text:
    Michael H. ALAYNICK, M.D. and Robert L. Mimeles, M.D. v. JEFFERSON BANK & TRUST COMPANY.
    No. 83-CA-791.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.

      Douglas A. Kewley, Bruce A. North, Me-tairie, for defendant-appellant.
    Lee R. Miller, Jr., Floyd Hennen, New Orleans, for plaintiffs-appellees.
    Before BOUTALL, CHEHARDY and DUFRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal by Jefferson Bank and Trust Co., defendant-appellant, from an adverse judgment in the amount of $20,000, for converting to its own use a collateral mortgage note pledged by Bruce Coffman to Drs. Michael Alaynick and Robert Mí-meles, plaintiffs-appellees, to secure a debt owed to them. Because we find that the bank breached its fiduciary duty owed to plaintiffs as their mandatary in using the note as its own security, we affirm.

The facts are these. In early 1979, Bruce Coffman was put in touch with Drs. Alaynick and Mímeles by a mutual friend in regard to a real estate speculation. After negotiations, the three men entered into an agreement on February 28, 1979, whereby in return for a loan of $75,000, Coffman agreed to repay $95,000. The additional $20,000, was referred to in the agreement as a “fee”. The agreement further provided that a collateral mortgage for $145,000 on the property to be purchased would be recorded, a collateral mortgage note of $95,000, would be delivered to the doctors, and a second collateral mortgage note of $50,000, would be held by Coffman. The bank was not a party to this agreement.

On the same date, these parties appeared at Jefferson Bank where Alaynick, Mí-meles and Coffman all regularly did business, and signed respectively, and at different hours, the following documents, all dated February 28, 1979.

1. An unsecured promissory note for $37,000, for a loan to Mímeles, and signed only by him.
2. A promissory note for $37,500, for a loan to Alaynick, signed by him, and secured only by the personal endorsement of Coffman.
3. A promissory note for $50,000, for a loan to Coffman, and signed by him, but otherwise showing no security.
4. Two collateral mortgage notes payable to bearer in the amounts of $95,-000 and $50,000, both signed by Coff-man, and paraphed “ne varietur” with a collateral mortgage of $145,-000, properly recorded on February 28, 1979.

The proceeds of the three loans apparently were used by Coffman to purchase the property. The $95,000 collateral mortgage note was pledged to the doctors, with Alaynick receiving actual possession. There is no evidence to show whether the $50,000 collateral mortgage note was given to the bank at that time or retained by Coffman. However, the $50,000 promissory note does not show any security as of February 28, 1979, and Donald Weekly, the bank officer who approved the loan, testified that to the best of his knowledge, the loan was unsecured when made.

Weekly left the employ of the bank about a month after this transaction, and the file was turned over to Richard Lee, another bank officer. Sometime in May, 1979, Lee noted that in his opinion the bank did not have adequate security on the three promissory notes. He contacted Alaynick and learned that the doctor held a $95,000 collateral mortgage note. He thereupon asked Alaynick to meet him at the bank, and at that meeting Alaynick surrendered the note to Lee and was given a receipt.

On May 21, 1979, several lots from the mortgaged property were sold. With the approval of the doctors, the entire proceeds of this sale were applied by the bank to pay in full the $37,500, Alaynick note, and to reduce the $37,500, Mímeles note to some $16,000.

On July 18, 1979, the bank had Coffman sign a “collateral pledge agreement” wherein he ostensibly pledged to the bank the original collateral mortgage notes of $95,000 and $50,000. Also, on July 18, 1979, the bank noted on Coffman’s $50,000, promissory note that it was now secured by the collateral mortgage notes pledged to the bank that same day.

In February, 1980, the remainder of the mortgaged property was sold, and the net proceeds of some $75,000, were paid to the bank as holder of the two collateral mortgage notes. These funds were applied by the bank to satisfy the $50,000 Coffman note, the outstanding $16,000 on the Mí-meles note, some $5,000 to satisfy an additional loan to Coffman to pay a sewerage district lien on the property, and interest on these various items.

The $20,000 “fee” owed by Coffman to the doctors was not paid, and after unsuccessful efforts to obtain this fee from the bank, Alaynick and Mímeles brought the present action.

After trial, the court rendered judgment in favor of Alaynick and Mímeles, and against the bank, in the amount of $20,000. The court found that the “bank was aware of the plaintiffs’ preferential creditor status to the proceeds and converted the plaintiffs’ security to its own use and benefit.” The defendant bank now appeals.

Three errors are alleged on the part of the trial court:

1. It was error to find that plaintiffs occupied a preferential creditor status.
2. It was error to find that the bank converted plaintiffs’ security to its own use.
3. Because the bank was not a party to the agreement between Coffman and plaintiffs, it was error to hold the bank liable for the $20,000 fee.

These allegations are without merit.

Regarding the bank’s first alleged error, the following legal principles are applicable.

A collateral mortgage consists of three parts: 1.) a promissory note, usually called the collateral mortgage note or “ne varietur” note, 2.) which is secured by a collateral mortgage, and 3.) which note and underlying mortgage are pledged to the creditor as security for an independent and distinct indebtedness, First Guaranty Bank v. Alford, 366 So.2d 1299 (La.1978). Moreover, because the pledge of the collateral mortgage note is contractual, the pledge secured only that indebtedness contemplated in the contract of pledge between the pledgor and the pledgee — Civil Code Art. 3133; Durham v. First Guaranty Bank of Hammond, 331 So.2d 563 (La. App. 1st Cir.1976). Finally, when properly recorded, the pledgee’s ranking among other creditors of the pledgor is established on the date that the collateral mortgage note is pledged, or as more commonly expressed, “issued”.

Applying these principles to the present facts, it is clear that as of February 28, 1979, the doctors held a valid collateral mortgage note to secure an indebtedness of $95,000. There was a recorded collateral mortgage on the property at issue, and the collateral mortgage note was properly par-aphed to that mortgage. The agreement between the doctors and Coffman evidences an indebtedness of $95,000 and specifies that this indebtedness is secured by the pledge of the $95,000 collateral mortgage note.

The bank argues, to the contrary, that there was no connexity between the indebtedness and the collateral mortgage note so as to establish a pledge of the note to secure that indebtedness. We need only quote the following language from the agreement evidencing an indebtedness of $95,000, to show otherwise:

O. Bruce Coffman ... shall render unto Michael H. Alaynick and Robert L. Mí-meles ... a first collateral mortgage in the amount of $145,000.00 and a collateral mortgage note in the amount of $95,-000.00.

This allegation by the bank is therefore groundless.

The bank further asserts in brief that the $50,000 collateral mortgage note was pledged to it by Coffman on February 28, 1979, to secure the $50,000 promissory note. The apparent thrust of this claim is that the bank’s ranking is thus contemporaneous with that of the doctors, and therefore it should at least share in the proceeds of the sale on a pro-rata basis. This purported delivery of the note is not, however, shown by the evidence. Neither Weekly nor Lee made any reference to possessing the $50,000 collateral mortgage note as of February 28, 1979. Indeed, Weekly testified to the contrary that “as far as I know, my February 28, 1979 $50,000 loan to Coff-man was unsecured.” The only other evidence as to this note is that it was pledged to the bank on July 18, 1979, by way of the collateral pledge agreement of that date. Moreover, the back of the $50,000 promissory note shows that the only security on that indebtedness is the collateral pledged by the collateral pledge agreement of July 18th. On these facts, we can only conclude that the $50,000 collateral mortgage note was actually pledged or issued to the bank on July 18, 1979, and therefore that it is of inferior rank to the pledge of the $95,000 note of February 28, 1979, to the doctors.

The next issue is whether the bank improperly converted the doctors’ security device to its own benefit, or more properly in the analysis adopted below, whether the bank breached a fiduciary duty owed the doctors. Under La.Civ.Code Art. 2985, a mandate arises when a person grants power to another to transact for him and in his name one or several affairs. The mandate may be conferred orally, and is perfected on acceptance by the mandatary, La.Civ. Code Arts. 2792, 2988. In addition, the acceptance may be tacitly made when the mandatary acts under it, La.Civ.Code Art. 2989.

In the case before us, Alaynick testified that when he surrendered the $95,000 note to the bank he understood that the only purpose of this surrender was to have certain properties released from the collateral mortgage. It was his further understanding that the funds resulting from that sale would accrue solely to him and Mí-meles, and that he authorized the bank to credit these funds toward his and Mímeles’ promissory notes held by the bank. He finally stated that he assumed that the bank would likewise collect for him and Mimeles the remaining sums secured by the note when the rest of the property was sold. In our opinion, this was the only business which Alaynick authorized the bank to conduct for him. Further, the bank tacitly accepted this mandate by removing the properties from the mortgage and crediting all funds from the sale to the promissory notes.

Lee admitted that Alaynick’s testimony was substantially correct, but asserted that, he informed Alaynick that the bank also needed the note for security, and that Alaynick agreed to this. The bank produced no other evidence to corroborate Lee’s version of the transaction. It is apparent, therefore, that the trial court believed Alaynick, and not Lee, and where the credibility of two contradictory witnesses is at issue, this court will not disturb finding of fact based thereon, absent some manifest error, Canter v. Koehring Co., 283 So.2d 716 (La.1973). As we perceive no such error here, we find that the bank accepted a mandate to collect the indebtedness to the doctors which was secured by the collateral mortgage note of $95,000.

The next question which must be answered is whether the bank breached its duty to perform the mandate properly. The rule in our jurisprudence is that an agent or mandatary must conduct the affairs of his principal as though they were his own, and must not take even the slightest advantage of his principal, Noe v. Roussel, 310 So.2d 806 (La.1975). On the present facts, there can be no question that the bank breached this duty. As we have already shown, the doctors held a preferred collateral mortgage note to secure an indebtedness. At the final sale of the property, had they still been in possession of the note, they would have been paid in preference to the bank, all sums still owed them on Coffman’s indebtedness. Under the mandate, the bank clearly had the obligation to see that the funds were so collected and applied. Yet not only did it fail to so distribute the funds, but even went so far as to have Coffman sign an agreement purporting to transfer the security interest represented by the $95,000 note to the bank itself. This constituted an obvious breach of the bank’s duty, and renders the bank liable to its principles for the $20,000, which they would have received had this breach not occurred.

The bank argues, to the contrary, that the promissory notes signed by the doctors created a security interest in their property, and therefore when it received the $95,-000 note, this was in effect an authorized pledge of that note. While we have serious reservations as to whether a collateral mortgage note can be effectively pledged to a third party by the pledgee without at the same time delivering the instrument of indebtedness which that note secures, we need not resolve that issue here. Cf. La. Civ.Code Art. 3142 Odom v. Cherokee Homes, Inc., 165 So.2d 855 (La.App. 4th Cir.1964). We need only state that even were the pledge of the $95,000 note proper, the bank could only have acquired a $75,-000 interest in that security device because that was the extent of the indebtedness owed to it by the doctors. What the bank attempted, in effect, was to use the remaining security of $20,000 as collateral for the Coffman $50,000 promissory note. Yet nowhere in the record is there even a hint, much less proof, that the doctors obligated themselves to the bank as securities for the Coffman loan. This simply cannot be done, La.Civ.Code, Arts. 3035, 3039.

The final error urged by the bank is that because it was not a party to the Coffman-Alaynick-Mimeles agreement, it cannot be liable for payment of the fee. This assertion is irrelevant. To adopt this reasoning would lead to the result that any creditor of inferior rank could attack a superior creditor’s preferred claim to funds on the grounds that he was not a party to the agreement, giving rise to the indebtedness between that preferred creditor and the debtor. This would simply be absurd.

Because we find that Alaynick and Mí-meles were preferred creditors, that Jefferson Bank was their mandatary, and that it breached its fiduciary duty under the mandate, we hold that it is liable to plaintiffs for the $20,000 loss occasioned by this breach. The judgment of the trial court is therefore affirmed. Costs to be paid by defendant-appellant.

AFFIRMED.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Burton D. MOTT, Plaintiff-Appellant, v. BABIN MOTORS, INC., et al., Defendants-Appellees.
    No. 83-564.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Brumfield & Brumfield, William P. Brumfield, Baton Rouge, for plaintiff-appellant.
    Elmer G. Noah, II, Kostelka & Swearin-gen, J. Robert Wooley, and Davenport, Files, Kelly & Marsh, Mike C. Sanders, Monroe, Griffing & Johnson, George Griff-ing, Smith, Talloferro, Seibert, Booth & Purvis, Jonesville, and R. Randall Roche, Baton Rouge, for defendants-appellees.
    Louis L. Vogt, Ferriday, for plaintiff-ap-pellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOMENGEAUX, Judge.

Appellant Mott filed suit (No. 83-564) against Babin Motors (a wrecker service), the Catahoula Parish Sheriff’s Office and its insurers, and the Louisiana Department of Transportation and Development, for personal injuries sustained in an accident. Appellant’s employer, Roscoe Slay (d/b/a Manifest Gravel Company) also filed suit 451 So.2d 638, against the defendants herein for property damage incurred in the same accident. The two cases were consolidated at trial and remain as such on appeal. We will consider all issues of liability in the instant case, but will render separate judgments.

FACTS

During the early morning of September 17, 1980, a wrecker belonging to Babin Motors, Inc. responded to a call that a pickup truck was stranded in a ditch on Louisiana Highway 124. Wilfred Johnson, the driver for the wrecker service, found the truck located beside the northbound lane of the two-lane, two-way highway. Johnson positioned the wrecker perpendicularly to the road, blocking the northbound lane, and possibly a portion of the southbound lane, with its yellow rotating emergency lights on.

Will Poulk, a deputy with the Catahoula Parish Sheriff’s Office, arrived at the scene. Johnson requested his assistance. The Deputy parked his patrol car on the opposite side of the highway (the southbound side) approximately 70 to 80 feet north of the wrecker, with the red emergency siren lights flashing. The patrol car was parked on the shoulder, possibly extending into part of the southbound lane.

At approximately 10:30 A.M., appellant Mott, while traveling in a southbound direction on Louisiana Highway 124, rounded the S-curve between 45 to 60 miles per hour. The curve was controlled by a 45 mile per hour speed limit sign. The fully loaded, 22-yard gravel truck crossed the center line to avoid the patrol car and attempted to veer back into the southbound lane but collided with the front bumper of the wrecker. The gravel truck overturned in the road approximately 90 feet south of the wrecker.

Mott and Slay filed suit for personal injury and property damage respectively. In preliminary proceedings, Sheriff Jackson of the Catahoula Parish Sheriff’s Department was dismissed in his individual capacity but remained as a party defendant in his official capacity. At the conclusion of the second day of trial, both plaintiffs rested; the trial court granted motions for a judgment of dismissal in favor of all defendants. Plaintiffs’ lawsuit was dismissed with prejudice, at their costs, after a finding upon a preponderance of the evidence that plaintiffs failed to state a cause of action against defendants. The trial court also found that defendants were not negligent. Plaintiffs devolutively appealed.

ISSUES

Appellant Mott alleges that the trial court erred in granting defendants’ motion for dismissal prior to the submission of all evidence by plaintiffs; that the trial court erred in applying the wrong burden of proof as the matter relates to defendant Babin Motors, and defendant Jackson; and that the trial court erred in failing to find that Babin Motors and Jackson were negligent and/or in violation of the Louisiana Highway Regulatory Act.

DISMISSAL

At the end of plaintiff’s case in chief, appellant Mott requested the Court to personally inspect the scene of the accident to aid and familiarize the Court with distances and the curve of the road, and therefore he argues that the presentation of his case was incomplete. However, the trial transcript reveals that after that motion was made, plaintiff-appellant then rested his case. Prior to the proposed inspection of the premises, the Court granted the motion for dismissal. Appellant Mott contends that the motion granted under La.C. C.P. Art. 1810(B) was untimely because it was granted prior to the Court’s inspection, thereby rendering it defective.

La.C.C.P. Art. 1810(B) [now La.C.C.P. Art. 1672(B) ] states:

“B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

In Smith v. Travelers Indemnity Company of Rhode Island, 374 So.2d 708 (La. App. 1st Cir.1979), the appellate court found that when the plaintiff had presented his case and had rested subject to a proffer and medical testimony, there was no error on the part of the trial judge in dismissing the suit against the defendant upon a motion for a directed verdict (by the defendant). The Court explained La.C.C.P. Art. 1810(B):

“We do not believe that the spirit or intent of La.C.C.P. art. 1810 B was violated by the dismissal of a suit on a question of liability where only medical evidence is missing.”
At 712.

In the instant case, the plaintiff had presented his case completely. Aerial photographs of the relevant portion of Louisiana Highway 124 were introduced into evidence. Only the on-site inspection was forgone, which does not constitute missing evidence. The on-site inspection would merely have been a corroboration of other evidence already submitted to the Court. The Judge’s visit to the accident scene would not have been an evidence-gathering mission. This Court stated in Bico Enterprises, Inc. v. Cantrell, 413 So.2d 260 (La. App. 3rd Cir.1982):

“It is well settled that a trial judge possesses the right to take into consideration his personal evaluation and observation of the disputed area, not for the purpose of supplying new evidence, but for the purpose of determining, when the evidence adduced by the litigants with respect thereto is in hopeless conflict, which version thereof is worthy of belief. See Maturin v. Dronet, 288 So.2d 690 (La.App. 3rd Cir.1974); Sledge v. Aluminum Specialties, Inc., supra. Generally, visits by the trial court to sites which are the subject of the litigation are conducted only in instances where the testimony is so confusing and conflicting that such excursions aid the trial court in visualizing the disputed occurrence. Presumably, the trial court in the present case did not feel it necessary to conduct such a time-consuming activity because he was satisfied that the facts necessary to make a fair and impartial decision were contained in the record before him. We discern no error in this conclusion.
At 264-265.

The trial judge properly upheld the requirement for a judgment of dismissal [La. C.C.P. Art. 1810(B) ]; it was properly entertained after the plaintiff had completed the presentation of his evidence.

BURDEN OP PROOF, NEGLIGENCE, AND THE HIGHWAY REGULATORY ACT

The trial judge determined that the plaintiffs failed to prove a prima facie case of liability against the defendants. The plaintiffs relied upon La.R.S. 32:141(A) which prohibits motor vehicles from being parked on a public highway unless other vehicles have clear passage and a clear view for 200 feet. Plaintiffs contend that the statute establishes a presumption of negligence as to the defendants:

“A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
B. The provisions of this Section shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.
C. The driver of any vehicle left parked, attended or unattended, on any highway, between sunset and sunrise, shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence.”

Appellant argues that the burden of proof shifted to defendants which then required the defendants to affirmatively justify their position on the highway and further, that they had taken reasonable steps to warn other motorists. Appellant also argues that La.R.S. 32:141(A) imposes a duty upon operators of vehicles on state public highways not to stop in the roadway. The Louisiana Supreme Court has summarized the purpose of this statute in Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970), on rehearing, 242 So.2d 826:

“All of the statutes quoted above were designed so that the flow of traffic upon our public highways would not be impeded, and that those using the highways could anticipate that free passage would be afforded their vehicles upon the paved portion of our highways. In sum, they were designed to prevent blocking of traffic, which lends itself to the causation of accidents.”
At 830.

Cf. Badeaux v. Patterson Truck Line, Inc., 247 So.2d 875 (La.App. 3rd Cir.1971), writ denied, 259 La. 77, 249 So.2d 209 (1971) (this Court discussed the relevancy and application of La.R.S. 32:141).

Appellant also argues that a duty-risk negligence theory is applicable in the present case, especially when coupled with the violation of a statutory duty as contemplated by La.R.S. 32:141(A).

However, La.R.S. 32:24 grants an exemption in certain situations to emergency vehicles for most of the highway regulatory scheme. The statutory exception provides:

“A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this Chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
(3) Exceed the maximum speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible and visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.”

Through this exception, both the Sheriffs Department vehicle and the wrecker service truck were exempt from the provisions of La.R.S. 32:141(A) while in the performance of emergency functions; both vehicles utilized the appropriate audible and visual signals which were sufficient to warn motorists of the emergency situation. The trial judge determined that the evidence established through the testimony of Mr. Mott, as well as Louisiana State Trooper Trunzler that the lights on both emergency vehicles were operating and in effect at all times prior to the accident. According to the provisions of the aforementioned statute, the defendant driver of the wrecker service vehicle further maintained his responsibility to protect traffic by enlisting the aid of Deputy Poulk, driver of an authorized emergency vehicle under the express definition of La.R.S. 32:1(1). The trial judge properly found that the defendant deputy driver of the authorized emergency vehicle did not fail to uphold his duty with due regard to the safety of all persons.

Additionally, testimony rendered at trial is determinative of whether the defendants used due care in warning approaching motorists. The testimony concerned the distance between the curve north of the accident scene and the parked patrol car placed on the southbound shoulder to warn motorists of the emergency. Mott, travelling south, rounded this curve just prior to the accident.

The plaintiff, Mott, estimated the distance at 150 feet. The defendants’ witnesses estimated the distance at 200-300 yards. Apparently, the trial court accepted the testimony of the defendants’ witnesses and concluded that the distance was such that the warning given by the defendant was an adequate exercise of due care to alert approaching motorists. We find no error in this conclusion, which fully supports the finding of no negligence on the part of the defendants.

A similar factual situation occurred in Sullivan v. Hartford Accident and Indemnity Company, 155 So.2d 432 (La.App. 2nd Cir.1963), writ denied, 245 La. 64, 156 So.2d 604 (1963). There, the appellate court found that a deputy sheriff, in responding to an emergency call, who had parked his vehicle a few feet on the shoulder of the highway while investigating an accident was not guilty of actionable negligence. That court relied on the provisions of La.R.S. 32:24 to find that a driver of an emergency vehicle will only be held liable for negligence to the degree that it constitutes reckless disregard for the safety of others (unless this conduct is not reasonably required by the emergency situation). In the instant case, Deputy Sheriff Poulk was responding to an emergency situation and attempting to protect and give warning of an accident scene; both the Deputy Sheriff and the operator of the wrecker truck upheld the duty imposed through the use of the various signaling devices of their emergency vehicles.

Therefore, according to the provisions of La.R.S. 32:24, and the decision of the Sullivan case, the trial judge was correct in his finding that the defendants were not negligent. The trial judge concluded that their actions and behavior did not constitute a reckless disregard for the safety of others and that their actions were reasonable under the existing emergency situation. The trial judge examined the facts, circumstances, and relationship of the parties involved in the accident in the instant case, and determined that neither Babin Motors nor the Deputy Sheriff breached the duty owed to the driver of the gravel truck.

The appropriate standard in a non-jury trial is for the trial judge to consider all the testimony and render a decision based upon the preponderance of the evidence. In Bradley v. Hunter, 413 So.2d 674 (La.App. 3rd Cir.1982), writ denied, 415 So.2d 952 (La.1982), this Court discussed the applicable standard in a motion for dismissal:

“When a motion for a dismissal is filed under this provision, the proper standard to be applied by the trial court, in ruling upon the motion, differs from the standard to be used when a motion for a directed verdict is filed in a jury trial. In a non-jury trial, the trial judge, upon a motion under art. 1810(B) for a judgment of dismissal (upon completion of the plaintiffs case), must weigh and evaluate all of the evidence presented up to that point in the trial and must grant dismissal if the plaintiff has not established proof by a preponderance of the evidence. Semien v. PPG Industries, Inc., 413 So.2d 956 (La.App. 3rd Cir. 1982); Murray v. Haspel-Kansas Investments, 395 So.2d 453 (La.App. 4th Cir. 1981).”

At 676. (Footnote omitted.)

In considering a motion for directed verdict in a bench trial, the standard applied by the court is a preponderance of the evidence. Semien v. PPG Industries, Inc., 413 So.2d 956 (La.App. 3rd Cir.1982); Bryan v. Varnado, 394 So.2d 1321 (La. App. 1st Cir. 1981); Sevin v. Shape Spa for Health and Beauty, 384 So.2d 1011 (La. App. 4th Cir.1980). This standard allows the judge in a non-jury trial to make a determination of the facts and render judgment based upon his findings of fact. (The standard is different from the standard applied in jury trials where the judge is required to make a determination by applying the rule of whether the plaintiffs evidence is so insubstantial that reasonable men could not have arrived at a verdict contrary to that entered by the trial court. Campbell v. Mouton, 373 So.2d 237 (La. App. 3rd Cir.1979); La.C.C.P. Art. 1810(A).)

Since this was a judge trial, it was wholly within the discretion of the court to make the determination of the facts in response to the motion for dismissal and therefore enter judgment in favor of defendants.

The trial court has much discretion in determining whether a motion for dismissal should be granted. Burrell v. Kirkpatrick, 410 So.2d 1255 (La.App. 3rd Cir. 1982); Broussard v. Missouri Pacific Railroad Company, 376 So.2d 532 (La.App. 3rd Cir.1979).

We find no abuse of the discretion of the trial judge and no manifest error in granting the motion for a dismissal.

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Appellant Slay has not filed an appellate brief, therefore his appeal is considered abandoned. La.C.C.P. Art. 2164. See our opinion in Slay v. Babin Motors, Inc., et al., 451 So.2d 638 (La.App. 3rd Cir.1984).

      . Transferred from the Jury Trials Section by Acts 1983 No. 534.


text:
    Roscoe SLAY, Plaintiff-Appellant, v. BABIN MOTORS, INC., et al., Defendants-Appellees.
    No. 83-565.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Brumfield & Brumfield, William P. Brumfield, Baton Rouge, for plaintiff-appellant.
    Elmer G. Noah, II, Kostelka & Swearin-gen, J. Robert Wooley, and Davenport, Files, Kelly & Marsh, Mike C. Sanders, Monroe, Griffing & Johnson, George Griff-ing, Smith, Talloferro, Seibert, Booth & Purvis, Jonesville, and R. Randall Roche, Baton Rouge, for defendants-appellees.
    Louis L. Vogt, Ferriday, for plaintiff-ap-pellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOMENGEAUX, Judge.

This case was consolidated at trial with Mott v. Babin Motors, Inc., et al, 451 So.2d 632 (La.App. 3rd Cir.1984) (No. 83-564), and remains as such on appeal. Appellant Slay devolutively appealed the judgment of the trial court; however, appellant Slay has neither filed an appellate brief on his behalf nor did appellant appear in person or through counsel when the case was called for argument. Therefore, the appeal is considered abandoned and accordingly dismissed with appellate costs against the appellant. Woods v. Woods, 128 So.2d 796 (La.App. 3rd Cir.1961); Paul v. Rimrock Tidelands, Inc., 128 So.2d 443 (La.App. 3rd Cir.1961); La.C.C.P. Art. 2164.

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed, with appellate costs assessed against appellant.

AFFIRMED.


author: LABORDE, Judge.

text:
    TRIANGLE TRUCKING CO., Plaintiff-Appellee, v. Victor ALEXANDER, Jr., et al., Defendant-Appellant.
    No. 83-575.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      John L. Olivier, of Olivier & Brinkhaus, Sunset, for defendant-appellant.
    McHugh & Guidry, George W. McHugh, Jr., St. Martinville, for plaintiff-appellee.
    Nevils & Mclnnis, Richard B. Nevils, Baton Rouge, for defendants-appellees.
    Before FORET, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

This case was consolidated for trial and appeal with No. 83-576 on our docket, entitled Tauzin v. Broussard, in which a separate judgment and opinion is being rendered by us this date, 451 So.2d 643.

These companion cases arise out of a vehicular collision involving three automobiles and a truck. Plaintiffs are Triangle Trucking Company, J.C. Tauzin and his insurer, Louisiana Farm Bureau Insurance Company. The defendants are Ozeme Broussard, Victor Alexander, Jr. and the latter’s insurers. Plaintiffs, J.C. Tauzin and Triangle Trucking Company, were awarded damages after proving that defendants were negligent, except that Triangle Trucking Company, through its truck driver, Kenneth Belaire, was found to be contributorily negligent to the extent of fifteen percent (15%). Defendant, Ozeme Broussard, appeals from this judgment contending that Triangle Trucking Company is solely liable for all damages resulting from the sole contributory negligence of the truck driver, Belaire. Considering that the trial court did not commit manifest error, nor abuse its discretion in arriving at the factual determinations and apportionment of fault to the parties, we affirm.

FACTS

On March 22,1981, at approximately 1:30 a.m., the party litigants to this case and its companion were involved in a multi-vehicu-lar collision. Victor Alexander, Jr., defendant, made a left turn from Highway 354 onto Highway 31 as Ozeme Broussard, defendant, approached the intersection from the opposite direction. Broussard recognized Alexander’s car and signaled for Alexander to stop as they slowly approached each other from opposite directions. The two cars came to a complete stop, side by side, in their respective lanes of travel, on Highway 31, between the towns of Arnaud-ville and Cecilia. Alexander was facing north, and Broussard south, while they engaged in conversation through their windows. Broussard claims that he stopped Alexander to inquire about a relative. The vehicles were situated nearly one hundred twenty-five (125) feet from the intersection of Highways 31 and 354. Broussard alleges that he intended to negotiate a right turn onto Highway 354. It is disputed whether Broussard and Alexander had begun to pull away from their stopped positions when the accident occurred. The trial court found that they were completely stopped at the moment of impact.

Kenneth J. Belaire is the employee-driver of the involved truck, which was owned by Triangle Trucking Company. Belaire was proceeding south on Highway 31 when he noticed the dim tail lights of the Broussard car and the headlights of the Alexander car. Based on the imagery and effect of the lights, he assumed that the ears were in motion, whereupon he continued at a moderate speed. However, upon immediate approach from the rear of the Brous-sard car, he realized that the Broussard car was completely stopped. Being unable to bring his truck to an immediate halt, he collided with the right rear of the Brous-sard car. The Alexander car immediately pulled away and was unharmed. The momentum of Belaire’s truck coupled with the effect of the collision carried his truck into a nearby parking lot where he collided with a second vehicle belonging to plaintiff, J.C. Tauzin. The Tauzin vehicle was parked, clearly free of any parking violation or driver negligence.

J.C. Tauzin and his insurer, Louisiana Farm Bureau, filed suit in the companion case against Broussard, Alexander and his insurers for $1,758.58 representing the undisputed damages to his vehicle. Likewise, Triangle Trucking Company (owner of Be-laire’s truck) sued Broussard and Alexander for $37,000 representing damages. Alexander and Broussard answered Triangle’s claim, alleging that Belaire was solely responsible for the accident and that Triangle should bear all costs for damages resulting from the contributory negligence of its employee, Belaire.

The trial court found Alexander and Broussard negligent, and Belaire contribu-torily negligent. Judgment was rendered against defendants, Broussard and Alexander, subject to a reduction of the proportionate negligence of Belaire. The assigned percentages of fault assessed against each party for their respective negligence is as follows:

Ozeme Broussard Ol o ^
Victor Alexander CO ¾⅝
Kenneth J. Belaire H

Defendant, Broussard, alleges four specifications of error which present the following issues on appeal:

1) Whether the trial court erred in determining the negligence of the parties and apportionment of fault under LSA-C.C. art. 2323, and;
2) Whether Triangle Trucking Company presented sufficient evidence to satisfy its .burden of proof for recovery of damages representing loss of income or “down time”.

ISSUE # 1: NEGLIGENCE AND APPORTIONMENT OP FAULT UNDER LSA-C.C. ART. 2323

Broussard argues that the trial court erred when it failed to hold Belaire, driver of Triangle’s truck, solely negligent for causing the accident, or alternatively, that Belaire was contributorily negligent to an extent greater than fifteen percent (15%). Additionally, that defendant, Broussard, was not negligent and that Triangle Trucking Company failed to present sufficient evidence at trial to carry its burden of proof for recovery. The demands by J.C. Tauzin are not disputed by Broussard, except that Triangle Trucking Company rather than defendants, is solely liable for Tauzin’s damages.

At the outset, we note that the evidence preponderates, and for the most part conclusively indicates, that Triangle Trucking Company, Broussard and Alexander are comparatively at fault, in this instance, since their competing acts of negligence were all causally related and contributed to the occurring accident. The proper determination and apportionment of fault, however, is not based on the comparison of legal causation, but upon the degree of negligence attributable to the parties involved. See, Pearson, Apportionment of Losses Under Comparative Fault Laws— An Analysis of the Alternatives, 40 La.L. Rev. 343 (1980).

Broussard alleges that Belaire is solely negligent and correctly cites Eubanks v. Brasseal, 310 So.2d 550 (La.1975), for the proposition that a following motorist who strikes a preceding motorist from the rear has the burden to exonerate himself from liability. Nevertheless, Triangle Trucking Company’s case-in-chief, as well as all remaining evidence, supports the trial court holding that Broussard and Alexander were negligent to a greater extent than Kenneth J. Belaire. It is inescapable that Broussard and Alexander created the situation which placed themselves and Be-laire in peril. Belaire’s substandard reaction to the situation by failing to maintain a proper outlook for a preceding motorist should not constitute grounds for sole liability, in this instance. The accident was set in motion by the substandard behavior of defendants, Broussard and Alexander, who negligently positioned themselves in the path of ongoing traffic. Triangle Trucking Company has carried its burden of exonerating itself from “sole” liability for the accident, in this instance.

There are several competing acts of negligence which we must consider, as did the trial court, in determining the apportionment of fault. Alexander and Broussard are at fault to some extent for negligently stopping to converse on the highway. But for their stopping on the highway, the accident would not have occurred. They owed a duty to traveling motorists not to unreasonably impede or obstruct the free movement of traffic. The duty of a motorist not to impede traffic by stopping his vehicle at 1:30 a.m. in a lane of travel for no justifiable reason, encompasses the risk that an oncoming motorist will not expect such a situation and collide with him. This duty was breached by both Broussard and Alexander, since the scope of this duty encompassed the risks of harm from which both Belaire and Tauzin suffered. They should therefore be held liable for their contributing fault in this case. Moreover, Brous-sard’s negligence is conceivably greater than Alexander’s or Belaire’s, since it was at his instance that the hazardous condition was initiated. Further, Broussard failed to observe that there was oncoming traffic behind him, namely Belaire. Likewise, Alexander had a duty to disregard Brous-sard’s request to stop and to continue his course of travel. The highways are not appropriate places to stop and converse from one’s vehicle.

Additionally, Belaire owed a duty to all preceding motorists to maintain a proper outlook for peril ahead and to follow at a safe speed within adequate following distance. This duty encompassed the risk that an inattentive driver, following a preceding motorist too closely, may inadver-tantly collide with the rear of the preceding car causing harm to himself as well as others. The facts of the instant case clearly provide that Belaire breached this duty which he owed to Broussard, a preceding motorist. He was therefore negligent.

The competing and compounding acts of negligence of the parties resulted in the accident. Justice and equity mandate that fault cannot be placed upon any single party in this instance, since all were negligent to some varying degree. This case can best be resolved, as did the trial court, by the apportionment of fault to the parties pursuant to LSA-C.C. art. 2323.

In Sampy v. Roy Young, Inc., 425 So.2d 284 (3rd Cir.1982), this court preter-mitted the question of whether the assessment of percentages of fault is a legal or factual matter. We now hold that a trier’s findings, as to percentages of fault under LSA-C.C. art. 2323, is factual, just as findings of contributory negligence under the old law were factual. Varnado v. Continental Insurance Company, 446 So.2d 1343 (1st Cir.1984); Johnson, Comparative Negligence and the Duty/Risk Analysis, 40 La.L.Rev. 319 (1980).

It is established that we may not disturb a trial court’s findings and conclusions of fact in the absence of clear or manifest error, or abuse of discretion. Canter v. Koehring Company, 283 So.2d 716 (La. 1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). It is clear from the trial court’s oral reasons for judgment and the evidence presented that there is no manifest error in his factual determinations and application of the applicable law regarding the apportionment of fault to the parties. Accordingly, the trial court’s factual findings and apportionment of fault must be upheld on appeal.

SPECIFICATION OF ERROR NO. 3

In an award to Triangle Trucking Company for damages to its truck and loss of income, the trial court stated:

“Now, with regard to the claim of Triangle Trucking — Triangle Trucking’s claim, no dispute as to property damages, five hundred dollars ($500.00). I have a lot of difficulty with the loss of income or down time from the vehicle. Now, Mr. Nevils argues well that all we have is the uncorroborated testimony of Mr. Benoit. But, we all know he had a loss. And, I really don’t think the ends of justice would be served if I concluded that he wasn’t entitled to anything for that. And, this is the way I have chosen to handle it equitably. I will take his testimony in a light most favorable to Mr. Alexander and Mr. Broussard. He testified that his truck was down for fifty-four (54) days, that every other weekend, the truck was not running. We can have at the most eight (8) weekends in fifty-four (54) days. So, we’ll take four— that’s eight days. That leaves us with forty-six (46). Now the truck would run at least two days with one day off, at least; probably more. But, as I say, I think I must take that testimony in a light most favorable to the defendants. I divided forty-six (46) by three (3). I get 15.33. I mean, that’s 15.33 which leaves us 30.66 or rounding off, thirty-one (31) working days out of fifty-four (54) for the truck. At a net of two' hundred and seventy dollars ($270.00) a day, that’s eight thousand three hundred and seventy dollars ($8,370.00). Coupled with the five hundred, that’s eight thousand eight hundred and seventy dollars ($8,870.00). Now, I’ll say this: that if Counsel for Mr. Broussard or Mr. Alexander apply for a new trial timely on the basis that his loss was not that much and that the documentary evidence would prove that — the records of Patterson Truck Line or whatever — I will grant a retrial on that issue in fairness to them. However, even if Mr. McHugh can prove that it’s more than that, I will not. I think that’s basic fairness in a situation like this.”

Defendant, Broussard, argues that the trial court erroneously awarded the above damages for loss of income based on the sole testimony of Mr. Benoit, the owner of Triangle Trucking Company. We disagree.

Repair estimates and receipts in the record corroborate the fact that the truck was out of service for the extent of time determined by the trial court. The testimony of Mr. Benoit constitutes direct and best evidence from a person with firsthand knowledge as to the daily income generated by the truck. The trial judge attributed substantial weight to Mr. Benoit’s testimony and properly based the award on such. Defendants failed to contest or question the veracity of Mr. Benoit’s testimony, leaving the same uncontradicted. We find no abuse by the trial court’s reliance upon the sole testimony of Mr. Benoit in making the award. We find that, more likely than not, Triangle Trucking Company suffered the damages as accounted for by Mr. Be-noit, the owner. This evidence, although slight, satisfies plaintiff’s burden of proof, i.e., by preponderance of the evidence. Further, we find the trial court’s calculations in arriving at the awarded sum for “down time” to be most conservative. This provides for equity and fairness.

The defendant did not move for a “retrial” on the element of damages for which the trial court made available. The trial court willingly offered to hear further evidence on the matter from defendants in order to allow fairness. At this point, it was incumbent upon the defendants to rebut the alleged damages since plaintiff, Triangle Trucking Company had made a credible showing of loss for “down time” by Mr. Benoit’s testimony. Defendant did not avail himself of such opportunity and now complains on appeal. We hold that the trial court properly arrived at the damage award and did not abuse its discretion in this determination. We find that the eases cited by defendant are inapplicable to the instant case insofar as the cited cases relate to proof of individual lost wages and denial of damages. See, Santangelo v. Capitol Home Planners, 424 So.2d 1214 (1st Cir.1982). Accordingly, we find no merit in this assignment of error.

Based on the above and foregoing reasons, the judgment and apportionment of fault by the trial court is affirmed, at appellant, Ozeme Broussard’s cost.

AFFIRMED.


text:
    J.C. TAUZIN, et al., Plaintiff-Appellee, v. Ozeme BROUSSARD, et al., Defendant-Appellant.
    No. 83-576.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    John L. Olivier, of Olivier & Brinkhaus, Sunset, for defendant-appellant.
    McHugh & Guidry, George W. McHugh, Jr., St. Martinville, for plaintiff-appellee.
    Nevils & Mclnnis, Richard B. Nevils, Baton Rouge, for defendants-appellees.
    Before FORET, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

For the reasons assigned in No. 83-575, entitled Triangle Trucking Company v. Alexander, 451 So.2d 638, the judgment appealed from in the present case is affirmed at appellant, Ozeme Broussard’s cost.

AFFIRMED.


author: YELVERTON, Judge.

text:
    Clifford PRICE, et al., Plaintiffs-Appellees, v. STATE of Louisiana, et al., Defendants-Appellants.
    No. 83-660.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    See also, La.App., 436 So.2d 1303.

      Tommy D. Teague, and Charles E. Grey, Jr., Baton Rouge, for defendants-appellants.
    John R. Hickman, Voltz & Ware, Gus Voltz, II, Alexandria, for plain tiff s-appel-lees.
    Before FORET, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

The plaintiffs, 42 landowners, brought this action to recover damages to their property allegedly caused by the defendant’s military demolition exercises. The trial court awarded judgment in favor of 26 of them in the total amount of $137,035.66, and dismissed the suit as to the 16 other plaintiffs. From that judgment the defendant appeals. We amend and affirm. Since the 16 unsuccessful plaintiffs have not appealed that part of the judgment is not before this court.

The two issues on appeal are causation and damages. Defendant contends that there was manifest error in the trial court’s determination that the exercises caused the damages to the plaintiffs’ homes, and also in its award of damages. We will take up these issues after first recounting the facts as gleaned-from the extensive record. FACTS

In the summer of 1976 demolition training exercises began at Camp Beauregard, a training facility of the Louisiana National Guard. The exercises continued for several months ending in 1977.

The 26 successful plaintiffs live in a community known as Hickory Grove. They claimed that their property was damaged by the demolition exercises. All testified that their property was undamaged before the start of the demolition exercises but damage to their residences began to manifest itself in the fall of 1976 and thereafter.

The effects of the explosions in most cases were similar: cracks in slabs, carports, mortar and bricks, tile and sheet-rock, and broken windows. All of the plaintiffs who were present in their homes when the exercises took place testified that on numerous occasions the explosions would shake their homes with severe vibrations. In many instances the explosions resulted in pictures and other objects falling from the walls.

Eyewitness accounts of damage concomitant with explosions included the following examples: One plaintiff, Edward Belgard, testified that during an explosion the light fixtures rattled and he heard the sheetrock crack. Upon entering his child’s room he observed paint and particles on the floor from the crack in the wall. Hyman O’Neal, another plaintiff, testified that he began to notice particles of mortar on his carport in the winter of 1976 after the explosions occurred. He also discovered that the mortar was falling from his chimney. On March 12, 1977, he saw and measured a crack in the bricks of the chimney. The following day two explosions occurred and the crack extended approximately one foot.

Petitioner Josh Paulk testified that once while members of the National Guard were at his residence inspecting the damage, an explosion was set off which extended an existing crack two or three inches. Richard Nugent testified that on a Sunday in March 1977 an explosion took place and particles of mortar fell down his fireplace. He inspected it and found that the back of the chimney had cracked and shifted approximately one inch. He also stated that the sheetrock in his back room had cracked. Cecil Paulk testified that after an explosion occurred in October of 1976 he walked outside and noticed that his slab on his back porch had cracked. According to his wife the kitchen sink jerked loose after an explosion. Roland Paulk testified that upon returning home on March 13, 1977, he discovered approximately one-third of his ceiling tile on the floor. Oscar Moore related that he overlaid his carport with cement in March of 1977. On a following Sunday in March an explosion occurred which jarred his house. He immediately ran outside and discovered two fresh cracks in his carport. He also stated that in October 1976 a charge went off while his wife was in the bathroom and ceramic tile fell onto the floor. Another plaintiff, Jimmy Nugent, said that during an explosion a clock fell off the wall and afterwards he noticed a crack in his porch and cracks in the tiles of his bathroom. He stated that he would have noticed such damage prior to the explosion if it had been there. He also discovered that the cabinets in his kitchen had pulled loose after an explosion. Frank Jordan testified that he was standing in the living room when a blast occurred which caused a crack in his window.

A consulting structural engineer, Frank Beard, took photographs and testified as an expert for plaintiffs. Many of the photographs of the plaintiffs’ homes revealed vertical cracks through the bricks. According to this expert, these cracks were indicative of an exterior force applied to the structure above the foundation. Many of the photographs also showed cracks of diagonal characteristics which would be indicative of settlement of the foundation. This expert explained that the soil located in the area is clay which will periodically swell and then shrink. The settlement potential in the soil could have been aggravated by seismic activity. This, according to Mr. Beard, might explain why the cracks in the bricks had different cracking patterns. The vertical cracks suggested an aggravation of the normal settlement expectations.

The defendant introduced the testimony of two experts, Whitney Autin, a geologist, and Rodger Bayer, an expert in seismology. Mr. Autin testified that the soil in the area was of high clay content which is susceptible of shrinking and swelling, and that the soil condition could have been the cause of some of the damage to the property of the plaintiffs. He declared that this type of soil condition could cause vertical shear cracks in structures. Mr. Bayer was firm: the demolition exercises conducted at Camp Beauregard could not possibly have caused the damages alleged by the plaintiffs. In March of 1980 Mr. Bayer conducted tests to attempt to duplicate the earlier blasts which allegedly caused the damage to plaintiffs’ homes. He interpreted the results of the tests to reveal that the explosions were totally incapable of causing damage to structures. It was his opinion that the amount of explosives necessary to cause damage to the brick, concrete and mortar structures of the plaintiffs’ dwellings would be thousands of pounds.

The evidence shows that in the summer of 1976 three detonations occurred at four second intervals consisting of a total of 2,000 pounds of explosives. Thereafter, from October 1976 to 1977, the largest single detonation was of 164 pounds of explosives.

The trial court determined that the preponderance of the evidence supported the plaintiffs’ claims that the demolition exercises caused the damage to their property and awarded the amount of damages based on the estimates submitted by plaintiffs’ expert appraisers.

We will now discuss the two issues on appeal.

CAUSATION

This is a case of absolute liability based on the conduct of an ultrahazardous activity. Damage caused by blasting with explosives imposes absolute liability and all the injured party need prove is damage and causation. Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982); Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845 (1955).

The trial judge’s factual determination of whether defendant’s activities caused the alleged damages is entitled to great weight and should not be disturbed on appeal unless clearly wrong. Schexneider v. United Geophysical Corp., 385 So.2d 533 (La.App. 3rd Cir.1980).

The appellant argues that the trial court erred in finding that the damage to the homes of plaintiffs was caused by the demolition exercises because there was unre-butted expert testimony presented by the defendant that these explosives could not have caused the damage. We disagree.

In Roshong v. Travelers Insurance Company, 281 So.2d 785 (La.App. 3rd Cir. 1973) this court was confronted with a similar situation. In that case the defendant conducted seismic operations which allegedly caused damage to plaintiff’s home. According to plaintiff and his witnesses the explosion startled everyone in the area. Several witnesses testified that they felt the explosion and that it caused their houses to vibrate. Within two days after the blasts plaintiff and other witnesses testified that certain damages to the plaintiff’s house began to show up which did not exist before. The damage alleged by the plaintiff consisted of breaking of a window, breaking of bricks in a wall, “popping” of paneling, and breaks in a cracked slab, and a fireplace and chimney. The experts for the defendants testified the broken slab, fireplace and chimney could not have been caused by the explosions. Based on the experts’ opinions the trial court awarded damages relating only to the broken window, “popped” paneling, and broken bricks, and denied plaintiff’s claim for damages for the broken slab, cracked fireplace and cracked chimney. The plaintiff appealed. On appeal this court stated:

“[1,2] We find manifest error in the determination that the damage to the slab, fireplace and chimney is not related to the damage which defendants’ experts admit was caused by the blast or blasts. The evidence convinces us that the stress which broke bricks and “popped” the pre-finished plywood interior wall board off studs (damages which defendants originally denied but have now, in effect, admitted) is related to the break in the slab, the fireplace and the leaning chimney. To award damages for the one and not the other is to disregard an established relationship between these damages. In addition, we find that the expert testimony of the two witnesses (who stated that the injury sustained under the circumstances could not possibly have been caused by the seismic explosions) legally insufficient to rebut the prima facie case established by Roshong. Five witnesses testified that damage to the structure was nonexistent at the time of the blasts and became apparent within two days of the explosions. The evidence supports a conclusion that all damage found by the experts is related to the seismic explorations, and that these explorations were a cause in fact of all the damage.”

We are similarly convinced in the present case that the trial judge did not err. The testimony presented by the plaintiffs is convincing that the explosions created severe vibrations to their homes. Especially convincing is the testimony of the plaintiffs who were present in their homes at the time the explosions occurred and immediately witnessed damage in the form of cracked tiles, cracked paneling and sheetrock, cracked windows, broken mortar and a cracked porch. The plaintiffs also testified that the damage to their homes was nonexistent at the time of the blasts and became apparent soon thereafter. Under these circumstances we find that the trial court was not clearly wrong in concluding that the explosions were a cause in fact of the damages alleged by the plaintiffs. We find no manifest error in the trial court’s determination that the explosions also caused damage in some instances to the plaintiffs’ carports, chimneys, fireplaces and concrete slabs.

DAMAGES

The appellant’s attack on the awards consists of two general complaints. First, it complains that the trial court awarded damages for a number of individual items which the plaintiffs failed to prove were caused by the exercises. Second, it argues that the awards to three plaintiffs were in excess of what it cost to repair their damaged property.

Answering the first contention we need not discuss the particular items of damage because the same answer applies to all of them. Where property has been damaged through the fault of another the primary objective is to restore the owner of the damaged property, as nearly as feasible, to his status immediately prior to the damaging incident. Consequently, where the thing damaged can be adequately repaired, the proper measure of damages is the cost of restoration. Coleman v. Victor, 326 So.2d 344 (La.1976); Schexneider v. United Geophysical Corp., 385 So.2d 533 (La.App. 3rd Cir.1980). In the instant case the trial court awarded the plaintiffs the cost of repairing the damaged items based on expert appraisals including the cost of repair of cracked carports, chimneys and fireplaces. We have already determined that the trial court did not err in finding that such damage was caused by the explosions, therefore we find the trial court properly awarded damages for such items based on the cost of repairing such items.

As to the second argument regarding damages, the trial court, after making awards to three plaintiffs for the cost of restoration of their property, added an amount for “loss in value” to their property. The expert appraisers testified that the property of these three plaintiffs after repair was diminished in value despite the repairs.

Although the general standard is the cost of restoring the property to substantially the same condition as existed pri- or to the damaging incident, an adjustment to this measure of damage may be warranted where the restored property has a substantially lesser or greater value than it had before the accident. Ayala v. Bailey Electric Company, Inc., 318 So.2d 645 (La. App. 4th Cir.1975), writs issued 322 So.2d 770 (La.1975) and dismissed on joint stipulation December 10, 1975.

In the present case the fact that only three of the 26 plaintiffs were awarded damages of diminished value indicates that in those three cases the damages were such that they could not be repaired sufficiently well to restore the property completely to its pre-damaged condition. We find no abuse of discretion in the trial court’s award of such damages based on the expert appraisals.

ANSWER TO APPEAL

The appellees have answered this appeal seeking to fix the expert witness fee of J.T. Sepulvado, the expert remodeling appraiser. The trial court evidently inadvertently omitted his fee from the judgment. It is clear from the record that Mr. Sepulvado was entitled to an expert witness fee. See LSA-R.S. 13:3666 and D’Angelo v. New Orleans Public Serv., Inc., 405 So.2d 1262 (La.App. 4th Cir.1981) writ denied 407 So.2d 748 (La. 1981). Mr. Sepulva-do made appraisals on behalf of the different claimants whose property was damaged by the blasts. However, the initial appraisals were made while he was in the employ of Mr. Behr, another appraiser who testified at trial. Mr. Sepulvado charged Mr. Behr for these appraisals. He was later hired by plaintiffs’ counsel to conduct further evaluations as to 10 of the cases. His appraisal of the damages was increased as a result of these additional studies. However, the trial court did not base its award on Mr. Sepulvado’s subsequent appraisals, but on the initial ones for which the record indicates he has already been paid. This witness, however, testified at trial and is entitled to an expert witness fee comparable to that awarded the other experts. We fix his fee at $200.

For the above reasons the judgment is amended to award Mr. Sepulvado an expert witness fee in the amount of $200; in all other respects the judgment of the trial court is affirmed at appellant’s total cost in the trial court and this court of $7,520.58.

AMENDED AND AFFIRMED.


author: FORET, Judge.

text:
    Stacey MEYERS, Individually and Stacey Meyers, Inc., Plaintiff-Appellee, v. IMPERIAL CASUALTY INDEMNITY COMPANY, Roderick L. Miller and Debaillon & Miller, Attorneys At Law, Defendants-Appellants.
    No. 83-662.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Bienvenu, Foster, Ryan & O’Bannon, David E. Walle, New Orleans, for defendants-appellants.
    Andrus, Preis & Kraft, Gregory La-Borde, Lewis & Lolley, James Lewis, Lafayette, for plaintiff-appellee.
    Before FORET, LABORDE and YEL-VERTON, JJ.
   FORET, Judge.

Alleging legal malpractice, plaintiffs, Stacey Meyers and Stacey Meyers, Inc., filed suit against defendants, Roderick L. Miller, the legal partnership of Debaillon & Miller, and their malpractice insurer, Imperial Casualty Indemnity Company. The jury rendered verdict in favor of plaintiffs, finding that defendant, Roderick L. Miller, had breached the duty of care and diligence he owed as plaintiffs’ attorney. The jury found that plaintiffs had suffered damages amounting to $355,200.00, but determined that plaintiffs were 20% at fault. In accordance with the jury’s apportionment of fault, the trial court entered a judgment in favor of plaintiffs for $284,160.00. Defendants appealed the judgment of the lower court and plaintiffs specified several errors in their answer to that appeal.

The issues on appeal are:

(1) Whether the jury was clearly wrong in its determination that defendant, Roderick Miller, was negligent and that his negligence was the proximate cause of the harm that plaintiffs suffered.
(2) Whether the jury’s determination that plaintiff, Stacey Meyers, was 20% at fault was clearly wrong.
(3) Whether the jury abused its discretion in determining the amount of plaintiffs’ damages.

FACTS

Stacey Meyers (plaintiff) undertook the construction of an apartment complex in Milton, Louisiana. This apartment complex, Country Place Apartments, included ten duplexes, nine of which contained two 2-bedroom apartments each, with the remaining one containing two 1-bedroom apartments. Located at the rear of the property was a free-standing 2-bedroom unit. Construction on the project began in 1979, with interim construction financing provided by Guaranty Bank & Trust Company of Lafayette, Louisiana. After several of the duplex units were completed, Guaranty Bank required that plaintiff secure a permanent loan commitment prior to the advancement of future interim construction funds.

Plaintiff had some difficulty attaining such financing and retained the services of Wayne Rabalais, an investment broker. Mr. Rabalais contacted the Gerhardt Agency of Mobile, Alabama, who, in turn, contacted Investment Corporation of America (ICA). ICA agreed to provide plaintiff with long-term financing, and the requested loan commitment, dated October 16, 1979, was issued.

The commitment provided for a loan of $300,000.00 at 11¾% interest per year, amortized over twenty-five years, with a ten-year call date. This loan would not have been sufficient to provide long-term financing for all of the construction debt which, by October of 1980, totalled approximately $405,000.00. As a result, plaintiff intended to finance approximately $105,-000.00 of his debt through Guaranty Bank at a rate of 13V2% interest per year.

The commitment specified a closing date of no later than October 31, 1980, and set out two deadlines in connection with that date. First, ninety days in advance of the closing date, the borrower had to submit a formal notice of his intention to execute the commitment. Secondly, forty-five days in advance of the closing date, the borrower had to deliver the required mortgage documentation. The first deadline was met, but the second one was missed.

In February of 1980, plaintiff had consulted Roderick L. Miller (defendant), an attorney practicing in Lafayette, regarding a title opinion needed for the loan closing with ICA. At some point in time, plaintiff also hired defendant to handle the loan closing. The exact date on which it was agreed that defendant would handle the closing is disputed by the parties. According to plaintiff, it was some time in February of 1980, while defendant maintains it was several months later.

Three letters introduced into evidence at trial help to provide a framework for the events surrounding the missed deadline. The first letter dated July 11, 1980, is from defendant to ICA. This letter gives formal notice of plaintiffs intent to execute the commitment and requests closing instructions from ICA. It is clear from this letter that, by this time, defendant had been engaged to handle the loan closing with ICA. The second letter, ICA’s response (to defendant’s letter), dated July 28, 1980, listed the documentation that had to be provided and, without specifically mentioning the forty-five-day deadline, made reference to the paragraph of the loan commitment which contained it. The third letter dated August 4, 1980, is from defendant to plaintiff. In this letter, defendant asks for the loan commitment and encloses a copy of the July 28, 1980 letter from ICA listing the documentation needed for the closing.

On August 2, 1980, plaintiff went to defendant’s office and left a message that some of the documents had been prepared. Plaintiff testified that he also left a copy of the commitment for defendant. At this point, all activity concerning the loan commitment seems to have ceased until plaintiff received a letter from ICA informing him that the commitment had expired.

It appears from the record that between the time defendant received the loan commitment and the date of its expiration, defendant did not examine it to determine what deadlines it contained. As a result, he did not know of the forty-five-day deadline until after plaintiff received the cancellation letter from ICA. For his part, plaintiff testified that he was aware of the forty-five-day deadline, although he did not know the exact date on which it fell.

After the commitment expired, defendant tried to get an extension from ICA but ICA refused to grant one. This was not surprising since by the October 31, 1980 closing date, the prime lending rate was considerably higher than the 11¾% interest rate provided for by the commitment.

As a result of the loss of the long-term loan from ICA, plaintiff had to continue using interim financing with Guaranty Bank. At the time of trial, due to difficulties in attaining a long-term loan at a suitable rate, plaintiff was still relying on this interim financing. Because of the relatively high interest paid on that loan (it averaged approximately 17.04% between October 31, 1980 and December 31, 1982), plaintiff was unable to reduce the principal amount and faced the prospect of having to pay interim interest costs until he could attain a replacement loan at some future date to finance the same amount that would have been financed by the ICA loan. All indications were that a replacement loan would have a higher interest rate and less favorable terms than the ICA loan.

In order to service the interim loan, plaintiff alleges that he had to sell several pieces of property, including his family home. Plaintiff was also unable to obtain any additional financing from Guaranty Bank because of the outstanding interim loan.

This matter was tried before a jury. The jury heard testimony from January 18, 1983, through January 21, 1983. At that point, the matter was recessed. On March 1, 1983, the jury was brought back to deliberate. On this same date, the jury rendered its verdict finding defendant liable to plaintiff for his negligence, but also finding plaintiff 20% at fault. The trial judge entered judgment in accordance with the jury’s verdict.

DEFENDANT’S NEGLIGENCE

The jury found that defendant breached the duty he owed as plaintiff’s attorney. This determination of the jury is entitled to great respect and should not be disturbed unless it is clearly wrong. Fisk v. Chamblee, 430 So.2d 1332 (La.App. 3 Cir.1983); Oatis v. Catalytic, Inc., 433 So.2d 328 (La.App. 3 Cir.1983); Soileau v. South Central Bell Telephone Company, 406 So.2d 182 (La.1981).

An attorney is obligated to exercise at least that degree of skill and diligence which is exercised by prudent practicing attorneys in his locality. Davis v. United Parcel Service, Inc. 427 So.2d 921 (La.App. 3 Cir.1983); Ramp v. St. Paul Fire and Marine Insurance Company, 263 La. 774, 269 So.2d 239 (1972). An attorney, appearing on behalf of plaintiff as an expert on the local practice of real estate law, testified that an attorney handling a loan closing had a duty to read the loan commitment and ascertain any deadlines contained in it. At trial, defendant testified that he did not know of the forty-five-day deadline until after it had expired. Although there was conflicting testimony as to the date on which defendant received the copy of the loan commitment, given the evidence before it, the jury could, have concluded that the defendant had a copy of the commitment no later than August 12, 1980 . This would have been over a month before the forty-five-day deadline of September 15, 1980. Therefore, although he had a copy of the loan commitment more than a month before the forty-five-day deadline, it appears that defendant did not examine the commitment to determine what time delays it contained. It was not until plaintiff received a letter from ICA informing him that the loan commitment had expired that defendant became aware of the deadline. Defendant’s failure to inspect the loan commitment and ascertain the existence of the forty-five-day deadline was clearly a breach of the duty he owed to plaintiff and constituted negligence on his part.

Defendant also breached his duty to plaintiff by failing to properly inform plaintiff regarding the loan closing. Plaintiff was responsible for gathering some of the documentation due by the forty-five-day deadline. Because defendant was unaware of the deadline, he did not inform plaintiff that this documentation was needed in advance of the deadline. This failure to inform plaintiff of the time by which the documentation had to be delivered constituted, in and of itself, negligence on defendant’s part.

WAS DEFENDANT’S NEGLIGENCE THE PROXIMATE CAUSE OF PLAINTIFF’S DAMAGES?

It is not enough that defendant was negligent. An attorney is liable for the harm caused by his negligence only if the client proves that such negligence is a proximate cause of that harm. Jenkins v. St. Paul Fire & Marine Insurance Co., 393 So.2d 851 (La.App. 2 Cir.1981). An attorney’s negligence would be a proximate cause or a cause-in-fact of harni to a client if the harm would not have occurred except for that negligence. If the harm would have resulted irrespective of such negligence, then that negligence is not a substantial factor or cause-in-fact. Ganey v. Beatty, 391 So.2d 545 (La.App. 3 Cir.1980); State Farm Mutual Insurance Company v. South Central Bell Telephone Company, 343 So.2d 758 (La.App. 3 Cir.1977).

In his brief, defendant argues that even if the jury did not err in finding him negligent, it erred in finding that his negligence was the proximate cause of the harm that plaintiff suffered. Defendant’s argument is as follows: Plaintiff was responsible for gathering some of the documentation needed to meet the forty-five-day deadline. However, plaintiff did not provide defendant with most, if not all, of these documents until after the commitment expired. Therefore, even if defendant had been aware of the forty-five-day deadline and done everything required of him, the commitment would have nonetheless expired for want of the documentation that plaintiff was responsible for.

As discussed above, defendant was not only negligent in his initial failure to ascertain the existence of the forty-five-day deadline, but also in his failure to instruct plaintiff as to the time by which defendant needed plaintiff’s documentation. Defendí ant’s negligence in failing to inform plain-' tiff of the date on which defendant needed to receive the documentation was clearly the proximate cause of the expiration of the loan commitment. That plaintiff failed to deliver the documents in time for defendant to meet the deadline was the direct result of defendant’s omission to properly inform plaintiff as to the date by which defendant needed that documentation.

Furthermore, it is important to remember that the commitment expired, not because all of the documentation required from plaintiff was not delivered to defendant by the forty-five-day deadline, but because all the documentation was not received by ICA on that date. Although plaintiff was responsible for gathering certain documents, defendant was responsible for preparing certain others, and, in addition, defendant had undertaken the responsibility of forwarding all the necessary documentation to ICA. Defendant testified that he needed certain of the documents that plaintiff was gathering in order to draw up the documents that he was responsible for preparing. Even if plaintiff had delivered the documentation he was responsible for to defendant by the deadline, there would not have been time for defendant to finish the preparation of the necessary documents and forward everything to ICA. As a result, it is evident that defendant needed to receive the documentation from plaintiff some time before the expiration of the forty-five-day deadline if he was going to have time to finish drafting the documents and then forward everything to ICA by the September 15, 1980 deadline. If plaintiff had delivered all of the required documentation to defendant on the day of the deadline, it would have been too late. All of the documentation had to be delivered to defendant some time before that date. Only defendant could know how far in advance of the forty-five-day deadline he needed to receive the documentation from plaintiff in order to have sufficient time to meet the deadline. It fell to defendant to inform plaintiff by what date the documentation was needed. Of course, since defendant had negligently failed to ascertain the existence of the forty-five-day deadline, he did not realize that he needed the documentation before September 15, 1980, and, consequently, did not inform plaintiff of that fact. As defendant testified, until he learned that the commitment had expired, he was working under the impression that everything had to be ready for the closing date, October 31, 1980.

Accordingly, we find that the jury was correct in finding that defendant’s negligence was the proximate cause of the harm which plaintiff suffered.

PLAINTIFF’S FAULT

The jury found that plaintiff was 20% at fault. We find that the jury was clearly wrong in this determination.

From the record, it is clear that the only action of plaintiff which might have been negligent was his failure to deliver, before the passing of the deadline, the documents he was responsible for. However, we do not think that this omission constitutes legal fault on plaintiff’s part. Although plaintiff did know that there was a forty-five-day deadline, he did not know the exact date on which it fell. As he testified, he was relying on defendant to handle the loan closing and thought that defendant would inform him of any impending deadline. We think that plaintiff was clearly entitled to rely on defendant in this fashion.

In cases involving medical care, courts have, in effect, held that a patient has a right to rely on the skill and diligence of medical personnel. Fairchild v. Brian, 354 So.2d 675 (La.App. 1 Cir. 1977); Favalora v. Aetna Casualty & Surety Company, 144 So.2d 544 (La.App. 1 Cir.1962), cert. denied, (La.1962). The situation is similar in cases involving legal services. In an attorney-client relationship, a client is entitled to rely on the expertise and diligence of his attorney. This is particularly true where, as in the present ease, it is demonstrated that the client had little experience or knowledge regarding the matter which the attorney was engaged to handle. An omission or oversight by a client will not constitute legal fault where that omission is a result of the client’s legitimate reliance on his attorney. In other words, in such a case, the duty of an attorney extends to the protection of his client against that client’s own substandard conduct. In the present case, plaintiff’s failure to provide most of the documentation by the deadline resulted from his legitimate reliance on defendant. The jury was clearly wrong in finding plaintiff at fault.

QUANTUM

The jury found that plaintiffs suffered damages in the following amounts:

(1) Expenses incurred with the loss of the original financing . $ 17,200.00
(2) Interim construction interest from October 31, 1980 (the closing date) until October 31, 1982 . 150,000.00
(3) Future interest on the interim financing . 20,000.00
(4) Increased cost of permanent financing 50,000.00
(5) Losses on the sale of certain real estate . 28,000.00
(6) Loss of business opportunity . 40,000.00
(7) Mental anguish . 50,000.00

Only the awards for expenses incurred with the loss of the original financing (No. 1) and the increased cost of permanent financing (No. 4) are not contested on appeal.

When a jury award itemizes damages, a reviewing court may review the evidence as to each element without regard to the correctness of any other element of damage. Chaney v. Our Lady of Fatima Catholic Church, 391 So.2d 501 (La.App. 3 Cir.1980); Blancher v. Samuels, 354 So.2d 213 (La.App. 4 Cir.1977), writ refused, 355 So.2d 257, 263 (La.1978). Accordingly, we will consider each of the disputed items of damages in its turn.

Before considering the specific items of damage which are at issue, we note that the trier of fact is vested with considerable discretion to fix the amount of damages. The appropriate standard of appellate review dictates that we refrain from disturbing the jury’s decision on each item of damages absent an abuse of discretion.

INTERIM FINANCING FROM THE CLOSING DATE THROUGH DECEMBER 31, 1982

In its brief, defendant contends that the amount awarded for interim financing should have been the difference between the 11¾% interest rate which plaintiff would have paid under the long-term loan with ICA and the amount plaintiff actually paid from the closing date until the time of trial. An examination of the evidence indicates that the jury did not award the difference between the two amounts but, rather, awarded a sum approximating the total amount of interim interest paid and accrued during this period of time. In doing so, we think that'the jury acted within its discretion.

If the loan commitment had not expired, plaintiff would have begun paying off a long-term loan for the principal amount of $300,000.00, as of October 31, 1980. Because of the expiration of the loan commitment, plaintiff has had to continue to search for a long-term loan. In the meantime, he is forced to pay interest on the interim loan with Guaranty Bank. Only when plaintiff is finally successful in attaining a long-term loan, at some future date, will he be able to begin paying off this long-term loan which, because plaintiff has not been able to reduce the principal in the interim, will .be for the same principal amount of $300,000.00. Except for the loss of the long-term loan with ICA, plaintiff would not have had to pay interest for interim financing after October 31, 1980.

For his part, plaintiff contends that the jury’s determination of the amount of this item of damage should be amended to $158,900.00, claiming that the amount of $150,000.00 was the jury’s “best recollection” of the testimony of their expert regarding this element of damage. In cases of clear clerical errors, an appellate court is empowered to make appropriate adjustments in a jury’s verdict. LSA-C.C.P. Article 2164; Woods v. Ratliff, 407 So.2d 1375 (La.App. 3 Cir.1981). However, we do not think that this is such a case.

Even if we accept plaintiff’s contention that his proof as to the interest paid and accrued on the interim loan from the date of closing through December 31, 1982, was clear and convincing to the point that it was an abuse of discretion for the jury not to accept the figure given by their expert as the cost of the interim financing, we would still not consider that the jury was bound to have awarded that amount in damages. The question of the exact cost of the interim financing is not the only question which the jury had to decide in order to determine the amount of this item of damages. They also had to determine that defendant’s negligence proximately caused this cost. Jenkins v. St. Paul Fire & Marine Insurance Co., supra. The record provides support for the conclusion that all the costs of this interim financing was not causily related to defendant’s negligence. Even if plaintiff had been able to attain the long-term loan with ICA, he still would have had to finance approximately $105,000.00 of the construction debt with Guaranty Bank. This amount was to have been financed at a rate of approximately 13¥2% per year. The interim finance cost as testified to by defendant’s expert included the cost of financing this $105,000.00. Taking this into account, the jury might well have concluded that not all of the costs of the interim financing was a result of the loss of the loan with ICA, but would have been paid in one form or another even if the long-term loan would not have been lost. The jury did not abuse its discretion in setting the amount for this item of damages at $150,000.00.

FUTURE INTERIM INTEREST

Plaintiff contends that the jury’s award for future interest on the interim financing should be increased because plaintiff has not attained permanent financing during the pendency of this appeal, and has been forced to continue financing the debt with the interim loan. Plaintiff speculates that, in making this award, the jury did not contemplate that plaintiff would have to continue with the interim financing for such a long period of time. In his brief, plaintiff asks this Court to grant him an open-ended judgment regarding this element of damage. We decline to do so.

At the outset, we note that plaintiff bases his argument on speculation as to what the jury intended when it determined the amount of this element of damage. Even if we accept plaintiff’s theory that he is entitled to an open-ended judgment, we would be reluctant to engage in such speculation. As it is, we find that plaintiff’s request for an increase in the award must be rejected, regardless of whether the jury’s determination made on the basis of evidence elicited at trial has been borne out by subsequent events. The reasonableness of the jury’s determination should be judged in light of the evidence in the record, and that evidence amply supports the jury’s finding.

Any evidence regarding plaintiff’s continued failure to attain permanent financing is not properly before this Court. Except where facts subsequent to trial are not disputed and admitted, the general rule is that a court of appeal has no jurisdiction to review new evidence. Absent a joint stipulation of facts, such new evidence may not be considered. Salter Bus Lines, Inc. v. Leitch, 322 So.2d 793 (La.App. 3 Cir. 1975); Leger v. Delano Plantation, Inc., 352 So.2d 743 (La.App. 3 Cir.1977), writ refused, 354 So.2d 211 (La.1978). There being no joint stipulation as to plaintiffs continued use of the interim financing, any evidence of that fact may not be considered by us. We will not disturb the jury's determination as to this element of damages.

LOST BUSINESS OPPORTUNITY

Defendant maintains that the jury erred in awarding damages for lost business opportunity. We agree, feeling that this element of damage was purely conjectural.

Although there was testimony to the effect that plaintiff had discussed developing a piece of property with a banker, there was no evidence indicating that this development was likely to occur in the foreseeable future. Plaintiff admitted that he had no cost estimates nor plans. Evidence elicited at trial indicated that there had been a severe slowdown in the construction trade and that many builders had stopped building altogether. Additionally, plaintiff presented no evidence indicating what profits he might have expected from any future project if he had, in fact, been able to undertake one.

Given the evidence concerning the building slowdown and the total lack of evidence concerning what plaintiff might have earned from any anticipated construction project, we find that any damages resulting from loss of business opportunity were purely conjectural. Loss profits resulting from an offense or quasi offense must be proven with a reasonable certainty, and damages which are purely conjectural will not be allowed. Smith v. White, 411 So.2d 731 (La.App. 3 Cir.1982), writ denied, 413 So.2d 508 (La.1982); Coco v. Richland General Contractors, Inc., 411 So.2d 1260 (La.1982), writ denied, 413 So.2d 909 (La.1982). The burden of proving the existence of damages and the causal connection between them and the delictual act rests with the plaintiff. Such proof must be shown by a preponderance of the evidence. A mere possibility is not sufficient. Coco v. Richland General Contractors, Inc., supra. In the present case, plaintiff did not carry his burden of proof. The jury was clearly wrong in awarding damages for lost business opportunity.

LOSSES ON THE SALE OF CERTAIN REAL ESTATE

The jury found that plaintiff suffered financial losses from the sale of certain real estate which he was forced to sell as a result of loss of the long-term loan with ICA. We feel that the jury was wrong in awarding this item of damage because the plaintiff did not carry his burden of proof to show that the loss of the long-term loan proximately caused any of the financial loss suffered by plaintiff as a result of the sale of real estate.

As we stated above, the burden of proving a causal connection between damages and the negligent acts of defendant rests with the plaintiff. The mere possibility that the damages were caused by the negligence of the defendant is not enough. In the present case, although an expert real estate appraiser testified in plaintiffs behalf concerning plaintiffs losses on the sale of real estate, there was little evidence to connect those losses with the loss of the long-term loan. In one attempt to make such a connection, plaintiff testified that lost business opportunity was one of the causes of the financial difficulties which necessitated the sale of the real estate. As we concluded above, plaintiff failed to demonstrate that the loss of business opportunity was a result of a loss of the long-term loan with ICA. Therefore, establishing a causal connection between the sale of the real estate and lost business opportunity fails to establish any causal connection between the sale of real estate and the loss of the long-term loan.

Furthermore, we again note the testimony of plaintiff and his wife that the construction industry suffered a severe slowdown in the period following the closing date of October 31, 1980. It seems probable that plaintiff was forced to sell the real estate, not as a result of the loss of the loan, but as a result of the declining demand in the construction industry. Accordingly, we find that it was error for the jury to award plaintiff this element of damage,

MENTAL ANGUISH

The last element of damage which this Court must consider is the jury’s award for mental anguish. Defendant points out that there is a paucity of evidence concerning any mental distress suffered by plaintiff. In this regard, we note that plaintiff did not testify about any mental distress he suffered. The only direct evidence concerning plaintiff’s mental anguish was given by plaintiff’s wife, whose testimony was as follows:

“Q How has it affected him?
A For him to be able not to provide for his family?
Q Yes, ma’am.
A Well, it’s — mentally, it’s affected him a lot because he was always the type that wanted to give us everything he — he could. Everything we wanted, he tried to provide for us; and it’s put a strain on him, as well as the family.”

Although mental anguish is by its nature difficult to prove, an award for it must be supported by the evidence. Gele v. Markey, 387 So.2d 1162 (La.1980); Hayden v. Soule, 271 So.2d 264 (La.App. 4 Cir.1972); McKowen v. McCraine, 244 So.2d 45 (La.App. 1 Cir.1971). In Gele, the Supreme Court found the evidence failed to establish mental anguish where one of the plaintiffs simply testified that she and her husband were distraught over a ceiling collapse, but did not attempt to explain their mental states. In the instant case, there is the same lack of any attempt at explaining plaintiff’s mental state.

Although it might be assumed that plaintiff suffered some mental anguish given the situation, the burden was on plaintiff to come forth with some proof. Plaintiff could have testified about any mental anguish he had suffered. He did not. Given the paucity of evidence regarding mental anguish, we feel that plaintiff clearly did not prove this element of damage. The jury’s award for this element of damage is reversed.

DECREE

For the foregoing reasons,

IT IS ORDERED, ADJUDGED AND DECREED that the judgment of the district court be amended as follows:

That portion of the judgment awarding damages to plaintiffs, Stacey Meyers and Stacey Meyers, Inc., in the amount of $284,160.00 is amended to decrease that award to $237,200.00.

In all other respects, the judgment of the trial court is affirmed.

Costs of this appeal are assessed, one-half against plaintiffs and one-half against defendants.

AFFIRMED AS AMENDED.

      . There was also testimony indicating that plaintiff gave defendant a copy of the commitment as early as February of 1980.

      . Both the First and Second Circuits, in adopting Professor Johnson’s analysis of the effect of comparative negligence on Louisiana tort law (see “Comparative Negligence and the Duty/Risk Analysis", 40 La.L.Rev. 319 (1980)), have stated that tort cases fall into three broad categories. One of those categories is that in which defendant's duty extends to the protection of a plaintiff against his own carelessness. In such a case, contributory negligence and, therefore, comparative negligence, is inapplicable. Dulaney v. Travelers Insurance Co., 434 So.2d 578 (La.App. 1 Cir.1983); Train v. State Farm Insurance Co., 421 So.2d 1169 (La.App. 2 Cir.1982).

      . In his brief, defendant cites as authority for this contention a case decided by the North Carolina Supreme Court, Pipkin v. Thomas & Hill, Inc., 298 N.C. 278, 258 S.E.2d 778 (1979). While this case does support defendant’s contention, we decline to follow example of the North Carolina Supreme Court, feeling that their method of calculating damages does not fully compensate the plaintiff for his losses.