans, LA, for PlaintiffAppellant.
    Christopher S. Mann, Joseph J. Lowen-thal, Jr., Jones Walker Waechter Poitevent Carrere & Denegre, LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge DAVID S.GORBATY).
   JOAN BERNARD ARMSTRONG, Chief Judge.

_JjThis is a workers’ compensation case. The plaintiff-appellant, Mason Alexis, III, appeals an Office of Workers’ Compensation judgment dated October 10, 2005, denying his claim for Workers’ Compensation benefits based upon La. R.S. 23:1208.1 due to misrepresentations he made concerning his medical history. We affirm.

On April 13, 2001, claimant allegedly injured his back during the course and scope of his employment as a patient care technician with the defendant-appellee, Ochsner Clinic Foundation. Claimant was allegedly attempting to prevent a 300 pound patient from falling.

The workers’ compensation judge specifically found that the claimant “violated La. R.S. 23:1208.1 when he failed to respond positively to Louisiana Second Injury Fund Questionnaire on the issue of back pain.” The claimant does not contend that there are any defects in the form of the Louisiana Second Injury Fund Questionnaire which he executed at that time.

When the claimant began working for Ochsner in November 2000 he completed a Louisiana Second Injury Fund Questionnaire in which he was required to circle any of the listed conditions from which he was suffering currently or from |2which he had suffered in the past. Among the conditions listed was “herniated disk, degenerative disk, back/neck pain.” He did not circle this item from the list, nor did he circle any other condition on the list. Instead, the claimant circled, “None of the above.”

Claimant admitted on cross examination that he saw Dr. Frederick Keppel on July 29, 1998, complaining of low back pain. He testified that he told Dr. Keppel that he had injured his lower back in an auto accident four years prior to the visit. Claimant also acknowledged that the x-rays from that visit “showed posterior and anterior osteophytes at L3-4 and disc space narrowing consistent with degenerative disc disease.

Claimant then admitted that on January 11, 1999, he was referred to Dr. Richard Meyer by an attorney, again complaining of low back pain. He ascribed that pain to an incident where he stepped into a pothole on December 30,1998. Claimant filed suit in connection with that injury. Dr. Meyer’s report states that claimant denied any previous low back problem. Claimant admitted that he did not tell Dr. Meyer of his visit to Dr. Keppel six months earlier. The claimant acknowledged that Dr. Meyer’s report diagnosed him as having lumbar disc disease. He also admitted that he had seen a chiropractor for back pain he experienced when he fell off of a stool in the Superdome in the 1980’s, but that he did not report that to Dr. Meyer either.

While claimant admitted that the medical reports from Dr. Keppel and Dr. Meyer said what they said, he testified that he was never told that he had a herniated disc or degenerated discs. However, claimant did admit that' at the time he filled out the Second Injury Fund Questionnaire he knew that he had previously |3had lower back pain and that, therefore, his failure to circle that item on the Questionnaire was not accurate. The form states in boldface that:

Failure to answer truthfully may result in the forfeiture of your workers’ compensation benefits under R.S. 23:1208.1 of the Louisiana Workmen’s Compensation Law.”

The claimant testified on direct examination that he experienced no back pain between the time he saw Dr. Meyer in January of 1999 and April 13, 2001, the date of the accident that is the subject of this appeal. He repeated that assertion on direct examination until confronted with the records from the Ochsner Orthopedic Department dated March 13, 2001, just one month prior to the accident that is the subject of this appeal. At that time his chief complaint was one of low back pain. He admitted that he indicated on the form he had to fill out that time that it was the “worst pain ever.”

Although the alleged accident that is the subject of this appeal occurred on April 13, 2001, claimant did not fill out an accident report until May 2, 2001 at which time he ascribed the reporting delay to the fact that “the problem” did not bother him immediately.

Claimant testified on cross examination that the back pain he experienced as a result of the April 13, 2001 accident was not in the same part of his back as the pain he had felt on prior occasions. However, this is contradicted by his deposition testimony.

On May 16, 2001, when the claimant went for his first examination at the Ochs-ner Orthopedic Clinic concerning the April 13, 2001 injury, he reported that he had had no previous back problems.

|4On June 27, 2001, the claimant saw Dr. Robert Applebaum, a neurosurgeon. At that time he reported no previous back problems to Dr. Applebaum antedating the incident of April 13, 2001.

Dr. Applebaum diagnosed him with a ruptured disc at L3-L4, although the plaintiff contends that his problem is at L4-L5 and SI. On September 14, 2001, claimant was referred for an MRI which showed a disc problem at L3-L4. The claimant admitted that Dr. Applebaum made no mention of a problem at L4-L5 or SI.

Claimant acknowledged that subsequently he sustained another back injury as a result of a car accident and that his doctors say that his problem is at L4-L5 and SI.

Finally, the claimant admitted that when he stated in response to interrogatories propounded to him that he had not worked subsequent to leaving Ochsner that that answer was not true. However, on redirect he testified that he only worked two or three days-for a friend.

La. R.S. 23:1208.1 provides that:

Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker’s compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

IsWhile La. R.S. 23:1208.1 provides for the forfeiture of a claimant’s compensation benefits, such forfeitures are not favored:

Forfeiture is a harsh remedy. Thus, statutory forfeiture must be strictly construed.

Wise v. J.E. Merit Constructors, Inc., 97-0684, p. 7 (La.1/21/98), 707 So.2d 1214, 1218.

The legislature imposes the penalty of forfeiture only when the employer is prejudiced. Id. An employer is prejudiced only when the false statement directly relates to the medical condition for which a claim is made or (not “and”) affects the employer’s ability to receive reimbursement from the second injury fund. Id., 97-0684 at p. 6, 707 So.2d at 1217-1218.

La.R.S. 23:1208.1 thus provides for forfeiture under narrow circumstances: There must be an untruthful statement; prejudice to the employer; and compliance-with the notice requirements of the statute. Resweber v. Haroil Const. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7. An employer has the burden of proving each element within the statute. The lack of any one of the elements is fatal to an employer’s avoidance of liability. Mullins v. Courtney Equipment, 95-989 (La.App.3 Cir. 1/31/96), 670 So.2d 329.

An employer is prejudiced by one of two circumstances. Id., 97-0684 at p. 10, 707 So.2d at 1219. In the first prong of the “prejudice” test, the employee’s untruthful answer must directly relate to the medical condition that is the subject of the claim. Id. A direct relation is established when the subsequent injury was inevitable or very likely to occur because of the presence of the preexisting condition. Id., 97-0684 at p. 10, 707 So.2d at 1220.

Claimant testified that his job required him to help lift patients more than once a week. Under such circumstances, we can find no manifest error in the Workers’ Compensation judge’s implicit finding that the claimant’s alleged back injury was inevitable or very likely to occur because of the claimant’s prior back problems. Likewise, we can find no manifest error in the implicit finding that the claimant’s alleged back | (¡injury occurred at the same anatomical situs as his previous back problems:

These implicit findings are also subject to the manifest error standard of review. Delaney v. Humana Hosp., 01-0389, p. 8 (La.App. 4 Cir. 10/16/02), 830 So.2d 1072, 1078; Ruby v. Jaeger, 99-1235, p. 4 (La.App. 4 Cir. 3/22/00), 759 So.2d 905, 907.

Noel v. Noel, 04-0105, p. 6 (La.App. 4 Cir. 9/8/04), 884 So.2d 615, 619.

Therefore, the record supports a finding that the employer has met its burden of proving “prejudice.”

The Louisiana Second Injury Fund Questionnaire executed by the claimant meets all statutory requirements. There is no question that the answer the claimant gave on the questionnaire was not accurate as to his prior back history. The claimant contends that he found the form confusing and did not intend to mislead Ochsner. That is a credibility call to be made by the fact finder in the absence of manifest error. The workers’ compensation judge’s factual findings are subject to the manifest error or clearly wrong standard of review. Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161. Although there were many medical conditions listed on the form that might have been unknown to a layman who had never been diagnosed with any of them, the workers’ compensation judge could reasonably conclude that the question referring to “back/ neck pain” employed laymen’s terminology requiring no medical sophistication. The claimant could reasonably be expected to know if he had had any history of neck or back pain.

|7For the foregoing reasons, we find no error in the judgment below which we, therefore, affirm.

AFFIRMED.


author: GENOVESE, Judge. COOKS, J.,

text:
    Donnie DOUSAY v. DOUSAY FLOOR COVERING.
    No. 07-195.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 12, 2007.

      Robert L. Beck Rivers, Beck, Dalrymple & Ledet, Alexandria, Louisiana, for Appellant, Donnie Dousay.
    Walter S. Salley Lunn, Irion, Salley, Carlisle & Gardner, Shreveport, Louisiana, for Appellee, Dousay Floor Covering State Farm Fire and Casualty Insurance Company.
    Court composed of SYLVIA R. COOKS, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| plaintiff, Donnie Dousay (Mr. Dousay), appeals the judgment of the workers’ compensation judge (WCJ) in favor of the Defendants, Lynn Dousay d/b/a Dousay Floor Covering (Dousay Floor) and its workers’ compensation insurer, State Farm Fire and Casualty Insurance Company (State Farm), dismissing his claim for permanent total disability (PTD) benefits. Mr. Dousay also appeals the WCJ’s ruling that his alleged lumbar (back) injury is not related to his prior on-the-job cervical (neck) injury and that Dousay Floor and State Farm are, therefore, not responsible for his back-related medical treatment. For the following reasons, we affirm.

FACTS

The instant matter emanates partly from the termination of Mr. Dousay’s benefits and partly from his allegations of having suffered another injury, a lower back injury, during a functional capacity evaluation (FCE). Mr. Dousay contends that his lumbar injury should be deemed related to his prior on-the-job cervical injury and that his injuries entitle him to PTD pursuant to La.R.S. 23:1221(2)(c).

Mr. Dousay suffered an on-the-job cervical injury on August 9,1994, while working for Dousay Floor as a carpet installer. Consequently, Mr. Dousay received supplemental earnings benefits (SEB) from State Farm on behalf of Dousay Floor from March of 1995; however, his entitlement to SEB was exhausted in February of 2005. Mr. Dousay had several surgeries including: (1) anterior cervical diskec-tomies with fusion at C4-5 and C5-6 performed by Dr. Anil Nanda, State Farm’s choice of neurosurgeon; (2) a thoracic outlet syndrome surgery performed by Dr. James David, Ra vascular surgeon; (3) a revision of the anterior fusion and diskec-tomy and fusion at C6-7, with anterior plating, performed by Dr. Thomas Whitee-loud, an orthopaedic surgeon; and (4) a surgical C7-T1 bilateral facet rhizotomy to obliterate the facet nerves performed by Dr. Lawrence Drerup, a neurosurgeon.

On February 14, 2003, Dr. Nanda opined that Mr. Dousay had reached maximum medical improvement and recommended that he undergo an FCE. An FCE was performed on August 5, 2003. Subsequent to the FCE, State Farm sought to have Mr. Dousay submit to either a CT/myelo-gram and/or an MRI as per Dr. Nanda’s recommendation that either of these tests be performed on him within 12 months of the FCE. Initially, Mr. Dousay did not submit to either of these follow-up tests.

On February 17, 2005, Dousay Floor and State Farm filed a disputed claim for compensation, commonly referred to as a 1008, asserting that Mr. Dousay was no longer entitled to the receipt of SEB and that he refused to be re-evaluated by Dr. Nanda for the administration of either a CT/mye-logram and/or an MRI. Dousay Floor further requested that the Office of Workers’ Compensation (OWC) address the issue of Mr. Dousay’s disability status.

On March 9, 2005, Mr. Dousay answered the claims of Dousay Floor and State Farm by denying that he was capable of gainful employment and asserting his entitlement to PTD. Mr. Dousay further denied the assertion that “he should be ordered to submit to an MRI/myelogram for the purposes of a second opinion medical evaluation by Dr. Nanda.”

On May 4, 2005, Mr. Dousay filed a 1008 requesting penalties and attorney fees. On November 10, 2005, Mr. Dousay amended his 1008 to request that 1 ^penalties and attorney fees be cast against Dousay Floor for its “denial of medical treatment for low back recommended by Dr. Jonathan Forrester.” Mr. Dousay sought lumbar treatment from his primary physician, Dr. Forrester, for his alleged back injury. Mr. Dousay contends that his alleged lumbar injury is related to his on-the-job cervical injury because it occurred during the FCE. Dousay Floor and State Farm deny responsibility for Mr. Dousay’s alleged lumbar injury and all costs of his medical treatment associated therewith, arguing that it was not related to his prior on-the-job cervical injury.

On August 9, 2006, the parties litigated Mr. Dousay’s disability status and the issue of whether Dousay Floor should be responsible for his lumbar medical treatment. On November 9, 2006, via recorded teleconference, the WCJ ruled that Mr. Dousay failed to establish by a preponderance of the evidence that his lumbar injury was related to his on-the-job cervical injury and, further, that Mr. Dousay failed to prove by clear and convincing evidence his entitlement to PTD. Specifically, the WCJ stated, in pertinent part:

Based on his history that he had reported back pain prior to the performance of the FCE, [it] would be this- Court’s conclusion that Mr. Dousay has failed to establish that he sustained a back injury in the FCE as he has alleged. Moreover, I would like to add to this case in the event it may be determined that he has established a back injury, Dr. -Forester recommended this MRI but Dr. Forester said he hadn’t done any examination of Mr. Dousay’s lower back.
[I]n this court’s view, he’s failed to carry his burden of proof by [ ] clear and convincing evidence in light of Dr. Drer-up’s testimony that he can consistently and reliably perform sedentary and light duty work. The records indicate that he consistently drove his tractor until two weeks before the trial and that he did this on a daily basis. This is [an] additional indication to this Court that he can consistently and reliably do light-duty work or sedentary work. The claims of Mr. Dousay are denied.

It is from this judgment that Mr. Dousay appeals.

ISSUES

The issues presented for review are: (1) whether Mr. Dousay proved by clear and convincing evidence his entitlement to permanent total disability benefits; and (2) whether Mr. Dousay proved by a preponderance of the evidence a causal link between his alleged lumbar injury and his prior on-the-job cervical injury.

LAW AND DISCUSSION

Standard of Review

Appellate review of workers’ compensation eases was set forth by our supreme court as follows:

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117 (citations omitted).

Permanent Total Disability Benefits

To be entitled to PTD benefits, the employee/claimant must prove that he is physically unable to engage in any employment, regardless of the nature or character of the employment. La.R.S. 23:1221(2). Further, said workers’ compensation statute also provides for permanent total disability compensation for an injured worker if the following standard is met:

lt;(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

Louisiana Revised Statutes 23:1221(2)(c) (emphasis added).

Mr. Dousay claims that the WCJ erroneously found that he failed to meet his burden of proving that he is entitled to PTD as a result of his injuries. He contends that his limited education, limited work history, and lack of viable vocational rehabilitation prospects support his claim for PTD. He also argues that the WCJ failed to consider and properly weigh all of the evidence, as required by our supreme court in its opinion in Comeaux v. City of Crowley, 01-32 (La.7/3/01), 793 So.2d 1215. We find, however, that Mr. Dousay’s reliance on Comeaux is misplaced and unpersuasive.

Our supreme court in Comeaux opined that the appellate court’s reliance on the “totality of factors” such as physical deficiencies, age, work experience, and educational inadequacies to support a finding that a claimant has proved by clear and convincing evidence that he is entitled to PTD was erroneous; however, it was appropriate to consider an unsuccessful rehabilitation attempt to support a finding of PTD. Further, Mr. Dousay argues that the WCJ’s refusal to give consideration, or accept as a factor, the failed vocational rehabilitation attempt, constitutes legal error; | (¡therefore, he asserts that a de novo review of all factual issues is warranted. Such is not the case at bar. Mark Cheairs, an expert in the field of vocational rehabilitation, testified that Mr. Dousay would not participate in any of the recommended job placement activities. With no evidence reflecting that Mr. Dousay attempted to work, but could not, the WCJ did not find that a failed vocational rehabilitation attempt had, in fact, occurred. Nor do we. Accordingly, this argument has no merit.

It is likewise noteworthy that the results of the FCE revealed that Mr. Dousay fell within the U.S. Department of Labor’s light to very heavy physical demand levels based on Ms lifting capacity. Despite the testimony offered by Mr. Dousay and his ■wife as to the physical limitations suffered by Mr. Dousay because of continued pain, the WCJ correctly noted the insufficiency of these facts to support a claim for permanent total disability benefits. See La. R.S. 23:1221(2). The WCJ found that Mr. Dousay did not prove by clear and convincing evidence the occurrence of an on-the-job injury that precludes him from engaging in any type of employment. As indicated by the WCJ, none of Mr. Dousay’s treating physicians testified that he was “physically unable to engage in any employment” as required by La.R.S. 23:1221(2)(c).

Therefore, we find no manifest error in the WCJ’s conclusion that Mr. Dousay is not entitled to PTD. The evidence before us supports the WCJ’s determination that Mr. Dousay did not meet the burden of proof for establishing his entitlement to PTD.

Lumbar Injury

“[A] claimant must prove by a preponderance of the evidence that an employment accident occurred and that the accident had a causal relationship to the disability claimed.” Romero v. Garan’s, Inc., 05-1297, p. 4 (La.App. 3 Cir. 4/19/06), 929 So.2d 258, 261. “If the evidence leaves the probabilities of causation equally balanced, the claimant has failed to carry [his] burden of proof.” Francis v. Quality Brands, Inc., 03-1662, p. 2 (La. App. 3 Cir. 4/7/04), 870 So.2d 589, 591.

Mr. Dousay contends that “the WCJ’s determination that [he] failed to establish that his lower back injury was caused, or aggravated by the FCE is clearly wrong.” However, the record reveals that Mr. Dousay did not present sufficient evidence that would indicate a connection between his prior on-the-job neck injury and the alleged lower lumbar injury.

The first physician to see Mr. Dousay after the FCE was Dr. W. Douglas Goodin, a psychiatrist he was seeing for management of his prescription pain medications, who saw Mr. Dousay on August 20, 2003. Though Dr. Goodin’s notes do convey that Mr. Dousay felt he had done poorly and had hurt himself during the FCE on August 5, 2003, there was no specification of a lower back injury. Not until Mr. Dousay was re-evaluated by Dr. Goodin on November 26, 2003 is there a notation that Mr. Dousay’s pain had diminished and that his lower back pain had not recovered at that point. Dr. Goodin did not testify at trial nor was his deposition taken to elaborate on Mr. Dousay’s treatment and allegation of lower back pain; instead, only his notes were introduced into evidence.

On August 21, 2003, Mr. Dousay was seen by Dr. Rayland Beurlot; however, there is no evidence that Mr. Dousay informed Dr. Beurlot that he had injured his back during the FCE. Mr. Dousay was also examined by Dr. Drerup on October 23, 2003. Again, no mention of any back injury is documented, nor did Dr. Drerup’s physical examination of Mr. Dousay’s neck prompt Mr. Dousay to mention any back pain.

| ^Considering this evidence, the WCJ concluded that Mr. Dousay failed to prove by a preponderance of the evidence that his alleged lumbar injury was either caused and/or aggravated during the FCE and, therefore, could not be considered to be related to his prior on-the-job cervical injury. After thoroughly reviewing the extensive evidence in the record and considering the WCJ’s detailed reasons for judgment, we find that the WCJ was not manifestly erroneous or clearly wrong in his determination that Mr. Dousay failed to meet the requisite burden of proof for entitlement to Louisiana workers’ compensation benefits.

DECREE

Accordingly, for the reasons stated above, the judgment of the workers’ compensation judge is affirmed. Costs of this appeal are assessed to Appellant, Donnie Dousay.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissenting.

hi respectfully dissent from the majority’s decision to affirm the judgment of the Office of Workers’ Compensation. Although the WCJ specifically inferred from claimant’s appearance that he was too “fit” and “stout” to be totally disabled, the record contradicts that inference. Claimant has undergone five separate surgical procedures to alleviate his neck, arm and shoulder problems. The WCJ stated he relied on Dr. Drerup’s assessment of claimant’s physical ability to determine whether or not he was totally and permanently disabled. Dr. Drerup specifically stated that claimant was “restricted to sedentary or light duty with requirements that he take frequent self-determined breaks throughout the day and that he must be allowed to alter his position from a sitting to a standing or even a semi-.reclining position on occasions, on as an-needed basis.” Despite further noting that claimant is “going to suffer a level of chronic pain,” the WCJ interpreted Dr. Drerup’s testimony as indicating claimant “would be able to consistently perform sedentary or light duty work.” (Emphasis added). Dr. Drerup specifically stated that claimant’s pain could become “so intense that he simply cannot continue to engage in activities and he has to stop.” I find “these periods would occur predictably and regularly so often as to preclude realistic gainful employment.” See Barnes v. Bechtel Group, Inc., et al., 03-1484 (La.App. 5 Cir. 04/13/04), 873 So.2d 735, 738. The WCJ attempted to | ¡.distinguish the present case from Barnes finding the claimant in Barnes was rendered “unreliable” by pain but Mr. Dousay was not. I disagree. Therefore, I conclude the WCJ erred in finding.claimant failed to demonstrate by clear and convincing evidence that he was unable to engage in any form of gainful employment.

I also disagree with the majority’s conclusion that the WCJ did not err in his finding that claimant failed to establish by a preponderance of the evidence that his back complaints were related to the FCE. The record establishes during the FCE claimant complained of increased cervical and lumbar pain during a lifting maneuver. According to claimant, the low back pain worsened significantly after the FCE. Approximately two weeks after the FCE, claimant visited Dr. Douglas Goodin, complaining he had injured himself in the FCE. He maintained these complaints in future visits, and Dr. Goodin noted in his notes from one visit that “the low back is not recovered at this point.” When Dr. Goodin retired, Dr. Forester replaced him in administering claimant’s medications. Claimant also complained to Dr. Forester of low back pain, which he related to the FCE. This led Dr. Forester to order a MRI of the lumbar spine, which the defendant refused to authorize on the basis the low back injury was not related to the work accident. Dr. Nanda, who performed claimant’s first surgery, examined claimant before and after the FCE. There was no lower back complaints prior to the FCE, but there were complaints subsequent to the FCE.

The WCJ did not find the medical evidence proved the claimant did not suffer a back injury during the FCE, but stated he did not believe any back complaints were “serious.” However, not just “serious” complaints are entitled to medical treatment. Therefore, I would reverse the WCJ’s judgment and render judgment in claimant’s favor.

      . Supplemental earnings benefits are paid for “injury resulting in an employee’s inability to earn wages equal to ninety percent or more of wages at time of injury” and “shall in no event exceed a maximum of five-hundred twenty weeks.” La.R.S. 23:1221(3).

      . An order consolidating these cases was signed by the WCJ on November 14, 2005.

      . Mr. Dousay's work history includes working as a floor installer for Dousay Floor for approximately twenty years, during which time he also worked offshore as either a roustabout or a floor hand for approximately a year-and-a-half after quitting school in the eleventh grade.


text:
    Lynn DOUSAY d/b/a Dousay Floor v. Donnie DOUSAY.
    No. 07-196.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 12, 2007.
    Robert L. Beck, Rivers, Beck, Dalrym-ple & Ledet, Alexandria, LA, for Appellant, Donnie Dousay.
    Walter S. Salley, Lunn, Irion, Salley, Carlisle & Gardner, Shreveport, LA, for Appellee, Dousay Floor Covering, State Farm Fire and Casualty Insurance Company.
    Court composed of SYLVIA R. COOKS, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

liFor the reasons assigned in the companion and consolidated case of Donnie Dousay v. Dousay Floor Covering, 07-195 (La.App. 3 Cir.9/12/07), 966 So.2d 677, 2007 WL 2609245, the judgment of the workers’ compensation judge is affirmed. Costs of this appeal are assessed to Appellant, Donnie Dousay.

AFFIRMED.

COOKS, J. dissents and assigns written reasons.

COOKS, J.,

dissenting.

hi respectfully dissent from the majority’s decision to affirm the judgment of the Office of Workers* Compensation. Although the WCJ specifically inferred from claimant’s appearance that he was too “fit” and “stout” to be totally disabled, the record contradicts that inference. Claimant has undergone five separate surgical procedures to alleviate his neck, arm and shoulder problems. The WCJ stated he relied on Dr. Drerup’s assessment of claimant’s physical ability to determine whether or not he was totally and permanently disabled. Dr. Drerup specifically stated that claimant was “restricted to sedentary or light duty with requirements that he take frequent self-determined breaks throughout the day and that he must be allowed to alter his position from a sitting to a standing or even a semi-reclining position on occasions, on as an-needed basis.” Despite further noting that claimant is “going to suffer a level of chronic pain,” the WCJ interpreted Dr. Drerup’s testimony as indicating claimant “would be able to consistently perform sedentary or light duty work.” (Emphasis added). Dr. Drerup specifically stated that claimant’s pain could become “so intense that he simply cannot continue to engage in activities and he has to stop.” I find “these periods would occur predictably and regularly so often as to preclude realistic gainful employment.” See Barnes v. Bechtel Group, Inc., et al., 03-1484 (La. App. 5 Cir. 04/13/04), 873 So.2d 735, 738. The WCJ attempted to | ¡^distinguish the present case from Barnes finding the claimant in Barnes was rendered “unreliable” by pain but Mr. Dousay was not. I disagree. Therefore, I conclude the WCJ erred in finding claimant failed to demonstrate by clear and convincing evidence that he was unable to engage in any form of gainful employment.

I also disagree with the majority’s conclusion that the WCJ did not err in his finding that claimant failed to establish by a preponderance of the evidence that his back complaints were related to the FCE. The record establishes during the FCE claimant complained of increased cervical and lumbar pain during a lifting maneuver. According to claimant, the low back pain worsened significantly after the FCE. Approximately two weeks after the FCE, claimant.visited Dr. Douglas Goodin, complaining he had injured himself in the FCE. He maintained these complaints in future visits, and Dr. Goodin noted in his notes from one visit that “the low back is not recovered at this point.” When Dr. Goodin retired, Dr. Forester replaced him in administering claimant’s medications. Claimant also complained to Dr. Forester of low back pain, which he related to the FCE. This led Dr. Forester to order a MRI of the lumbar spine, which the defendant refused to authorize on the basis the low back injury was not related to the work accident. Dr. Nanda, who performed claimant’s first surgery, examined claimant before and after the FCE. There was no lower back complaints prior to the FCE, but there were complaints subsequent to the FCE.

The WCJ did not find the medical evidence proved the claimant did not suffer a back injury during the FCE, but stated he did not believe any back complaints were “serious.” However, not just “serious” complaints are entitled to medical treatment. Therefore, I would reverse the WCJ’s judgment and render judgment in claimant’s favor.


author: PAINTER, Judge.

text:
    John Keith RICHARD v. LAFAYETTE FIRE AND POLICE CIVIL SERVICE BOARD, et al.
    No. 07-1010.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 19, 2007.

      William Littlejohn Goode, The Goode Law Firm, Lafayette, LA, for Plaintiff/Appellant, John Keith Richard.
    Marie Candice Hattan, Roy & Hattan, Lafayette, LA, for Defendant/Appellee, Lafayette Municipal Fire and Police Civil Service Board.
    Michael Patrick, Corry Briney & Foret, Lafayette, LA, for Defendant/Appellee, Lafayette Consolidated Government.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| iThis court issued, sua sponte, a rule ordering the plaintiff-appellant, John Keith Richard, to show cause, by brief only, why the appeal in this matter should not be dismissed as premature. On September 4, 2007, this court received appellant’s response to the rule. For the reasons given herein, we hereby recall the rule, maintain the appeal, and order the clerk of court to supplement the record.

A final judgment in this employment dispute was entered by the trial court on March 7, 2007. Notice of this judgment was certified as mailed by the district court clerk’s office to the parties in this litigation on March 13, 2007. The plaintiff filed a motion for new trial on March 22, 2007.

Within the pleading entitled Plaintiffs Motion for New Trial, the plaintiff included an order, to be filled in by the trial court, setting the motion for new trial for a show cause hearing. The record reflects that lines were drawn through this order language, and underneath this language appears the word, “Denied.” Following this notation is written the date of March 27, 2007, and underneath these appears the trial court’s signature.

The plaintiff then filed a motion and order for appeal on April 5, 2007. The trial court granted the order of appeal on April 13, 2007, and the record in this appeal was lodged in this court on April 15, 2007.

On its own motion, this court issued a rule for the plaintiff to show cause, by brief only, why the appeal in this case should not be dismissed as premature, citing Egle v. Egle, 05-0531 (La.App. 3 Cir. 2/8/06), 923 So.2d 780. The plaintiff filed a response to this court’s rule to show cause on September 4, 2007.

I ¡,In Egle, 923 So.2d 780, this court held that the appeal was premature and dismissed the appeal sua sponte. This court found that the record did not contain a judgment denying the motion for new trial. Instead, the record contained an order by the trial court in which the notation “Denied” had been written across a rule to show cause order which had been attached to a motion for new trial. We found that such an order did not fulfill the requirements of La.Code Civ.P. art. 1918 in that the language did not clearly identify the judgment by appropriate language, and found that this order denied only the rule to set the motion for new trial for contradictory hearing. Moreover, this court noted that the motion for new trial had not been denied at a contradictory hearing. Therefore, this court proceeded to hold that the appeal in Egle was premature pursuant to La.Code Civ.P. art. 2087(D), because the appeal had been granted before the trial court had sufficiently disposed of the motion for new trial.

Similarly, in the instant case, when the appeal was lodged in this court on August 15, 2007, the appeal was premature because the trial court had written “Denied” across the request for the setting of a date for a rule to show cause hearing. However, attached to the plaintiffs response to this court’s rule to show cause is a copy of a judgment signed by the trial court and dated August 29, 2007, which is clearly identified as a final judgment and which definitively denies the plaintiffs motion for new trial. We find that the judgment of August 29, 2007, is in the appropriate form to constitute a proper judgment disposing of the motion for new trial.

Louisiana Code of Civil Procedure Article 2123(C) provides:

An order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment ^notwithstanding the verdict. The order becomes effective upon the denial of such motions.

“The second sentence of this provision ... makes it clear that the trial court’s denial of a motion for new trial during the pen-dency of an appeal, cures the defect of prematurity.” Sullivan v. Franicevich, 04-0321 (La.App. 4 Cir. 3/9/05), 899 So.2d 602, 604 (citation omitted). The Louisiana Supreme Court has held that once a previously existing defect has been cured, there is no useful purpose in dismissing an otherwise valid appeal. Overmier v. Traylor, 475 So.2d 1094 (La.1985).

Accordingly, in the instant case, we find that the appeal order was granted prematurely because the trial court had not yet issued a valid judgment regarding the plaintiffs motion for n'ew trial. However, we find that the trial court’s subsequent issuance of a valid judgment denying the motion for new trial cured the jurisdictional defect of prematurity. Therefore, we find that although the appeal was premature at the time when it was lodged in this court, the appeal has since been perfected and should be maintained. Accordingly, we hereby order that the Office of the Clerk of Court for the Fifteenth Judicial District Court Parish of Lafayette, file a supplemental record to this appeal with this court containing the judgment of August 29, 2007, denying the motion for new trial.

RULE RECALLED. APPEAL MAINTAINED.

SUPPLEMENTAL RECORD ORDERED.


author: AMY, Judge.

text:
    Ronnie CLEARY & Felton Henry v. Kerry M. OWENS, et al.
    No. 07-942.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 19, 2007.
    James Erie Johnson, Charles L. Cas-saignac, IV, Christian T. Avery, Bryan J. Haydel, Porteous, Hainkel and Johnson, L.L.P., Baton Rouge, LA, for Defendants/Appellants, Terry Meche and Farm Bureau General Insurance of Michigan.
    Michael W. Cambell, Caffery, Oubre, Campbell & Garrison, L.L.P., Lafayette, LA, for Defendants/Appellants, Terry Meche and Farm Bureau General Insurance of Michigan.
    Kevin Paul Tauzin, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Terry Meche.
    Pride J. Doran, Jermaine D. Williams, Williams & Doran, P.L.L.C., Opelousas, Louisiana, for Plaintiff/Appellee, Ronnie Cleary.
    Kenneth W. Jones, Jr., Oliver, Way & Jones, LLC, Lafayette, LA, for Interve-nor, State Farm Mutual Automobile Insurance Company.
    Bob Broussard, D. Patrick Daniel, Jr., Attorneys at Law, Lafayette, LA, for In~ tervenor, Bob Broussard.
    Valex Amos, Jr., Amos & Garrett, L.L.C., Lafayette, LA, for Intervenor, Va-lex Amos, Jr.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

11 This court issued, sua sponte, a rule ordering the Defendants-Appellants, Terry Meche and Farm Bureau General Insurance of Michigan (Farm Bureau), to show cause, by brief only, why the appeals in this matter should not be dismissed as premature. On August 22, 2007, this court received Appellants’ response to the rule. For the reasons given herein, we hereby dismiss the appeals.

This case arises out of an automobile accident. Following a jury trial, a verdict was rendered in favor of Plaintiff-Appel-lee, Ronnie Cleary. The judgment was signed on July 18, 2006, and Notice of Judgment was sent on July 26, 2006. On August 2, 2006, Appellants filed a Motion for New Trial and, in the Alternative, Re-mittitur. On August 14, 2006, the trial court wrote the word “denied” diagonally across the proposed order to show cause. No hearing was held on the motion.

Appellant, Farm Bureau, filed its motion for suspensive appeal on September 8, 2007, and the order granting the appeal was signed on September 13, 2006. A motion for appeal filed on behalf of Appellant, Terry Meche, was filed and granted on September 12, 2006. The record in this case was lodged in this court on August 3, 2007.

Louisiana Code of Civil Procedure Article 1918 provides, in pertinent part, that “[a] final judgment shall be identified as such by appropriate language.” In the case at bar, the only language on the purported judgement is the word “denied” written across the rule to show cause order.

In response to this court’s order that appellants show cause why their appeals should not be dismissed as premature, Appellants argue that the provisions of the Louisiana Code of Civil Procedure do not require rigid |2application. To support their position, Appellants cite La.Code Civ.P. art. 5051 which provides that “[t]he articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.” Appellants also cite Rainey v. Entergy Gulf States, Inc., 01-2414 (La.App. 1 Cir. 11/08/02), 840 So.2d 586, 588 (quoting Maddens Cable Serv., Inc. v. Gator Wireline Services, Ltd. 509 So.2d 21, 23 (La.App. 1 Cir.1987)), wherein the first circuit, in giving its assessment of Article 5051 that “[ljawsuits should be decided on their merits and’ should not turn on arbitrary or technical rules - of procedure.” Hence, Appellants in the instant case argue that this court should not rigidly apply La.Code Civ.P. art.1918 in determining whether the trial court rendered a valid judgment. Instead, Appellants argue that because the trial judge implicitly manifested his intent to deny their motion for new trial, this court should liberally apply Article 1918 and allow this appeal to stand. Further, Appellants contend that the appeal should be maintained in the interest of judicial efficiency.

In Egle v. Egle, 05-0531 (La.App. 3 Cir. 2/8/06), 923 So.2d 780, this court previously considered the issue of whether the notation “Denied” written across a rule to show cause order is sufficient to constitute a judgment on a motion for new trial. The Egle case was factually similar to the instant case in that no hearing had been held on the motion for new trial, and the trial judge simply wrote the notation “Denied” diagonally across the face of the rule. The court in Egle found such a notation to be insufficient to satisfy the statutory requirement that a final judgment be “identified as such by appropriate language.” See La.Code Civ.P. art.1918. In Egle, the court looked to La.Code Civ.P. art. 2087(D) which provides that “[a]n order for appeal is premature if | ^granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict.” Since the trial court had not held a hearing and no valid judgment had been rendered with regard to the motion for new trial, this court held in Egle that the appeal order was premature. Having found the appeal order to be premature, this court concluded that it lacked jurisdiction over the appeal pursuant to La.Code Civ.P. art.2088.

Likewise, in the instant case, we find that the notation “Denied” written on the rule to show cause order does not constitute a valid judgment. Since the trial court failed to conduct a hearing and properly dispose of the Motion for New Trial and, in the Alternative, Remittitur, we find that the appeal order signed on September 13, 2006, was premature and that the trial court was not divested of its jurisdiction. Having concluded that we lack jurisdiction over this appeal, we find that the appeal must be dismissed and remanded to the trial court for consideration of Appellants’ Motion for New Trial and, in the Alternative, Remittitur.

APPEAL DISMISSED. CASE REMANDED.


text:
    STATE of Louisiana v. Patrick LANDRY.
    No. 07-1013.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 19, 2007.

      Katie Boudreaux, New Iberia, LA, for Plaintiff/Appellant, In Proper Person.
    Kenneth Martinez, State of Louisiana, Support Enforcement Services, Ville Platte, LA, for Plaintiff, State of Louisiana.
    Glenda Huddleston, Attorney at Law, New Iberia, LA, for Defendant/Appellee, Patrick Landry.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

| ,This court issued, sua sponte, a rule ordering the Plaintiff-Appellant, Katie Boudreaux, to show cause, by brief only, why the appeal in this matter should not be dismissed as premature. On September 4, 2007, this court received Appellant’s response to the rule. For the reasons given herein, we hereby recall the rule and maintain the appeal.

On November 2, 2006, the trial court held a child support modification hearing. The judgment was signed on March 8, 2007. Appellant filed a motion for new trial on March 20, 2007. On March 27, 2007, the trial court wrote the words “denied without hearing” across the proposed order to show cause. On March 30, 2007, Appellant filed a motion for devolutive appeal which was granted by order signed on April 3, 2007. On April 4, 2007, a motion for new trial on behalf of the State of Louisiana was filed into the court record to which motion was attached an order reflecting that on April 3, 2007, the trial court had written “denied w/out hearing” across the order to show cause.

In Egle v. Egle, 05-0531 (La.App. 3 Cir. 2/8/06), 923 So.2d 780, this court held that the notation “Denied” written across a rule to show cause order which had been attached to a motion for new trial was insufficient to satisfy the statutory requirement that a final judgment be “identified as such by appropriate language.” See La.Code Civ.P. art. 1918. Further, this court found that the appeal in Egle was premature under La.Code Civ.P. art. 2087(D) because it was granted before the trial court had sufficiently disposed of the motion for new trial.

In the instant case, when the appeal was lodged in this court on August 16, 2007, it appeared that the appeal was premature because the trial court had | ¡.addressed the parties’ motions for new trial by simply writing “denied without a hearing” .across the show cause orders. However, Appellant submitted two judgments to this court when responding to this court’s order that Appellant show cause why her appeal should not be dismissed as premature. These judgments reflect that on August 29, 2007, the trial court issued two new judgments denying the two motions for new trial. The judgments are each entitled “Final Judgment of Denial on Motion for New Trial.” A supplemental record containing these judgments has been filed in this court. We find that the judgments of August 29, 2007 are in the appropriate form to constitute a proper judgment disposing of the motions for new trial.

. Louisiana Code of Civil Procedure Article 2123(C) provides:

An order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict. The order becomes effective upon the denial of such motions.

“The second sentence of this provision ... makes it clear that the trial court’s denial of a motion for new trial during the pen-dency of an appeal cures the defect of prematurity.” Sullivan v. Franicevich, 04-0321 (La.App. 4 Cir. 3/9/05), 899 So.2d 602, 604 (citation omitted), writ denied, 05-0880 (La.5/20/05), 902 So.2d 1051, writ denied, 05-0920 (La.5/20/05), 902 So.2d 1055. The Louisiana Supreme Court has held that once a previously existing defect has been cured, there is no useful purpose in dismissing an otherwise valid appeal. Overmier v. Traylor, 475 So.2d 1094 (La.1985).

Accordingly, in the instant case, we find that the appeal order was granted prematurely because the trial court had not yet issued valid judgments regarding the motions for new trial, and therefore, we did not have jurisdiction over the appeal. However, we find that the trial court’s subsequent issuance |sof valid judgments denying the motions for new trial cured the jurisdictional defect of prematurity. As such, we find that although the appeal was premature at the time it was lodged in this court, the appeal has since been perfected and should be maintained.

RULE RECALLED. APPEAL MAINTAINED.