author: DREW, J.

text:
    Charlotte M. PATTEN, et al., Plaintiff-Appellant v. Christopher GAYLE, M.D., Defendant-Appellee.
    No. 46,453-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.

      Nelson & Hammons, A Professional Law Corporation, Shreveport, LA, by John L. Hammons, James Paul Lambert, Annis Cornell Flournoy, for Appellant.
    Watson, Blanche, Wilson & Posner, Baton Rouge, LA, by Peter T. Dazzio, Garrett S. Callaway, for Appellee.
    Before GASKINS, PEATROSS and DREW, JJ.
   DREW, J.

|, The primary issue is whether the jury erred in finding the doctor’s negligence during surgery did not cause any injury to the patient. Charlotte Patten and her husband, Rodney L. Patten, appeal the judgment rejecting their demands and dismissing the action with prejudice. They also seek review of the trial court’s denial of their motion for judgment notwithstanding the verdict (“JNOV”). For the reasons discussed herein, the judgment is reversed in part and affirmed in part and rendered, awarding plaintiffs a portion of the damages sought.

FACTUAL AND PROCEDURAL BACKGROUND

Charlotte Patten became a patient of Dr. Christopher Gayle, an OB-GYN at Willis-Knighton Pierremont, in 1997 when Dr. Gayle performed a total abdominal hysterectomy, leaving her ovaries in place. In early 2001, Mrs. Patten began suffering from pain in her lower right abdomen which Dr. Gayle suspected was a cystic lesion on her right ovary. On August 14, 2001, at Willis-Knighton Pierremont, Mrs. Patten was admitted for laparoscopic evaluation and possible removal of her ovaries.

Dr. Gayle, assisted by Dr. Mary Taylor, began the procedure by inflating the abdominal cavity with carbon dioxide in order to create space |2between the abdominal wall and internal organs. Once the cavity was inflated, Dr. Gayle inserted an operative trocar through the umbilicus.

The operative trocar blade is covered with a protective sheath. When the doctor applies pressure to the trocar, the blade is unsheathed, allowing the trocar to penetrate the skin, muscle, and fascia. Once the trocar encounters “empty space” in the body cavity, the sheath re-covers the blades and locks in place. Since the initial trocar insertion is performed blind, most laparoscopic injuries occur during this part of the procedure. In this case, Dr. Gayle inserted the first trocar without complication.

After removing the blade from the tro-car tube, Dr. Gayle inserted a laparoscope into this first trocar to allow him to see the inside of the abdominal cavity. Dr. Gayle noted adhesions of the small bowel to the abdominal wall. Because he was unable to determine whether he would be able to proceed laparoscopically, Dr. Gayle intended to insert a second trocar so he could better visualize the ovaries and abdominal cavity.

After using the laparoscope in the first trocar to find an area that was free of adhesions, Dr. Gayle testified he tried to angle the second trocar so it would enter the abdominal cavity in a particular direction. The second trocar unexpectedly entered the patient’s abdomen. The doctor claimed the amount of force he applied should not have been sufficient for the trocar to enter the abdomen. The second trocar entered the abdomen in a different direction than Dr. Gayle intended and came out near a bowel adhesion.

IsAlthough Dr. Gayle could see the tip of the trocar, he could not determine whether the trocar had penetrated or avoided the bowel. Dr. Gayle left the second trocar tube in place but removed the blade. He then inserted a third trocar (without incident) and placed the laparoscope into the third trocar to evaluate the bowel. Dr. Gayle observed no bleeding or bowel content but was still unable to determine whether the bowel had been punctured.

Dr. Gayle decided he needed to open the patient’s abdomen because there were numerous adhesions of the bowel to the abdominal wall. The doctor also concluded that the right ovary, which was cystic and densely adhered to the pelvic wall, needed to be removed, a procedure that could not be performed laparoscopically. Finally, he was still concerned about the possibility of bowel injury by the second trocar.

After making a Pfannenstiel incision and lysing some of the adhesions of the bowel from the abdominal wall, Dr. Gayle saw the second trocar had penetrated Mrs. Patten’s small bowel “through and through.” Dr. Gayle brought approximately 20 inches of bowel out of the abdominal cavity and called for Dr. Craig Bozeman, a general surgeon, to perform emergency surgery to remove the trocar and repair the bowel.

14Pr. Bozeman decided to connect the two holes to facilitate the surgical repair. He did so by cutting across the circumference of the bowel between the two holes. After sewing up the bowel, Dr. Bozeman “ran the bowel” to inspect it and found the repair was effective (not leaking) and that no further injuries could be seen. Dr. Gayle and Dr. Taylor then finished the surgery by removing Mrs. Patten’s right ovary, placing the bowel back inside the abdomen and closing the incisions.

After the operation, Mrs. Patten was kept under observation by Dr. Bozeman to ensure her bowel was causing no further problems. Over the next few days, she showed some signs of improvement in her gastrointestinal functions but also had indications of trouble, most notably swelling. Five days after the operation, Mrs. Patten was examined by Dr. Schwalke, who was on call for Dr. Bozeman. That morning, Mrs. Patten’s abdomen was distended. Later that day, feculent material began exuding from her incision.

Dr. Schwalke performed emergency exploratory surgery, which required him not only to reopen her horizontal incision but to make a vertical “midline” incision up to the sternum. He discovered a 8mm perforation of the bowel two inches from where the bowel had been repaired by Dr. Bozeman five days earlier. Also, approximately three liters of feculent material was in Mrs. Patten’s abdominal cavity, necessitating extensive cleaning and drainage.

Is As a result of the feculent material having leaked into her abdominal cavity, Mrs. Patten developed peritonitis (an abdominal infection) and pneumonia. She was hospitalized until August 30. Mrs. Patten has subsequently suffered from abscesses (some of which ruptured) and herniating of her incisions, both of which have required further surgeries, and additional medical problems.

On June 6, 2002, Mrs. Patten and her husband filed a petition for a medical review panel against Dr. Gayle, Dr. Taylor, and Dr. Bozeman. The Pattens alleged negligence against the three doctors with respect to the August 14 surgery performed by Dr. Gayle and Dr. Taylor, in which Mrs. Patten’s bowel was penetrated by a trocar, and Dr. Bozeman’s emergency surgical repair.

The medical review panel (composed of Dr. Daniel Carroll, Dr. Edwin Byrd, and Dr. Timothy Hart) ruled that the evidence did not support the conclusion that Dr. Gayle, Dr. Taylor, or Dr. Bozeman failed to meet the applicable standards of care. Specifically, the panel found no evidence indicating the perforation discovered by Dr. Schwalke was present on August 14 and missed by Dr. Bozeman during his repair. The panel concluded that this perforation was most likely the result of undetectable microvascular damage that was unrelated to the trocar injury. Further, the panel opined that Dr. Gayle did not “lose control” of the trocar because | fithere are many factors outside of the surgeon’s control that can affect the passage of the trocar through the abdomen.

On February 6, 2004, Mrs. Patten, together with her husband, filed a medical malpractice suit against Dr. Gayle. Following a four-day jury trial on the merits in May 2010, the jury returned a verdict that Dr. Gayle had deviated from the applicable standard of care and had committed malpractice. The jury, however, found Dr. Gayle’s negligence had not caused any injury that would otherwise not have been incurred by Mrs. Patten. Finding a lack of causation, the jury awarded no damages to Mrs. Patten or her husband. At the request of counsel, the jury was polled, revealing the jury was split 10-2.

Following entry of the judgment denying plaintiffs’ recovery and dismissing the action at their cost, Mrs. Patten and her husband moved for a JNOV, arguing the jury’s finding that Dr. Gayle’s negligence caused no injuries was manifestly erroneous. Following a hearing, the trial court denied the motion, finding the jury’s verdict was reasonable, and entered judgment accordingly on August 27, 2010.

17Mrs. Patten and her husband appealed, arguing: (1) the jury manifestly erred in finding a lack of causation; (2) the trial judge manifestly erred in denying the motion for JNOV; and (3) the jury erred in failing to award damages.

DISCUSSION

In a medical malpractice action, the plaintiff has the burden of proving: (1) the applicable standard of care, (2) that the standard of care was breached, and (3) that as a proximate result of the breach the plaintiff sustained injuries that would not otherwise have been incurred. La. R.S. 9:2794(A). The third element, causation, is subject to the manifest error standard of review. Lovelace v. Giddens, 31,493 (La.App.2d Cir.2/24/99), 740 So.2d 652, writ denied. Under the manifest error standard, an appellate court cannot substitute its own inferences and conclusions about the facts. Johnson v. Morehouse General Hosp., 2010-0387 (La.5/10/11), 2011 WL 1759932; Wooley v. Lucksinger, 2009-0571 (La.4/1/11), 2011 WL 1205136. Findings of fact cannot be set aside or overturned by the appellate court unless they are clearly wrong. Johnson, supra. Factual conclusions are not clearly wrong when the factfinder chooses a view of the evidence that an appellate court disagrees with as long as the factfinder’s view is permissible. Id. Manifest error occurs only when there is “no reasonable factual basis for the [factfinder’s] eonclusion[.]” Johnson, 2010-0387 at p. 6, 63 So.3d at 93. In a medical malpractice claim, great deference should be given to the factfinder when medical experts express different opinions relevant to causation. Lovelace, supra.

| fjnilial Trocar Injury

While recognizing that Mrs. Patten suffered injuries, the Medical Review Panel unanimously found that Dr. Gayle was not negligent. In its written reasons, the panel stated there were other factors outside of Dr. Gayle’s control that could have caused the second trocar to become misdirected, including scarring of the abdominal wall, defects from her prior surgeries and differences in the degree of sharpness of trocars.

Dr. Robert Zurawin, a board-certified OB-GYN and an associate professor at Baylor Medical School, testified by affidavit, deposition, and at trial on behalf of Mrs. Patten. Disagreeing with the medical review panel, Dr. Zurawin believed Dr. Gayle was negligent. Dr. Zurawin stated the factors mentioned by the review panel were relevant only to a blind trocar insertion. Since Dr. Gayle had already inserted one trocar, he should have been able to see (and thus avoid) any problems inside the abdominal cavity. At trial, Dr. Zurawin testified the trocar must have penetrated bowel that was adhered to the abdominal wall. Otherwise the protective sheath would have covered the blade after entering the abdomen and the through-and-through puncture never would have occurred.

Dr. Zurawin also noted that Dr. Gayle had apparently been holding the second trocar improperly. In his deposition, Dr. Gayle indicated he was not yet holding the second trocar in the proper position when it penetrated the abdomen. Dr. Zurawin testified the way Dr. Gayle was holding the trocar contributed to the trocar penetrating the abdomen without Dr. Gayle intending it to as well as how deep it penetrated. Further, Dr. Zurawin labelieved the second trocar should never have been inserted because Dr. Gayle should have converted to an open surgery once he saw the numerous, dense adhe-sions through the laparoscope in the first trocar.

Dr. Gayle admitted the puncture of the bowel by the second trocar was an injury. In his original answer to the complaint, Dr. Gayle stated that Dr. Bozeman was called in for “repair of a bowel injury.” Moreover, at trial, Dr. Gayle admitted on cross-examination that Mrs. Patten “was injured and she suffered as a result of that injury[.]” Dr. Gayle claimed that the tro-car injury was insignificant as far as the medical malpractice claim was concerned.

Dr. Gayle relied upon the testimony of Dr. Taylor, Dr. Schwalke, and Dr. Byrd, each of whom testified the initial bowel injury from the second trocar was insignificant. Both Dr. Taylor and Dr. Byrd testified the only harm done to Mrs. Patten was having approximately an extra hour of surgery by Dr. Bozeman to repair the bowel. Dr. Schwalke testified similarly, stating the injury was insignificant because it was immediately recognized and repaired and there were no further damages resulting from that injury.

Dr. Gayle also relied upon two consent forms that Mrs. Patten signed pri- or to the surgery. When obtaining consent from a patient for any treatment or procedure, physicians have a duty to advise the patient of associated risks. Rob erts v. Cox, 28,094 (La.App.2d Cir.2/28/96), 669 So.2d 633; Broadway v. St. Paul Ins. Co., 22,438 (La.App.2d Cir.1991), 582 So.2d 1368. A physician does not have to inform a patient of “every | inconceivable possibility” but only “those that can reasonably be anticipated.” Steinbach v. Bayfield, 428 So.2d 915 (La.App. 1st Cir.1983) (reversed on other grounds); see also, Roberts, supra; Broadway, supra.

A risk of bowel injury was among the risks listed on the consent forms signed by Mrs. Patten. Dr. Hart testified at trial that this risk would include bowel injury due to a misdirected trocar. Dr. Hart also testified, however, that a patient never consents to negligent treatment. This court agrees. Consent forms should not shield physicians and other healthcare providers from liability for injuries caused by their negligence simply because the injuries are a known risk of the procedure. While patients can be held to reasonably anticipate that procedures carry certain risks that may occur without any fault from their physician, patients should also reasonably anticipate a physician will not negligently injure them. Being injured as a result of negligence by one’s physician is not a reasonably foreseeable risk of receiving medical treatment.

The through-and-through perforation of Mrs. Patten’s bowel was undoubtedly an injury. Downplaying the significance of the injury is a defense to damages but not a defense to the injury actually having occurred. The two consent forms signed by Mrs. Patten do not exonerate Dr. Gayle for negligently injuring her by puncturing her bowel with the second tro-car. Therefore, the jury’s finding that Dr. Gayle’s negligence caused no injury to Mrs. Patten is manifestly erroneous with respect to the trocar’s penetration of the bowel. As a result, this court reviews the merits of this issue de novo.

| nDe Novo Review of the Merits — Initial Trocar Injury

Dr. Gayle negligently punctured Mrs. Patten’s bowel with a trocar, necessitating the emergency repair by Dr. Boze-man. According to Dr. Gayle, aside from the repair of the punctured bowel, all other surgical steps taken on August 14 would have been required even if there had been no bowel injury.

First, Dr. Gayle stated in his deposition that Mrs. Patten had to be “opened up” in order to remove her ovary. Therefore, the decision to open her abdomen would have been made even if there were no bowel injury. This view was shared by Dr. Taylor. Even Dr. Zurawin agreed, stating in his affidavit that Mrs. Patten should have been opened up after Dr. Gayle viewed Mrs. Patten’s numerous abdominal adhe-sions through the laparoscope in the first trocar.

Second, Dr. Gayle testified the bowel adhesions had to be lysed from the abdominal wall in order to remove the right ovary. Both Dr. Schwalke and Dr. Hart agreed that lysing the adhesions would have been necessary without the trocar injury. Moreover, even had the trocar injury been the sole reason for lysing the bowels, Dr. Zurawin testified that Dr. Gayle did not breach the applicable standard of care by lysing the bowel adhesions to prepare for the surgical repair of the bowel injury by Dr. Bozeman.

Third, Dr. Zurawin stated in his deposition that it is within the applicable standard of care to run the bowel after lysing any bowel adhesions to ensure it has not been injured. Therefore, the bowel would necessarily have been run whether or not the trocar repair was performed.

| ^Fourth, Dr. Gayle stated in his motion in limine to exclude medical expenses that, even without the trocar injury, Mrs. Patten would have stayed in the hospital a few days following the surgery for observation. Dr. Gayle stated this was necessary because having to lyse her bowel adhesions created a possibility of a perforation developing.

In contrast, Dr. Zurawin stated in his affidavit that, but for the trocar injury to the bowel, Mrs. Patten would not have undergone the repair procedure which placed her at a greater risk of a subsequent bowel perforation. However, Dr. Zurawin acknowledged that Dr. Gayle had to open Mrs. Patten up and lyse the bowel adhesions to complete his surgery whether or not there had been a bowel injury.

Aside from the repair of the through- and-through bowel puncture, all other treatments and steps taken (opening her up, lysing the adhesions, etc.) would have been necessary even had there been no bowel injury and therefore were not causally related to Dr. Gayle’s negligence. The only injuries Mrs. Patten suffered on August 14, 2001, that were causally connected to Dr. Gayle’s negligent handling of the second trocar and would not otherwise have been incurred are: (1) the puncture of the bowel; and (2) the time and expense of Dr. Bozeman repairing the bowel.

Subsequent Perforation

The cause of the subsequent perforation that was discovered by Dr. Schwalke five days after Mrs. Patten’s first operation was the primary topic throughout this case. In Dr. Gayle’s opinion, this subsequent perforation was most likely the result of a microvascular injury that was undetectable at [ 1sthe time of Dr. Bozeman’s repair. The medical review panel had a similar opinion, finding the perforation was unrelated to the initial tro-car injury and most likely the result of microvascular damage.

Dr. Zurawin stated in his affidavit that while the cause of the perforation was “not clear,” he believed it was most likely caused directly by the second trocar striking a loop of bowel after making its through-and-through puncture. Dr. Hart, Dr. Bozeman, and Dr. Schwalke all testified that the trocar tip could have directly harmed another section of bowel, causing damage that eventually led to the subsequent perforation. Dr. Hart qualified his testimony, stating this scenario was highly unlikely.

Both Dr. Gayle and Dr. Taylor testified the trocar penetrated the abdomen in an area where there was an upside-down “U-shaped” section of bowel hanging from the abdominal wall. Thus, according to the only two people who saw the location of the bowel before Mrs. Patten was opened up, there was no other portion of bowel for the trocar to damage. Assuming the bowel was adhered in this position, Dr. Byrd testified it would have been “spectacular” for the tip of the second trocar to have directly injured another part of the bowel.

Moreover, the bowel was run and inspected by Dr. Bozeman after he repaired the initial puncture. This inspection was done in the presence of both Dr. Gayle and Dr. Taylor. Dr. Bozeman testified he examined a significant portion of the surrounding bowel. The perforation that was found five days later was only two inches from the repair site. Dr. Hart testified it would be almost impossible for Dr. Boze-man, Dr. Gayle, and Dr. luTaylor all to have missed any visible injury to the bowel that was only two inches away from the site of the trocar puncture.

In addition, the opinion of the review panel was that the timeline indicated the perforation was not present on August 14. The panel opinion was supported by both Dr. Hart’s and Dr. Schwalke’s testimony that the perforation likely opened two or three days after Dr. Gayle’s operation, based on when Mrs. Patten began having swelling problems and the amount of fecu-lent material found in her abdominal cavity. Dr. Zurawin disagreed, stating in his deposition that a small perforation might have taken five days to manifest and therefore the timeline was not definitive.

In view of all the evidence presented, it seems unlikely the trocar tip directly caused damage to the bowel that led to the subsequent perforation. However, Mrs. Patten also presented evidence of another theory: that the trocar injury indirectly caused the perforation because it led to the bowel sustaining a partial thickness injury which ruptured in the days following Dr. Gayle’s surgery. This partial thickness injury could have been caused either when the adhesions were lysed from the abdominal wall or when Dr. Bozeman was performing his repair of the initial trocar injury.

Dr. Carroll stated in his deposition that any partial thickness injury caused by Dr. Bozeman repairing and running the bowel should have occurred immediately adjacent to the original injury. Since the perforation was two inches away from the original injury, Dr. Carroll stated it was 11shighly unlikely Dr. Bozeman’s repair caused the perforation. Additionally, none of the medical experts who testified believed that either repairing or running the bowel indirectly caused the perforation.

Dr. Schwalke testified that the most likely cause of the perforation was a partial thickness injury that occurred when the bowel adhesions were lysed from the abdominal wall. Both Dr. Hart and Dr. Byrd also agreed the cause of the perforation was most likely a partial thickness injury due to lysing adhesions. According to Dr. Gayle, the portion of bowel where the perforation occurred was adhered to the abdominal wall, making it more susceptible to a partial thickness injury. Dr. Bozeman testified that a partial thickness injury is a known risk of having to lyse bowel adhesions.

In his deposition, Dr. Zurawin stated it was within the applicable standard of care for Dr. Gayle to lyse the bowel adhesions. Dr. Zurawin also noted that it was unclear whether Dr. Gayle or Dr. Bozeman lysed the bowel that was two inches away from the trocar injury. Therefore, assuming the lysing of the bowel caused a partial thickness injury, it would be impossible to know to whom to attribute it. Moreover, even if the lysing caused an undetectable injury, Dr. Zurawin testified there would not have been a breach of any standard of care by Dr. Gayle.

The medical experts were in agreement that the bowel adhesions necessarily had to be lysed in order to remove Mrs. Patten’s right ovary. Therefore, had no tro-car injury ever occurred, the bowel adhe-sions would nonetheless have been lysed. This possibility was explicitly supported in the deposition testimony of all three members of the medical review panel |1ñ(Dr. Byrd, Dr. Hart, Dr. Carroll) as well as the trial testimony of both Dr. Schwalke and Dr. Byrd.

Mrs. Patten had to be opened up and her adhesions had to be lysed. The evidence did not show that, more likely than not, the initial trocar injury was either a direct or indirect cause of the subsequent perforation and the resulting peritonitis and pneumonia which kept Mrs. Patten hospitalized until August 30, 2001. As Dr. Zurawin testified, the cause of this perforation is simply not clear “within a reasonable medical probability.” Therefore, the jury finding no causation of damages with respect to the subsequent perforation is not manifestly erroneous.

Injuries Suffered by Mrs. Patten Since August 30, 2001

Mrs. Patten has suffered from many medical problems following her release on August 80, 2001, after recovering from peritonitis and pneumonia. She alleges that these subsequent injuries are traceable to Dr. Gayle’s negligence. Among the injuries Mrs. Patten has suffered, according to her First Supplemental and Amending Petition:

abscesses ... excruciating pain and suffering, mental anguish and embarrassment ... extensive scarring, abdominal adhesions and extensive internal adhe-sions ... and repeated surgical procedures^]

Mrs. Patten also claims hernias of her incisions as an additional injury attributable to Dr. Gayle.

According to Mrs. Patten’s own testimony, she had a history of abdominal pain and discomfort ever since the birth of her second child. Her first laparoscopic procedure was performed in 1993. She also had multiple abdominal surgeries performed prior to the surgery on August 14, 2001. As 117Pr. Zurawin stated in his deposition, the more surgeries a person has, the more likely she is to have bowel adhesions in the future that could lead to the injuries Mrs. Patten has suffered. Mrs. Patten also testified she had off-and-on undergone treatment for depression prior to Dr. Gayle’s 2001 surgery.

In the months following the surgeries by Dr. Gayle and Dr. Schwalke, Mrs. Patten was treated by Dr. Bozeman for multiple abscesses of her surgical wounds. In his deposition, Dr. Bozeman stated these abscesses were likely not related to Mrs. Patten’s peritonitis but rather a reaction to the sutures used by Dr. Schwalke.

In 2002, Mrs. Patten was treated by Dr. Charles Black for hernias of her incisions. Dr. Black’s deposition was read at trial; he was unable to testify in person because he was suffering from health problems and subsequently died. In his deposition, Dr. Black stated that incisional hernias occur around 5% of the time even in the absence of negligence. Dr. Black further stated that, considering Mrs. Patten’s history of abdominal surgeries, there was no reason to attribute her hernias in 2002 to either Dr. Gayle’s or Dr. Schwalke’s surgeries in 2001.

Dr. Dale McGinty treated Mrs. Patten for abdominal adhesions sporadically between 2005 and 2008. In his deposition, Dr. McGinty stated he had no reason to connect those adhesions to Dr. Gayle’s surgery. Further, Dr. McGinty stated there was no way to know whether the adhesions he treated were caused by Dr. Gayle’s surgery, any of Mrs. Patten’s prior or subsequent abdominal surgeries.

| lsDr. Hart testified that hernias of the midline incision are traceable to Dr. Schwalke’s surgery, as this was the first time such an incision had been made on Mrs. Patten. Hernias of any other incisions, though, are not necessarily connected to Dr. Gayle’s surgery because any of Mrs. Patten’s pre-2001 surgeries could have been the underlying cause.

After sitting on the medical review panel, Dr. Byrd testified in his deposition that it is hypothetically possible none of the injuries Mrs. Patten suffered are causally connected to Dr. Gayle. In other words, even had there been no trocar injury, it is possible that the subsequent bowel perforation would have occurred, that Mrs. Patten would develop an abdominal infection from the material leaking from the perforation, and that all of her hernias, abscesses, and adhesions might have occurred as anticipated risks of the surgeries performed by Dr. Gayle and Dr. Schwalke.

Having failed to show the subsequent perforation of her bowel was causally connected to Dr. Gayle’s negligence, Mrs. Patten did not establish that injuries she has suffered since August 30, 2001, were caused by Dr. Gayle. Thus, the jury finding no causation of any damages with respect to Mrs. Patten’s medical problems since August 30, 2001, is not manifestly erroneous.

Damages

The only injuries that Mrs. Patten has suffered as a result of Dr. Gayle’s negligence are the puncture of her bowel by the second trocar and the time and expense of Dr. Bozeman repairing the bowel injury.

| ,9Dr. Gayle claimed the trocar injury itself was insignificant. Three medical experts (Dr. Taylor, Dr. Schwalke, and Dr. Byrd) also testified the injury was insignificant because it was immediately recognized, repaired, and no future harm resulted from it. Mrs. Patten presented no evidence showing the bowel injury from the second trocar caused any significant harm after its repair.

In his motion in limine to exclude certain medical expenses, Dr. Gayle argued the only medical expenses that were related to his August 14 surgery on Mrs. Patten are as follows: Dr. Gayle ($3,331.20); Willis-Knighton Pierremont ($18,546.85), Pierremont Anesthesia Consultants ($1,647.00), and Dr. Bozeman ($1,803.00), totaling $25,328.05.

Dr. Gayle’s fee for the operation would have been incurred even without a bowel injury. Therefore, these expenses ($3,331.20) are not recoverable as damages.

Most of the expenses owed to Willis-Knighton Pierremont also would have been incurred even if there were no bowel injury. Some of the expenses, however, are causally connected to Dr. Gayle’s negligence. Upon review of the Willis-Knigh-ton medical bills, this court awards $1,726.00 owed to Willis-Knighton as damages attributable to Dr. Gayle negligently puncturing Mrs. Patten’s bowel.

Mrs. Patten was placed under anesthesia for Dr. Gayle’s surgery. However, additional anesthetic gases were necessary due to the extra time required for Dr. Bozeman to perform his repair. This court awards [⅞0$1,281.00 in damages recoverable against Dr. Gayle for services performed by Pierremont Anesthesia Consultants.

The services performed by Dr. Bozeman were necessitated by the bowel injury and would not otherwise have been required. All expenses owed to Dr. Bozeman ($1,803.00) are causally connected to Dr. Gayle’s negligence and recoverable as damages.

Accordingly, Mrs. Patten is awarded $4,811.00 in medical expenses attributable to injuries resulting from Dr. Gayle’s negligence.

There is next the issue of general damages, such as pain and suffering, which cannot be definitively measured in monetary terms. See McGee v. A C and S, Inc., 2005-1036 (La.7/10/06), 933 So.2d 770. Mrs. Patten claimed general damages for pain and suffering, mental anguish, disfigurement, and decreased quality of life. In closing arguments, counsel for plaintiff recommended general damages totaling $800,000 to Mrs. Patten as well as $250,000 to Mr. Patten for decreased quality of life and loss of consortium.

These claims all are connected to the perforation discovered by Dr. Schwalke and Mrs. Patten’s subsequent medical problems, not the initial trocar injury. Because the jury did not manifestly err in finding Dr. Gayle’s negligence was not the cause of the subsequent perforation, no general damages are warranted for these claims.

The claims for pain and suffering and mental anguish are compensable. While the majority of Mrs. Patten’s pain and suffering and anguish are attributable to the subsequent perforation, the initial tro-car | ^injury also caused some general damages. Mrs. Patten testified at trial that the day of Dr. Gayle’s surgery was her daughter’s first day of school. Rather than going home that afternoon, as she expected, Mrs. Patten was hospitalized for a total of 16 days. When she awoke after the first surgery and was told by her husband that there was a problem, Mrs. Patten thought she had cancer. Mrs. Patten also testified she is now somewhat paranoid because Dr. Gayle was unable to explain what went wrong.

Accordingly, Mrs. Patten is awarded $10,000 in general damages for pain and suffering and mental anguish.

CONCLUSION

The portions of the final judgment concluding plaintiffs suffered no injuries from Dr. Gayle puncturing Mrs. Patten’s bowel are manifestly erroneous and are reversed. Judgment is rendered awarding her special and general damages. In all other respects, the judgment is affirmed.

DECREE

The judgment of the trial court is REVERSED IN PART and AFFIRMED IN PART, and judgment is rendered in favor of appellants, awarding them the amount of $14,811.00. Appellee is cast with all costs of the appeal.

      . As a result of partially reversing the first judgment, consideration of the second judgment is unnecessary. The denial of the JNOV would, however, be affirmed and reversed along the same grounds.

      . Laparoscopic surgery involves inserting small, hollow tubes, known as trocars, into the patient and operating by inserting scopes and instruments down the tubes. A small camera (laparoscope) can be inserted into these tubes for evaluation. Surgical instruments can also be inserted into trocars. A laparoscopy is a minimally invasive procedure because it does not involve "opening the patient up.”

      . An operative trocar is a trocar with a sharp blade at the tip. It is used for initial penetration of the trocar into the abdominal cavity-

      . Dr. Robert Zurawin, medical expert for Mrs. Patten, testified that 95-98% of trocar-related injuries occur during insertion of the first trocar.

      . A Pfannenstiel incision is a long horizontal abdominal incision, also called a '‘bikini” incision.

      . Lysing is a term used to describe the detachment of bowel adhesions from the abdominal wall by cutting it with specialized surgical scissors.

      . Dr. Gayle testified he left the trocar in place to allow Dr. Bozeman to remove it. Dr. Bozeman testified the trocar had already been removed when he arrived. This point is of no consequence to the disposition of this appeal.

      . All medical experts and the medical review panel agreed that calling in a general surgeon for the purpose of repairing the bowel injury was within the applicable standard of care.

      .Running the bowel is the inspection of the bowel by hand, moving it back and forth in one’s hands, squeezing and applying pressure to check for leaks, bruises, cuts, and other damage.

      . These factors explicitly included ‘‘fascial scarring or defects from prior surgery and differences in the degree of sharpness of disposable trocars.” (Opinion of Medical Review Panel, p. 2)

      . Members of the panel admitted to placing greater weight on Dr. Gayle’s operative note than on his sworn deposition, in which he admitted to losing control “in a generic sense.” (Deposition of Dr. Gayle, p. 67-68; Deposition of Dr. Hart, p. 18-19; Deposition of Dr. Carroll, p. 23)

      . On October 23, 2007, Mrs. Patten amended her complaint and added Dr. Bozeman as a defendant. Dr. Bozeman filed peremptory exceptions of prescription and peremption, which were granted, and Dr. Bozeman was dismissed from the suit.

      . Dr. Gayle has not contested this finding on appeal so we will not discuss the issue in depth.

      . The bowel has multiple layers. A partial thickness injury is when some of the layers have been damaged. A partial thickness injury can later develop into a perforation due to pressure within the bowel.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Michelle CHAUVIN, Plaintiff-Appellee v. Aaron CHAUVIN, Defendant-Appellant.
    No. 46,365-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.

      Erin L. Waddell Garrett, for Appellant.

      James L. Fortson, Jr., Shreveport, LA, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   WILLIAMS, J.

IjThe defendant, Aaron Chauvin, appeals a judgment ordering him to pay $9,938.79 in past due child support and $8,000 in attorney fees to the plaintiff, Michelle Chauvin. The trial court found defendant in contempt and sentenced him to serve 90 days in jail, suspended on the condition that he pay all sums due within 180 days of the judgment date. The court further ordered the parties to split all expenses incurred for the academic, athletic, social and cultural development of the children, with defendant paying 65% and the plaintiff 35% of such costs. For the following reasons, we affirm.

FACTS

Aaron and Michelle Chauvin were married in August 1996. Two children, L.A.C. and S.V.C., were born of the marriage. The parties separated in 2002 and a judgment of divorce was rendered in February 2003. The parties were awarded joint custody of the children and the mother was designated as domiciliary parent with visitation by the father, who was ordered to pay $700 per month in child support and $700 per month in spousal support for one year.

In February 2005, the mother filed a rule for an increase in the amount of child support. In March 2005, the trial court rendered judgment ordering defendant to pay $950 per month in child support and to maintain health insurance for the children, with the parties to pay 50% of the co-pay expenses and to divide the payment of health care expenses not covered by insurance, with defendant paying 65% and plaintiff 35% of such costs. The parties were ordered to share the private school education expenses and after school care costs of the children on the same 65/35 basis. After the 1 judgment, the defendant followed a practice by which he would add or subtract each party’s share of the children’s expenses when he paid the monthly child support. The defendant kept a handwritten log of the additions and deductions.

According to defendant’s records, for some reason the children were not covered by health insurance in September-October 2005. In October 2005, the plaintiff was hired by Kansas City Southern Railway (KCS) and resumed providing health insurance for the children through KCS, which offered better coverage than defendant’s employer. Defendant then added $30 to the child support payment, allegedly to reflect 65% of the health insurance premium, and paid $980 per month through January 2006. From February 2006 through August 2007, defendant paid $1,033.42 in monthly child support, including an increased amount for a portion of the health insurance premium.

In September 2007, the plaintiff was fired from her employment and could no longer maintain the children’s health insurance. The children were then uninsured from September-November 2007. In December 2007, defendant obtained health insurance for the children with a monthly premium of $219.33. He then deducted $76.77, which was 35% of the premium amount, from the $950 child support payment each month through November 2008. The cost of health insurance greatly increased after S.V.C. was diagnosed with Tourette’s Syndrome. In February 2009, the plaintiff said that she could not afford the 35% deduction because she was unemployed and told defendant that she had enrolled the children in|sLaCHIP, the state health insurance program for children administered through Medicaid. The defendant then stopped providing health insurance coverage for the children, despite the 2005 judgment.

In March 2009, the defendant filed a petition to modify custody. In November 2009, the plaintiff filed a petition seeking a rule ordering defendant to show cause why he should not be held in contempt for his failure to provide health insurance for the children and to pay the accrued unpaid child support. In December 2009, a consent judgment was rendered in open court ordering defendant to pay child support of $1,646.36 for the months of August through May and $980.19 for the months of June and July, when private school tuition was not due. This increased child support was made retroactive to January 2009. All academic expenses other than tuition and expenses “for all required or agreed upon extracurricular” activities were ordered to be paid 65% by defendant and 35% by plaintiff.

The hearing on each party’s rule for contempt and for past due child support was held in August 2010. After hearing the evidence, the trial court found that the defendant should have been paying child support of $950 per month from April 2005 through December 2008 and that he owed past due child support for every month in 2009. The court also found a total child support arrearage of $9,938.79 and that defendant was in contempt for his failure to pay child support. The court sentenced him to serve 90 days in the parish jail, with the sentence suspended on condition that he pay all sums due within 180 days of the date of judgment. The trial court rendered judgment ordering that defendant pay the arrearage amount and $8,000 in | ¿attorney fees to plaintiff and requiring the parties to split all expenses incurred for the purposes of improving the academic performance of the children and enhancing the athletic, social or cultural development of the children, with defendant paying 65% and plaintiff paying 35% of such costs. The defendant appeals the judgment.

DISCUSSION

The defendant contends the trial court was clearly wrong in finding that the parties did not extrajudicially agree to modify the 2005 judgment. Defendant argues that despite the judgment, he was not required to pay the entire cost of health insurance for the children because the parties had agreed he would pay only 65% of the premiums.

Generally, a child support judgment remains in effect until the party ordered to pay support has the judgment modified or terminated by a court. Hal-comb v. Halcomb, 352 So.2d 1013 (La.1977). One exception to this rule is when the parties have clearly agreed to waive or modify the court-ordered payments, the court will uphold such an agreement. The second exception considers the actions of the mother in placing custody of the children with the father. Vallaire v. Vallaire, 433 So.2d 315 (La.App. 1st Cir.1983). Courts apply a strict standard when determining whether the child support has been waived. The mother’s mere acquiescence in the father’s failure to pay child support is not a waiver. Dubroc v. Dubroc, 388 So.2d 377 (La.1980).

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State 5DOTD, 617 So.2d 880 (La.1993); Statham v. Statham, 43,324 (La.App.2d Cir.6/11/08), 986 So.2d 894. Under the manifest error standard of review, the appellate court must not reweigh evidence or substitute its own factual findings. When there are two permissible views of the evidence, the trial court’s choice between them cannot be clearly wrong. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646.

In the present case, Aaron Chauvin, the defendant, testified that despite the 2005 judgment requiring him to provide health insurance for the children, the parties had agreed to split the premium cost, "with him paying 65% and the plaintiff 35%. Defendant stated that this agreement began after a 2003 judgment, which had required the plaintiff to provide the children’s health insurance coverage. Defendant testified that the parties maintained this split of the insurance premium after the 2005 judgment. He acknowledged that there was no specific conversation in which the parties agreed to divide the premium cost and that there was no written agreement, only a number of emails from the plaintiff referring to the amount defendant would pay for health insurance.

Michelle Chauvin, the plaintiff, testified that the defendant had not paid her 65% of the premium cost after the 2003 judgment, because at that time she was employed by KCS and did not pay any portion of the health insurance premium under the union collective bargaining agreement. The plaintiff stated that there was no agreement to split the insurance premium in 2003 because none was owed.

Contrary to the defendant’s contention in his brief, the emails sent by | fiplaintiff do not discuss an agreement to divide the health insurance premium, but refer to an amount for health insurance to be paid by defendant. The defendant could not specify when the parties had agreed to split the premium cost and the evidence presented supports the trial court’s finding that his testimony regarding the basis of the parties’ alleged agreement was not credible. In addition, the defendant’s failure to provide health insurance as required by the 2005 judgment did cause detriment to the children, as was shown by his admission that the children were not covered by health insurance at certain times as a result. Based upon this record, we cannot say the trial court was clearly wrong in finding that the defendant failed to meet his burden of proving that the parties had agreed to modify the judgment which ordered him to provide health insurance for the children. Thus, the assignment of error lacks merit.

Contempt

The defendant contends the trial court erred in finding that he was in contempt of court. The defendant argues that the contempt finding should be reversed because he did not willfully disobey the court’s order.

Wilful disobedience of any lawful judgment or order of the court constitutes a constructive contempt of court. LSA-C.C.P. art. 224. Wilful disobedience is defined as an act or failure to act that is done intentionally, knowingly and purposefully, without justification. The party seeking contempt must show that the alleged offender wilfully disobeyed a direct order of the court prior to the contempt rule. Howard v. Oden, 44,191 (La.App.2d Cir.2/25/09), 5 So.3d 989; Baker v. Baker, 42,182 (La.App.2d 7Cir.6/20/07), 960 So.2d 1264; New v. New, 93-702 (La.App. 5th Cir.1/25/94), 631 So.2d 1183. A trial court is vested with great discretion in determining whether a person is to be held in contempt and its decision will not be reversed absent an abuse of that discretion. Smith v. Smith, 35,378-379 (La.App.2d Cir.9/26/01), 796 So.2d 726; New, supra.

In the present case, the judgment rendered in December 2009 ordered defendant to pay monthly child support of $1,646.36 from August through May, and pay $980.19 for June and July, retroactive to January 2009. However, the first month after the judgment, January 2010, the defendant paid only $950 in child support. Then for each of the following months through June 2010, defendant paid the court-ordered amount of child support without making any additional payments toward reducing the arrearage amount, despite his knowledge that he owed past due support for every month of the prior year under the December 2009 judgment.

The record shows that defendant refused to pay any sum toward that arrear-age, up to the time of the August 2010 hearing, even though he disputed only the amount of approximately $1,700 in health insurance premiums and various other minor amounts, including his share of the expenses for his daughter’s confirmation and graduation dresses and his son’s 4-H Club activities. Based on the evidence presented, the plaintiff proved that the defendant knowingly and intentionally disobeyed the court’s lawful judgment. Consequently, we cannot say the trial court abused its discretion in holding the defendant in contempt of court. The assignment of error lacks merit.

| sExpenses Incurred for the Children’s Activities

The defendant contends the trial court erred in ordering the parties to divide all expenses for the academic and social development of the children as provided in LSA-R.S. 9:315.6. Defendant argues that the court did not have authority to make such an order because the issue of modifying the prior child support award was not before the court.

A child support award may be modified if the circumstances of the child or either parent materially change. LSA-C.C. art. 142. The party seeking modification must show a material change in a party’s circumstances between the time of the prior award and the date of the rule to modify. LSA-R.S. 9:311. By agreement of the parties or order of the court, certain expenses incurred on behalf of the child may be added to the basic support obligation, including tuition, books and fees for attending a private elementary school, and special expenses to enhance the child’s athletic, cultural or social development. LSA-R.S. 9:315.6.

In the present case, the record does not support the defendant’s argument that the trial court improperly modified the December 2009 child support award by ordering the parties to split those expenses incurred for the purposes stated in Section 315.6. The December 2009 judgment ordered the defendant to pay monthly child support of $1,646.36 from August to May and $980.19 for June and July. The judgment also required the parties to split the expenses for school and required or agreed upon extracurricular activities. The trial court’s September 2010 order did not change the monthly child support payments, but clarified for the parties that the | ¡¡expenses which they had been required to split in the previous judgment were those expenses incurred for the purposes set forth in Section 315.6. The court found that such clarification was necessary because of the parties’ inability to agree on the need for certain expenses, such as the defendant’s refusal to pay a portion of the cost for summer algebra and reading classes for their daughter. Based upon this record, we cannot say the trial court abused its discretion in specifying that the parties must split those expenses incurred to enhance the academic, social and cultural development of their children. The assignment of error lacks merit.

Attorney Fees

The defendant contends the trial court abused its discretion in awarding attorney fees to plaintiff. The defendant argues that he was not arbitrary in failing to make payments in accord with the 2005 judgment, because he legitimately believed the parties had agreed to share the health insurance premium costs.

LSA-R.S. 9:375 provides that when the court renders judgment making past due child support executory, the court shall award attorney fees to the prevailing party, except for good cause. The trial court has much discretion in determining whether good cause exists and in assessing the amount of attorney fees awarded. Burnette v. Burnette, 98-0498 (La.App. 4th Cir.10/21/98), 720 So.2d 757. Good cause for the nonpayment of child support exists when the defendant’s failure to pay is not arbitrary or capricious. Tuey v. Tuey, 546 So.2d 235 (La.App. 2d Cir.1989).

In his appellate brief, the defendant asserts that his belief that the 1 inparties had extrajudicially agreed to modify the 2005 judgment regarding the payment of insurance premiums constitutes good cause to omit the award of attorney fees. However, as previously noted in this opinion, the defendant failed to present evidence to show that there was such an agreement on which he could reasonably rely as a basis for his failure to provide health insurance for the children. In addition, the amount of unpaid insurance premiums was a relatively small portion of the total arrearage, which largely resulted from defendant’s failure to pay the child support due under the December 2009 judgment. The record shows that plaintiff was required to hire an attorney to collect the unpaid child support. Thus, the trial court did not abuse its discretion in awarding attorney fees pursuant to LSA-R.S. 9:375.

Regarding the amount of the award, the plaintiffs attorney submitted an accounting of the attorney fees incurred by plaintiff. Defendant has not demonstrated that the amount of attorney fees awarded is excessive. Based on the evidence presented, we conclude that the award of $8,000 in attorney fees was reasonable. The assignment of error lacks merit.

Evidence

The defendant contends the trial court erred in accepting the exhibits offered by plaintiff as proof of payment of expenses. Defendant argues that the plaintiff failed to produce cancelled checks or a bank statement showing that the checks had been cashed as proper proof of payment.

The trial court possesses wide discretion in assessing the probative value of evidence. Holden v. Zurich American Ins. Co., 44,242 (La.App.2d11 Cir.5/13/09), 13 So.3d 221; City of Baton Rouge v. Tullier, 401 So.2d 422 (La.App. 1st Cir.1981).

In this case, the defendant complains that the plaintiff failed to produce proper proof of payment by offering only copies of handwritten duplicate checks, various receipts that she claimed had been paid on behalf of the children and emails she received from the children’s school indicating that money was due for student activities. At trial, plaintiff testified that the information contained in some of her exhibits had been obtained from discovery provided by the defendant. In addition, the plaintiff explained the expenses and payments that were represented by the various checks, receipts and email messages. We note that although defendant criticizes the validity of plaintiffs proof, he used his own handwritten notes to support his testimony at trial. The trial court was able to examine the documentation and hear the plaintiff testify. Based on this record, the trial court did not abuse its discretion in accepting the plaintiffs exhibits as proof of the expenses and payments made on behalf of the children. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, Aaron Chauvin.

.AFFIRMED.


author: LOLLEY, J.

text:
    Karen Marie Bendily Nee DRAY, Plaintiff-Appellee v. Brian Chavis BENDILY, Defendant-Appellant.
    No. 46,452-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.

      Stephen A. Jefferson, Monroe, LA, for Appellant.
    David J. Thomas, for Appellee.
    Before PEATROSS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

|,Brian Chavis Bendily appeals the judgment by the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, denying his motion to set aside judgment and motion for a new trial after a default judgment partitioning the community property was entered in favor of Karen Marie Dray Bendily, now Karen Snowdy. For the following reasons the judgment is affirmed in part, reversed in part, and remanded for further proceedings.

Facts

Brian and Karen were married in 2000 and have one daughter, born in 2001. The couple separated in 2008 and divorced the following year. On January 8, 2010, Karen filed a petition to partition the couple’s community property; both Brian and Karen were each ordered to each file detailed descriptive lists within 45 days of the filing of the petition, pursuant to La. R.S. 9:2801. Notice of the filing of the petition to partition was sent to Brian’s attorney who, in turn, forwarded the petition to him. Brian acknowledged he was served with the petition.

Karen testified that after filing, Brian told her to dismiss the petition and threatened that if she did not, he would drag the matter out for years and force her to spend more money on legal fees than she would gain through the proceedings. Karen reported these statements to her counsel. Brian testified that he did not remember making the threat, although he could not deny having made it.

Karen did not dismiss the petition but, instead, proceeded forward and filed her detailed descriptive list on March 24, 2010. Her list itemized the community’s assets and liabilities and the valuations of each. A copy of | jjthis list was mailed to Brian. Between March and April 2010, Brian’s attorney contacted Karen’s attorney stating that she had been retained for the partition matter and requested a continuance of the hearings. Karen’s attorney informed Brian’s attorney of Brian’s threat to drag out the matter, but agreed to a continuance, on the stipulation that Brian’s attorney would not allow his threat come to fruition. The trial court granted the continuance on April 9, 2010.

In April 2010, Brian’s attorney stated she was waiting on documents from Brian before she could file a descriptive list. On June 1, 2010, Karen’s attorney was contacted by a different attorney who stated he would be representing Brian in the partition matter. Karen’s attorney then learned that Brian’s first attorney did not know of the change in representation. Karen assumed that Brian’s failure to cooperate in providing his attorney with proper documentation and his hiring of a new attorney were ways in which Brian was attempting to drag out the matter as he had threatened.

On June 23, 2010, Karen’s attorney entered a preliminary default against Brian and sent a letter via certified mail explaining such to Brian’s attorney of record, his original attorney on the matter. On July 2, 2010, Brian’s new attorney sent a fax to Karen’s attorney stating he would be representing Brian in the matter and that a motion to withdraw and enroll had been prepared and would be filed. Karen’s attorney did not receive this fax because he was out of town.

|oOn July 7, 2010, no answer or detailed descriptive list had yet been filed on Brian’s behalf; therefore, the default judgment was confirmed by the trial court. This default judgment was rendered approximately 120 days after Brian was served with the petition to partition the community property.

On July 14, 2010, Brian’s new attorney filed a motion to withdraw and enroll as well as a motion to set aside default judgment and, in the alternative, a motion for new trial. The motions were heard and denied by the trial judge on August 27, 2010. Brian subsequently filed this appeal.

Law and Discussion

In his first assignment of error Brian argues the trial court erred in denying his motion for new trial and in finding that Karen established a prima facie case in support of the default judgment. Brian asserts it is not probable that Karen would have prevailed at a trial on the merits because of particular flaws in the evidence she presented; therefore, she should not have been issued a default judgment. He asserts that the default judgment should be set aside and a new trial ordered.

Louisiana R.S. 9:2801 sets forth the procedure through which community property is partitioned when the spouses are unable to agree on a partition of community property. The statute, in pertinent part, states:

A. When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding, which shall be conducted in accordance with the following rules:
_Jj(l)(a) Within forty-five days of service of a motion by either party, each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities. For good cause shown, the court may extend the time period for filing a detailed descriptive list. If a party fails to file a sworn detailed descriptive list timely, the other party may file a rule to show cause why its sworn detailed descriptive list should not be deemed to constitute a judicial determination of the community assets and liabilities. At the hearing of the rule to show cause, the court may either grant the request or, for good cause shown, extend the time period for filing a sworn detailed descriptive list. If the court grants the request, no traversal shall be allowed.
(b) Each party shall affirm under oath that the detailed descriptive list filed by that party contains all of the community assets and liabilities then known to that party. Amendments to the descriptive lists shall be permitted. No inventory shall be required.
(2) Within sixty days of the date of service of the last filed detailed descriptive list, each party shall either traverse or concur in the inclusion or exclusion of each asset and liability and the valuations contained in the detailed descriptive list of the other party. For good cause shown, the court may extend the time period for a party to traverse or concur in the detailed descriptive list of the other party. The trial of the traverses may be by summary procedure. At the trial of the traverses, the court shall determine the community assets and liabilities; the valuation of assets shall be determined at the trial on the merits. The court, in its discretion, may by ordinary procedure try and determine at one hearing all issues, including those raised in the traverses.

While a party may file a rule to show cause if the other party fails to timely file his own detailed descriptive list, entry of default judgment is another proper remedy. Strickland v. Strickland, 44,-185 (La.App.2d Cir.04/08/09), 7 So.3d 1282. If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. La. C.C.P. art. 1701(A). A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P. art. 1702(A). A prima facie case is established |fiwhen the plaintiff proves the essential allegations of the petition with competent evidence to the same extent as if the allegations had been specifically denied. Spencer v. James, 42,168 (La. App.2d Cir.05/09/07), 955 So.2d 1287. The plaintiff must present competent evidence that convinces the court that it is probable he would prevail at trial. Id. In reviewing a default judgment, an appellate court is restricted to a determination of the sufficiency of the evidence offered in support of the judgment. Discover Bank v. Peters, 38,366 (La.App.2d Cir.04/14/04), 870 So.2d 602. On appellate review, there is a presumption that a default judgment is supported by sufficient evidence and is correct, but this presumption does not apply where, as in the present case, the testimony is transcribed in the record. In such a case, the reviewing court is able to determine from the record whether the evidence upon which the judgment was based was sufficient and competent. Id.

In the case sub judice, Karen’s attorney afforded Brian’s attorneys ample professional courtesies and finally, in accordance with La. C.C.P. art. 1702(A), entered a preliminary default judgment. In accordance with this court’s ruling in Strickland, the trial court’s confirmation of default judgment was an appropriate procedural remedy for Brian’s inaction.

Additionally, the trial court did not err in finding that Karen had established a prima facie case. The trial court accepted the evidence submitted by Karen as competent. She supported each of her contentions of the detailed descriptive list with documents and testified before the trial court about them. All this she did without any cooperation from Brian. The | (¡trial court found that she met her burden, and after a careful review of the record, we agree. On appeal, Brian now attempts to poke holes in Karen’s classifications and valuations of the couple’s assets as set forth in her detailed descriptive list. Brian had the opportunity to dispute the detailed descriptive list filed by Karen in a manner provided by La. R.S. 9:2801, but he instead chose not to participate in the proceedings in an attempt to create financial hardship for his former wife and mother of his child. His failure to traverse her valuations and classifications is paramount to a concurrence. We will not allow him now on appeal to make such claims when he had an opportunity to do so before the trial court and refused. In Strickland, this court stated that it would not let the husband, in effect, traverse the descriptive list on appeal, when he failed to take such action in proceedings before the trial court. To allow that, the court stated, would be to reward him for his earlier inaction and unfairly penalize the wife, who fully participated at the trial court level. Strickland, 1 So.3d at 1286. Here, Karen will be afforded the same respect. Brian’s complaints regarding the manner in which the assets were classified, valuated, or divided will not be discussed. Karen established a prima facie case and Brian’s contentions to the contrary are without merit.

In his second assignment of error Brian contends that the trial court erred in awarding Karen reimbursement for funds paid during the marriage toward the mortgage of the marital home that is Brian’s separate property. Specifically, he claims she is entitled only to reimbursement for half the |7amount paid on the principal, but not on the total amount, which includes interest. We agree.

This issue was first addressed by this court in Sims v. Sims, 28,470 (La.App.2d Cir.06/26/96), 677 So.2d 663. There, this court, in line with other circuits, decided that a spouse is not due reimbursement for the interest paid from community funds on the debt incurred to improve the former matrimonial domicile. The Sims court employed the following rationale:

... while the principal payments by the community have served to improve or benefit the separate property of one spouse and thus entitle the other spouse to reimbursement, the interest payments are different. It is said that the interest benefits the community as the business cost of maintaining and using the natural and civil fruits of the separate property. Such interest payments thus simply constitute compensation by the community in that regard. (Citations omitted.)

Id. at 667.

Here, in its judgment, the trial court ordered Brian to pay Karen $16,335.00 as reimbursement for 90 months of mortgage payments towards Brian’s separate home that served as the marital home for the couple during the community. The record shows home mortgage records from May 1, 2006, through May 7, 2008, a total of 24 months. Thus, it is unclear how the trial court determined Karen was entitled to reimbursement for mortgage payments made for 90 months. During the 24 months for which there is evidence of payments made, principal and interest payments of $863.38 were made monthly. It appears the trial court’s reimbursement figure was deduced by multiplying the total amount paid per month by 90 months. However, because a spouse is entitled to reimbursement for only half the Isprincipal payments made on the debt, the trial court erred in awarding Karen half the principal and interest in reimbursement. Based on the evidence in the record, we are unable to make a precise determination of both the amount of principal paid each month and the number of months the mortgage payments were made during the community; therefore, we remand this issue to the trial court to make the precise determination.

Conclusion

For the foregoing reasons, the judgment in favor of Karen Marie Dray Bendily is affirmed in part, reversed in part, and remanded for further proceedings. All costs of this appeal are to be assessed equally between the appellee, Karen Marie Dray Bendily, and the appellant, Brian Chavis Bendily.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.


author: PEATROSS, J.

text:
    David BATES, d/b/a Bates Construction, et al., Plaintiffs-Appellants v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 46,432-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.

      Downer, Huguet & Wilhite, L.L.C., Shreveport, LA, by Philip E. Downer, III, M. Amy Burford McCartney, Michael A. Marino, for Appellants.
    Cook, Yancey, King & Galloway, APLC, Shreveport, LA, by J. Jarrod Thrash, for Appellee.
    Before GASKINS, PEATROSS & DREW, JJ.
   PEATROSS, J.

| plaintiffs, David Bates, d/b/a Bates Construction (“Bates”), and Classic Homes of Louisiana, Inc. (“Classic Homes”), filed suit in 2002 against Defendant, the City of Shreveport (“the City”), for an alleged unconstitutional taking without just compensation. More than eight years later, the matter was set for trial and the City filed an exception of no right of action to the claims of Classic Homes and Bates who, subsequently, filed a supplemental and amended petition adding Mark Yawn as a plaintiff in the suit. The City then filed an exception of prescription to the claims of Mr. Yawn. The trial judge granted the City’s exception of no right of action to the claims of Classic Homes and Bates, as well as the City’s exception of prescription to the claims of Mr. Yawn.

Bates and Classic Homes appeal from the trial judge’s ruling granting the City’s exception of prescription to Mr. Yawn’s claims. For the reasons set forth herein, we affirm.

FACTS

In 1997, Mark Yawn and Christopher Barnette purchased property in an area called the Juniper Place Subdivision (“the subdivision”) for the purposes of residential neighborhood development. Part of the subdivision, including Lot 47, is bordered by a drainage ditch that is owned and maintained by the City. In 1998, Mr. Yawn and Mr. Barnette sold Lot 47 of the subdivision to Mr. Barnette’s company, Barnette Properties, Inc.

In 1999, after a portion of the subdivision that was bordered by the drainage ditch was developed, Mr. Barnette filed a complaint with the City 12because residents in that area had indicated that there were erosion problems along their property lines that were causing damage and property loss. The City hired private engineers to evaluate and determine the cause of the erosion problems and ultimately concluded that the erosion had been caused by the construction on the property. The City then attempted to negotiate with Mr. Barnette in an effort to have him pay the cost of securing the ditch from further potential erosion problems. Mr. Barnette refused and the City filed suit. The two were ultimately able to reach a settlement.

Then in 2000, Mr. Yawn repurchased Lot 47 from Barnette Properties, Inc. In 2001, Mr. Yawn hired Bates Construction to build a home on Lot 47 at 164 Arbor Lane in Shreveport, Louisiana. At that time, Lot 47 was flagged by the City due to the prior construction on the property that had caused slope failure and subsequent damage to the drainage ditch and the bordering lots. The flag required anyone applying for a permit to build on Lot 47 to submit an erosion control plan.

In December 2001, Bates obtained a permit from the City to build on the property without submitting an erosion control plan. Bates commenced construction on the lot, including dirt work, plumbing installation, setting forms and completing post-tension operations. The slab was scheduled to be poured on January 17, 2002.

On January 16, 2002, after realizing that a permit to build on Lot 47 had been issued to Bates without the required erosion control plan, the City issued a stop work order. The City requested that Bates submit an erosion control plan so that the stop work order could be lifted. Bates did not, ^however, submit an erosion control plan and, consequently, was not permitted to resume construction. Then, on January 25, 2002, nine days after the stop work order- was issued by the City, Mr. Yawn transferred ownership of Lot 47 to Classic Homes. At that time, Mr. Yawn was the president and sole shareholder of Classic Homes.

Approximately one month later, on February 26, 2002, as previously stated, Classic Homes and Bates filed suit against the City for what they alleged to be an unconstitutional taking by the City without just compensation. Due to numerous continuances and withdrawals from representation filed in the case, the matter was not set for trial until eight years later in 2010.

After the matter was set for trial, the City filed an exception of no right of action to the claims of Classic Homes and Bates alleging that they were not the owners of the property at the time of the alleged taking. Classic Homes and Bates then filed a supplemental and amended petition adding Mr. Yawn as a plaintiff to the suit. Subsequently, the City filed an exception of prescription to the claims of Mr. Yawn arguing that his claims had prescribed and did not “relate back” to the original petition filed by Classic Homes and Bates eight years earlier.

Agreeing with the City that neither Classic Homes nor Bates owned Lot 47 at the time of the alleged taking without compensation, the trial judge granted the City’s exception of no right of action as to Classic Homes and Bates, dismissing their claims with prejudice.

|4Puring the portion of the hearing on the City’s exception of prescription as to the claims of Mr. Yawn, the trial judge asked Plaintiffs’ counsel if he intended to substitute Mr. Yawn as a plaintiff for Classic Homes and Bates. Plaintiffs’ counsel responded that Mr. Yawn, who, by the time of the hearing had sold Classic Homes to another individual, would not be substituted as a plaintiff for Classic Homes and Bates and that all three plaintiffs would remain in the suit. Subsequently, the trial judge granted the City’s exception of prescription and dismissed Mr. Yawn’s claims with prejudice.

This appeal ensued.

DISCUSSION

Plaintiffs assert in their sole assignment of error that the trial judge erred as a matter of law in sustaining the City’s exception of prescription to the claims of Mr. Yawn. Plaintiffs assert that their supplemental and amended petition adding Mr. Yawn as a plaintiff relates back to their original petition in accordance with La. C.C.P. art. 1153 and Giroir v. South Louisiana Medical Center, 475 So.2d 1040 (La.1985); therefore, Mr. Yawn’s claims have not prescribed.

The City contends that, under La. R.S. 13:5111, Mr. Yawn’s claims are prescribed on the face of Plaintiffs’ petition because Mr. Yawn failed to file a claim within three years of the alleged taking by the City when it issued the stop work order in January 2002. Moreover, the City asserts that Plaintiffs’ supplemental and amended petition adding Mr. Yawn as a plaintiff to the suit filed in 2010 does not “relate back” to their original | r,petition filed in 2002 because Plaintiffs have failed to meet all four factors set forth in Giroir v. South Louisiana Medical Center, supra.

The party raising the exception of prescription ordinarily bears the burden of proof at the trial of the peremptory exception. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992); McKinley v. Scott, 44,414 (La.App.2d Cir.7/15/09), 17 So.3d 81. When prescription is evident from the face of the pleadings, however, the plaintiff bears the burden of showing the action has not prescribed. Spott v. Otis Elevator Co., supra; McKinley v. Scott, supra. When evidence is introduced at the hearing on the peremptory exception of prescription, the trial judge’s findings of fact are reviewed under the manifest error standard of review. Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261; McKinley v. Scott, supra.

With respect to the prescriptive period for alleged takings without compensation, La. R.S. 13:5111(A) provides:

A. A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as a part of the costs of court, such sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceeding. Any settlement of such claim, not reduced to judgment, shall include such reasonable attorney, engineering, and appraisal fees as are actually incurred because of such proceeding. Actions for compensation for property taken by the state, a parish, municipality, or other political subdivision or any one of their respective agencies shall prescribe three years from the date of such taking. (Emphasis added).

lfiNew plaintiffs and defendants may be added by amended pleadings if the applicable criteria are met. La. C.C.P. art. 1153; Giroir v. South Louisiana Medical Center, supra; Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983); Smith v. Kaye’s Food Market, 38,518 (La.App.2d Cir.5/19/04), 874 So.2d 395, writs denied, 04-1498 (La.10/1/04), 883 So.2d 1008; 04-1560 (La.10/1/04), 883 So.2d 992; Gaines v. Bruscato, 30,340 (La.App.2d Cir.4/8/98), 712 So.2d 552, writ denied, 98-1272 (La.6/26/98), 719 So.2d 1059.

In Giroir v. South Louisiana Medical Center, supra, the Louisiana Supreme Court set forth a four-part test for determining whether an amendment adding new plaintiffs would relate back to the date the original petition was filed. Id. The four Giroir factors allowing relation back are: (1) the amended claim arises out of the same conduct, transaction or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; and (4) the defendant will not be prejudiced in preparing and conducting his defense. La. C.C.P. art. 1153; Giroir v. South Louisiana Medical Center, supra; Smith v. Kaye’s Food Market, supra; Howard v. Edmon, 35,715 (La.App.2d Cir.2/27/02), 811 So.2d 226.

The City asserts that Plaintiffs have failed to prove that the City knew or should have known of the existence and involvement of the new plaintiff, Mr. Yawn (Giroir factor # 2) and, further, that the City will not be ^prejudiced in preparing and conducting its defense if Mr. Yawn is added as a plaintiff (Giroir factor # 4). We agree.

Giroir Factor # 2: The defendant either knew or should have known of the existence and involvement of the new plaintiff

Plaintiffs contend that the City should have known of Mr. Yawn’s existence and involvement as a plaintiff because Mr. Yawn is the president and sole shareholder of Classic Homes; and, at the time the alleged taking occurred, Mr. Yawn was listed in the public records as the property owner. Under the facts and circumstances of this case, however, we are not persuaded by Plaintiffs’ argument.

As previously noted, the property at issue, which is located on Lot 47 of the subdivision, has been subjected to a long, somewhat confusing line of conveyances between various property owners since 1997. According to the record, Mr. Yawn and Mr. Barnette originally bought Lot 47 in 1997, but then Mr. Yawn and Mr. Bar-nette sold Lot 47 to Barnette Properties, Inc. in 1998. Barnette Properties, Inc., then sold Lot 47 back to Mr. Yawn in 2000. Just two years later, Mr. Yawn sold Lot 47 to Classic Homes in 2002. Four years later in 2006, Lot 47 was sold once again, this time by Classic Homes, to Huckabee Yawn, L.L.C. Additionally, Mr. Yawn has now sold Classic Homes to another individual who no longer resides in Louisiana. It appears from the record that Mr. Yawn’s somewhat recent sale of Classic Homes is the latest development in the 13-year time frame of property sales and consequential ownership changes in this litigation.

Plaintiffs waited until 2010 to file their supplemental and amended petition adding Mr. Yawn as a plaintiff, at least four years after Classic |sHomes sold Lot 47 to Huck-abee Yawn, L.L.C. Moreover, Plaintiffs themselves are unclear as to how long it has been since Mr. Yawn sold Classic Homes to another individual who now allegedly resides somewhere in California. In light of the evidence that Lot 47 changed ownership at least 5 times between 1997 and 2006, notwithstanding the fact that Mr. Yawn no longer even owns Classic Homes, we see nothing in the record to support Plaintiffs’ contention that the City knew or should have known of the existence or involvement of Mr. Yawn as a plaintiff in this litigation.

Plaintiffs further assert that the City knew or should have known of Mr. Yawn’s existence and involvement as a plaintiff because he wrote a letter to City officials referencing the Juniper Place Subdivision and also had encounters with City officials prior to the alleged taking involving Lot 47. As the City points out, however, the letter was written and the encounters took place in 1999, three years prior to the alleged taking. Moreover, Mr. Yawn did not own Lot 47 in 1999, Barnette Properties, Inc. did.

The amended and supplemental petition filed by Plaintiffs is clearly prescribed on its face; and, once challenged by the City, it was incumbent upon Plaintiffs to provide competent evidence to show that it was not. Thomas v. Connolly, 31,447 (La.App.2d Cir.1/20/99), 726 So.2d 1052. Plaintiffs have failed to meet this burden. Id.

Giroir Factor # ⅛: The defendant will not he prejudiced in preparing and, conducting his defense

As an additional matter, the City argues that it would be prejudiced by the addition of Mr. Yawn as a plaintiff to the suit because eight years have |apassed between the filing of the original petition in 2002 and the filing of Plaintiffs’ supplemental and amended petition in 2010. The City alleges that the prejudice would result from its failure to acquire and preserve evidence against Mr. Yawn in his capacity as the property owner of Lot 47 when the alleged taking occurred. We agree.

As noted by our brethren in the fourth and fifth circuits, Giroir v. South Louisiana Medical Center, supra, did not place any time limits on the relation back of an amended pleading. Lester v. Exxon Mobil Corp., 09-1105 (La.App.5th Cir.6/29/10), 42 So.3d 1071, writ denied, 10-2244 (La.12/17/10), 51 So.3d 14; Baton Rouge Ass’n of School Employees, Local 100 Semce Employees Intern. Union, AFL-CIO v. East Baton Rouge Parish School Bd., 98-0526 (La.App.1st Cir.4/1/99), 729 So.2d 1154, writ denied, 99-1278 (La.7/2/99), 747 So.2d 19. The passage of time, however, between the filing of the original petition and the amended petition will generally weigh against the relating back of the amendment. Lester v. Exxon Mobil Corp., supra; Baton Rouge Ass’n of School Employees, Local 100 Service Employees, supra. Although Mr. Yawn would likely present similar claims as the original and timely Plaintiffs, Bates and Classic Homes, at some point, the passage of time becomes a factor. Lester v. Exxon Mobil Corp., supra; Baton Rouge Ass’n of School Employees, Local 100 Service Employees, supra. In the case sub judice, we find that the eight-year passage of time weighs against the relating back of Plaintiffs’ supplemental and amended petition.

[ ipAccordingly, we see no manifest error in the trial judge’s ruling granting the City’s exception of prescription, thereby dismissing the claims of Mr. Yawn.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court granting the City of Shreveport’s exception of prescription. Costs of this appeal are assessed to appellants, Classic Homes of Louisiana, Inc. and David Bates, d/b/a Bates Construction.

AFFIRMED.

      . Lot 47 was previously part of Lot 9 of Kay Acres.