author: CHARLES R. JONES, Chief Judge.

text:
    SAM STAUB ENTERPRISES, INC. v. Dr. Emmett B. CHAPITAL, Jr., Jovita Marie Chapital, and the Chapital Cardiology Clinic, LLC.
    No. 2011-CA-1050.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 2012.

      Sean P. Early, Klotz & Early, New Orleans, LA, for Plaintiff/Appellee.
    James E. Shields, Shields & Shields, APLC, Gretna, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge MADELEINE M. LANDRIEU).
   CHARLES R. JONES, Chief Judge.

| ,The Appellants, Dr. Emmett B. Chapi-tal, Jr., Jovita Chapital and the Chapital Cardiology Clinic, LLC, seek review of the judgment of the district court holding that a valid contract did not exist between the Appellee, Sam Staub Enterprises, Inc., (“Staub”), and Dr. Chapital and Mrs. Cha-pital (“the Chapitals”), and awarding Staub $67,000 — less $17,100 in damages awarded in reconvention to the Chapitals — pursuant to the doctrine of quantum meruit or unjust enrichment. Finding that the district court did not commit manifest error in awarding damages to Staub totaling $49,900, and in not awarding further damages in reconvention to the Chapitals, we affirm the judgment of the district court. Furthermore, we deny the Answer to Appeal of Staub.

Dr. Chapital is a cardiologist and the owner of the Chapital Cardiology Clinic, LLC, which operates the clinic located in Orleans Parish. Following Hurricane Katrina, Dr. Chapital received various bids or estimates from contractors for the renovation of the clinic and for renovation of the home of the Chapitals. Dr. Chapital selected Staub to renovate the clinic. In 2005, Staub presented Dr. Chapital with a bid for the renovation of the clinic, which he accepted. The clinic was then repaired without issue. Following the renovation of the clinic, Staub |2submitted two (2) more estimates, which were related to the renovation of the home of the Chapitals. These bids were presented to Dr. Chapital for his rejection or acceptance. The Appellants allege that the acceptance of each bid represents a contract with Staub.

The second of these bids, submitted by Staub to Dr. Chapital, was a bid in the amount of $106,005.49 to renovate the home of the Chapitals. Dr. Chapital accepted the bid in December 2005. In 2006, a third bid for additional home renovations was made by Staub in the amount of $67,760, which Dr. Chapital also accepted. The Appellants aver that the acceptance of this bid represents the third contract between the parties.

From January 2006 through June 2006, Staub provided weekly invoices to Dr. Chapital, who would pay weekly by check. By June 2006, the Chapitals ceased paying the invoices maintaining that the workmanship of Staub was faulty, and that the renovations were not yet complete. Staub avers it was never advised by the Chapi-tals of the defective work. Staub continued working on the Chapitals’ home until October 2006, when Sam Staub — the owner of the construction company — determined that Staub could no longer afford to work without payment and ceased the renovations.

Staub subsequently filed suit against the Appellants for money owed for the renovation work performed. Seeking $105,768.55 in damages, including $67,000 for materials and $50.00 per hour for each man hour worked, as well as interest, costs, and reasonable attorney fees, Staub contends that the parties had a verbal agreement that the Appellants would pay for the cost of materials and labor. The Appellants filed a reconventional demand seeking damages caused by fraud, faulty construction, substandard workmanship, and delay. The district court found that a ^contract did not exist between the parties and rendered judgment in favor of Staub in the amount of $67,000 for materials, but offset that amount with a $17,100 award to the Appellants in reconvention for repair costs. Thus, the total amount awarded to Staub was $49,900. The Appellants timely filed the instant appeal, and raise seven (7) assignments of error on appeal:

1. The district court erred in finding that there were no contracts/agreements between the parties;
2. The district court erred in finding that there was no breach of contract/agreement damages due, as the Appellants claim, because there were no contracts/agreements;
3. The district court erred in ruling that Staub should be awarded $67,000.00 in quantum meruit and unjust enrichment;
4. Staub represented that he was a licensed commercial contractor to secure the three contracts. It was discovered that his representations were untruthful. Is this considered a breach of contract and can a fraudulent contractor enforce a quantum meruit claim;
5. The Appellants, in their reconven-tional demand are entitled to an award of attorney fees for breach of contract, if the court finds there were written bids/offers and acceptances;
6. The district court erred in not fully awarding monetary damages incurred by the Appellants, in reconvention, to complete the project and to correct the faulty work and poor workmanship of Staub; and
7. The Appellants, in their reconven-tional demand, are entitled to attorney fees for breach of agreement.

|4In the first assignment of error raised by the Appellants on appeal, they argue that the district court erred in finding that there were no contracts or agreements between the parties. As we previously stated, Staub formulated three estimates that the Appellants argue are “bid/offer contracts”, which were presented to Dr. Chapital for his rejection or acceptance. The Appellants further argue that after the clinic was renovated to the satisfaction of Dr. Chapital, they paid the full amount of the first bid to renovate the cardiology clinic. They contend that this method of receiving a bid and accepting it is how the parties subsequently agreed on the renovations for the home of the Chapitals.

The Appellants further argue that Staub judicially confessed that all three agreements were executed in the same manner and therefore evidence that the parties would reach an agreement based on Staub’s production of a bid for the Chapi-tals to review. The Appellants aver that they accepted all three bids/offers wherein the costs were clearly stated as well as the work description for each project.

The appellate standard of review with regard to contractual interpretations is as follows:

[wjhere factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. However, when appellate review is not premised upon any factual findings made at the trial level, but is, instead, based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. In such cases, appellate review of questions of law is whether the trial court was legally correct or legally incorrect.

New Orleans Jazz & Heritage Found., Inc. v. Kirksey, 2009-1438, p. 9 (LaApp. 4 Cir. 5/26/10), 40 So.3d 394, 401, writ denied sub nom. New Orleans Jazz & 5Heritage Found. Inc. v. Kirksey, 2010-1475 (La.10/1/10), 45 So.3d 1100 (citing Clinkscales v. Columns Rehabilitation and Retirement Center, 08-1312, p. 3 (La.App. 3 Cir. 4/01/09), 6 So.3d 1033, 1035-1036).

The existence or nonexistence of a contract is a question of fact and, accordingly, the determination of the existence of a contract is a finding of fact, not to be disturbed unless clearly wrong. Price v. Law Firm of Alex O. Lewis, III & Associates, 2004-0806, p. 3 (La.App. 4 Cir. 3/2/05), 898 So.2d 608, 610-11, writ not considered, 2005-0877 (La.5/20/05), 902 So.2d 1036 (citing Crowe v. Homesplus Manufactured Housing, 38,382, p. 9-10 (La.App. 2 Cir. 6/21/04), 877 So.2d 156, 161-162).

Noting herein that the written contract at issue between the parties was unsigned and therefore without effect, the district court found that there was no meeting of the minds between the parties on the matter of the total cost of their home renovation. The district court did not rule as to whether other or previous contracts existed between the parties; thus, the only issue before us is whether a contract existed between the parties involving the home renovation of the Chapitals. The district court explained as follows:

It was undisputed that there was no signed written contract between the parties. However, plaintiff did provide defendants with “estimates” listing work to be done, labor required, and the cost of materials and labor. (See Exhibit [sic] 1 and 2) Dr. Chapital testified that he believed these “estimates” to be the parties’ contracts. In fact, the “estimates” were sent to the Chapitals’ insurance company. Dr. Chapital further testified that he paid the weekly invoices through May 2006 believing that each of those payments would act as a draw down on the total cost of the project. In fact, the total invoices paid by defendant through May 2006 undisputably [sic] equal the “estimates”, as reflected in Exhibit 1 and 2. Plaintiff testified that this was a mere coincidence and in fact, the “estimates” meant nothing, they were created so that | ndefendants (and their insurer) would have an “idea” of what the project would cost and nothing more. It was very clear to this Court from the evidence presented that there was no meeting of the minds as to the price/cost of the project and therefore no contract. La. C.C. Art. 1927. Because there was no contract, there was no breach, and no damages shall be awarded based on a breach of contract.

Louisiana Civil Code article 1927, entitled Consent, states that “[a] contract is formed by the consent of the parties established through offer and acceptance.” Article 1927 further provides that:

Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.
Unless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the acceptance is made.

The Appellants argue that pursuant to La. C.C. art 1927, there was an offer and acceptance to constitute an agreement based on the pattern of their acceptance of the estimates of Staub. The district court determines whether “there was a meeting of the minds of the parties to constitute consent”. Worley v. Chandler, 44,047, p. 4 (La.App. 2 Cir. 3/4/09), 7 So.3d 38, 42 Cciting Hanger One MLU, Inc. v. Unopened Succession of James C Rogers, et al., 43,120 (La.App. 2 Cir. 4/16/08), 981 So.2d 175).

In the matter sub judice, we cannot say that the district court erred in finding that there was no meeting of the minds on the total cost of the project. This is especially true because while it is clear that Staub submitted estimates to the Chapitals for review, Staub argues that the estimates were just that, estimates as to cost, but not a contract. Moreover, Staub argues that the estimates neither encompassed change orders requested by Dr. Chapital, nor the full and final scope 17of work and renovations eventually requested by Dr. Chapital. Indeed, the parties did not even have a meeting of the minds as to how they allegedly agreed to the terms of the project in question. Staub argues there was a verbal agreement, while the Appellants maintain that there was an offer and acceptance based on Staub’s submission of estimates. Whereas the Chapitals aver their acceptance of estimates constituted a contract, it is clear that for Staub the estimates did not totally encompass the total cost for which it expected payment. While another trier of fact may have reached a different conclusion, we do not find that the district court erred in determining that a contract did not exist between the parties. Thus, this assignment of error is without merit.

The second assignment of error raised by the Appellants is that the district court erred in finding that there was no breach of contract/agreement damages due because there was not a contract. We pre-termit this assignment of error because the district court did not err in determining that a contract did not exist; thus, the district court did not err in determining that a breach of contract did not occur.

The third assignment of error raised by the Appellants is that the district court erred in ruling that Staub should be awarded $67,000 in quantum meruit and unjust enrichment. The Appellants argue that because a contract existed between the parties, an award of damages pursuant to quantum meruit and unjust enrichment was erroneous. They argue that pursuant to Morphy, Makofsky & Masson, Inc. v. Canal Place 2000, 538 So.2d 569, 572 (La.1989), if there is an enforceable remedy or agreement, quantum meruit cannot apply. They further argue that, under Morphy, a contract can exist without an agreement as to price. Lastly, they aver that the existence of a contract can be implied from actions | ^without words, either written or spoken, and a contract can exist without a stated compensation or price pursuant to Louisiana Civil Code Article 1811 and 1816.

As we explained above, the district court did not err in reasoning that a contract, whether written or verbal, did not exist between the parties. The district court— after considering all the evidence, testimony and law presented — made a finding of fact that there was no meeting of the minds on the issue of cost, which is the matter in dispute between these parties. Thus, because we upheld this finding, we cannot say that an award to Staub based on unjust enrichment or quantum meruit is without merit.

“Quantum meruit is an equitable remedy, based on former LSA-C.C. Article 1965, which provided that ‘no one ought to enrich himself at the expense of another,’ and on LSA-C.C. Articles 2292-2294, relating to quasi-contracts.” Coastal Timbers, Inc. v. Regard, 483 So.2d 1110, 1113 (La.App. 3 Cir.1986). Where there has been an enrichment in the absence of a contract, the law implies a promise to pay a reasonable amount- for the labor and materials furnished. Id. at 1113 (citing Swiftships, Inc. v. Burdin, 338 So.2d 1193 (La.App. 3 Cir.1976); Bordelon Motors, Inc. v. Thompson, 176 So.2d 836 (La.App. 3 Cir.1965)).

The jurisprudence of our state has allowed for contractors to recover the value of the actual cost of materials and labor, including general overhead, and a reasonable or fair profit, in the absence of a contract under the doctrine of quantum meruit. Villars v. Edwards, 412 So.2d 122, 125 (La.App. 1 Cir.1982) writ denied, 415 So.2d 945 (La.1982); Coastal Timbers, Inc. v. Regard, 483 So.2d 1110, 1113 (La.App. 3 Cir.1986); Swan v. Beaubouef, 206 So.2d 315, 317 (La.App. 4 Cir.1968); N. Dev. Co., Inc. v. McClure, 276 So.2d 395, 400 (La.App. 2 Cir.1973); 9Crescent Coat ing Co., Inc. Through Knight v. Berghman, 480 So.2d 1013, 1018 (La.App. 5 Cir. 1985).

The award of $67,000 represents the costs of materials that Staub furnished for the home renovation. We do not find that the district court erred in awarding this amount to Staub. This assignment of error is without merit.

The fourth assignment of error raised by the Appellants is that Mr. Staub misrepresented that he was a licensed commercial contractor to secure work with the Appellants. They argue that Staub should not be awarded any damages for either breach of contract or under the doctrine of quantum meruit because Mr. Staub was not licensed.

While Mr. Staub admitted in his testimony that he was not a licensed contractor when the Appellants hired him, the Appellants cite no law to support their argument that an unlicensed contractor and/or an individual who fraudulently represents themselves to be a contractor is precluded from recovering damages for unjust enrichment or quantum meruit. Indeed, the only instance where fraud will prevent an alleged contractor from recovering under the doctrine of quantum meru-it is when the alleged contractor entered into a contract with a public body. See Corbello v. Jefferson Davis Parish Police Jury, 262 So.2d 151, 152-53 (La.App. 3 Cir.1972); Marquette v. Hous. Auth. of Opelousas, 137 So.2d 374, 377-378 (La.App. 3 Cir.1962). Considering the lack of legal authority supporting the argument of the Appellants, we find that this assignment of error to be without merit.

In the fifth assignment of error raised by the Appellants, they argue that they are entitled to an award of attorney fees for breach of contract in their reconven-tional demand, should this Court find there were written bids/offers and 1 macceptances. However, we pretermit discussion of this assignment of error having affirmed the ruling of the district court that a valid contract did not exist between the parties.

The sixth assignment of error raised by the Appellants is that the district court erred in not fully awarding monetary damages incurred by them, as plaintiffs in reconvention, to complete the project and to correct the faulty work and poor workmanship. The Appellants argue that the district court improperly rejected the bids/offers, invoices, testimony, and photographs presented and submitted into evidence by the following witnesses and/or contractors:

1. Philip Luke — $4,635
2. Issue of Cabinets and Agreement— $29,555
3. Roderick Baptiste — $10,552
4. Lionel Davis — $11,540
5. Horace Bynum — $3,625
6. Alvarez Walter — $1,450
7. Broken mirror — $2,985

District courts are vested with great discretion when awarding damages. Miller v. Lammico, 07-1352, p. 28 (La.1/16/08), 973 So.2d 693, 711. “An appellate court may disturb a damages award only after an articulated analysis of the facts discloses an abuse of discretion.” Id. “It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of a particular injury to the particular plaintiff under the circumstances that the appellate court should increase or reduce the award.” Moody v. Cummings, 2009-1233, p. 3 (La.App. 4 Cir. 4/14/10), 37 So.3d 1054, 1058, writ denied, 2010-110611 (La.9/3/10), 44 So.3d 686 (citing Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993)).

Furthermore, “[w]here the factfinder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Orleans Sheet Metal Works & Roofing, Inc. v. Rabito, 2004-0359, pp. 3-4 (La.App. 4 Cir. 8/17/05), 916 So.2d 1143, 1146 (citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)). The reviewing court must always keep in mind that if a trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even if convinced that if it had been sitting as trier of fact, it would have weighed the evidence differently. Id., p. 4, 916 So.2d at 1146-1147 (citing Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990)).

In the instant matter, the Appellants, in their reconventional demand, claimed $111,466.84 in damages “to correct the unfinished construction, faulty work, and poor workmanship” of Staub. Nevertheless, the district court awarded $17,100, calculated as follows:

$2,100 — for clean-up they were charged for and paid to Staub
$2,400 — Stuccoing of areas where Staub performed defective brick work
$5,650 — paid by the Chapitals to Alex Williams to correct the defective brick work of Staub
$6,100 — paid to Ken Griffin to correct mistakes |12cause by Staub’s employees who covered vents with sheetrock and damaged ductwork in the kitchen.
$850 — for trash pick-up the Chapitals paid for to have debris left by Staub’s employees removed.
$17,100: Total

The district court lucidly articulated why it did not award more damages to the Appellants. The majority of the claims raised by the Appellants were deemed unsubstantiated by the district court. Their claims relating to Staub’s construction of cabinets; the cost of the removal of said cabinets; the purchase of pre-fabricated cabinets; and the storage costs for custom built cabinets were all denied because the district court determined that the Appellants failed to put into evidence enough information to establish that the custom-built cabinets made by Staub were defective. Recovery for broken mirrors; for repair work performed by Roderick Baptiste to correct the defective work of Staub; for electrical work; for plumbing work; and for marble and tile installation were all rejected by the district court because the Appellants did not demonstrate that the work performed was corrective of the work of Staub. Moreover, the district court further rejected other claims of the Appellants that the court did not list. Lastly, the district court declined the Appellants’ claims for the recovery of the costs of the Chapitals’ trailer utilities because (1) there was no agreement between Staub and the Appellants; (2) Staub’s failure to complete work on their home within four to five months was not unreasonable and (3) the Appellants sought recovery for a period of time when Staub was no longer working on their home.

The record and exhibits presented in the matter sub judice support the findings of the district court, the fact finder who determined that the majority of the | iSclaims of the Appellants were either -without merit or were unsubstantiated. As previously stated, while another finder of fact may have reached a different conclusion, we cannot say that the district court erred in awarding damages of $17,100 to the Appellants in reconvention. This assignment of error is without merit.

Lastly, we address the Answer to the Appeal of Staub. In its answer, Staub requests an increase in the damages awarded by the district court as well as judicial interest from the date of judicial demand, and for the costs of the appeal. Staub argues that this court should increase the damage award of the district court to the amount due under the contract at issue, which amounts to $105,768.55.

Staub requests an award increase based on a contract the district court determined does not exist. Thus, we decline to award an increase in damages to Staub pursuant to a nonexistent contract. Furthermore, the request of Staub for judicial interest from the date of judicial demand and for the costs of the appeal are also denied. The district court awarded Staub interest from the date of the judgment. The Louisiana Supreme Court has held that interest on damages for breach of contract are appropriate from the moment of an active violation of a contract. Alexander v. Burroughs Corp., 359 So.2d 607, 613 (La.1978); Thomas B. Catchings & Associates v. City of Baton Rouge, 621 So.2d 768, 768-69 (La.1993). However, because a contract did not exist between the parties, interest cannot be awarded from the date of the alleged violation. Furthermore, in matters where recovery has been allowed pursuant to quantum meruit, “legal interest should only be allowed from the date of final judgment.” N. Dev. Co., Inc. v. McClure, 276 So.2d 395, 401 (La.App. 2 Cir.1973) (citing Johnston v. Empire Gas, Inc. of Oak Grove, 268 So.2d 333 (La.App. 2 Cir.1972); Sugar Field Oil Co. v. Carter, 214 La. 586, 38 So.2d 249 (1949); Connette v. Wright, 154 La. 1081, 98 So. 674 (1923)). As recovery has been allowed under the doctrine of quantum meruit in the instant matter, the district court correctly awarded legal interest from date of final judgment.

Finally, we deny the request of Staub for costs of the appeal. For the foregoing reasons, the Answer to the Appeal is denied.

DECREE

For the foregoing reasons, the judgment of the district court is affirmed. Furthermore, the Answer to the Appeal of Staub Enterprises, Inc., is denied.

AFFIRMED; ANSWER TO APPEAL DENIED

      . Although the Chapitals list this as an assignment of error on appeal, this assignment of error is not briefed for review. This assignment of error appears to be du-plicative of assignment of error number five (5). Nevertheless, this assignment of error is deemed abandoned for lack of briefing pursuant to Uniform Rules, Louisiana Courts of Appeal, Rule 2-12.4.


source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    Tiffany DUNCAN v. Mary BARTHOLOMEW, GEICO General Insurance Company, Kim Sang, State Farm Mutual Insurance Company, Naidra Colon.
    No. 2011-CA-0855.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 2012.

      Steven C. Gill, The Gill Law Firm, LLC, Madison, MS, for PlaintiffAppellant.
    J. Roumain Peters III, W. Paul Anders-son, Leake & Andersson, L.L.P., New Orleans, LA, for Defendant/Appellee, Mary Bartholomew and Government Employees Insurance Company.
    H. James Parker, Evans & Clesi, PLC, New Orleans, LA, for Defendant/Appellee, State Farm Mutual Automobile Insurance Company.
    (Court composed of Chief Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

| T Tiffany Duncan, who was injured in a rear-end car accident, complains on appeal that, because she failed to identify one of her treating physicians as a witness on the required pre-trial disclosure, the trial judge erred in restricting her from calling the physician as a witness, from introducing his certified medical records, and from testifying about her treatment by the physician.

State Farm Mutual Automobile Insurance Company, the insurer of Naidra Colon, and Mary Bartholomew and her insurer, Government Employees Insurance Company, answered Mrs. Duncan’s appeal. They assign as error the trial judge’s denial of their motions for directed verdicts, the trial judge’s allowing the introduction of medical bills during a re-direct examination of one of Mrs. Duncan’s doctors, the jury’s assessment of mental anguish damages in the amount of $5,000, and the jury’s assessment of special damages for lost wages and future medical expenses. State Farm also complains that the trial judge allowed Mrs. Duncan to introduce the deposition of Kim Sang as substantive evidence at the trial and seeks dismissal of Mrs. Duncan’s appeal on procedural grounds.

Mrs. Duncan previously sought our supervisory review in connection with the trial judge’s rulings preventing the testimony of the unlisted treating physician li>and the introduction of his medical records. Because we apply the law-of-the-case principle to those rulings which we previously considered, and because Mrs. Duncan has not shown palpable error in those rulings, we adhere to our prior rulings and reject these complaints. With respect to the restriction on Mrs. Duncan’s own testimony about her medical treatment, we reviewed the ruling under an abuse-of-discretion standard. But, having considered Mrs. Duncan’s proffer, we find that the restriction of her testimony on this point does not affect the amount of general damages awarded to her by the jury.

We review de novo the defendants’ contention that the trial judge erroneously denied their motion for directed verdicts and conclude that the trial judge correctly denied their motions. We review for an abuse of discretion the trial judge’s allowing the introduction of medical bills during a re-direct examination of Mrs. Duncan’s doctor and conclude that the trial judge did not abuse her discretion. We review for abuse of discretion the jury’s assessment of mental anguish damages in the amount of $5,000, and for manifest error its assessment of special damages for lost wages and future medical expenses. We conclude that the jury did not abuse its discretion in its assessment of general damages for mental anguish and that its awards for the items of special damage are not clearly wrong and are reasonable.

We have also reviewed Mrs. Duncan’s request for an appeal and the order signed by the trial court. We find that Mrs. Duncan perfected a timely devolutive appeal and deny State Farm’s request to dismiss her appeal. We have also reviewed the trial judge’s ruling admitting Mr. Sang’s deposition for abuse of discretion and find no abuse.

^Because we find no reversible error, we affirm the judgment of the district court. In the Parts which follow we explain in detail the reasons for each of our holdings.

I

Before addressing each of the parties’ assignments of error, we provide some background facts and procedural developments in this case.

On the morning of April 10, 2008, Mrs. Duncan, who was a school bus driver at the time, was driving her personal vehicle on Veterans Boulevard. The three vehicles following her were driven by Ms. Colon immediately behind her, followed by Mr. Sang, and then Ms. Bartholomew. There is no question that Mrs. Duncan’s vehicle was rear-ended at least once by Ms. Colon. And there is no question that Ms. Bartholomew’s vehicle struck Mr. Sang’s from the rear and that Mr. Sang’s struck Ms. Colon’s from the rear. The jury found that all three of the following drivers were at fault in causing Mrs. Duncan’s injuries and damages.

Prior to trial, Mrs. Duncan settled her claim with Mr. Sang and his insurer and dismissed them from the lawsuit. Mrs. Duncan also settled her claim against her underinsured motorist carrier. Thus, at the time of trial Mr. Sang was no longer a party, but he had been deposed. Ms. Bartholomew and GEICO requested the issuance of a subpoena for Mr. Sang’s attendance at trial, but the sheriff was unable to effect service "on him at either of his two last known addresses.

Also, Mrs. Duncan had been unsuccessful in effecting service of citation and petition on Ms. Colon. The trial proceeded without issue having been joined with Ms. Colon, but her insurer, State Farm, had been cited and served as a party defendant under the direct action statute.

hSeveral months before the trial date, the trial judge had issued pre-trial orders which required disclosure of witnesses by a date certain. Mrs. Duncan missed the deadline date but eventually filed her list of witnesses. Her list did not identify Dr. Patrick Waring, one of her treating physicians.

II

In this Part, we explain why Mrs. Duncan’s pleading giving notice of her desire to appeal the judgment and the order which issued are sufficient to perfect her devolutive appeal.

The final judgment appellant appeals was read, rendered, and signed on November 2, 2010. The notice of signing of the judgment was issued on November 4, 2010. Neither party filed a motion for a new trial or a judgment notwithstanding the verdict. Mrs. Duncan filed her motion for an order of appeal on December 23, 2010, and the order was signed on January 4, 2011. Because Mrs. Duncan obtained an order of appeal sixty-one days after the notice of signing of judgment, and because sixty-one days is within the delay allowed for a devolutive appeal, the order granting Mrs. Duncan a devolutive appeal was timely. See La. C.C.P. art. 2121.

Ill

In this Part we explain why we conclude that the trial judge did not abuse her discretion in admitting the deposition of Mr. Sang, who was not physically present at trial. The trial judge allowed the use of Mr. Sang’s deposition because she determined that he was “unavailable.”

|s“The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds ... [tjhat the witness is unavailable.” La. C.C.P. art. 1450 A(3)(a). “The trial court has much discretion in determining whether to allow the use of deposition testimony at trial, and its decision will not be disturbed upon review in the absence of an abuse of that discretion.” Boutte v. ABC Ins. Companies, 00-0649, p. 8 (La.App. 4 Cir. 2/6/02), 811 So.2d 30, 35.

“[A] declarant is unavailable as a witness’ when the declarant cannot or will not appear in court to testify to the substance of his statement made outside of court.” La. C.E. art. 804 A. The broad definition of “unavailable” found in the Code of Evidence is limited, in part, by the fact that “[a] witness who is within the state is subject to subpoena and generally is not unavailable’ for Article 804 purposes.” Maraist, 19 La. Civ. L. Treatise, Evidence And Proof § 10.6 (2011), citing La. C.C.P. art. 1352, which provides, “A witness, whether a party or not, who resides or is employed in this state may be subpoenaed to attend a trial or hearing wherever held in this state.”

Mrs. Duncan relied on the subpoena issued by Ms. Bartholomew and GEICO, thinking that it would be an unnecessary expense to issue another subpoena after Mr. Sang had already been subpoenaed by other parties. The Code of Civil Procedure no longer prohibits such a reliance on an opposing party’s subpoena. La. C.C.P. art. 1450 A(3)(d), requiring that “the party offering the deposition has been unable to procure the attendance of the witness by subpoena,” was removed in 1990. Acts 1990, No. 134 § 1.

1 fiService was attempted on Mr. Sang multiple times; however, he was not served with a subpoena, and he was not present at trial. We have found nothing in the record to suggest that the trial judge abused her discretion in finding that Mr. Sang was “unavailable” and allowing the use of his deposition.

IV

We turn to explain why there is no legal error in the trial judge’s denial of the defendants’ motions for directed verdicts. After the close of the plaintiffs case-in-chief, and outside the presence of the jury, the defendants argued that the plaintiffs case should be dismissed because she failed to prove: 1) who was at fault for the underlying accident; 2) who was driving the vehicle behind Mrs. Duncan’s; and 3) which insurance companies insured which defendants. La. C.C.P. art. 1810, which governs directed verdicts, provides in part:

A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made.

A trial judge has much discretion in determining whether or not to grant a motion for directed verdict. Lott v. Lebon, 96-1328, p. 4 (La.App. 4 Cir. 1/15/97), 687 So.2d 612, 615. The question to be asked by the court is not whether mover proved its case by a preponderance of the evidence, but rather, upon reviewing the evidence submitted, the court could conclude that reasonable persons could not have reached a verdict in favor of the mover’s opponent. Descant v. Administrators of Tulane Educ. Fund, 95-2127, p. 14 (La.App. 4 Cir. 1/21/98), 706 So.2d 618, 627. The jurisprudence provides, however, that “when a | defendant, rather than rest upon its motion for directed verdict, introduces evidence after the denial of that motion, the defendant is deemed to have abandoned the motion and the evidence in the case is judged on the entirety of the record.” Jackson v. Quick, 543 So.2d 552, 554 (La.App. 4 Cir.1989); Maraist and Lemmon, 1 La. Civ. L. Treatise, Civil Procedure § 11:8 (1999). Here, the record shows that the defendants did not elect to rest on their motions, but exercised their rights to present evidence after their motions were denied. Thus, we deem as abandoned the defendants’ motions for directed verdicts and the issue is not preserved for appellate review.

V

In this Part, we consider the defendants’ remaining assignment of error addressed to the trial judge’s ruling which allowed the introduction of Mrs. Duncan’s medical expenses during her re-direct examination. The defendants argue that the medical bills from Dr. Haydel were not mentioned during cross-examination and should not have been allowed into evidence on re-direct.

“A witness who has been cross-examined is subject to redirect examination as to matters covered on cross-examination and, in the discretion of the court, as to other matters in the case.” La. C.E. art. 611 D. “When the court has allowed a party to bring out new matter on redirect, the other parties shall be provided an opportunity to recross on such matters.” Id.

The judge ultimately overruled the defendants’ objection, finding that the defense counsel had raised the issue on cross-examination by asking how many visits Mrs. Duncan had made to the chiropractor, which information was 1 sdiscernable from the medical bills. The defendants also asked on cross-examination how frequently Mrs. Duncan visited the chiropractor during specific months, which chiropractor saw Mrs. Duncan on specific dates, and which chiropractor wrote Mrs. Duncan’s medical reports on which dates. Although the medical bills showed the charges for medical services, the bills also showed the timing and frequency of Mrs. Duncan’s visits, which were the subject of the cross-examination.

The trial judge acted within her discretion when she allowed the evidence. See La. C.E. art. 611 D. Accepting, for the sake of argument, that the monetary amount charged for each visit was a separate matter in the case, it was still proper for the judge to allow the introduction of the evidence, provided that “the other parties [were] provided an opportunity to recross on such matters.” Id. The defendant’s contention, therefore, would be more properly described as a denial of their remedy of an opportunity to recross-examine the witness after the plaintiff has introduced new evidence on her re-direct-examination.

“It is generally stated that the matter of permitting recross-examination is in the sound discretion of the trial judge and in the absence of some showing of an abuse of that discretion, and resulting prejudice, his ruling will not be disturbed on appeal.” State v. Cordier, 297 So.2d 181, 184 (La.1974). The defendants, therefore, would need to show both an abuse of discretion and resulting prejudice. The defendants did not request to recross-examine the witness after the judge overruled their objection to the introduction of Mrs. Duncan’s medical bills. Because the defendants did not request to recross-examine Dr. Haydel or assert any actual prejudice resulting from their lack of a recross-examination, we find the defendants have not met their burden of proving the trial judge’s error.

JlVI

In this final Part, we review the defendants’ assignments of error related first to the jury’s assessment of general damages for mental anguish and second to the assessment of special damages for lost wages and future medical expenses. General damages are those which “may not be fixed with pecuniary exactitude.” Guillory v. Lee, 09-0075, p. 14 (La.6/26/09), 16 So.3d 1104, 1117. “Special damages are those which have a ready market value,’ such that the amount of damages theoretically may be determined with relative certainty, including medical expenses and lost wages.” Id. at p. 16, 16 So.3d at 1118. “In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” La. Civil Code art. 2324.1.

A

The standard of review for an award of mental anguish is abuse of discretion when the damages for mental anguish accompany an award compensating physical injury. Wilson v. Magee, 367 So.2d 314, 316 (La.1979). In Wilson the Supreme Court reversed the appellate court’s decision, which reduced the award of general damages from $50,000 to $20,000, and reinstated the trial court’s award, holding “that there was no abuse of the much discretion’ vested in the jury when it awarded Ms. Wilson $50,000 in general damages.” The general damages in Wilson compensated Ms. Wilson for “past, present and future pain, suffering, mental anguish, permanent disfigurement and future disability.” Id. at 315. Mrs. Duncan’s award for mental anguish, likewise, accompanies physical injury.

The trial court’s practice of listing physical pain and mental anguish as separate entries on an interrogatory to the jury does not transform the damages for mental anguish from general to special damages such that the “much discretion” | mthat “must be left to the judge or jury” should be taken away. See La. Civil Code art. 2324.1. In determining whether the trier of fact has abused its discretion, an appellate court looks at all categories of general damages together to determine whether, in toto, they are insufficient or excessive. See Flemings v. State, 07-1290, p. 19 (La.App. 4 Cir. 8/26/09), 19 So.3d 1220, 1232 (finding that an award for general damages was not excessive where particular elements of the award for general damages were challenged for excessiveness, but the excessiveness of the total award for general damages was not challenged).

The burden for proving mental anguish varies according to whether the plaintiff is seeking damages for physical injuries as well as mental anguish or for mental anguish alone.

If a plaintiff seeks damages for mental anguish alone, that is, without physical injury, he has a much more onerous burden to meet. The “general rule followed by the great majority of jurisdictions” is that “if the defendant’s conduct is merely negligent and causes only mental disturbance, without accompanying physical injury, illness or other physical consequences, the defendant is not liable for such emotional disturbance.” Moresi v. State, Through Dept. of Wildlife and Fisheries, 567 So.2d 1081, 1095 (La.1990). Louisiana, however, has allowed deviations from the above “general rule,” and all of these deviations “have in common the especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious.” Id. at 1096. Some examples of events for which an award for mental distress has been awarded without the presence physical injury are the mishandling of corpses, negligent transmission of a death announcement, and great fear for one’s personal safety. Id.

|, |“When a defendant’s negligent conduct causes the victim physical injury as well as emotional distress, the damages resulting from the negligent infliction of emotional distress have traditionally been recoverable, as in a wrongful death action or any typical personal injury action.” Crawford, 12 La. Civ. L. Treatise, Tort Law § 28:3 (2d ed.). When physical injuries are present, “[t]o succeed in a claim for negligent infliction of emotional distress, a claimant must show that (1) the defendant’s conduct is negligent and (2) such conduct caused mental disturbance accompanied by physical injury, illness, or other physical consequences.” Barringer v. Robertson, unpub., 07-0802 (La.App. 1 Cir. 10/31/08), 2008 WL 4763539, citing Moresi, at 1095.

The cases cited by State Farm in support of its position that Mrs. Duncan has not presented competent evidence all involve cases in which the plaintiff suffered no physical injury. State Farm cites cases involving “seismic trespass,” property damage, and damage to one’s credit rating. Ms. Bartholomew and GEICO do not cite any statute or cases in them brief in support of their position; they assert simply that there was no evidence in support of the award.

Mrs. Duncan did not testify at great length about her mental disturbance; however, because her mental anguish accompanies physical injury, her burden at trial is much less onerous than that alleged by the defendants. Mrs. Duncan testified that she was unable to play with or to take care of her children on account of her injury. A jury could reasonably accept that Mrs. Duncan’s inability to interact with her children caused her mental disturbance. Mrs. Duncan need only | |2show that the defendants’ conduct was negligent and that her mental anguish accompanied physical injury.

In reviewing Mrs. Duncan’s award for mental anguish, we do not look at the excessiveness of the $5,000 award for mental anguish; we look at the exces-siveness of the total award for general damages, which is $55,000. In light of the injuries sustained by Mrs. Duncan and the “much discretion” of the jury in determining an appropriate monetary compensation, we find that the award of general damages is not excessive.

B

In this subpart we will discuss the special damages of past lost wages and future medical expenses and explain why we uphold the jury’s award of these special damages to Mrs. Duncan.

Review over an award of special damages requires a two-part analysis: “There must be no reasonable factual basis for the trial court’s conclusions, and the finding must be clearly wrong.” Kaiser v. Hardin, 06-2092, p. 12 (La. 4/11 /07), 953 So.2d 802, 810. We may modify an award of special damages only when there is “no reasonable factual basis for the trial court’s conclusions.” Id. at 810. As we will discuss, the trial court’s factual determination was reasonable and not “clearly wrong.”

Mrs. Duncan was awarded $2,500 for past lost wages. The defendants contend that Mrs. Duncan should not have been compensated for past lost wages because she has not presented evidence of what she would have made had she not been injured. The defendants attempted to prove that Mrs. Duncan’s injury did not cause her to leave her job driving a school bus at First Student but, instead, that she left her job because her personal schedule conflicted with her work schedule. The | ^.defendants presented evidence that Mrs. Duncan had told her supervisors at First Student that she could no longer continue driving her route because she needed to be home to meet her children at 4:00 p.m., and her current route brought her home too late. Mrs. Duncan disputed this assertion in her own testimony, wherein she stated that she left her job at First Student because her injuries made driving a school bus physically too painful to continue working there.

When witnesses have presented factually different scenarios, “a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error’ or unless it is clearly wrong.’ ” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). “[A]nd where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Id. We do not overturn the jury’s reasonable credibility determination.

The defendants’ assertion that Mrs. Duncan has not shown what she would have made had she not been injured is also insufficient to defeat the award for past lost wages because the jury heard testimony at trial concerning Mrs. Duncan’s wages received from both of her employers. Mrs. Duncan was earning a minimum of $555 per week as a bus driver for First Student. Mrs. Duncan was unemployed for just over five months after leaving First Student and before starting her job at Lowe’s. During that period alone, Mrs. Duncan could have earned well over $10,000. Mrs. Duncan has also been on leave from her job at Lowe’s from June 1, 2010 through the date of her testimony at trial, September 21, 2010. Mrs. Duncan earned roughly $434 per week working at Lowe’s.

|14We find that there was a reasonable basis for Mrs. Duncan’s award of $2,500 for past lost wages, and the award was not clearly wrong.

We next turn to Mrs. Duncan’s award of future medical expenses.

Mrs. Duncan was awarded $20,000 for past and future medical expenses. The jury did not specify how much of that $20,000 was compensation for past medical expenses and how much was compensation for future medical expenses. The record, however, shows that Mrs. Duncan incurred $9,298 in medical expenses from Dr. Kennedy, Dr. Haydel, and Dr. Shamsnia. The record does not contain the medical bills from Dr. Waring or Dr. Vogel.

Regarding Mrs. Duncan’s award for future medical expenses, Dr. Kennedy, one of the chiropractors treating Mrs. Duncan, testified that during the course of his treating her, which spanned over one year, Mrs. Duncan had made only a mild recovery. Dr. Kennedy anticipated that he would be able to provide her only temporary relief in the future and that Mrs. Duncan would likely need to see a neurosurgeon for permanent improvement. Dr. Vogel, Mrs. Duncan’s treating neurosurgeon, testified that he was at a “differential diagnosis stage,” meaning that he had narrowed the source of Mrs. Duncan’s pain to one of two possible problems, but he could not assess specifically what treatment Mrs. Duncan would require in the future because he did not know what the problem was. Dr. Vogel stated that Mrs. Duncan would need to undergo a CAT scan before he can make his final diagnosis.

The jury heard clear expert testimony at trial that Mrs. Duncan will incur future medical expenses, so the jury had a reasonable factual basis for an award. And we do not find that the jury was clearly wrong in its award.

JofiVII

In this Part, we address Mrs. Duncan’s assignments of error. Mrs. Duncan first argues that the trial court erred when it excluded Dr. Waring from testifying at trial and prohibited Mrs. Duncan from introducing Dr. Waring’s medical records into evidence. Mrs. Duncan unsuccessfully sought interlocutory review of these rulings and asks this Court to revisit these issues. Mrs. Duncan further argues that the trial court erred when it disallowed her testimony concerning Dr. Waring’s treatment. Because we apply two separate standards of review to her three related assignments, we will first address the two rulings which were the subject of prior applications for our supervisory review and then address the ruling pertaining to Mrs. Duncan’s proffered testimony about her treatment by Dr. Waring.

A

Mrs. Duncan initially asks this Court to revisit those pre-trial rulings that excluded Dr. Waring’s testimony and records from evidence. As noted, these rulings were the subject of three writ applications to this Court. In her first application for interlocutory writs, Mrs. Duncan sought review of the trial court’s ruling that granted the defendant’s motion in limine and excluded the testimony of Dr. Waring from trial. Tiffany Duncan v. Mary Bartholomew, et al., unpub., 10-1310 (La.App. 4 Cir. 9/17/10). Specifically, the trial court set a June 21, 2010, deadline for the exchange of witnesses and exhibits. Plaintiffs counsel failed to produce Mrs. Duncan’s witness and exhibit lists by the foregoing date. State Farm filed a motion in limine to exclude all of the plaintiffs witnesses and exhibits from trial. On August 19, 2010, the trial court granted State Farm’s motion and excluded Mrs. Duncan’s witnesses and exhibits. Mrs. Duncan filed a motion for new trial, wherein she argued that exclusion of all witnesses and exhibits was [ 1fiunduly harsh given that Dr. Waring was the only witness unknown to the defendants at the time the witness and exhibit list was initially due. The trial court subsequently vacated its prior ruling, and, on September 19, 2010, granted State Farm’s motion with respect to Dr. Waring only.

Mrs. Duncan subsequently sought timely emergency relief from this Court, which denied the writ application and held, “We find no abuse of discretion by the trial court.” Tiffany Duncan v. Mary Bartholomew, et al., unpub., 10-1310 (La.App. 4 Cir. 9/17/10).

In her second application for interlocutory relief, Mrs. Duncan sought review of the trial court’s judgment that excluded Dr. Waring’s medical records from evidence and prohibited other witnesses from discussing Dr. Waring’s treatment of Mrs. Duncan. Tiffany Duncan v. Mary Bartholomew, et al., unpub., 10-1323 (La.App. 4 Cir. 9/22/10). Specifically, Mrs. Duncan asserted that the defendants improperly filed a motion in limine on the morning of trial that sought the exclusion of Dr. Waring’s records and all testimony concerning Dr. Waring’s treatment from other witnesses. The trial court granted the motion and Mrs. Duncan sought interlocutory review of the exclusion. This Court, however, declined on September 22, 2010, to exercise its supervisory jurisdiction because the plaintiffs writ was deficient for failing to follow Rules 4-2, 4-3, and 4-5 of the Uniform Rules, Courts of Appeal.

Mrs. Duncan subsequently re-filed her writ application on September 23, 2010, in conformity with the Uniform Rules. Tiffany Duncan v. Mary Bartholomew, et al., unpub., 10-1333 (La.App. 4 Cir. 9/24/10). Citing to La. R.S. 13:3714, concerning the admissibility of certain types of certified medical records, this Court granted writs and reversed that portion of the trial court’s ruling that 117excluded Dr. Waring’s records from evidence. The defendants applied for a rehearing, arguing that the issue was not whether the trial court erred in excluding certified medical records, but whether the trial court erred in excluding the records of a witness who was excluded from testifying because Mrs. Duncan failed to timely list him as a witness. This Court granted the defendants’ request for a rehearing, recalled its prior ruling, and denied writs, noting that the “trial court did not err by excluding the medical records.” Tiffany Duncan v. Mary Bartholomew, et al., unpub., 10-1333 (La.App. 4 Cir. 9/24/10).

On Appeal, Mrs. Duncan asks this Court to revisit our own rulings and the trial court’s actions and find that the trial court erred when it excluded Dr. Waring’s testimony and records from evidence. Under the law-of-the case doctrine, our prior rulings on Mrs. Duncan’s interlocutory writ has conclusive effects on subsequent proceedings.

The law-of-the-case doctrine is discretionary. Lejano v. Bandak, 97-0388 (La.12/12/97), 705 So.2d 158. The law-of-the-case doctrine or principle refers to (a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate court rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case. Scott v. American Tobacco Co., Inc., 09-0461, p. 4 (La.App. 4 Cir. 4/23/10), 36 So.3d 1046, 1050.

This doctrine “may bar redetermi-nation of a question of law or a mixed question of law and fact during the course of a judicial proceeding.” Maraist and Lemmon, 1 La. Civ. L. Treatise, Civil Procedure § 6:7 (1999); Bank One, N.A. v. Velten, 04-2001, pp. 5-6 (La.App. 4 Cir. 8/17/05), 917 So.2d 454, 458. The law-of-the-case doctrine, rather than res judicata, is the proper legal principle for | ^describing the relationship between prior judgments by trial and appellate courts rendered within the same case. Bank One, 04-2001, p. 6, 917 So.2d at 458-459.

The policy reasons behind this doctrine include avoidance of re-litigation of an issue, consistency of result in the same litigation, and promotion of efficiency and fairness to the parties “by affording a single opportunity for the argument and decision of the matter at issue.” First Bank and Trust v. Duwell, 11-0104, p. 5 (La.App. 4 Cir. 5/18/11), 70 So.3d 15, 19.

While the law-of-the-case doctrine as a general rule precludes reconsideration of a court’s previous determination of an issue on a prior appeal, the doctrine is inapplicable in cases of palpable error or where manifest injustice would occur. Keaty v. Raspanti, 96-2839, p. 4 (La.App. 4 Cir. 5/28/97), 695 So.2d 1085, 1087. That is, we have the discretion to ignore the law-of-the-case doctrine if on subsequent appeal or review the prior ruling is revealed to constitute palpable error. First Bank and Trust, 11-0104, p. 5, 70 So.3d at 19. Put differently, reconsideration of a previously decided issue “is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results.” State v. Davis, 03-488, p. 6 (La.App. 5 Cir. 11/12/03), 861 So.2d 638, 641 n. 2. See also Hutchison v. Murphy Oil USA, Inc., 04-2648, p. 1 n. 2 (La.1/14/05), 892 So.2d 569, 570 (Calogero, C.J., 119concurring in the denial of certiorari) (“This doctrine, however, should apply only when the issue has been fully and properly considered.”).

In matters of discovery, such as whether a witness has been listed in a timely manner, decisions of the trial court should not be disturbed in the absence of an abuse of discretion. Harwell v. Haspel-Kansas Investments Partnership, 598 So.2d 1284 (La.App. 4 Cir. 4/30/92). Specifically, where a pre-trial order has not been complied with, as is the case here, it is within the trial court’s discretion to disallow witnesses, expert or not, from testifying. St. John Baptist Church of Phoenix v. Thomas, 08-0687, p. 10 (La.App. 4 Cir. 12/3/08), 1 So.3d 618, 625. Our review of the record convinces us that Mrs. Duncan has not shown palpable error in our earlier decisions or an abuse of discretion in the trial court’s rulings.

B

In her final assignment of error, Mrs. Duncan asserts that the trial court erred when it refused to allow her to testify about Dr. Waring’s medical treatment and asks this Court to accept her own proffered trial testimony concerning Dr. Waring’s treatment. The ruling at issue stems from the trial court’s actions with respect to the motion in limine filed by defendants on the morning of trial. With regard to admission of evidence at trial, a trial court is allowed great discretion, and determinations to admit or exclude evidence will not be reversed on appeal absent an abuse of that wide discretion. Munch v. Backer, 10-1544, p. 3 (La.App. 4 Cir. 3/23/11), 63 So.3d 181, 185. We have reviewed the plaintiffs proffered testimony under an abuse-of-discretion standard. We agree with Mrs. Duncan that the trial court erred when it prohibited her from discussing her treatment by Dr. Waring. In her proffer she testified about receiving three injections in her back, which she described as painful. Having considered Mrs. Duncan’s proffer, we 12(|find, however, that the restriction of her testimony on this point does not affect the amount of general damages awarded to her by the jury. Accordingly, this assignment of error lacks merit.

CONCLUSION

Finding no reversible error, we affirm the judgment of the district court. We have examined those assignments of error raised by the defendants in their answer to Mrs. Duncan’s appeal, and find them mer-itless. After reviewing the record, we con-elude that Mrs. Duncan perfected a timely devolutive appeal and deny State Farm’s request to dismiss her appeal. We also find that the trial court did not abuse its discretion when it admitted Mr. Sang’s deposition into evidence, or allowed the introduction of medical bills into evidence during Mrs. Duncan’s redirect examination. We further conclude that the jury did not abuse its discretion in its award of mental anguish damages or commit manifest error in its reasonable award of special damages for lost wages and future medical expenses.

With respect to Mrs. Duncan’s specific assignments of error, we have examined the trial court’s exclusion of Dr. Waring’s testimony and records from trial, applied the law-of-the-case doctrine, and find no abuse of discretion in the trial court’s actions or palpable error in this Court’s subsequent rulings. We have also reviewed the trial court’s ruling that prohibited Mrs. Duncan from testifying about her treatment with Dr. Waring. While we find that the trial court’s limitation on Mrs. Duncan’s testimony was an abuse of discretion, our review of the record indicates that the restriction of Mrs. Duncan’s testimony on this point does not affect the amount of general damages awarded to her by the jury-

I ⅞1 DECREE

The judgment of the district court in favor of Tiffany Duncan and against the defendants, State Farm Mutual Automobile Insurance Company, and Mary Bartholomew and her insurer, Government Employees Insurance Company, is affirmed. Each party to bear its own costs on appeal. See La. C.C.P. art. 2164.

AFFIRMED

      . The actual title of Mrs. Duncan’s motion was “Notice of Intention to File Devolutive Appeal”; however, the substance of the motion was sufficient to perfect a devolutive appeal. “An order of appeal may be granted on oral motion in open court, on written motion, or on petition.” La. C.C.P. art. 2121. "Louisiana law expressly provides that ‘[n]o technical forms of pleading are required,’ and that '[ejvery pleading shall be so construed as to do substantial justice.’ La.Code Civ. Proc. arts. 854, 865. Accordingly, it is the substance rather than the caption of a pleading that determines its effect.” Brown v. Harrel, 98-2931, p. 4 (La.App. 4 Cir. 8/23/00), 774 So.2d 225, 228.

      . Initially, we note that although the defendants moved for an involuntary dismissal pursuant to La. C.C.P. art. 1672, La. C.C.P. art. 1810 provides the basis for a directed verdict at the close of an opposing party’s case in an action tried before a jury. Nevertheless, that error is one of form rather than substance, as the ultimate object of both motions is the same. See Tate v. Tate, 09-2034, pp. 3-4 (La.App. 1 Cir. 6/11/10), 42 So.3d 439, 442.

      . The unpublished opinions of the supreme court and the courts of appeal may be cited as authority. La. C.C.P. art. 2168.

      . The jurisprudence reveals scant instances of palpable error. See Wascom v. American Indemnity Corp., 383 So.2d 1037 (La.App. 1 Cir. 1980), wherein the court of appeal declined to apply the law of the case doctrine to bar reargument of an issue on a principal that had been subsequently reversed in another case; Moncrief v. Panepinto, 540 So.2d 1304 (La.App. 5 Cir. 1989), where the court held that the doctrine did not require a trial court to adhere to a ruling of the court of appeal when that ruling was subsequently overruled by the Supreme Court; Vincent v. Ray Brandt Dodge, 94-291 (La.App. 5 Cir. 3/1/95), 652 So.2d 84, where the court of appeal disregarded a prior writ denial on the issue, and held that it was palpable error for a trial court to strike a jury on the morning of trial; Tamporello v. State Farm Mut. Auto. Ins. Co., 95-458 (La.App. 5 Cir. 11/15/95), 665 So.2d 503which involved an issue similar to the one addressed in Vincent; and Balashov v. Baltic Shipping Co., 96-1129 (La.App. 4 Cir. 1/22/97), 687 So.2d 1101, where this Court, after additional analysis, concluded on appeal that a prior writ denial, on whether La. R.S. 13:3485 required a foreign corporation to register with the Secretary of State, was palpable error.


author: STEWART, J.

text:
    Cecil Thomas JANWAY, Jr. and Rosalyn Janway, Plaintiffs-Appellants v. Matthew Brian JONES, Defendant-Appellee.
    No. 47,203-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 30, 2012.

      C. Bryan Racer, Monroe, LA, for Appellants.
    Laurie J. Burkett, for Appellee.
    Before BROWN, STEWART and GASKINS, JJ.
   STEWART, J.

11 Cecil “Tom” Janway, Jr., and Rosalyn Janway (hereinafter referred to as “the Janways” or “Tom” and/or “Rosalyn”) are appealing a trial court judgment granting Matthew Brian Jones’ (hereinafter referred to as “Matthew”) motion for involuntary dismissal and denying their motion for visitation. For the reasons expressed, we affirm the judgment.

FACTS

The Janways’ daughter, Wendi Janway Jones (hereinafter referred to as “Wendi”), married Matthew on November 30, 2002. Soon thereafter, the couple moved to Houston, Texas. In January 2004, Wendi, who was born with Common Variable Immune Deficiency, moved back to her parents’ home in Monroe, Louisiana, to recover from a medical procedure. Matthew later relocated to Monroe in August 2004.

On August 2, 2006, Wendi gave birth to them daughter, Z.J. Soon after the birth, Wendi suffered from complications, and had to return to the hospital for approximately two weeks. Wendi’s health continued to decline, and Tom, Rosalyn, and Matthew shared the responsibility of caring for Z.J.

Matthew, Wendi, and Z.J. moved out of the Janways’ home when Z.J. was approximately 11 months old. Wendi primarily cared for the child, but Rosalyn assisted Wendi in Z.J.’s care when Wendi was ill.

On October 9, 2009, Wendi died of complications from her disease. After her death, Z.J. stayed with the Janways for approximately four to six weeks. She then moved back in with Matthew, but the Jan-ways continued to care for her during the day while Matthew was at work. In August 2010, Z.J. began attending day school at the First United Methodist Church in I^Monroe from 8:30 a.m. to 11:30 a.m. Rosalyn assumed the responsibility of picking her up from day school, and caring for her until Matthew got off work.

In September 2010, Rosalyn made the decision to leave Z.J. after school, without consulting Matthew, so that she could participate in “lunch bunch,” an afternoon childcare program. After this incident, Matthew met with the Janways to inform them that he should be consulted before any changes in Z.J.’s schedule were made. At this meeting, he also requested that Rosalyn refrain from talking about him or his family in Z.J.’s presence. Even though Matthew was upset that Rosalyn did not inform him of Z.J.’s participation in this afternoon childcare program, he chose to continue to bring her to the Janways’ home daily.

In November 2010, Z.J. informed the Janways that Matthew was dating a woman named “Leanne.” Concerned, they called a meeting with him to discuss Z.J.’s exposure to overnight guests of the opposite sex. They also suggested that he spend more time with his daughter. Following this meeting, Rosalyn began informing friends and neighbors that Matthew was dating and “shacking up” with “Leanne.”

In December 2010, Rosalyn planned a cruise for her, Tom and Z.J. Matthew asserts that he was not consulted while this vacation was planned. However, he did allow Z.J. to go. When they returned from the trip, Matthew was not contacted for several hours to let him know they were home. Later that month, Rosalyn asked Matthew if her sister could stay at his home during the New Year’s holiday. Matthew, who was going to be |3out of town for the holiday, agreed. He left the front door unlocked and left a key inside the house for Rosalyn’s sister to use. When Rosalyn went to Matthew’s house with her sister, she became upset when she discovered that Matthew had changed the locks. She also took property from the home, including a Patagonia blanket, cookbooks, T-shirts, jackets, and a picture of Matthew and Wendi. After discovering that these items were missing, Matthew contacted the Janways to inform them that he was coming to their home to retrieve Z.J.’s backpack and birth certificate. He also told them that they would “no longer have influence on Z.J.” Rosalyn then demanded to pick up her furniture from Matthew’s house.

Soon thereafter, Rosalyn emailed Z.J.’s teacher, making derogatory statements about Matthew. Rosalyn called Matthew’s place of employment, the Department of Transportation and Development, in an attempt to have him terminated. She contacted the Executive Board of the Department of Transportation and Development to inform them that he was “dating a contractor,” and that her husband wanted to know if that was a conflict of interest. Rosalyn admitted that she knew that Matthew could lose his job when she made these phone calls. Tom admitted that pri- or to Rosalyn making the call, he thought that if Matthew lost his job, he could not support his daughter.

As a result of Tom and Rosalyn’s actions, Matthew discontinued all visitations between Z.J., Tom and Rosalyn in January 2011.

On January 11, 2011, Tom and Rosalyn filed a Petition for Grandparent Visitation. On January 18, 2011, Tom and Rosalyn went to | .¡Matthew’s house unannounced. They also began attending Z.J.’s gymnastics and dance classes, without Matthew’s consent. When Matthew changed the date of her gymnastics class, Rosalyn contacted the gymnastics studio to ask for the new day and time. When Rosalyn learned that Z.J. was playing soccer, she contacted the soccer organization to find out what team Z.J. was on and the time of her games. After these events and many others occurred, Matthew sought and obtained a Temporary Restraining Order prohibiting Tom and Rosalyn from coming in contact with Z.J. or himself.

After Matthew obtained the restraining order, Tom and Rosalyn filed a Rule seeking the legal and physical custody of Z.J., contending that she would suffer substantial harm by residing with Matthew.

The hearing regarding the Janways’ petition commenced on April 13, 2011. At the close of the Janways’ case, counsel for Matthew moved for an involuntary dismissal. The trial court found that visitation would not be in the best interest of the child and denied the Janways’ motion for visitation. Matthew’s motion for involuntary dismissal was granted. The trial court also dismissed the Janways’ rule for custody. The Janways appeal.

LAW

Involuntary Dismissal

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 fact and law the plaintiff has shown no right to relief. La. C.C.P. art. 1672(B). A motion [Bfor involuntary dismissal requires the trial court to evaluate all the evidence presented by the plaintiff and render a decision based upon a preponderance of the evidence. Chandler v. Chandler, 45,308 (La.App. 2 Cir. 5/19/10), 37 So.3d 569; Gray v. Monroe, 41,087 (La.App. 2 Cir. 5/17/06), 930 So.2d 1148. When a party fails to carry his burden of proof there is no necessity for the opposing party to rebut insufficient evidence. Humphrey v. Humphrey, 614 So.2d 837 (La.App. 2 Cir.1993). The appellate court should not reverse an involuntary dismissal in the absence of manifest error, and there is no manifest error if there is a reasonable factual basis for the finding of the trial court. Gray, supra.

Visitation

La. R.S. 9:344(A) states:

A. If one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child or children of the marriage, the parents of the deceased, interdicted, or incarcerated party without custody of such minor child or children may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation would be in the best interest of the child or children.

La. C.C. art. 136(B) states:

B. Under extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or step grandparent, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. In determining the best interest of the child, the court' shall consider:
(1) The length and quality of the prior relationship between the child and the relative.
(2) Whether the child is in need of guidance, enlightenment, tutelage which can best be provided by the relative.
|fi(3) The preference of the child if he is determined to be of sufficient maturity to express a preference.
(4) The willingness of the relative to encourage a close relationship between the child and his parent or parents.
(5) The mental and physical health of the child and the relative.

The burden is on the mover, the relative, to demonstrate that extraordinary circumstances exist and that the visitation is in the child’s best interests. State in Interest of D.E., 46,644 (La.App. 2 Cir. 10/12/11), 2011 WL 4839108; Lindsey v. House, 29,790 (La.App. 2 Cir. 9/24/97), 699 So.2d 1190.

The general rule established in La. C.C. art. 136 requires a relative, by either blood or affinity, to show not only extraordinary circumstances which support a granting of visitation rights, but also that visitation is in the best interest of the child. Lindsey, supra. The legislature, through La. R.S. 9:344, made it less difficult for a parent of the noncustodial parent to obtain visitation with grandchildren in two situations, i.e., when the noncustodial parent is either dead or interdicted. Id. In these two situations, the grandparent does not have to show extraordinary circumstances, but only that visitation is in the best interest of the child. Id.

Since the noncustodial parent is deceased in the present case, we conclude that the application of La. R.S. 9:344 is appropriate. Therefore, the Janways have to prove that visitation is in Z.J.’s best interest.

DISCUSSION

In the Janways’ first assignment of error, they assert that the trial court erred in granting Matthew’s motion for involuntary dismissal, which |7denied Tom visitation with Z.J. They further believe that since no evidence suggests that Tom was detrimental to Z.J.’s well-being, the trial court’s judgment should be reversed. In their second assignment of error, the Jan-ways argue that the trial court erred in granting Matthew’s motion for involuntary dismissal, which denied Rosalyn visitation with Z.J. Since the Janways discuss these two assignments of error together in their appellate brief, we will address them simultaneously in this opinion as well.

With respect to Tom, the Janways argue that the trial court failed to conduct any analysis pursuant to La. C.C. art. 134, and that “each and every factor weighs in favor of visitation.” As we determined in the previous section of this opinion, the applicable law to this case is La. R.S. 9:344. The proper analysis for this statute is whether visitation would be in the best interest of the child.

Even though Tom did not make negative comments about Matthew to other people like Rosalyn did, Tom did testify that he “saw nothing wrong” with Rosalyn’s actions. Additionally, Tom testified that he instructed Rosalyn to call Matthew’s job, so that she could report that he was dating Leanne, who was a project manager on a job for which Matthew was a project engineer. Tom admitted that at the time, “it crossed his mind that if Matt lost his job he’d have no way to support his daughter.” Based on the record, it appears that Tom was aware of Rosalyn’s behavior, and at times participated in some of her sinister actions. The evidence sufficiently supports the trial court’s decision to deny Tom’s visitation rights.

IsThe Janways believe that Rosalyn’s comments to third parties other than Z.J. do not justify denial of visitation. The Janways concede that Rosalyn may have made some negative comments about Matthew, but since they were not made in Z.J.’s presence, they could not serve as a basis for denying visitation. They argue that no evidence suggests that Rosalyn undermined Z.J.’s relationship with Matthew. The record indicates otherwise.

The record contains an e-mail that Rosalyn sent, via Facebook, to Z.J.’s day school teacher, Ms. Johnette Masters:

Has Matt signed Z.J. to stay all day at school? ? He has this new girlfriend and knows we don’t approve ... It’s really nasty since we got back from cruise ... my sister and fly were to stay at his and Wendi’s house this weekend and he told Wendi I had a key to get in...., when we go there the locks were had all been changed he left the front door open and left her a new key we went in and condoms were on the bed side table house was filthy Wendi wouldn’t stay.... I called him in B.C. where he is shacking up with girlfriend at camp and dumped Z.J. at parents!!! His only answer was “you don’t have. Any business in my house” well considering I put 10,000 down on the house and bought every piece of furniture, etc ... in it! I thought on no you didn’t want me to walk in on you and wt and Z.J. in other bedroom!!! So I don’t know what else he has pulled.... I pray God will intervene for Z.J.’s well being ... she has lost her mama and doesn’t understand that ... now this other woman taking what little attention he did give her ... and if he try’s to take us out of her life ... I am the only mother figure she knows ... we have a bond she doesn’t understand!!!! Think about it he doesn’t care!!!! Thinking with the little head and not big one!!! (verbatim)

Additionally, Rosalyn left a voicemail for Cynthia Gibson, an acquaintance of Matthew and the Janways, on her cell phone after she learned that she gave a deposition in this matter. The transcript from the voicemail stated:

|3Hi, Cindy, this is Mrs. Ros. I called you earlier when we got out of our deposition and told you that I really needed to talk to you about something very important. And I know that you’re not going to take my call, so either you call me back or you can just be subpoenaed, whichever one you want to do. But my lawyer wants to talk to you. And Matt hung you out to dry. You and you alone are the reason why he took Z.J. away from us is what he told us today. His defense was, “The reasons that I took Z.J. away from the Janways is because of an e-mail I got from Cindy Gobson that said Mrs. Janway had been talking about me.” And anything I’ve told you about him, I’ll gladly say to his face. So there’s no problem with that, but the problem is, is that you sold Wendi out. And I wish now I would have never had you to come and get one thing of hers. Because she is looking down right now and in disgust that you would do her baby daughter that way. And I have never been so disappointed in any one person in my life as I am you. And you need to call me back and we need to discuss this. If not, we can discuss it when you go to court, but you will be subpoenaed. My lawyer said to give you a chance to call and talk to me. If you don’t want to do that, then just plan on being subpoenaed. You heard what I told her? (verbatim)

The above instances are only a couple of examples exhibiting Rosalyn’s irrational behavior. Unfortunately, the record is riddled with many more examples.

Dr. E.H. Baker, a medical psychologist, testified that depriving the Janways of visitation would harm Z.J., since they were very involved in her life and her mother died at a very young age. He conceded that he made his findings without having any contact with anyone other than the Janways. His findings are arguably “one-sided.” However, he made a statement, explaining how Rosalyn’s negative comments would impact Z.J.

Q. Okay. With respect to Z.J., if in fact Ms. Janway is making negative comments to that child about her father, who she loves, how will that affect Z.J. from here on out?
A. Okay. That would be — that would have a negative impact because Z.J. loves her father. You know, I haven’t met Z.J. I’m sure that that (sic) is the case because children do love their 1 infathers in most instances, so I’m sure that Z.J. loves her father. If her grandmother, whom I would guess that she also loves, is making negative comments, there’s going to be a great deal of confusion to that child, and so it’s certainly not — not good for Z.J. It’s not in her best interest to be — have anyone talking negatively about her father.

We note that Dr. Baker stated that Rosalyn possessed “overbearing” characteristics. When the trial court asked Dr. Baker his professional opinion regarding the Janways’ visitation with Z.J., he commented that the Janways needed “a least a couple of sessions with someone,” before they could attempt a visitation with Z.J. We agree. The evidence supports the trial court’s decision to deny Rosalyn’s visitation rights.

The record contains no evidence that Matthew is an unfit father. It is clear that Z.J. is thriving in her environment. She attends day school, participates in many extracurricular activities, i.e. gymnastics, and goes to play date.

The record supports the assertion that the Janways have actively participated in Z.J.’s life from birth, until her current age of four. We do not doubt that the Jan-ways love their granddaughter, and that she loves them as well. However, the record indicates that the quality of their relationship is questionable.

The evidence strongly suggests that the Janways are attempting to interfere and sabotage the relationship that Matthew had with his daughter. Matthew’s actions reflect a father who is attempting to protect Z.J., by removing persons from Z.J.’s life who are not acting in her best interests.

|T1We find that granting the Janways visitation at this time would not be in the best interest of the child, Z.J. These two assignments of error are without merit.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs associated with this appeal are assessed against the plaintiffs/appellants, the Janways.

AFFIRMED.

      . The trial court recited a "hypothetical” in open court suggesting that the Janways participate in counseling, establish a history of better behavior, and "come back through a proper procedure.”


author: WILLIAMS, J.

text:
    Richard A. RYAN, Plaintiff-Appellee v. ESIF/RYAN CONSTRUCTION, Defendant-Appellant.
    No. 46,916-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2012.

      Jerald L. Perlman, Baton Rouge, LA, for Appellant, ESIF.
    Robert A. Dunkelman, Shreveport, LA, for Appellee, Ryan Construction Company, Inc. and Blount Brothers Construction, Inc.
    Aubrey R. Snell, for Appellee, Richard Ryan.
    Michael A. Stroud, for Appellee, LUBA.
    Before WILLIAMS, STEWART and SEXTON (Pro Tempore), JJ.
   WILLIAMS, J.

hln this case, the Office of Workers’ Compensation (“OWC”) granted summary judgment in favor of defendant, Employers’ Self Insurance Fund (“ESIF”), finding that claimant’s right to receive payment for medical treatment related to his cardiac condition was suspended, subject to the buy back provisions of LSA-R.S. 23:1102(B). However, the workers’ compensation judge (“WCJ”) rejected ESIF’s assertion that claimant had forfeited all future workers’ compensation benefits. For the following reasons, we affirm.

FACTS

On February 13, 2003, claimant, Richard A. Ryan, suffered a spinal cord injury during the course and scope of his employment. While hospitalized, claimant underwent surgery to repair internal hemorrhoids. During the surgery, the anesthesiologist administered a drug which was contraindicated for persons with spinal cord injuries. As a result, claimant suffered a cardiac arrest, but he was resuscitated. In January 2006, claimant filed a medical malpractice suit against the anesthesiologist and the hospital as a result of the cardiac arrest incident.

Meanwhile, ESIF refused to pay claimant for workers’ compensation benefits, resulting in prolonged litigation. As a result of this Court’s ruling in Ryan v. Blount Bros. Construction, 40,845 (La.App.2d Cir.4/19/06), 927 So.2d 1242, writ denied, 2006-1219 (La.9/15/06), 936 So.2d 1272, ESIF paid claimant’s workers’ compensation indemnity benefits and medical expenses.

l2On February 8, 2007, claimant filed another disputed claim for workers’ compensation, alleging that ESIF had failed to pay for “prescriptions, medical bills [and] out-of-pocket expenses” and had failed to “approve medical procedures.” That claim included a demand for penalties and attorney fees. On April 8, 2008, claimant filed a “First Supplemental and Amending Petition for Declaratory Judgment and Penalties,” alleging that ESIF had discontinued payment for physical therapy; “denied and/or substantially delayed” payments for prescriptions; caused his weekly benefit payment to arrive “later and later”; refused to pay for mileage and out-of-pocket expenses; and delayed the replacement of his wheelchair for more than a year.

Subsequently, claimant settled his medical malpractice claim with the anesthesiologist and hospital and dismissed his claims against the healthcare providers. After learning of the settlement of the medical malpractice suit, ESIF responded to claimant’s compensation claim, alleging that claimant had forfeited his right to all future workers’ compensation benefits by settling a lawsuit with a third-party tort-feasor without ESIF’s approval. On June 27, 2008, ESIF moved for summary judgment on the issue. On March 23, 2009, the WCJ granted summary judgment in favor of ESIF, concluding that claimant’s “right to receive payment for any medical treatment related to cardiac problems is suspended subject to the buy back provisions of La. R.S. 23:1102(B).”

Subsequently, claimant filed a motion for new trial and/or to set aside the judgment, arguing that the judgment signed had been “presented in |serror.” While the motion for new trial was pending, ESIF filed a supervisory writ in this Court. In response, claimant filed a motion to dismiss the writ, contending that his motion for new trial was pending in the lower court. This Court denied both claimant’s motion to dismiss the writ and ESIF’s supervisory writ, stating, in part, “It appears that the ruling of the Office of Workers’ Compensation is subject to a pending motion for new trial, and an aggrieved party will have the right to appeal from a final judgment when the claimant’s right to compensation is finally and completely decided.” Ryan v. ESIF, 44,704 (La.App.2d Cir.6/4/09) (unpublished) (internal citation omitted).

On October 2, 2009, the WCJ signed another judgment, granting partial summary judgment in favor of ESIF. That judgment provided:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that ESIF’s Motion for Summary Judgment is granted in part only such that [claimant’s] right to receive payment of medical expenses for cardiology treatment is forfeited subject to the buy-back provisions of La. R.S. 23:1102(B), and that all other relief sought in the Motion for Summary Judgment is denied.

On February 3, 2011, the WCJ dismissed claimant’s pending demand for penalties and attorney fees. The judgment also stated, “[A]ppeal rights of the defendants with regard to their previously ruled upon Motion for Summary Judgment ... are hereby preserved and protected.”

In response, claimant filed a motion for new trial, arguing that he had not approved the proposed judgment submitted by ESIF and signed by the WCJ. He also argued that the judgment “contains an invalid provision attempting to preserve an appeal which has otherwise been abandoned by |4the running of time and the delays allowed by law[.]”

On April 14, 2011, the WCJ granted claimant’s motion for new trial, and amended the February 3, 2011 judgment to provide as follows:

THIS CAUSE came ... for hearing on January 25, 2011, on the Disputed Claim for Compensation filed on February 8, 2007, and the First Supplemental and Amending Petition for Declaratory Judgment filed on April 8, 2008, filed by plaintiff RICHARD RYAN, which pleadings contain the last remaining issues to be litigated before this Court in these proceedings.
IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of [ESIF], and against [claimant], dismissing [the] claims for statutory penalties and attorney fees— those being the sole remaining claims to be litigated in these proceedings—with prejudice.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this Judgment shall not affect any appeal rights of either party with regard to any prior judgments rendered in these proceedings.

On May 6, 2011, ESIF filed a motion for suspensive appeal, moving “to take a sus-pensive appeal as to all issues and claims in this proceeding including, but not limited to the [WCJ] ’s ruling on the defendant’s Motion for Summary Judgment, which applied the improper penalty for plaintiffs violation of La. R.S. 23:1102(B)[.]” The WCJ granted ESIF’s motion for suspen-sive appeal. On September 14, 2011, claimant filed a motion to partially dismiss the appeal, which was denied by this Court on October 20, 2011.

DISCUSSION

ESIF contends the WCJ correctly granted summary judgment; however, the WCJ erred in failing to conclude that claimant had forfeited all future workers’ compensation benefits. ESIF argues that claimant settled |sthe medical malpractice lawsuit without obtaining written approval from the workers’ compensation insurer; therefore, forfeiture is mandated pursuant to LSA-R.S. 23:1102(B).

The law concerning summary judgment is well-settled. Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Sensebe v. Canal Indem. Co., 2010-0703 (La.1/28/11), 58 So.3d 441; Tillman v. Eldridge, 44,460 (La.App.2d Cir.7/15/09), 17 So.3d 69.

LSA-R.S. 23:1101 recognizes the right of the employer or employee to seek redress from a third person causing injury to the employee. Haynes v. United Parcel Service, 2005-2378 (La.7/6/06), 933 So.2d 765. If an | (¡employee brings suit against a third party as provided by LSA-R.S. 23:1101, the employee is required to give the employer notice in writing of this suit. LSA-R.S. 23:1102; Haynes, supra. The purpose of this requirement is to promote timely intervention by the employer and protect the employer from losing its right of indemnity. Haynes, supra; Norris v. Goeders, 26,130 (La.App.2d Cir.3/10/95), 652 So.2d 144, writ denied, 95-0933 (La.6/2/95), 654 So.2d 1106. If the employee fails to notify the employer of the suit against the third party or fails to obtain written approval of a compromise from the employer, the employee “shall forfeit the right to future compensation, including medical expenses[.]” LSA-R.S. 23:1102(B).

LSA-R.S. 23:1101(0 provides:

For purposes of this Section, “third person” shall include any party who causes injury to an employee at the time of his employment or at any time thereafter provided the employer is obligated to pay benefits under this Chapter because the injury by the third party has aggravated the employment related injury.

(Emphasis added). LSA-R.S. 23:1101(0 allows compensation insurers reimbursement from persons who aggravate work-related injuries and thereby extend the obligation to pay compensation benefits. See, Travelers Ins. Co. v. Joseph, 95-0200 (La.6/30/95), 656 So.2d 1000.

In Callihan v. Gulf Coast Marines, Inc., 97-1705 (La.App.1st Cir.5/15/98), 714 So.2d 199, writ denied, 98-1633 (La.9/25/98), 725 So.2d 489, the claimant was injured during the course and scope of his employment. While undergoing treatment for his work-related injury, the claimant suffered another injury at the rehabilitation center. The claimant filed a lawsuit against the rehabilitation center, and later settled the suit without the signed |7consent of the workers’ compensation insurer. The insurer refused to pay the claimant’s subsequent medical bills, and the claimant filed a disputed claim for workers’ compensation benefits. The WCJ denied the claim, and the claimant appealed. The court of appeal reversed, finding that the rehabilitation center was not a “third person” under the statute; therefore, the claimant was not required to obtain the consent of the workers’ compensation insurer. The court stated:

The application of the requirements of La. R.S. 23:1102(B) is framed by the definition of “third person” pursuant to its delineation in La. R.S. 23:1101(C). The fact that the second [injury] occurred as a result of the treatment for the first injury is not dispositive of a determination that the injuries themselves are mutually exclusive. In the absence of an aggravation of the previous work-related injury, the elements of La. R.S. 23:1101 and 23:1102(B) are in-apposite.

Id. at 202.

Thus, if the third-party tortfeasors, the anesthesiologist/hospital, aggravated claimant’s work-related injury, thereby extending ESIF’s obligation to pay compensation benefits, then ESIF would have reimbursement rights against the anesthesiologist/hospital. Consequently, claimant would have had an obligation to obtain written approval from ESIF prior to settling with the anesthesiologist/hospital, under the penalty of forfeiting his benefits pursuant to LSA-R.S. 23:1102(B).

It is undisputed that claimant did not seek written approval from ESIF prior to entering into the settlement with the anesthesiologist/hospital. However, although claimant sought damages for his cardiac injuries, there was no allegation that the act of medical malpractice aggravated the workjrelated8 spinal cord injury. Nonetheless, claimant did not appeal, or file an answer to ESIF’s appeal, with regard to the WCJ’s grant of the motion for summary judgment. Therefore, the issue of whether the WCJ erred in granting ESIF’s motion for summary judgment is not properly before this court. See, LSA-C.C.P. art. 2133. Thus, the only issue on appeal is whether the WCJ erred in failing to find that forfeiture of benefits is the appropriate remedy.

As stated above, claimant suffered a spinal cord injury during the course and scope of his employment and was hospitalized as a result of that injury. During his hospitalization, he suffered a separate, unrelated injury as a result of medical malpractice. While it is doubtful that claimant would have been a victim of medical malpractice had he not been hospitalized for the work-related injury, there is nothing in the record to suggest that the actions of the anesthesiologist aggravated the spinal cord injury.

Additionally, nothing in the record shows that the cardiac injury resulted in the extension of ESIF’s obligation to pay workers’ compensation benefits. During his argument to this Court, counsel for ESIF implied that 19claimant had received additional benefits due to his cardiac injury. However, in this court’s prior opinion in this matter, this court recognized that claimant was diagnosed with a heart condition during his hospitalization, but never ordered ESIF to pay any additional workers’ compensation benefits as a result of the cardiac issues. ESIF was ordered to reimburse claimant’s health insurer, which had paid all of claimant’s medical expenses for the work-related injury because ESIF had refused to do so.

Based on our review of the record and the relevant statutory provisions, we find that the hospital and anesthesiologist were not “third persons” under the definition of LSA-R.S. 23:1101, and the WCJ erred in applying 23:1102 under the facts of this case. Because our review is limited to the issue of damages, we find that the WCJ did not err in failing to conclude that claimant had forfeited his right to future compensation benefits.

CONCLUSION

For the reasons set forth herein, the judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to appellant, Employers’ Self Insurance Fund.

AFFIRMED.

      . The claimant was shot by a child, who was playing nearby with a gun while claimant was operating a trackhoe for his employer.

      . Claimant has reasserted his argument that this appeal should be dismissed as untimely. However, as stated above, this Court denied claimant's motion to dismiss the appeal on October 20, 2011. Therefore, that argument will not be readdressed in this opinion.

      . The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880; Adams v. JPD Energy, Inc., 45,420 (La.App.2d Cir.8/11/10), 46 So.3d 751, writ denied, 2010-2052 (La. 11/12/10), 49 So.3d 892. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). A motion for summary judgment shall be granted "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 mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B). After adequate discovery or after a case is set for trial, "a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” LSA-C.C.P. art. 966(C)(1). When the motion for summary judgment is made and supported as provided in Art. 966, the adverse party "may not rest on the mere allegations or denials of his pleading," but his response, by affidavits or other proper summary judgment evidence, "must set forth specific facts showing that there is a genuine issue for trial.” LSA-C.C.P. art. 967(B); Cheramie Servs. Inc. v. Shell Deepwater Prod., Inc., 2009-1633 (La.4/23/10), 35 So.3d 1053. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. Id. Speculation that a fact finder might disbelieve the mover's witnesses will not defeat a properly supported motion for summary judgment. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002; Babin v. Winn-Dixie La., Inc., 2000-0078 (La.6/30/00), 764 So.2d 37.

      . LSA-C.C.P. art. 2133(A) provides, in pertinent part:
      An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court[.]