author: ROBERTA. CHAISSON, Judge.

text:
    Melanie FOWLER v. HARRIS BUILDERS, LLC and the Shaw Group.
    No. 11-CA-984.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.
    Rehearing Denied May 14, 2012.

      Errol J. Ware, Jr., Attorney at Law, New Orleans, LA, for PlaintiffAppellant.
    M. David Kurtz, Brian M. Ballay, Byron D. Kitchens, Nancy A. Brechtel, Attorneys at Law, New Orleans, LA, Nathum D. Laventhal, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKS HOMBERG WICKER, and ROBERT A. CHAISSON.
   ROBERTA. CHAISSON, Judge.

| c,This is an appeal by Melanie Fowler, plaintiff-appellant, from a summary judgment dismissing her suit against Harris Builders, LLC, The Shaw Group Inc., and Gibbs Construction, LLC, defendants-ap-pellees. For the following reasons we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

In the aftermath of Hurricane Katrina, the Federal Emergency Management Agency (“FEMA”) began a program to place people who had lost their homes during the hurricane into temporary housing in and around the New Orleans metropolitan area. To accomplish this, FEMA contracted with Shaw Environmental, Inc. (“Shaw”) to install travel trailers at various locations. Shaw subcontracted with Harris Builders, LLC (“Harris”) to perform some of this work, and Harris in turn subcontracted with Gibbs Construction, LLC (“Gibbs”) to help with the installations.

|4PIaintiffs sister, Melissa Fowler, requested that a FEMA trailer be placed at her mother’s home at 2624 Bengal Road, Metairie, Louisiana. The travel trailer sent by FEMA was manufactured by Jay-eo. As manufactured, the trailer had fold down steps. It was allegedly installed by Gibbs, but Gibbs denies that it has any paperwork to substantiate this assertion. Regardless of who did the actual installation, the trailer was then subjected to a “Quality Control” inspection by Harris, after which Shaw did a final “Ready for Occupancy” (“RFO”) inspection. Melissa Fowler was allowed to occupy the trailer only after the RFO was completed and she signed the document signifying her acceptance of the unit.

Melissa Fowler lived in the travel trailer from October 2005 until February 2006 without incident. When she moved out, her sister, Melanie Fowler (“Ms. Fowler”) moved in. Four months later, on June 23, 2006, as Ms. Fowler was descending the steps, she stepped from the bottom step to the ground and fell, breaking one ankle and spraining the other. Ms. Fowler filed this suit on May 7, 2007.

The basic allegation of the suit is that the defendants were negligent in not erecting wooden steps and handrails in place of the manufacturer’s metal fold down steps when the trailer was installed. After preliminary discovery was conducted, defendants Shaw and Harris urged Motions for Summary Judgment which were set for hearing on March 19, 2009. Plaintiff successfully argued in opposition to the motions that discovery was not complete, and was granted an additional 120 days, until July 17, 2009, to finish discovery. The defendants re-urged their motions for summary judgment and a hearing was set for October 8, 2009. Hearing on the motions was again delayed to allow further discovery. | sAnother hearing on March 18, 2010, resulted in a further continuance to July 29, 2010. On that date, plaintiff was granted another continuance due to family matters. On October 6, 2010, defendant Gibbs also filed a Motion for Summary Judgment. On October 22, 2010, the Motions for Summary Judgment urged by all three defendants were heard and granted. Plaintiff urged a Motion for a New Trial, which was denied, and this appeal followed.

LAW AND ANALYSIS

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions, and the procedure is favored and should be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). A summary judgment shall be rendered if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). After adequate discovery, or after a case is set for trial, a motion which shows that there are no factual disputes and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966(C)(1). Although the burden of proof remains with the movant, if the movant will not bear the burden of proof at trial it is sufficient to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, the adverse party must come forward with factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. If he fails to do so, there is no genuine issue of material fact. A fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery, and if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the dispute. Fossier v. Jefferson Parish, 07-926 (La.App. 5 Cir. 4/15/08), 985 So.2d 255. Appellate courts review summary judgments de novo using the same criteria applied by the 1 ñtrial courts to determine whether summary judgment is appropriate. Carr v. Wal-Mart Stores, Inc., 00-896 (La.App. 5 Cir. 10/31/00), 772 So.2d 865.

In the present case, plaintiffs theory is that the defendants were negligent in leaving the fold down metal steps in place at the trailer door, rather than building wooden steps with railings. She asserts that had wooden steps with railings been in place, the accident would not have occurred.

The defendants cite La. R.S. 9:2771, which provides that contractors are not liable for damages occasioned by any defect in the work undertaken if it is done in accordance with plans or specifications furnished to them. They point out that the ten pages of FEMA specifications applicable to travel trailer installations, which they were required to follow, have only one paragraph relating to steps. That paragraph begins by stating that “[i]f required, the Contractor shall install steps at each travel trailer entrance.” No provision in the specifications for travel trailers requires that wooden steps be installed. They further point to the FEMA “Ready for Occupancy” form for this specific trailer, which lists 30 items to be checked. Item 13 states: “[njote what type stairs are used (fold out, platform or wood),” and “fold out” is circled. They argue that if fold out stairs were to be replaced by wooden stairs, there would be ho option for fold out stairs in the final check off list. Finally, the defendants point out that for plaintiff to prevail, she would have to prove that the defendants did not perform the installation in accordance with the travel trailer specifications provided to them.

Plaintiff, for her part, points to certain FEMA specifications that require contractors installing manufactured homes to build wooden platforms and steps. However, FEMA has a completely separate set of specifications for the installation of travel trailers. Although plaintiff appears to use the terms “manufactured home” and “travel trailer” interchangeably, it is clear that they are two different types of 17housing units each having its own separate and distinct specifications for installation. Plaintiff has failed to produce any evidence to establish that the FEMA specifications for the installation of manufactured homes are applicable to a travel trailer such as the one where she fell.

Plaintiff further argues that the FEMA specifications for travel trailers require compliance with all local codes and ordinances and that Jefferson Parish by ordinance requires the installation of wooden steps. In support of this contention, plaintiff introduced pictures of various travel trailers in her neighborhood with wooden steps. However, plaintiff has never cited nor produced the particular ordinance that she claims requires the installation of wooden steps on travel trailers. We are not able to infer from a few photographs of neighboring travel trailers that such a requirement exists. She points to no other law or evidence which would establish that the installation was done other than in accordance with the specifications provided by FEMA. Defendants are not the owners of the travel trailer, nor did they design or manufacture it. Defendants’ only involvement was as the subcontractors hired by FEMA to install the travel trailer. It is clear that defendants have shown that plaintiff will not be able to establish an essential element of her claim at trial, i e., that defendants did not follow the plans and specifications provided to them. In this circumstance, summary judgment in defendants’ favor was appropriate.

Plaintiff also urges that it was error for summary judgment to be entered because discovery was not complete. The thrust of this argument is that there remains an issue as to which specific entity, Gibbs or another sub-contractor, actually placed the trailer at the site and hooked it up. Plaintiff alleges in her appellate brief that the trial court either denied her Motion to Compel or would not allow her to re-urge it. A review of the record indicates that plaintiff filed two ^Motions to Compel. Her first Motion to Compel was filed on September 22, 2009. The trial judge granted plaintiffs Motion to Compel and gave plaintiff until November 9, 2009, to propound additional discovery and ordered defendants to respond to plaintiffs discovery by December 10, 2009. On December 28, 2009, plaintiff filed a second Motion to Compel which was set for hearing on March 18, 2010. On March 9, 2010, plaintiff filed a Motion to Continue without date the hearing on her Motion to Compel, which motion was granted that same date by the trial judge. The record does not reflect that the plaintiff ever requested the Court to reset her Motion to Compel.

In Thomas v. Willis-Knighton Medical Center, 43,176 (La.App. 2 Cir. 4/30/08), 981 So.2d 807, the court stated:

Under La. C.C.P. art. 966, a motion for summary judgment is appropriate only after “adequate discovery.” It is not an abuse of the trial court’s wide discretion in discovery matters to entertain a motion for summary judgment before discovery has been completed. It is within the trial court’s discretion to render summary judgment or require further discovery. (Id. at 814).

The Motions for Summary Judgment were first set for hearing on February 11, 2009. After a number of continuances for the purpose of allowing the parties additional time to conduct discovery, the motions were heard on October 22, 2010. At that hearing, the trial judge stated:

“... I could have granted the motion for summary judgment in December of last year because a motion to compel was not filed and you alleged that you had not received your discovery but that’s the vehicle to use. File your motion to compel and the court will order them to comply and we will go from there but nothing has been filed.
... As I stated before, we’re a year later and no one has filed a motion to compel. All I have before me now are motions for summary judgment.” (Rec., Vol. Ill, p. 566).

Having no Motion to Compel before her and having already allowed the parties approximately twenty months to conduct additional discovery, we do not [ 9fmd that the trial judge abused her discretion in not further postponing the hearing on the Motions for Summary Judgment.

Furthermore, the question of which subcontractor installed the travel trailer is ultimately not material to the dispute. There is no question that Shaw and Harris were parties responsible for the proper installation. Because we have determined that plaintiff will not be able to prove that the trailer was improperly installed, particularly in regard to the steps, she will not be able to overcome the operation of La. R.S. 9:2771, regardless of which company did the actual work. We therefore reject this argument.

CONCLUSION

For the foregoing reasons, the summary judgment dismissing the suit against Shaw Environmental, Inc., Harris Builders, LLC, and Gibbs Construction, LLC, with prejudice, is hereby affirmed.

AFFIRMED

      . Jayco has never been made a party defendant in this litigation. FEMA was at one point made a party defendant and the matter was removed to federal court. The federal action was dismissed by consent of the parties and the case was returned to state court.


source: Caselaw Access Project

author:
PICKETT, J.
      PETERS, J.,

license: Public Domain

text:
    SUCCESSION OF Billy James TABOR.
    No. 11-1245.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.
    Rehearing Denied May 9, 2012.
    Ronald W. Morrison, Jr., Livaccari Vil-larrubia Lemmon, L.L.C., New Orleans, LA, for Appellee, Donna Beth Tabor Carter, Testamentary, Executrix for the Succession of Billy James Tabor.

      Lee H. Ayres, Sarah E. Smith, Ayres, Warren, Shelton & Williams, L.L.C., Shreveport, LA, for Appellant, Martha Elliot Tabor.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   PICKETT, J.

LThe dispute in this appeal is whether a certain mineral lease bonus should be classified as community property or the wife’s separate property. Martha Elliott Tabor appeals the trial court’s grant of summary judgment in favor of the Succession of Billy James Tabor (her deceased husband’s succession, hereafter referred to as “the Succession”), in which the trial court found that the bonus was community property. For the following reasons, we affirm as amended the trial court’s grant of summary judgment in favor of the Succession and affirm the trial court’s denial of summary judgment in favor of Martha Elliott Tabor.

DISCUSSION OF THE RECORD

Billy James Tabor and Martha Elliott Tabor were married on January 1, 2000, in Sabine Parish, Louisiana. Prior to their marriage Mrs. Tabor had inherited immovable property in Sabine Parish which, although it is recognized by the parties as her separate property, gives rise to the issues in this litigation.

On January 5, 2010, Mrs. Tabor executed a written mineral lease whereby she leased her separate property to Petrohawk Properties, LP. The document described the property subject to the mineral lease as totaling 224.118 acres. Although the consideration for the mineral lease is described as “One Hundred Dollars and Other Valuable Considerations ($100.00 & OVC), in hand paid, of the royalties herein provided, and of the agreement of Lessee herein contained,” and although the mineral lease purports to be immediately trans-lative of the rights described in its terms, contemporaneous with the execution of the mineral lease, |2Petrohawk tendered to Mrs. Tabor a conditional draft for $702,144.00 that contained terms in addition to those found in the mineral lease itself.

The draft contains a notation on the upper left corner which states that it is only to be paid “[o]n approval of lease described hereon, and on approval of title to same by drawee [Petrohawk] not later than 30 banking days after arrival of this draft at collecting bank.” The body of the draft contains the following clause:

The drawer, payee, and endorsers hereof, and the grantors of the lease described hereon, do hereby constitute and appoint the collecting bank escrow agent to hold this draft for the time above specified subject alone to acceptance of payment hereof by the drawee, when said time, and without any right of the drawer, payee or endorsers hereof, or said grantors, to recall or demand return of this draft prior to the expiration of the above specified time, and there shall be no liability whatsoever on the collecting bank for refusal to return the same prior to such expiration.

The receipt signed by Mrs. Tabor when she accepted the draft states:

The payment of this draft shall be subject to the satisfaction by Lessee of any or all of the following:
Lessee’s full acceptance of title. That title reflects 100% ownership by Lessor and that payment may be proportionately reduced in the event of less than 100% ownership by Lessor.
In the event that it is determined that lessor’s interest is greater than that shown herein, bonus payment shall be increased proportionately.
All historical Oil and Gas Mineral Leases have expired.
All mineral servitudes have prescribed to Lessor.
All Mortgages, if any, being subordinated to the lease.

Slightly over two months later, on March 20, 2010, Mr. Tabor died. Three days later, on March 23, 2010, Petrohawk’s bank issued a mineral lease bonus payment of $672,354.00 to Mrs. Tabor. The lesser payment than that set forth in the conditional draft came about because Mrs. Tabor’s property was found to contain fewer acres than initially stated in the mineral lease. The parties recorded the mineral lease on March 30, 2010.

|3Mr. Tabor died testate, naming his daughter by his first marriage, Donna Beth Tabor Carter, as testamentary executrix. Ms. Carter caused the Succession to be opened on April 16, 2010, and, after qualifying as executrix, filed a July 19, 2010 pleading, seeking payment from Mrs. Tabor to the Succession of one half of the amount she received from Petrohawk. The Succession claimed that the mineral lease bonus was part of the community of acquets and gains existing between Mr. and Mrs. Tabor before Mr. Tabor’s death.

Both the Succession and Mrs. Tabor filed motions for summary judgment addressing the classification of the mineral lease bonus. Following a November 9, 2010 hearing, the trial court denied Mrs. Tabor’s motion and granted the Succession’s motion. The trial court concluded that: (1) the mineral lease bonus was a civil fruit of Mrs. Tabor’s separate property and, therefore, community property; (2) the mineral lease bonus acquired this status on January 5, 2010, when Mrs. Tabor received the conditional draft; and (3) although Mrs. Tabor only received the actual payment after Mr. Tabor’s death, the Succession’s claim for one half of the civil fruits survived. The trial court specifically found that there was no wrongdoing on the part of Mrs. Tabor in this matter but noted that any decision other than that rendered could open the door for miscreant spouses to marshal civil fruits and delay their cash arrivals until after the community terminated.

|4In her appeal now before us, Mrs. Tabor asserts seven assignments of error:

(1) The trial court erred in granting the Motion for Summary Judgment on behalf of the Estate;
(2) The trial court erred in denying Martha Tabor’s Motion for Summary Judgment;
(3) The trial court erred in finding that the mineral bonus Martha Tabor received after the death of her husband is the property of a non-existent community;
(4) The trial court erred in failing to give a credit to Martha Tabor for taxes paid on the mineral bonus she received;
(5) The trial court erred in denying Martha Tabor’s Motion for New Trial;
(6) The trial court erred in refusing to certify the December 7, 2010 judgment as final in accordance with Louisiana Code of Civil Procedure Article 1915; and
(7) The trial court erred in awarding possession of one-half of Martha Tabor’s mineral bonus to the Estate.

The Succession answered Mrs. Tabor’s appeal, asserting it should have been awarded judicial interest on the amount owed by Mrs. Tabor to the Estate. For the following reasons, we affirm as amended the trial court’s grant of summary judgment to the Succession and affirm the denial of summary judgment in favor of Mrs. Tabor.

OPINION

Standard of Review

Summary judgment should be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 15any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. Code Civ. P. art. 966(B). When considering the trial court’s rulings on a motion for summary judgment, this court will use a de novo standard of review. Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, 04-1460, 04-1466 (La.4/12/05), 907 So.2d 37.

The Succession’s Summary Judgment

The central question in this appeal is whether the $672,354.00 mineral lease bonus that Petrohawk paid Mrs. Tabor is community property. Louisiana Civil Code Article 2339 states, in pertinent part:

The natural and civil fruits of the separate property of a spouse, minerals produced from or attributable to a separate asset, and bonuses, delay rentals, royalties, and shut-in payments arising from mineral leases are community property. Nevertheless, a spouse may reserve them as his separate property as provided in this Article.

Mrs. Tabor did not reserve the civil fruits or mineral interests as her separate property as provided in La.Civ.Code art. 2339. Pursuant to La.Civ.Code art. 2339 and the Revision Comments thereto, although a mineral lease bonus received on separate property is not a civil fruit as defined in La.Civ.Code art. 551, it is nonetheless community property by application of La. Civ.Code art. 2339. Thus, although the trial court erred in classifying the mineral lease bonus as a civil fruit, the community classification does not change simply because of that error.

The evidence before the trial court included the deposition testimony of David Richard Deffenbaugh, a Petrohawk vice-president, who explained the process by which Petrohawk acquired the mineral lease. According to Mr. Deffenbaugh, the mineral lease was effective between the parties on January 5, 2010, when Mrs. Tabor executed it and took possession of the conditional draft for $702,144.00. However, he conditioned the lease’s effect by stating that the actual payment to Mrs. Tabor would not be made unless and until Petrohawk could ^confirm that she had valid title in conformity with all the requirements of the January 5, 2010 receipt and that the stated number of acres in the lease was correct. Although the draft provided a thirty-day window for Petrohawk to verify ownership and acreage, Mr. Def-fenbaugh testified that this initial period was extended a number of times to give Petrohawk’s agents time to accomplish their investigation. Ultimately, Petrohawk determined that the acreage at issue was less than 224 acres, and the final mineral lease bonus payment was based on the lesser acreage.

According to Mr. Deffenbaugh, Petro-hawk became aware that there was a discrepancy in the acreage at issue on March 18, 2010, when Katy James, one of its land technicians, received an e-mail from Michelle Cooper, an employee of Bradley Broussard Land Service, Inc., the company retained by Petrohawk to examine the title to the property. The e-mail stated that investigation revealed that Mrs. Tabor’s acreage interest was less than initially understood, that the title to the property was otherwise approved, and that Mrs. Tabor should be paid a mineral lease bonus of $672,354.00, rather than $702,144.00. On March 22, 2010, or two days after Mr. Tabor’s death, Ms. James sent an e-mail to Mr. Deffenbaugh and to Dick Stoneburner (another Petrohawk official, whose title is not apparent from the record), asking them to approve payment of the lesser amount. The two men approved the lesser amount by e-mail to Ms. James on the same day. The next day, March 23, 2010, Petrohawk issued a new, unconditional draft made payable to Mrs. Tabor in the amount of $672, 354.00.

Louisiana Civil Code Article 2356 states that “[t]he legal regime of community property is terminated by the death or judgment of declaration of death of a spouse, declaration of the nullity of the marriage, judgment of divorce or separation of property, or matrimonial agreement that terminates the community.” 17Thus, when Mr. Tabor died on March 20, 2010, the community regime terminated. The courts have consistently held that “[t]he classification of property as separate or community is fixed at the time of its acquisition.” Robinson v. Robinson, 99-3097, p. 6 (La.1/17/01), 778 So.2d 1105, 1113. Therefore, if Mrs. Tabor acquired the mineral lease bonus before the community regime terminated, it is community property; if she acquired it after the community regime terminated, it is her separate property.

Because the facts are not in dispute in this appeal, the sole issue now before us is a purely legal question: when did Mrs. Tabor acquire the mineral lease bonus? This issue is addressed in the Louisiana Civil Law Treatise:

According to civilian conceptions, nonseparated fruits form a part of the fruit-producing thing and belong to the owner of that thing by right of accession. Upon separation, natural fruits become individual things, and question arises as to how the ownership of these things is acquired.
Civilian sources indicate that the ownership of natural fruits may be acquired either by the effect of separation (per separationem) or by collection (per per-ceptionem). Owners, good faith possessors, and persons having real rights in fruit-producing things acquire the ownership of natural fruits upon separation, without the need of any act on their part. Persons having personal rights acquire the ownership of natural fruits by virtue of an act of collection, namely, by the taking of possession.
The mode of acquisition of civil fruits involves distinct problems. According to traditional civilian ideas, maintained in modern civil codes, civil fruits accrue by virtue of an obligation; hence, one entitled to civil fruits acquires a “claim” for the collection of civil fruits rather than “ownership” thereof. Accordingly, the mode of acquisition of civil fruits is ordinarily a matter governed by the agreement of the parties and the law of obligations.

2 A.N. Yiannopoulos, Louisiana Civil Law Treatise: Property § 41 (4th ed.2001) (footnotes omitted, emphasis added).

As stated above, a mineral lease bonus is not a civil fruit as defined by La.Civ.Code art. 551. However, La.Civ.Code art. 2339 instructs us to treat it as|sone. Therefore, the analysis in the Civil Law Treatise is applicable. Following these precepts, we must look to the language of the agreements between Mrs. Tabor and Petrohawk to determine when she acquired a claim to collect the payment.

The draft and the receipt that Mrs. Tabor received and signed on January 5, 2010, specified that the draft would not be paid until Petrohawk determined that Mrs. Tabor had valid title to the land over which the lease was given; that all existing oil and gas leases affecting the land had been cancelled; that all preexisting mineral servitudes had prescribed; that no mortgages encumbered the land, or if any existed, they were subordinated to the January 5, 2010 lease; and that the property contained the acreage described in the lease. Of all these requirements, only the last would not give Petrohawk the right to withdraw from the contract of lease if found not to be in accordance with the original contract. If the property contained more or less than 224.118 acres, the bonus payment would be increased or decreased proportionately. However, if the examination of title revealed title defects, or if there existed oil and gas leases, mineral servitudes, or mortgages affecting the ranking of the January 5, 2010 lease, then Petrohawk would not be bound by the agreement. These are suspensive conditions that had to be met before Petrohawk would authorize payment of the mineral lease bonus.

Louisiana Civil Code Article 1767 provides that “[a] conditional obligation is one dependent on an uncertain event. If the obligation may not be enforced until the uncertain event occurs, the condition is suspensive. If the obligation may be immediately enforced but will come to an end when the uncertain event occurs, the condition is resolutory.” La.Civ.Code art. 1767. There is no right to enforce an obligation until the suspensive condition is satisfied. Murry v. Murphy, 07-720 (La.App. 3 Cir. 11/21/07), 970 So.2d 700.

19Until Petrohawk determined that Mrs. Tabor’s ownership interest satisfied all the conditions of the January 5, 2010 receipt, Mrs. Tabor had no legal right to enforce or collect payment of the draft. Payment of the draft was conditioned on approval of the lease and title of the leased acreage. The e-mails discussed above show that title was approved before Mr. Tabor died. This was confirmed by Mr. Deffenbaugh when he explained what Petrohawk required before it would authorize payment of the draft. He was asked, “[D]o you recall when the determination was made that the lessor had the correct title to the property whereby the draft instrument could be paid?” Mr. Deffenbaugh answered by explaining that payment of the draft had been extended a couple of times “because of a question with regards to the legal description and the number of net acres that was originally represented to be covered.” He was then asked, “[W]ould it be correct to say that this would be the approval of the lease?” He answered, “It’s the approval of title to the lease, which is done by our brokers in the parish records.” (Emphasis added.) Thereafter, Mr. Deffenbaugh was asked if the purpose of the draft was to ensure that the correct number of acres was being leased. He responded, “And that the parties have valid title to what they claim.”

Later in his testimony, Mr. Deffenbaugh was asked what his e-mail approving payment was. He answered:

It’s merely an e-mail signed off on by me basically saying that the — my staff has come to us and says please pay the following draft, it is due, and I authorize the payment.... [I]t’s gone through several channels of the field broker verifying that they’re comfortable with the title that they’ve run. Then that’s been run through ... our inhouse landman. He’s looked at the contract, and he sends me a note that says good to pay, and essentially I authorize payment.”

The contract was Petrohawk’s lease, and it could not have any complaints about its own contract after title was approved and the number of acres was verified. Therefore, Mr. Deffenbaugh’s testimony shows that the requirements ofj^the draft and the release — title and acreage verification — were satisfied on March 18, 2010, two days before Mr. Tabor died. Accordingly, the trial court correctly granted summary judgment in favor of the Estate.

The Succession’s Answer to this Appeal

The Succession asserted in its Answer that the trial court’s failure to award judicial interest to it on the sum owed by Mrs. Tabor constitutes error. The Succession prayed for judicial interest on the amount owed by Mrs. Tabor in its Petition for Return of Decedent’s Funds, or in the Alternative, Judgment for Conversion of Funds and in its Motion for Summary Judgment.

Louisiana Code of Civil Procedure Article 1921 provides: “[Ijnterest in the judgment shall be awarded as prayed for or as allowed by law.” Having prayed for judicial interest, the Succession is entitled to it. Smith v. Quarles Drilling Co., 04-179 (La.10/29/04), 885 So.2d 562. Accordingly, we amend the trial court’s judgment to award judicial interest from the date of judicial demand.

Summary Judgment in Favor of Mrs. Tabor

Mrs. Tabor next argues that the trial court erred in denying her motion for summary judgment and asks this to court render summary judgment in her favor. A party cannot appeal the trial court’s refusal to grant his or her motion for summary judgment. La.Code Civ.P. art. 968. Moreover, our affirmance of the trial court’s grant of summary judgment in favor of the Estate is a determination that the trial court correctly denied her motion for summary judgment.

Motion for New Tidal

Mrs. Tabor also assigns error with the trial court’s denial of her Motion for New Trial. We have addressed her arguments regarding this assignment of error as they pertain to her cross motions for summary judgment but not with regard to her claim that the trial court erred in failing to give her a credit for taxes she paid on lnthe mineral bonus. This assignment of error is not properly before the court because Mrs. Tabor’s Motion for Summary Judgment did not address this issue, and it will not be addressed.

DISPOSITION

We affirm the trial court’s grant of summary judgment in favor of the Succession of Billy James Tabor, and we amend said judgment by awarding the Succession judicial interest from the date of judicial demand. All costs of this appeal are assessed to the Martha Elliot Tabor.

AFFIRMED AS AMENDED.

PETERS, J. dissents and assigns written reasons.

PETERS, J.,

dissenting.

|,I respectfully disagree with the majority’s affirmation of the trial court’s judgment finding that the Tabor Succession is entitled to one half of the $672,354.00 mineral lease bonus Petrohawk paid to Mrs. Tabor for the lease of her separate property. I would reverse the trial court grant of the summary judgment in favor of the Succession and grant Mrs. Tabor’s motion for summary judgment to the effect that the Succession is not entitled to one half of the proceeds.

The facts are not in dispute and I have no conflict with the legal principles asserted in the majority opinion. My disagreement with the majority opinion relates to the date the suspensive conditions of the conditional obligations arising from the January 5, 2010 agreement were fulfilled.

The majority correctly concludes that the January 5, 2010 agreement was subject to a suspensive condition set forth on the receipt made a part of that agreement. In this case, the contract was made “subject to the satisfaction by Lessee of any or all” of five conditions relating to the title to the property. (Emphasis added.) The majority’s position is that this condition was satisfied on March 18, 2010, when Ms. James received an e-mail from the title company retained to examine title to the effect that Mrs. Tabor had merchantable title to the property, but that it did not contain as many acres as originally thought. Mr. Tabor died two days later.

I do not find that notice to Ms. James, a Petrohawk employee who did not have authority to approve the modification to the original agreement, satisfied the 12requirements of the January 5, 2010 agreement as set forth in the receipt. “[Sjatisfaetion by Lessee” implies satisfaction by one authorized within Petrohawk’s corporate structure to make that decision. Mr. Deffenbaugh’s testimony is clear that he did not receive notice of the title examination results until March 22, 2010, and he immediately authorized payment of the lesser amount. Thus, actual “satisfaction by Lessee” occurred two days after Mr. Tabor died and not two days before, as suggested by the majority.

While agreeing with the majority’s conclusion that the trial court’s concern about opening the door for miscreant spouses to marshal civil fruits and delay receipt until the community is terminated is a policy concern, I note that the majority’s decision has a similar effect. Certainly, had Mr. Tabor continued to live, he would benefit from the separate property mineral interests belonging to his wife. His untimely death and the majority’s interpretation of the dates allow his daughter (Mrs. Tabor’s step-daughter) a windfall that, in all probability, her father never contemplated. There was no suggestion that Mr. Deffen-baugh withheld authorization of the payment until after Mr. Tabor’s death and no evidence that, as the proper representative of the Lessee, he had knowledge of the satisfaction of the conditions before March 22, 2010.

I would reverse the trial court judgment granting the Succession’s motion for summary judgment and render judgment granting Mrs. Tabor’s motion for summary judgment.

      . Although the petition refers to "Petrohawk Properties, LP,” deposition testimony from Petrohawk employees and documentary evidence that originated with Petrohawk refer to it as "Petrohawk Energy Company.” The exact identity of this corporation is not relevant to resolution of the issues before us. Accordingly, we refer to the lessee as "Petrohawk.”

      . Apparently unaware that the amount of die mineral lease bonus had been reduced, the Succession initially sought one half of the initial conditional draft of $702,144.00. The Succession later reduced the demand to one half of the amount actually received.

      . While we recognize the trial court's concerns in this regard, this finding is more of a policy concern, and we do not consider it in our evaluation of the appeal issues now before us.

      .Mrs. Tabor had previously attempted to appeal the summary judgment in favor the Succession. However, this court, in an unpublished opinion, dismissed it as an attempt to appeal a partial judgment that had not been designated as immediately appealable for the express reasons set forth in La.Code Civ.P. art. 1915(B). Succession of Billy James Tabor, an unpublished opinion bearing docket number 11-346 (La.App. 3 Cir. 4/27/11). After the matter returned to the trial court, an amended judgment was rendered and constitutes the basis of the current appeal.


author: PETERS, J.

text:
    Nelwin RIDER v. Jack STANSBERRY, et al.
    Nos. 11-1430, 11-1431.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.

      Homer E. Barousse, Jr., John Franklin Craton, Barousse & Craton, L.L.C., Crowley, LA, John Franklin Weeks, II, T. Allen Usry, Ursy, Weeks & Matthews, New Orleans, LA, for Defendants/Appellants, Acadia Parish Sheriffs Department, Wayne Melancon, Acadia Parish Sheriff, Frank Privat, Acadia Parish Sheriff Deputy, Eby Henry, Former Warden, Acadia Parish Justice Center, Princeton Excess and Surplus Lines Ins. Company.
    J. Wendel Fusilier, Jacob B. Fusilier, J. Wendel Fusilier, APLC, Ville Platte, LA, for Plaintiff/Appellee, Nelwin Rider.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PETERS, J.

1 iThis litigation stems from the September 20, 2007 escape of Jack Stansberry, a prisoner in the custody of the Acadia Parish Sheriffs Department. Four days later, the plaintiff, Nelwin Rider, sustained physical injuries when the escapee hijacked a vehicle in Ville Platte, Louisiana, and, when fleeing the scene, struck her with the vehicle. Ms. Rider brought this action to recover for her damages and named Stans-berry as a defendant, along with Wayne Melancon, Sheriff of Acadia Parish; the Acadia Parish Sheriffs Department; Acadia Parish Deputy Frank Privat; and the Sheriffs liability insurer, identified in the petition as XYZ Insurance Company (we collectively refer to all of the defendants except Stansberry as “the law enforcement defendants”)- The matter is now before us because the trial court granted a partial summary judgment in favor of Ms. Rider, finding that the law enforcement defendants were one hundred percent at fault in causing her injuries. For the following reasons, we reverse the trial court judgment and remand this matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

There is little dispute concerning what occurred between the time of Stansberry’s escape and the incident wherein Ms. Rider sustained her injuries. On September 20, 2007, at 7:05 p.m., Stansberry was in the custody of the Acadia Parish Sheriffs Department and was being transported by ambulance from the Acadia Parish Justice Center to the American Legion Hospital in Crowley. Warden Eby Henry followed the ambulance to the hospital and turned Stansberry’s custody over to Deputy Frank Privat after arriving at the hospital. Stansberry had been transported without being handcuffed or otherwise restrained, and he remained unrestrained during the entire time at the hospital. After the hospital 12emergency room staff released Stansberry to Deputy Privat, the deputy contacted the Sheriffs office requesting transportation back to the Justice Center. While the deputy and Stansberry waited for the arrival of transportation, Stansber-ry asked to use the restroom. After he exited the restroom, Deputy Privat instructed him to wait while he also used the restroom facilities. While Deputy Privat was occupied in the restroom, Stansberry walked out of the hospital.

Stansberry made his escape from Crowley by going to a close-by restaurant, stealing a vehicle from the restaurant parking lot, and driving to Lake Charles, Louisiana. Four days later, on September 24, 2007, he left Lake Charles in the stolen vehicle intending to travel to Opelousas, Louisiana. Instead, the vehicle overheated, and Stansberry obtained a ride from a passing motorist to Ville Platte, Louisiana. After he arrived in Ville Platte, he stole a second vehicle from the parking area near the Ville Platte Medical Center walking track. The owner of the vehicle, Geor-gianna Fontenot, and Ms. Rider were just leaving the walking track when Stansberry approached them and forced Ms. Fontenot to provide him with the keys to her vehicle. Ms. Rider sustained her injuries when she was struck as Stansberry backed the vehicle out of the parking space.

In this newest stolen vehicle, Stansberry returned to Lake Charles. Four days later, on September 28, 2007, the Calcasieu Parish Sheriffs Office apprehended him in Lake Charles.

Ms. Rider instituted a personal injury suit in Evangeline Parish on July 21, 2008, and later, on September 28, 2008, instituted the same suit in Acadia Parish. The Evangeline Parish suit was met with an exception of improper venue and, ultimately, on January 27, 2009, was transferred to Acadia Parish as well. These two suits were consolidated for trial purposes.

| aAmong other defenses asserted, the law enforcement defendants asserted that they had no liability because Stansberry had completed his escape by the time Ms. Rider sustained her injuries. They then filed a motion for summary judgment on that argument. Ms. Rider responded by filing a motion for partial summary judgment addressing the issue of liability only and asserting that she was entitled to judgment finding the law enforcement defendants solely at fault in causing her injuries. The trial court agreed with Ms. Rider’s argument and, after a hearing on the motions for summary judgment, rejected the law enforcement defendants’ motion and granted Ms. Rider’s motion. That grant of partial summary judgment to Ms. Rider is the basis of the appeal now before us.

The law enforcement defendants raise three assignments of error on appeal:

1.
The trial judgment committed reversible error in determining that the summary judgment record and evidence (particularly Stansberry’s sworn statement) established prima facia evidence that Stansberry was still in the process of escape at the time he injured Appel-lee and thus entitled her to partial summary judgment as to Appellants’ liability.
2.
In finding simply that Appellants were “liable” to Appellee in the three judgments he signed, the trial judge committed two distinct errors. First, he failed to separately assess the appropriate percentage of fault to Warden Henry and to Deputy Privat — the only two actual tortfeasors in this case affiliated with the Sheriffs Office.
3.
Additionally, to the extent these Judgments can be interpreted as the trial judge’s final determination of all fault that contributed to Appellee’s injuries, the trial judge committed reversible error by failing to consider and allocate any portion of fault to Stansberry. His intentional and egregious fault is readily obvious and undeniable from the summary judgment record and justifies allocating a majority of the fault to him.

) ¿OPINION

In reversing the trial court grant of summary judgment, we need only address the law enforcement defendants’ first assignment of error. Additionally, in doing so, we do not conclude that Stansberry was no longer in the process of escaping at the time Ms. Rider sustained her injuries but that there are genuine issues of material fact as to this assertion.

Summary judgment is a procedural device used to avoid a trial on the merits when no genuine issue of material fact exists in a matter. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963). Its procedure is “designed to secure the just, speedy, and inexpensive determination of every action,” except in certain domestic actions; the “procedure is favored and shall be construed to accomplish these ends.” La. Code Civ.P. art. 966(A)(2); Racine v. Moon’s Towing, 01-2837 (La.5/14/02), 817 So.2d 21. Appellate courts review summary judgment de novo, applying the same standard as that used by the trial court. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. The burden of proof rests with the movant. La.Code Civ.P. art. 966(C)(2). Judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

A “genuine issue” is a “triable issue.” Toups v. Hawkins, 518 So.2d 1077, 1079 (La.App. 5th Cir.1987) (citing Brown [v. B & G Crane Service, Inc., 172 So.2d 708, 710 (La.App. 4 Cir.1965)]). More precisely, “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes.” W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1983). In determining whether an issue is “genuine,” courts | ¿cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788, 791 (La.App. 3d Cir.), writs denied, 525 So.2d 1048, 1049 (La.1988); Pace v. Zilka, 484 So.2d 771 (La.App. 1st Cir.), writ denied,, 488 So.2d 691 (La.1986); Mecom v. Mobil Oil Corp., 299 So.2d 380, 386 (La.App. 3d Cir.), writ denied, 302 So.2d 308 (La.1974). “Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact,” Brown, 172 So.2d at 710; Sally Beauty Co. v. Barney, 442 So.2d 820, 822 (La.App. 4th Cir.1983).
A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Penalber v. Blount, 550 So.2d 577, 583 (La.1989). “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3d Cir.1991), writs denied, 596 So.2d 211 (La.1992). Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Sassone v. Elder, 626 So.2d 345, 352 (La.1993); Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Co., 427 So.2d 1152, 1153-54 (La.1983) (collecting cases); McCoy v. Physicians & Surgeons Hospital, Inc., 452 So.2d 308, 310 (La.App. 2d Cir.), writ denied, 457 So.2d 1194 (La.1984) (noting that “[sjummary judgment may not be used as a substitute for trial”).

Smith, 639 So.2d at 751 (emphasis added) (alteration in original).

Ms. Rider’s motion for partial summary judgment is based on a sworn statement taken from Stansberry and the record of these proceedings. The record itself contains statements, deposition testimony, and other exhibits.

In Wilson v. State Through Department of Public Safety and Corrections, 576 So.2d 490, 493 (La.1991) (footnote omitted) (alteration in original), the supreme court supplied the test applying in situations where a victim, injured by an escaped prisoner, sues the authorities responsible for that prisoner being at large:

As a general proposition,

[t]he determination of liability in a negligence case usually requires proof of five separate elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) Inproof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). The first element is usually a judge question, and the other four are usually jury questions unless reasonable minds could not differ.
Fowler v. Roberts, 556 So.2d 1, 4-5 (La.1989) (citation omitted). More specifically, the courts of appeal in this state have fashioned a test from principles implicit in our opinion in Frank v. Pitre, 353 So.2d 1293 (La.1978). The test, reiterated by the court of appeal in this ease, is one we believe enables courts to arrive at practical, commonsense results while balancing the interests of the State, as custodian, and innocent plaintiffs injured as a result of the State’s negligent conduct.
Custodians of prisoners have a duty to manage the affairs of the prison so as not to create an unreasonable risk of harm to the public. This duty does not encompass all harm inflicted by escapees. Although prison authorities have a duty to prevent inmates from escaping, that duty is intended to protect persons from being harmed by escaping inmates while they are in the process of escaping. The duty is not intended to protect persons from harm inflicted by inmates who have already escaped and who subsequently commit tortious acts in the furtherance of their own pursuits. The state is not the insurer of the safety of its citizens. To recover against a custodian, a plaintiff must prove that the custodian was negligent in the management of the prison, that this negligence facilitated the escape, that the actions of the escapee caused the harm complained of, and that the risk of harm encountered by the particular plaintiff falls within the scope of the duty owed by the custodian. Wilson, 563 So.2d at 1253 (citing Sanchez v. State, Department of Health & Human Resources, 506 So.2d 777 (La.App. 1st Cir.1987)); LeBlanc v. State, Through Dept. of Corrections, 393 So.2d 125 (La.App. 1st Cir.), writ denied, 394 So.2d 1235 (La.1980); and, Reid v. State, Department of Corrections, 376 So.2d 977 (La.App. 1st Cir.1979), writ denied, 380 So.2d 71 (La.1980). See also, Edwards v. State, 556 So.2d 644, 649 (La.App. 2d Cir.1990).
In resolving the scope of the duty issue, improper emphasis has occasionally been placed on foreseeability or on the proximity of time and distance between the escape and the escapee’s offense that caused the injury to his victim. The proper question is whether the offense occurred during, or as an integral part of, the process of escaping. Edwards, supra, at 649; LeBlanc, supra, at 128.

|7In Wilson, the supreme court reversed the appellate court, finding that the crimes, committed by the escapees thirteen days after their escape from the Louisiana State Penitentiary at Angola, were a necessary and integral component of their escape:

The record fully supports the trial court’s finding that Downs was dangerous and would be seeking food, clothing, weapons, and transportation to make his way out of Louisiana. Although there is some dispute as to whether it is eight of fifteen miles from the penitentiary, [the plaintiffs] residence is within the normal area of containment set up by prison personnel in the event of a prison break (i.e., the search perimeter). At the time of the incident, the search for Downs and the other two inmates has not been formally abandoned, tending to indicate the defendant’s suspicion Downs remained within the search perimeter. Under these circumstances, we have no difficulty concluding the theft of [the plaintiffs] truck was a necessary and integral component of the escape process. The truck enabled Downs to pass the search zone established by the authorities and greatly facilitated his successful flight from the state. The stolen food, clothing and money further aided in the process of the escape.

Id. at 494 (alteration ours).

However, the supreme court took great pains to stress that these types of cases should be decided on a case-by-case basis:

We emphasize the primary focus of the inquiry is on the question of whether the acts giving rise to the suit occurred during, or as an integral part of, the process of escaping. The operative word is “process,” since there is no bright-line point of delineation which will satisfactorily assist a court in making the appropriate duty-risk analysis. To focus exclusively on the time expiring after the inmate’s exit from the prison grounds to the point where he victimizes a plaintiff leads to arbitrary cut-off points which serve neither the interests of plaintiffs nor those of the State. The same may be said of the distance involved. If an act committed one hour and one mile from the point of departure is compensable and one committed one month and one hundred miles from the same point is not, we are left without means to draw the line except in some arbitrary fashion unsatisfactory to all concerned. This is not to say considering these factors is impermissible. Rather, they are but two factors among many, which will vary with the circumstances of each case, that should be considered in determining whether the acts for which the plaintiff seeks compensation were committed during, or as an integral part of, the process of escaping.

| ¡Id. (emphasis added).

In his sworn statement, Stansberry basically asserted the facts previously stated with regard to his initial escape. He did state that after staying in Lake Charles four days, he simply “decided to jump up and go anywhere.” As such, he simply “took off riding.” In other words, there was nothing in his statement to suggest that he felt a need to travel to Opelousas to continue his escape. According to Stansberry, the vehicle overheated when he reached Oakdale, Louisiana, and from there he hitchhiked into Ville Platte.

Once in Ville Platte, he walked to the Ville Platte Medical Center and sat on a bench located near the hospital’s walking track. While sitting there, he noticed Ms. Rider and Ms. Fontenot walking around the track. In fact, according to Stansber-ry, the two women spoke to him as they passed him and told him goodbye as they left the track. Stansberry followed the two women and took Ms. Fontenot’s keys, threatening her by claiming he had a gun. Initially, Ms. Fontenot tried to throw the keys to Ms. Rider, but when they landed on the ground, he grabbed them, entered the vehicle, backed it up, and drove off. He stated that although he heard Ms. Rider yell as he backed up, he did not stop to check on any possible injuries to her. He then drove back to Lake Charles.

Deputy Privat’s deposition testimony and his statement, both of which are a part of the record, basically supports Stansber-ry’s statement with regard to the initial escape. While Deputy Privat instructed Stansberry to stop, the prisoner ignored the directive and fled the scene on foot. Deputy Privat pursued him but [flcould not keep up. Stansberry disappeared from his view, and a search by deputies, who arrived a short time later, failed to find him.

In his deposition testimony, Detective Dennis Fruge explained that he was the investigating officer in charge of catching the fugitive. According to Detective Fruge, after he received the file on this matter the day after the escape, he went through Stansberry’s effects at the Justice Center looking for addresses or any leads he could find. He contacted all of Stans-berry’s family, friends, and former girlfriends that could be identified but to no avail. A few days later, a former girlfriend called to say that she had been contacted by Stansberry. Detective Fruge then used this information and the information he obtained by examining her telephone records to obtain a Lake Charles address and telephone number. This was ultimately the place where Stansberry was apprehended. Detective Fruge testified that a nationwide “All Points Bulletin” was released by the Sheriffs Department on September 21, 2007, and that he contacted the Lafayette Parish Sheriffs Office and the Lake Charles Police Department. Once Stansberry was apprehended, Detective Fruge closed his investigation. Stans-berry was returned to the Acadia Parish Sheriffs Department on October 1, 2007.

There is no question but that a continuing effort was moving forward to apprehend Stansberry at the time of Ms. Rider’s injuries, as would be the case in every escape, no matter how much time had passed since the escape. However, that fact alone does not establish that Stansber-ry was still in the process of escaping as contemplated in Wilson, 576 So.2d 490. As pointed out by the supreme court in that case, the issue to be decided is a fact-driven issue, and we find genuine issues of material fact that preclude the grant of a summary judgment on liability. Although Stansberry repeatedly stated, upon prompting from counsel |infor Ms. Rider, that his actions at the time Ms. Rider was injured were part and parcel of his continuous and ongoing escape, which may or may not have ended in Florida if he had sufficient money, a question remains as to whether his escape was concluded when he initially arrived in Lake Charles. Based on his statement, a trier of fact could conclude that Stansberry’s escape had already been accomplished and that the criminal acts complained of occurred while he was in the furtherance of his own pursuits. Accordingly, we reverse the trial court judgment granting a partial summary judgment in favor of Ms. Rider and remand the matter for further proceedings.

DISPOSITION

The judgment of the trial court granting a partial summary judgment in favor of Nelwin Rider on the issue of liability is reversed, and the matter is remanded to the trial court for further proceedings. We assess all costs of this appeal to Nel-win Rider.

REVERSED AND REMANDED.

      . Ms. Rider later amended her suit to name Princeton Excess and Surplus Lines Insur-anee Company and former Warden Eby Henry as party defendants.

      . The sworn statement of Stansberry, who was an unrepresented named defendant in the litigation at the time, was taken by Ms. Rider’s counsel at the Phelps Correctional Facility on September 1, 2010. No notice of intent to take the statement of a named defendant was provided to the other defendants, and the only party present during the statement was counsel for Ms. Rider,


author: SAUNDERS, Judge.

text:
    Margaret Montalvo RICHARD v. Harold ARTIGUE, et al.
    No. 11-1471.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.

      Kenneth Winslow Benson Jr., Attorney at Law, Baton Rouge, LA, for Defendant Appellee, Harold Artigue, Louisiana Services, L.L.C., Liberty Mutual Fire and Casualty Co.
    Barry J. Heinen, Attorney at Law, Lafayette, LA, for Plaintiff Appellant, Margaret Montalvo Richard, Frank Richard.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

| tThis case involves an automobile accident wherein a jury awarded the plaintiff driver, inter alia: (1) $225,000.00 for future wages lost or loss of earning capacity; (2) $555,833.00 for future medical expenses; (3) $10,000.00 in past wages lost; and (4) $325,000.00 in general damages. The jury allocated forty (40) percent of the fault to sudden emergency/fault of third party. Thus, these awards were reduced accordingly.

The plaintiff driver appealed. We reverse the allocation of fault and render that the defendant driver was one hundred (100) percent at fault. We affirm the jury’s award of $225,000.00 for future lost wages, $10,000.00 in past wages lost, and $825,000.00 in general damages. We amend the judgment to reflect that the plaintiff driver is awarded $637,888.00 in future medical expenses.

FACTS AND PROCEDURAL HISTORY:

On October 18, 2007, a three-ear automobile accident occurred on Interstate (although currently an Intrastate) 49 at the Gloria Switch Road overpass in Lafayette Parish, Louisiana. Traffic that morning was congested due to a combination of normal morning traffic, a wet roadway due to rain and dew that morning, and an automobile accident that occurred prior to the one at issue in the case before us.

The three automobiles were southbound in the left lane of travel. The lead automobile was driven by plaintiff, Margaret Richard (hereinafter “Richard”), the second by Seth Menard, and the third by defendant, Harold Artigue. The automobiles driven by Richard and Seth Menard stopped for a different accident that occurred on the roadway before them. The automobile driven by Harold Artigue failed to stop, struck the Menard automobile, and pushed it into the automobile driven by Richard.

|2On September 26, 2008, Richard filed a petition for damages against Harold Artigue, Louisiana Service, L.L.C., Artigue’s employer for whom Harold Artigue was driving within the course and scope of his employment, and Liberty Mutual Fire and Casualty Company (collectively defendants hereinafter referred to as “Artigue”). Richard amended her petition on January 18, 2011, to add the damages of her husband, Frank Richard for loss of consortium

Artigue asserted in their amended answer the affirmative defense of sudden emergency. Richard filed a motion to strike the amended answer on March 9, 2011. The trial court denied the motion.

The parties stipulated that Harold Artigue was the employee of Louisiana Services, L.L.C., that Liberty Mutual Fire and Casualty insured Louisiana Services, L.L.C. and Harold Artigue on the day of the accident, and that the Harold Artigue and Louisiana Services, L.L.C. were additionally insured by Chartis as an excessive carrier.

A jury trial was held from March 28, 2011, through April 1, 2011. Prior to submitting the matter to the jury, Richard moved for a directed verdict that Artigue was one hundred (100) percent at fault for the accident. The trial court denied the motion. Thereafter, prior to submission of the jury interrogatories, Richard objected to them allowing the jury to assign fault to anyone other than Artigue. The trial court overruled the objection.

On April 1, 2011, the jury rendered a verdict awarding Richard various amounts for particular items, including but not limited to, $225,000.00 for future lost wages, $555,833.00 for future medical expenses, $10,000.00 for past lost wages, and $325,000.00 for general damages. Further, the jury allocated sixty (60) percent of the fault for the accident to Harold Artigue and forty (40) percent of the fault for the accident to sudden emergency/third party fault.

| ^Richard timely filed the appeal before us asserting seven assignments of error. The first three assignments relate to the jury’s allocation of fault. The final four relate to the jury’s damage awards. They are as follows:

ASSIGNMENTS OF ERROR:

1. The trial court committed reversible error by providing a jury verdict form over plaintiffs objection that included interrogatories regarding the existence of a sudden emergency, third party fault or the fault of Margaret Richard.
2. The trial court committed reversible error by denying plaintiffs Motion for a Directed Verdict against defendant regarding the lack of evidence introduced by defendant regarding the issue of third party fault or sudden emergency.
3. The jury committed manifest error when it assessed forty (40%) percent of the fault in this accident to sudden emergency or third party fault.
4. The jury committed manifest error when it awarded plaintiff, Margaret Richard, future wages loss or loss of earning capacity of only $225,000.00, when the evidence at trial supported a much higher award.
5. The jury committed manifest error when it awarded to plaintiff, Margaret Richard, $555,833.00 in future medical when the evidence at trial supported by the experts was a much higher award.
6. The jury committed manifest error when it awarded to plaintiff, Margaret Richard, only $10,000.00 in past wage loss when the evidence at trial supported a much higher award.
7. The jury committed manifest error when it awarded plaintiff, Margaret Richard, only $325,000.00 in general damages for the extreme injuries suffered by Margaret Richard.

ASSIGNMENT OF ERROR NUMBERS ONE TWO, AND THREE:

Richard contends in her first two assignments of error that the trial court committed reversible error by providing a jury verdict form over her objection that included interrogatories regarding the existence of a sudden emergency, third party fault, or the fault of Margaret Richard and by denying her Motion for a Directed Verdict against defendant |4regarding the lack of evidence introduced by defendant regarding the issue of third party fault or sudden emergency. In her third assignment of error, Richard contends that the jury committed manifest error when it assess forty (40%) percent of the fault in this accident to sudden emergency or third party fault.

Each of these three assignments of error has a different standard of review. A trial court has discretion in determining the contents of a jury form, thus, the standard of review on the first asserted assignment of error is whether the trial court abused that discretion. Kelly-Williams v. AT&T, 11-1179 (La.App. 3 Cir. 2/1/12), — So.3d -. In the second assignment of error, the applicable standard of review on a motion for directed verdict is whether the evidence in the record is such that a reasonable person could not reach a verdict to the contrary. Hebert v. BellSouth Telecommunications, Inc., 01-223 (La.App 3 Cir. 6/6/01), 787 So.2d 614, writ denied, 01-1943 (La.10/26/01), 799 So.2d 1145. Finally, in the third assignment of error, it is well-settled that a jury’s allocation of fault is a finding of fact that is subject to the manifest error standard of review. Duncan v. Kansas City Southern Railway Co., 00-66 (La.10/30/00), 773 So.2d 670.

Although these assignments of error have three different standard of review, they have a common denominator, to question whether the record supports a finding of fault by anyone other than Artigue. Accordingly, we will combine these three assignments and review the record on this issue.

Louisiana Revised Statutes 32:81(A) states, “[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”

lfiThis court, in Cox v. Shelter Ins. Co., 09-958 (La.App. 3 Cir. 4/7/10), 34 So.3d 398, writ denied, 10-1041 (La.9/17/10), 45 So.3d 1044, dealt with a situation similar to the case before us. In Cox, we stated the following:

If a following motorist strikes the forward vehicle from the rear, he or she is presumed to have breached the duty imposed by La. R.S. 32:81 (A). Mart v. Hill, 505 So.2d 1120 (La.1987).
A following motorist may, however, rebut the presumption by demonstrating that he or she had his car under control, closely observed the preceding vehicle, and followed at a safe distance under the circumstances, or by proving that the driver of the lead car negligently created a hazard which the following motorist could not reasonably avoid. McCullin v. U.S. Agencies Cas. Ins. Co., 34,661 (La.App. 2 Cir. 5/9/01), 786 So.2d 269. The following motorist bears the burden of showing he was not negligent. Wheelis v. CGU Ins., 35,230 (La.App. 2 Cir. 12/7/01), 803 So.2d 365.
Menard v. Federated Mut. Ins. Co., 05-85, pp. 3-4, (La.App. 3 Cir. 6/22/05), 906 So.2d 746, 750, writ denied, 05-1925 (La.3/10/06), 925 So.2d 506.

Cox, 34 So.3d at 408.

There is no dispute that Artigue’s truck struck the Menard automobile, which, in turn, struck the Richard automobile from the rear. Further, there is no dispute that Artigue is presumed to be in breach of the duty imposed by La.R.S. 32:81(A). Thus, Artigue had the burden to prove that, “he [] had his car under control, closely observed the preceding vehicle, and followed at a safe distance under the circumstances, or by proving that the driver of the lead car negligently created a hazard which the following motorist could not reasonably avoid.” Cox, 34 So.3d at 408 (citing McCullin v. U.S. Agencies Cas. Ins. Co., 34,661 (La.App. 2 Cir. 5/9/01), 786 So.2d 269).

After thoroughly reviewing the record, we find a complete absence of any evidence that Artigue carried his burden. Artigue was faced with congested morning traffic on Interstate 49 near Lafayette, Louisiana. The roads were wet. | fiThese two facts, alone, should heighten the awareness of a reasonably prudent driver that a stopped vehicle was a possibility. He was traveling in the left lane at approximately forty-five to fifty miles per hour while passing slower traffic in the right lane.

At least two cars, one driven by Richard, and another driven by Seth Menard, came upon the scene of another accident and were able to stop. The accident report prepared by State Police for this accident stated that Artigue’s vision was not obscured and that he was inattentive. Further, the police report verified that Artigue was issued a citation for exceeding a safe speed limit.

Artigue testified that he did not see the vehicles stopped ahead of him until he was one car length from the stopped vehicle driven by Menard. He claimed that his failure to see the vehicle until it was too late was due to the overpass obscuring his vision.

Mr. Vernon Tekell, Jr., an expert in civil engineering, testified regarding whether a person travelling where Artigue was trav-elling could see a stopped vehicle at a distance greater than one car length. Given an eye height of five feet for a person riding in a truck, as Artigue was, and the height of two feet for the taillights of a vehicle, the industry standard, Tekell opined that Artigue had a minimum sight distance of eight hundred and thirty feet. Given Artigue’s claimed speed, his vehicle was moving at approximately seventy-three feet per second. Thus, according to the uncontroverted testimony of Tekell, Artigue could have seen a stopped vehicle for more than ten seconds.

Moreover, the testimony of both Menard and Richard was that there were other vehicles stopped ahead of them. Thus, Artigue, had he been paying attention to the road ahead of him, would have even more notice that traffic was slowing and/or stopping ahead.

|7The trial court, in denying Richard’s motion for directed verdict, noted that it was raining at the time of the accident. While this may be accurate, it is also accurate that the other vehicles, with less vision ahead due to a lower elevation of eye height, were able to stop despite the rain while Artigue did not. Regardless, the circumstance present, i.e. a wet road, was quite evident to Artigue given that it was raining.

Accordingly, given the status of the record, we find that the trial court abused its discretion by providing a jury verdict form that included interrogatories regarding the existence of a sudden emergency, third party fault, or the fault of Margaret Richard and by denying Richard’s motion for a directed verdict against Artigue. Further, we find that the jury was manifestly erroneous in allocating forty percent (40%) of fault for the accident to sudden emergency or third party fault. As such, we reverse the judgment of the trial court and render that Artigue was one hundred percent (100%) at fault for the accident.

ASSIGNMENT OF ERROR NUMBERS FOUR, FIVE, SIX AND SEVEN:

Richard asserts in her fourth through seventh assignments of error that the jury committed manifest error in the following awards given to her: (1) $225,000.00 for future wages lost or loss of earning capacity; (2) $555,833.00 for future medical expenses; (3) $10,000.00 in past wages lost; and (4) $325,000.00 in general damages. Richard claims that these awards are low because the evidence at trial supported a much higher award.

The jury’s determination of the amount, if any, of an award of damages ... is a finding of fact. The Civil Code provides that “[i]n the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” La. C.C. art. 2324.1. As we stated in Bonin v. Ferrellgas, 03-3024 (La.7/2/04), 877 So.2d 89, 94-95:
|SA court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error unless it is clearly wrong ...
Under the manifest error standard, in order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. On review, an appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. (Cites omitted.)

Ryan v. Zurich American Ins. Co., 07-2312, p. 7 (La.7/1/08), 988 So.2d 214, 219.

Future Lost Wages or Loss of Earning Capacity:

“Awards for loss of future income are inherently speculative, and are intrinsically insusceptible of being calculated with mathematical certainty. Thus, the courts must exercise sound judicial discretion in determining these awards, and render awards which are consistent with the record and which work an injustice on neither party.” Broussard v. Lafayette Ins. Co., 08-116 (La.App. 3 Cir. 5/28/08), 984 So.2d 253, 255 (quoting Morgan v. Willis-Knighton Med. Ctr., 456 So.2d 650, 658 (La.App. 2 Cir.1984)).

Richard argues that the amount reached by the jury of $225,000.00 was manifestly erroneous because it is below what either economist testified to as her future lost wages. According to Richard her economist, Dr. Doug Womack opined that her future lost wages were $437,893.00 plus $13,067.00 in loss of employer paid insurance and Artigue’s economist, Dr. Pat Culbertson, opined that Richard’s future lost wages were $330,265.00. Moreover, according to Richard, these numbers even could be greater if one were to assume her retirement age to be sixty-seven (67), per to the social security retirement age, rather than fifty-seven |9(57), per the retirement age used by both economists based on various social factors.

While Richard is accurate that these are the numbers were stated by the economists, those numbers are based on questions wherein the economists were to assume that she could not ever work again. Dr. Lyle LeCorgne, a psychiatrist, opined that Richard could not work again due to stress coupled with her pain from the accident. There is no dispute that the source of Richard’s pain is the accident. However, there is a question about as to whether the sole source Richard’s stress was attributable to the accident.

There is evidence in the record that she could perform sedentary work prior to her then current employer, Peppertree, being taken over by the Lynd Company. Her former job qualifies as sedentary work. The accident occurred in October, 2007, and Richard did not cease working until early in 2010 when she was fired by the Lynd Company. Regarding the source of stress and the change in employer, Richard testified that she filled out her initial patient questionnaire with Dr. LeCorgne as follows:

Q: And this is a multi-page questionnaire, but on page eight (8) of the questionnaire appears the question, “How do you like your present job—
Q: The top question on page eight (8) of the questionnaire. The question was—
A: (Reading) “How do you like your present job and how do people treat you?”
Q: Will you read your answer please out loud?
A: Yes. (Reading) “I love the business. I’ve been doing this for over twenty (20) years, and I am highly respected in the | ^business. Very stressed with the Lynd Company.” But they just took over. It was hard.
Q: And that’s true, the Lynd Company taking over the Peppertree. It was stressful to you.
A: Yes. It was a lot to learn. And we managed 304 apartments. It’s stressful for any company that owned it.
Q: Okay. Ms. Richard, I don’t mean to imply anything. I think you — I’m sure you were doing just a fine job with Peppertree and JTS until the Lynd Company took over, and that’s what I was trying to establish with you. It was different under the Lynd Company.
A: It was very different.

Therefore, the jury could have reasonably found that Richard may return to work in the future or that at least part of the source of her debilitating stress that prevents her from working was the change of employer rather than the accident.

Moreover, it is clear from the record that Richard had some goodwill with her former employer, Peppertree. Thus, it is within the jury’s discretion to find that, while the accident hindered Richard’s level of work with Peppertree, that company was willing to consider her history with it and make allowances, whereas that was not the case with the Lynd Company.

Given the inherently speculative nature of lost future wages, we cannot say that the award is not reasonably consistent with the record. As such, we find that the jury was not manifestly erroneous in awarding Richard $225,000.00 for future lost wages.

Future Medical Expenses:

Future medical expenses, like any other damages, must be established with some degree of certainty. The plaintiff must show that, more probably than not, these expenses will be incurred. Awards will not be made in the absence of medical testimony that they are indicated and setting out their probable cost. Boothe v. New Orleans Public Service, Inc., 447 So.2d 620 (La.App. 4th Cir.1984); Sikes v. 11McLean Trucking Co., 383 So.2d 111 (La.App. 3d Cir.1980). An award for future medical expenses cannot be based on mere speculation of the jury. Much stronger proof, such as medical testimony of the specific expenses to arise, should be required for such an award. Simmons v. Custom-Bilt Cabinet & Supply Co., 509 So.2d 663 (La.App. 3d Cir.1987); Sikes, supra.

Veazey v. State Farm Mut. Auto Ins., 587 So.2d 5, 8 (La.App. 3 Cir.1991).

In the case before us, the jury awarded Richard $555,833.00 in future medical expenses. There is no dispute that Richard is entitled to some amount in future medical expenses. However, the jury was presented with conflicting medical testimony on what treatments were more likely than not necessary in the future and conflicting economic testimony forecasting the increase in medical costs.

Dr. Womack estimated the future cost of Richard’s medical care to be $1,323,097.00 based on Richard receiving all of the recommended treatments, including those suggested by Richard’s treating pain management physician, Dr. Stephen Wyble. Dr. Sandra Weitz performed a second medical opinion. She testified that she disagreed with Dr. Wyble’s recommendation regarding Lidoderm patches, epidurals, massage therapy, the frequency of replacement of the Richard’s battery in her dorsal column stimulator, and, to some extent, the future psychological treatment. Dr. Womack testified that his estimated future medical expenses would drop to $866,571.00 if her were to adjust for Dr. Weitz’s testimony.

Dr. Culbertson opined that his estimated future medical expenses would be $979,536.00 according to Dr. Wyble’s recommendations. When questioned about what his estimates would be adjusting for Dr. Weitz’s recommendations, he stated that the amount would be $637,888.00.

112Thus, the jury was presented with four reasonable amounts: (1) $1,323,097.00; (2) $979,536.00; (3) $866,571.00; and (4) $637,888.00. All of these amounts are greater than that awarded by the jury, $555,833.00.

Artigue argues that the jury’s award can be deemed reasonable considering the testimony of Dr. Pat Jeaneau, a neurosurgeon. Dr. Jeaneau’s testified that perhaps an alternate treatment was available to Richard that may offer her some relief. His use of “perhaps” and “may” clearly indicate mere speculation and do not reach the necessary level of a reasonable degree of medical probability that is usually indicated by use of language such as “likely” or “more probable than not.” As such, Artigue’s argument is without merit.

Therefore, it is apparent that even considering the least amount of medical care and the lowest estimated increase in medical expenses, the jury committed manifest error in only awarding Richard $555,833.00 in future medical expenses. Accordingly, we amend that portion of the judgment relating to the award of future medical expenses to reflect an amount of $637,888.00, the lowest reasonable amount the jury could have awarded given the medical testimony in the record.

Past Lost Wages:

Damages for loss of past wages are not necessarily limited to a multiplier of the amount earned at the time of injury. Folse v. Fakouri, 371 So.2d 1120 (La.1979). It can be computed on the amount the plaintiff would in all probability have been earning at the time of trial. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Callihan v. Town of Vinton, 95-665, p. 7 (La.App. 3 Cir. 12/6/95), 668 So.2d 735, 741.

Drs. Womack and Culbertson testified that Richard, had she continued to work from June of 2010 up to the date of trial, March 28, 2011, would have probably have earned $42,466.00. Thus, seemingly, the jury’s award of $10,000.00 to Richard for past lost wages is manifestly erroneous.

| ^However, as we stated above in our discussion of future lost wages, the jury was presented with evidence that stress was one cause of Richard’s inability to work. Given Richard’s testimony cited above, the jury could have reasonably found that the entirety of that stress was not directly related to the accident. As such, we affirmed the jury’s award above of an amount less that those put forth by both Drs. Womack and Culbertson as to Richard’s total future lost wages.

Here, we reach a similar conclusion. The jury could reasonably conclude that stress was a major factor that caused Richard’s inability to work after the accident and prior to the trial and that Richard’s stress was not entirely caused by the accident. Thus, it could reasonably have found that $10,000.00 was ample to compensate Richard for the past lost wages attributable to the accident. As such, we affirm the jury award for past lost wages.

General Damages:

An appellate court’s review general damage awards is to determine whether the trier of facts’ exercise of discretion was valid rather than consideration of what it considers appropriate. Cormier v. Republic Ins. Co., 11-632 (La.App. 3 Cir. 1/18/12) — So.3d —. “The standard for appellate review of general damage awards is difficult to express and is necessarily nonspecific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

Here, Richard underwent a cervical fusion after the accident. Further, she underwent a dorsal column stimulator implantation with subsequent revision.

Given the facts of this case, we cannot say that the jury’s award, while within the lower range of a reasonable amount, is abusively low. There is 1 utestimony in the record from Dr. Wyble that Richard has “definitely improved” under his care and that her pain is “under much better control.” Further, Dr. Wyble went on to testify that on her last visit Richard characterized her pain as “three (3) out of ten (10)” and that since her last visit with Dr. Wyble “her pain was better by fifty (50) to seventy-five (75) percent.”

Accordingly, we find that the jury’s award of $325,000.00 was not abusively low. As such, we affirm the award.

CONCLUSION:

Margaret Richard raised seven assignments of error. The first three have a common denominator so as to question whether the record supports a finding of fault for the automobile accident by anyone other than Harold Artigue. We find credence with this assertion. Thus, we reverse the apportionment of fault made by the jury and render that one hundred percent of the fault is attributed to Harold Artigue.

The final four assignments of error contend that the jury committed manifest error in the following awards given to her: (1) $225,000.00 for future wages lost or loss of earning capacity; (2) $555,838.00 for future medical expenses; (3) $10,000.00 in past wages lost; and (4) $325,000.00 in general damages. We affirm all awards excepting that of $555,833.00 for future medical expenses. We amend the judgment to reflect that the award for future medical expenses is $637,888.00.

REVERSED IN PART, AFFIRMED IN PART, AMENDED IN PART, AND RENDERED.