author: CLARENCE E. McMANUS, Judge.

text:
    Nancy BUCKHEISTER and Richard Buckheister v. UNITED STATES ENVIRONMENTAL SERVICES, L.L.C., Kavon D. Thompson and the Gray Insurance Company.
    No. 11-CA-1148.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.

      Lobman, Carnahan, Batt, Angelle and Nader, Sidney J. Angelle, Eric B. Berger, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Chehardy Sherman, L.L.P., Jacqueline G. Griffith, Charles O. Taylor, Attorneys at Law, Metairie, LA, for Defendant/Appel-lee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and ROBERT A. CHAISSON.
   CLARENCE E. McMANUS, Judge.

| {¡On October 18, 2006, Nancy Buckheis-ter, filed suit for damages arising from injuries allegedly received as a result of a car accident. Plaintiffs husband, Richard, was also named as a plaintiff and he sought damages for loss of consortium. Named as defendants in the suit were Kevon Thompson, driver of the other vehicle, his employer United States Environmental Services, L.L.C. (hereinafter “USES”), and their insurer The Gray Insurance Company. Prior to trial, the parties stipulated that Thompson was the cause of the accident, that he was in the course and scope of his employment, that USES was liable for damages and that there was a policy of insurance issued by The Gray Insurance Company which covered the accident. Left as issues for trial were medical causation and the extent of the damages incurred. The matter was heard at a three day trial before a jury and at its conclusion the jury found that Mrs. Buckheister suffered damages as a result of the accident. The jury awarded Mrs. Buckheister the amounts of 1,-⅝$63,000.00 for past medical expenses, $24,000.00 for future medical expenses, $2,700.00 for past lost wages, $2,700.00 for future lost wages, $50,000.00 for general damages, and $10,000.00 for loss of enjoyment of life, for a total damage award of $153,000.00. The jury further found that Mr. Buckheister did not suffer a loss of consortium as a result of his wife’s injuries, and they awarded him $0.00. On June 15, 2011, in conformity with the jury verdict, the trial court rendered judgment in favor of plaintiff in the amount of $153,000.00. Thereafter, plaintiffs filed motions for judgment notwithstanding the verdict, and additur, and alternatively for new trial, alleging that the award given to Mrs. Buckheister was inadequate and that the jury erred in failing to find that Mr. Buckheister suffered damages. On September 1, 2011, the trial court denied all motions. This timely appeal followed.

FACTS

In the course of these proceedings, the defendants admitted to liability. They also admit that the driver, Kavon Thompson, was within the course and scope of his employment and had company permission to drive the vehicle, and that insurance coverage was provided by Gray Insurance Company.

The following was adduced at trial. On October 28, 2005, Mrs. Buckheister was proceeding down Lapalco Boulevard when the side of her vehicle was struck by a truck driven by Kevon Thompson. She testified that the impact occurred with sufficient force that her body was jolted and twisted. After the accident, both vehicles pulled off the roadway and into a nearby parking lot, and she called both the police and her husband. After the accident was investigated, she went home. At that time, she felt stiff and sore. The next day, and into the next week, she felt increasing neck pain, prompting her to seek medical treatment from her internist Dr. Elizabeth Cressey.

|4Prior to the accident at issue, Mrs. Buckheister suffered from various medical conditions, none of which she said related to the neck pain from the accident. Her medical issues were Wolff-Parkinson-White syndrome, (an electrical problem that causes an irregular heartbeat), a thyroid condition, gastroparesis (food does not digest), lower back pain at the tailbone area, fibromyalgia, and carpal tunnel syndrome.

On November 1, 2005, Mrs. Buckheister first told Dr. Cressey of the automobile accident and her neck pain. At that time, Dr. Cressey did not prescribe any medications or order any tests. Mrs. Buckheis-ter returned to Dr. Cressey two weeks later because her neck pain was increasing. At that time, Dr. Cressey ordered an X-ray and prescribed an anti-inflammatory.

Despite treatment, Mrs. Buckheister’s condition worsened. She was not getting relief from the medications she was taking, and there were some medications that she could not take because of her heart arrhythmia. According to Mrs. Buckheister, in the beginning of 2006, the pain in her neck was “getting out of control”, and radiating from the neck into her shoulder and down her arm.

Dr. Cressey testified by video deposition. She stated that she treated Mrs. Buckheister from September 1995 until she (Dr. Cressey) moved to Virginia in March of 2006. Throughout that time period, Dr. Cressey treated Mrs. Buckheister for mild illnesses and her chronic fibro-myalgia, for which she was prescribed Paxil (an anti-depressant). According to Dr. Cressey, Mrs. Buckheister’s last complaint of neck pain prior to the accident was several years earlier, in April of 2001. At that time she was diagnosed with cervi-calgia (neck strain). No diagnostic tests were conducted and no medications were prescribed. The condition resolved itself.

| sDr. Cressey stated that on the November 1, 2005 visit, her notes did not reflect any complaint of neck pain. However, she also admitted that she might not have noted it if there was no treatment prescribed. On November 11, 2005, Mrs. Buckheister told her of the car accident and told her about the neck pain. Her examination revealed limited range of motion of the neck and tenderness in the cervical spine muscle. A neurological examination was normal. The X-ray showed mild degenerative changes in the lower cervical spine, loss of normal lordosis and some degenerative disc disease in C5-6 and C6-7. Dr. Cressey stated that degenerative disc disease can be symptomatic or asymptomatic, and that trauma such as an accident can cause a previously asymptomatic condition to become symptomatic.

Dr. Cressey stated that on Mrs. Buck-heister’s next visit of January 13, 2006, she was withdrawn, sad and anxious, and complained of disruption of sleep. Her prescriptions were renewed at that time. Dr. Cressey admitted that her notes did not contain any mention of neck pain, but stated that there would have been no need to renew the prescriptions if Mrs. Buckheis-ter was not still in pain.

Dr. Cressey saw Mrs. Buckheister twice more, for conditions unrelated to the car accident. In late March, Mrs. Buckheister telephoned and asked for a referral to see an orthopedist for neck pain. Shortly thereafter, Dr. Cressey relocated. In her deposition, Dr. Cressey opined that Mrs. Buckheister’s complaints of pain were legitimate and were caused by the automobile accident.

Mrs. Buckheister testified that in March or April of 2006, she had her first appointment with Dr. Ralph Katz, an orthopedic surgeon at Westside Orthopedic Clinic. Dr. Katz testified via video deposition that he first saw Mrs. Buckheister on April 2, 2006. At that time, she complained of constant neck pain and arm pain with numbness in the fingers, which he described as a radicular complaint. She | (¡related that she had been in a car accident in October of 2005. His notes also indicate that she had a long history of neck pain, which had been intermittent for years, but had gotten worse since the accident. However, both Mr. and Ms. Buck-heister testified that Ms. Buckheister did not have a history of neck pain before the accident. She rated her pain as a 7 on a scale of 1 to 10. He had no notation of her having fibromyalgia.

Dr. Katz’s exam of her neck revealed some tenderness with no spasms, no atrophy, and discomfort with range of motions. She exhibited discomfort in the para cervical musculature, weakness at the C7 root, and some symptoms of carpal tunnel and or irritation of the ulnar neuritis. At that time, he prescribed muscle relaxers, pain and anti-inflammatory medication, and a steroid injection.

An MRI was conducted which showed herniation of C4-5, C5-6, and C6-7 and cervical spondylosis. There was impingement on the C7 root, which was more prominent on the left. An EMG and nerve conduction study revealed C6-7 cervical radiculopathy and left arm carpal tunnel syndrome.

Mrs. Buckheister received injections twice in May, in August and in September. In September of 2006, she returned to Dr. Katz, still with neck pain and recurrent arm pain. He recommended selective nerve blocks, and told her that if the blocks did not work, her next option would be surgery. Ms. Buckheister did not follow up with him. In his deposition, Dr. Katz stated that he believed her complaints of pain were genuine.

Mrs. Buckheister testified that the injections gave her some relief, but it was not long-term. When Dr. Katz mentioned surgery, she sought a second opinion.

On October 23, 2006, Mrs. Buckheister saw Dr. Truax, a neurologist. He performed another EMG and sent her to be evaluated for potential neurosurgery by 17Pr. Steck. Dr. Steck recommended that she continue with conservative care, and referred her to Dr. Rynick for treatment.

Dr. Stephen Rynick testified via video deposition. He stated that he was a member of the Culicchia Medical Group and that he specialized in physical medicine and rehabilitation. His specialty involves muscle and nerve, bone and joint from a functional perspective, trying to reduce pain and increase function. He further testified that he treats chronic pain patients.

Dr. Rynick first treated Mrs. Buckheis-ter on November 29, 2006. He reviewed her MRI and EMG and administered a cervical epidural steroid injection, with the intent of reducing irritability of the nerve and inflammation. A second injection was administered on April 23, 2007, which eased the radicular pain into the arm, but not the neck pain. On April 30, 2007, he administered facet joint injections. On her visit of June 7, 2007, Mrs. Buckheister reported excellent improvement with the facet joint injections, however the pain returned. On July 25, 2007, he performed a cervical facet rhizotomy, which is a procedure that involves several injections to burn the nerve so that it cannot carry pain signals. Rhizotomies were performed in November of 2007, August of 2008, March of 2010 and January of 2011. At the time of trial, a rhizotomy was scheduled.

In his deposition, Dr. Rynick testified that in his opinion, Mrs. Buckheister’s symptoms were caused by the automobile accident. He further opined that her condition was likely permanent, and would require procedures every 6 months to one year. He also stated that Mrs. Buckheis-ter is not a candidate for surgery, and that the treatments administered would not be effective in the treatment of fibromyalgia.

| sDuring the interim, Mrs. Buckheister was admitted to the hospital in May of 2009 for neck pain. Her stay lasted 3-4 days. She testified that she was given morphine but it had little effect.

Dr. James Todd, an orthopedist, performed an Independent Medical Examination. He reviewed Mrs. Buckheister’s history, medical records provided to him, and his own examination of her and stated that he found no neurocompression on any of the nerves, and therefore she was not a candidate for surgery. He opined that she was not suffering from radiculopathy, since this would have affected her strength as well as exhibiting tingling symptoms. He further stated that the most likely and common method for nerves to compress is from a degenerative process where the discs lose fluid and the spine collapses. In his opinion, Mrs. Buckheister was suffering from a degenerative cervical spondylo-sis or arthritis with a facet condition that was pre-existing. He concluded that Mrs. Buckheister was injured in the accident, but that her injury was short-term and had resolved itself by the time of trial. Dr. Todd found that no future care was warranted.

At trial it was established that Mrs. Buckheister’s past medical expenses were $62,725.00. Dan Cliffe, a certified public accountant specializing in economic analysis and the determination of potential loss, evaluated the present value of Mrs. Buck-heister’s future medical care, based on a factual scenario of 1-2 office visits, 1-2 rhizotomies and 1-2 epidural steroid injections for the rest of her life, based on her life expectancy of 22.85 years. He opined that the present value of her future medical care ranged from a low point of $106,515.65 to a high point of $147,604.82.

Mrs. Buckheister testified that, at the time of trial, her pain varied on a daily basis from a 4 to a 10 on a scale of 1 to 10, and that she never had a “pain free” | flday. She stated that the pain affected her daily life in that it caused her to miss days at work and she often had to “back out” of events she had planned. Sometimes when she did attend planned events, by the event’s end she would be in so much pain that she would regret having attended. Mrs. Buekheister stated that she no longer can lift heavy objects, do any overhead activity, or turn her head without causing pain. She can no longer tend to her garden. She had difficulty doing housework and must rely on her husband. She further stated that while the intimacy in her marriage has been affected, they have not suffered any marital discourse. Mrs. Buekheister further admitted that there had been limitations to her activities prior to the accident because of her fibromyal-gia; however that condition was well controlled by prescribed medicine (Paxil). She further testified that the medical procedures that she would undergo, especially the rhizotomies, were extremely painful.

Mr. Richard Buekheister, plaintiffs husband, testified that he works at the former Avondale Shipyards, and that he splits his time between Avondale and Pascagoula, Mississippi. Because he must spend part of his working time in Pascagoula, he worries about his wife when he is not home. He stated that she worries about the “load” that she burdens him with, and that she cannot always participate in events with him. He stated that they were a happily married couple.

ANALYSIS

In this appeal, plaintiffs allege that the jury committed manifest error in their findings of damages. They contend that the jury erred in its award for future damages; its award for general damages; its award for loss of enjoyment of life and in failing to award damages for Richard Buckheister’s loss of consortium claim.

Plaintiffs also contend that the trial court erred in denying their motions for JNOV and/or additur or, in the alternative, new trial.

| inOur standard of review in this matter is governed by the following:

A court of appeal may not set aside a trial court’s findings of fact in the absence of manifest error or unless they are clearly wrong. Under the manifest error standard, in order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Bonin v. Ferrellgas, 03-3024, p. 6-7 (La.7/2/04), 877 So.2d 89, 94-95; Stobart v. State through Dept, of Transp. and Development, 617 So.2d 880, 882 (La.1993).

Allerton v. Broussard, 10-2071 (La.12/10/10), 50 So.3d 145, 146-147 reconsideration denied, 10-2071 (La.1/28/11), 56 So.3d 974.

In addition, plaintiffs also argue that the trial court erred in denying their post-trial motions for JNOV and/or additur and, in the alternative, new trial.

JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that when there is a jury, the jury is the trier of fact.

Joseph v. Broussard Rice Mill, Inc., 00-0628, (La.10/30/00), 772 So.2d 94, 99.

Plaintiffs also argue that the trial court erred in denying the motions for additur or alternatively for new trial.

The Louisiana Code of Civil Procedure provides a procedure for additur or re-mittitur of the verdict or judgment in cases tried before a jury when the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only. See LSA-C.C.P. art. 1814. This procedure is connected with the procedures concerning new trials. Miller v. Chicago Insurance Company, 320 So.2d 134, 136 (La.1975); see LSA-C.C.P. arts. 1972,1973.

Guidry v. Millers Cas. Ins. Co., 822 So.2d 675, 2001-0001 (La.App. 1 Cir. 6/21/02).

| uPlaintiffs challenge several, but not all, of the jury’s awards of damages. First they allege that the jury erred in its award of future medical expenses. It appears to be plaintiffs’ argument that because the jury awarded all of plaintiffs past medical expenses incurred through treatment with Dr. Rynick, the jury was obligated to awarded damages for all of the future medical procedures that Dr. Rynick concluded would be necessary.

The cost of future medical treatment and expenses cannot be precisely measured; however, the plaintiff must still

establish future medical expenses with some degree of certainty through medical testimony that such expenses are indicated and their probable cost. Locke v. Young, 42,703 (La.App.2d Cir.12/12/07), 973 So.2d 831; Sepulvado v. Turner, 37,912 (La.App.2d Cir.12/10/03), 862 So.2d 457, writ denied, 04-0089 (La.3/19/04), 869 So.2d 855; Lewis v. State Farm Ins. Co., 41,527 (La.App.2d Cir.12/27/06), 946 So.2d 708.

Davis v. Foremost Dairies, 45,835 (La.App. 2 Cir. 2/16/11), 58 So.3d 977, 990 writ denied, 11-0568 (La.4/25/11), 62 So.3d 97 and 11-0538 (La.4/25/11), 62 So.3d 98.

The jury herein found that further medical treatment was warranted, since they awarded a sum of money for that treatment. The only testimony presented to prove or disprove the value of that award was the testimony of Mr. Cliffe. His testimony was that the lowest value of the future medicals that Mrs. Buckheister would likely incur was $106,515.65. This testimony was not refuted by the defense. Accordingly, the jury committed manifest error in awarding only $24,000.00 in future medical expenses and we amend thé judgment to award to Mrs. Buckheister $106,515.65 for her future medical expenses.

Plaintiffs next argue that the award of general damages was inadequate. As this Court summarized in Mixter v. Wilson, 10-464 (La.App.5 Cir.12/14/10), 54 So.3d 1164: 1168.

General damages are those that may not be fixed with pecuniary exactitude; instead, they “involve mental or physical pain or suffering, inconvenience, |12the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms.” Duncan v. Kansas City S. Ry. Co., 00-0066 (La.10/80/00), 773 So.2d 670, 682-83 (quoting Keeth v. Dep’t. of Pub. Safety & Tramp., 618 So.2d 1154,1160 (La.App. 2 Cir.1993)). In appellate review of general damage awards, the court must accord much discretion to the trial court judge or jury. La. C.C. art. 2324.1; Reck v. Stevens, 373 So.2d 498 (La.1979). The role of an appellate court in reviewing awards of general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trial court. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Because discretion vested in the trial court is “great,” and even vast, an appellate court should rarely disturb an award of general damages. Id. at 1261.
It is only when the award is, in either direction, beyond that, which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances, that the appellate court should increase or reduce the award. Id. The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages. Cone v. Nat’l Emergency Serv. Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089. Only if the reviewing court determines that the trial court has abused.its “much discretion” may it refer to prior awards in similar cases and then only to determine the highest or lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).

In this case, the jury evidently accepted that the entire medical treatment undergone by Mrs. Buekheister was related to the accident, since it awarded her the entire amount of past medical expenses. The testimony at trial reflected that Mrs. Buekheister had suffered pain for over 5 years, ranging from (as she stated) a 4 to 10 out of a possible 10, including pain so severe it required hospitalization. For the last five years, plaintiff has undergone several cervical facet blocks, rhizotomies and epidural steroid injections. Furthermore, surgery was found not to be an option for the relief of pain. Mrs. Buekheister testified that as a result of her injuries, she could no longer enjoy events that she had participated in prior to the accident, because she would either suffer pain, or fore-go the events entirely. Given this uncon-tradicted testimony, we conclude that the jury was manifestly erroneous 113in awarding only $50,000.00 for general damages and $10,000.00 for loss of enjoyment of life.

Having found that the awards are manifestly inadequate, we turn to a review of similar cases to determine the lowest appropriate award in this case.

In Hoyt v. Gray Ins. Co., 00-2517 (La.App.4 Cir.1/31/02), 809 So.2d 1076, writ denied, 02-1222 (La.6/21/02), 819 So.2d 343, the court affirmed a general damage award of $150,000.00 to a plaintiff diagnosed with C5 radiculopathy without evidence of disc herniation and a bulge at L-5, S-l which was possibly pre-existing. The court noted that these injuries were disabling injuries, having long-term implications.

In Rico v. Sewerage and Water Bd. of New Orleans, 04-2006 (La.App.4 Cir.3/8/06), 929 So.2d 143, the court affirmed an award of $150,000.00 to a plaintiff who suffered a herniated disc in his neck and who was not a candidate for surgery due to pre-existing health conditions.

In Fox v. Anderson, 05-934 (La.App.3 Cir.3/1/06), 924 So.2d 399, writ denied 06-0722 (La.6/23/06), 930 So.2d 977, the court affirmed an award of $175,000.00 to a plaintiff who suffered, at the very least, an aggravation to a prior back condition for which he underwent physical therapy and a number of lumbar injections. At the time of trial Mrs. Buckheister continued to experience pain and could no longer plan out or participate in events, and he could no longer work as his job required heavy lifting.

Considering the foregoing jurisprudence, we conclude that $150,000.00 was the least amount of general damages that is appropriate in this case, and that a combined award of $175,000.00 is the lowest appropriate award for general damages and loss of enjoyment of life. Accordingly, we amend the judgment of |uthe trial court to provide for damages of $175,000.00 for general damages and loss of enjoyment of life.

Plaintiffs also argue that the jury erred in failing to award loss of consortium damages to Richard Buckheister.

In order to establish a claim for loss of consortium, a claimant must factually support the defendant’s liability, the damage suffered by the primary victim, and his or her loss of consortium damages. Peck v. Wal-Mart Stores, Inc., 96-645 (La.App.3 Cir.11/6/96); 682 So.2d 974.
Whether a person is entitled to loss of consortium damages is a question of fact which cannot be reversed on appeal absent manifest error. Mathews v. Dousay, 96-858 (La.App.3 Cir.1/15/97); 689 So.2d 503.

Cole v. State ex rel. Dept. of Transp. & Development, 99-912 (La.App.3 Cir.12/22/99), 755 So.2d 315, 326-327 writ denied, 00-0199 (La.4/7/00), 759 So.2d 766.

In this case, although Mr. Buckheister testified that his wife’s injuries affected their lives, and that he constantly worried about her, his testimony fails to show how their lives were disrupted. The record only contains vague testimony as to how his life was impacted by the injury. Accordingly, we cannot say that the jury was manifestly erroneous in denying this claim. Compare Marcum v. Johnston, 32,634 (La.App.2 Cir.1/26/00), 750 So.2d 1186.

For the above discussed reasons, the judgment of the trial court is amended to award $175,000.00 in general damages and damages for loss of enjoyment of life, and to award $106,515.65 for future medical expenses. In all other respects, the judgment is affirmed. Costs are assessed equally between the parties.

AMENDED, AND AS AMENDED, AFFIRMED


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge. WICKER, J.,

license: Public Domain

text:
    David SCHEUERMANN, Jr. v. CADILLAC OF METAIRIE, INC. and General Motors Corporation.
    No. 11-CA-1149.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.

      Michael A. Britt, Attorney at Law, Ken-ner, LA, for Plaintiff/Appellant, David Scheuermann, Jr.
    Stephen N. Elliott, Matthew A. Ziifle, Attorneys at Law, Metairie, LA, for Defendant/Appellee, GMAC Service Agreement Corporation.
    W. Evan Plauché, Kevin 0. Larmann, Attorneys at Law, Metairie, LA, for Defendant/Appellee, Cadillac of Metairie, Inc.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKS HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

|2The plaintiff appeals a judgment that granted a motion to dismiss filed by two of the defendants. We vacate the judgment and remand for further proceedings.

PROCEEDINGS BELOW

The petition alleged the following pertinent facts:

In 2001 David Scheuermann, Jr. purchased a white Cadillac Deville automobile from a dealership that subsequently was taken over by Cadillac of Metairie, Inc. General Motors Corporation (“General Motors”) was the manufacturer of the 2001 Cadillac and issuer of a manufacturer’s warranty for the vehicle.

On September 29, 2005, the plaintiff purchased an extended warranty provided by GMAC Service Agreement Corporation (“GMAC”) and sold by Cadillac of Metair-ie. Known as the General Motors Protection Plan, this extended warranty provided coverage for repairs that might be required after expiration of the original warranty, for a duration of 36 months or 36,-000 miles.

On or about August 8, 2008, the plaintiff began experiencing knocking noises coming from the engine. The plaintiff brought the vehicle to Cadillac of Metairie for repairs. Cadillac of Metairie replaced various parts of the engine and |sreturned the vehicle to the plaintiff on October 6, 2008. Those repairs were covered by the extended warranty.

After the return of his vehicle, however, the plaintiff discovered the knocking noise persisted. Cadillac of Metairie failed or refused to make any further repairs to the vehicle. After numerous discussions with representatives of Cadillac of Metairie and GMAC, at the request of GMAC the plaintiff took the vehicle to another dealer, which diagnosed the problem differently than had Cadillac of Metairie and prescribed different repairs.

On March 2, 2009, plaintiff filed this suit against Cadillac of Metairie, Inc. and General Motors Corporation (for which GMAC Service Agreement Corporation later substituted as defendant), making claims against the defendants under the extended warranty. He sought specific performance or, alternatively, damages for the defendants’ alleged failure to make vehicle repairs under the extended warranty agreement.

In two supplemental and amended petitions, the plaintiff added as defendants Best Chevrolet and LKQ Corporation, alleging that he eventually took the car to Best Chevrolet, which replaced the entire engine with a rebuilt engine provided by LKQ, and that GMAC paid for the engine replacement under the Protection Plan. The plaintiff alleged that despite the engine replacement, he almost immediately began having problems with the engine, including knocking sounds, leaking of oil, and other problems. Cadillac of Metairie and GMAC refused to perform or to pay for further repairs, asserting that the plaintiffs remedy lies against Best Chevrolet and LKQ Corporation.

|4In GMAC’s combined Answer to the original petition and the supplemental and amended petitions, GMAC admitted the existence of an extended warranty or protection plan that was sold to the plaintiff, but maintained that repairs were made pursuant to that plan and that the plan has expired. GMAC admitted that it paid for the LKQ engine and repairs, and that an LKQ warranty accompanied the engine obtained by GMAC. The defendant asserted the original agreement expired on “9/28/08 or at 83,025 miles, whichever occurs first.” GMAC asserted, “Thus the Protection Plan had expired when the replacement engine was installed, commencing on 10/14/2008, and no more repairs can be authorized.”

In addition, GMAC asserted the affirmative defense that it was entitled to be dismissed from the case due to a settlement agreement signed by plaintiffs counsel. GMAC further argued, “Defendant was within the parameters of the contract with plaintiff when, pursuant to the language of the General Motors Protection Plan, used or remanufactured parts were used to remedy plaintiffs vehicle.” GMAC sought judgment dismissing the plaintiffs claims against it.

Thereafter, GMAC filed a Motion to Dismiss and Enforce Settlement Agreement. It asked the court to find that the perpetuation of the plaintiffs cause of action against GMAC contradicts the Settlement Agreement between the parties dated August 31, 2009, contained in a letter from GMAC’s counsel to plaintiffs counsel. Attached to the motion and memorandum were copies of various documents, including the letter that GMAC stated constituted the settlement agreement between the parties. Cadillac of Metairie filed a Motion to Adopt Motion to Dismiss, joining in GMAC’s motion to dismiss and enforce settlement.

In opposition to the Motion to Dismiss, the plaintiff argued that language added by his counsel at the bottom of the letter was intended to mean that the dismissal would be signed after the repairs were properly completed. The plaintiff Rargued he was not required to sign the release or the dismissal submitted by GMAC because the repairs at Best Chevrolet did not resolve the problems. He attached documents to . his memorandum in support of his opposition.

The hearing on the Motion to Dismiss and Enforce Settlement Agreement took place on July 27, 2011. The hearing consisted entirely of argument by counsel; no testimony or documentary evidence was introduced.

The trial judge granted the motion and dismissed the plaintiffs claims against GMAC Service Agreement Corporation and Cadillac of Metairie, Inc., with prejudice, reserving the plaintiffs rights against the remaining defendants. The court gave no written reasons for judgment. The plaintiff filed a timely Motion for New Trial, which was denied after a hearing. The plaintiff appeals both the judgment granting the Motion to Dismiss and Enforce Settlement, and the judgment denying the Motion for New Trial.

We do not address the assignments raised by the appellant, however, because we find this judgment must be vacated and the matter remanded for further proceedings. There was no evidence introduced, by either party, in support of or against the motion to dismiss. Accordingly, the trial court erred in granting the motion.

LAW AND ANALYSIS

When a party raises an exception or motion that must be proven, it is that party’s burden to present evidence establishing the claims made therein. See La. C.C.P. arts. 930, 981, 963.

The exceptions to that rule are the peremptory exception of no cause of action and the motion for summary judgment. An exception of no cause of action must be tried on the face of the petition alone. La. C.C.P. art. 931; Ramey v. DeCaire, 2003-1299, p. 7 (La.3/19/04), 869 So.2d 114, 118. A motion for | ^summary judgment is decided on “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” La. C.C.P. art. 966(B). Summary judgment may be granted only if the documents in the record show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. Id.

Other defenses, however, whether raised by exception or motion or in other pleadings, must be proven by evidence introduced at a hearing, where the trial court performs its function of weighing evidence, making credibility determinations, and making factual findings.

In this case, the Motion to Dismiss and Enforce Settlement Agreement filed by GMAC was accompanied by copies of various documents attached to the memorandum in support of the motion, in particular a copy of the letter that GMAC holds forth as the settlement agreement. Neither the movers nor the plaintiff introduced into evidence any of the documents they attached to their memoranda.

Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Denoux v. Vessel Mgmt. Services, Inc., 2007-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Id. Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. Id.; La. C.C.P. art. 2164.

These principles are well established in this Circuit. See, e.g., Gulf Coast Bank and Trust Co. v. Eckert, 95-156 (La.App. 5 Cir. 5/30/95), 656 So.2d 1081, writ denied, 95-1632 (La.10/6/95), 661 So.2d 474; Ray Brandt Nissan, Inc. v. Gurvich, 98-634 (La.App. 5 Cir. 1/26/99), 726 So.2d 474; Jackson v. United \nServices Auto. Ass’n Cas. Ins. Co., 08-333 (La.App. 5 Cir. 10/28/08), 1 So.3d 512; Wilson v. Beechgrove Redevelopment, L.L.C., 09-1080 (La.App. 5 Cir. 4/27/10), 40 So.3d 242; Anowi v. Nguyen, 11-468 (La.App. 5 Cir. 12/13/11), 81 So.3d 905; Tolmas v. Parish of Jefferson, 11-492 (LaApp. 5 Cir. 12/29/11), 80 So.3d 1260.

Accordingly, we find the trial court erred in granting the Motion to Dismiss or Enforce Settlement Agreement, when there was no evidence properly before it on which to base the ruling. We shall vacate the judgment and remand for further proceedings.

Considering our decision on the original ruling, we need not address the Motion for New Trial.

DECREE

For the foregoing reasons, the judgment on appeal is vacated and the case is remanded for further proceedings. The parties are cast with their own costs for this appeal.

VACATED AND REMANDED

WICKER, J., concurs.

WICKER, J.,

concurs.

hi concur in the result reached but write separately to address a potential conflict in the jurisprudence discussing the evidentia-ry issue presented in this case. Specifically, there appears to be a conflict in the decisions rendered by the Louisiana circuit courts of appeal when presented with the issue of whether an appellate court may consider “evidence” not formally introduced or admitted into evidence in the trial court where neither party objects to the evidence and the trial judge considers the evidence in rendering his/her judgment.

The Louisiana Supreme Court has instructed that an appellate court may not consider evidence not properly introduced in the trial court and this Court has historically refused to consider such evidence. See Rudolph v. D.R.D. Towing Company, LLC, 10-629 (La.App. 5 Cir. 1/11/11), 59 So.3d 1274; Wilson v. Beechgrove Redevel opment, L.L.C., 09-1080 (La.App. 5 Cir. 4/27/10), 40 So.3d 242, 244; and Jackson v. United Services Auto. Ass’n Cas. Ins. Co., 08-333 (La.App. 5 Cir. 10/28/08), 1 So.3d 512, 515.

However, this Court in my opinion has issued conflicting decisions when confronted with the issue of whether evidence not formally admitted may be considered by this Court in a case where neither party objects to the evidence and the trial court considers the evidence in rendering its judgment or ruling. Although this Court has historically refused to consider evidence not formally admitted even where neither party objects (see Gulf Coast Bank and Trust Co. v. Eckert, 95-156 (La.App. 5 Cir. 5/30/95), 656 So.2d 1081), this Court has previously considered such evidence. See Barkley Estate Cmty. Ass’n, Inc. v. Huskey, 09-268 (La.App. 5 Cir. 1/12/10), 30 So.3d 992, 996 (“[tjherefore, the contract portions, which were either admitted or submitted without objection may therefore be considered in determining whether the court has subject matter jurisdiction.”) Further, this Court has approvingly cited a Third Circuit decision, Abshire v. Belmont Homes, Inc., 04-1200 (La.App. 3 Cir. 3/2/05), 896 So.2d 277, 280, writ denied, 05-0862 (La.6/3/05), 903 So.2d 458, which specifically creates a “judicial confession” exception applicable to this evidentiary issue. In Abshire, the Third Circuit considered evidence not formally introduced in the trial court, holding that a party’s failure to object to such evidence serves as a judicial confession and acknowledgment of the existence of the evidence. It is my opinion that the Abshire and Barkley cases discussed above are in conflict with the decision rendered by the Louisiana Supreme Court in Denoux v. Vessel Mgmt. Services, Inc., 2007-2143 (La.5/21/08), 983 So.2d 84.

| ¡After comprehensive consideration of the Louisiana jurisprudence on this issue, I concur in the instant decision to refuse to consider the evidence in this case. Although the evidence was referred to by both parties and considered by the trial court in rendering its judgment, it was not formally admitted or introduced into evidence and thus cannot be considered by this court.

      . The claims against General Motors were answered by GMAC Service Agreement Corporation ("GMAC”), as seller of the General Motors Protection Plan. GMAC stated that it was appearing as defendant in place of General Motors, because General Motors was incorrectly named as defendant. Hence, we substitute GMAC where General Motors appeared in the petition and other pleadings.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Damon WILLIAMS.
    No. 2011-KA-1298.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 20, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Kevin Boshea, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

liThe defendant, Damon Williams, appeals his conviction and sentence for the distribution of cocaine. After a review of the record in light of the applicable law and arguments of the parties, we affirm the defendant’s conviction and sentence.

Relevant Facts and Procedural History

On April 1, 2009, Detectives Robbie Bangham and Victor Gant of the New Orleans Police Department (NOPD) Fifth District Narcotics Unit received citizen complaints about drug trafficking on the 2200 block of Almonaster Avenue. Accordingly, the detectives set up surveillance of the area in an unmarked vehicle where they had an unobstructed view of the block that consisted mostly of abandoned houses.

During the surveillance, they observed the defendant dressed in all black clothing riding up and down the block on a blue bicycle. After a short time, a white Jeep Cherokee arrived, and an unknown black male, later identified as Fred Anderson exited the vehicle and approached the defendant. After engaging in a brief conversation, Mr. Anderson handed the defendant an unknown amount of paper currency. The defendant placed the currency in his' right pants pocket and then handed Mr. Anderson an unknown item. After looking at the unknown item, | ?Mr. Anderson placed it into the right side pocket of his jacket, returned to his Jeep and drove away.

The detective testified that he and his partner had observed what they believed to be a hand-to-hand drug transaction. Detective Bangham contacted unit 1586, which was manned by Officers Nicholas Williams and Shandell Bangham, to stop the Jeep. The detective was informed that two pieces of crack cocaine were found on Mr. Anderson.

Shortly thereafter, Detective Bangham observed a Nissan Frontier pick-up truck pull into the block with a passenger later identified as David Rogers. Mr. Rogers exited the vehicle and approached the defendant, who was still on the bicycle. Mr. Rogers then handed the defendant an unknown amount of paper currency and in return received an unknown item from the defendant.. After examining the item, Mr. Rogers placed the item into his right pants pocket. He entered the vehicle and the driver, Arthur Rogers, drove off.

Detective Bangham and his partner subsequently decided to stop the defendant. The two officers drove up to the defendant, and Detective Gant advised the defendant of the nature of the stop, advised him of his Miranda rights, and searched him. Detective Gant found $830.00 in currency in the defendant’s front right pocket, the pocket into which the defendant had put the currency during the two hand-to-hand drug transactions.

On June 29, 2009, the State filed a bill of information charging the defendant with distribution of crack cocaine, a violation of La.Rev.Stat. 40:967(B)(1). On UJuly 30, 2009, he pleaded not guilty. On February 2, 2010, a hearing on the motions was held, and the trial court found probable cause and denied the motion to suppress the evidence. On April 20, 2010, the State filed a motion to exclude defense expert testimony, which the trial court granted after a hearing, and trial was continued to April 21, 2010. On that date, the State filed a motion in limine to exclude questions relating to witnesses’ prior acts, vices, or course of conduct that have not resulted in criminal convictions (relating to NOPD Officer Nathaniel Joseph). The trial was held, and the jury found the defendant guilty as charged. On April 26, 2010, a post verdict hearing was held during which a juror testified that she had not been coerced or forced to change her vote from guilty to not guilty. On April 29, 2010, a contempt of court hearing was held relating to the defendant’s breaking a glass table when the verdict was read; the defendant’s friend agreed to pay $312.00 for its replacement. According to the record, on May 13, 2010 the defendant filed a motion for judgment notwithstanding the verdict and a motion for new trial. On June 28, 2010, a hearing on those defense post verdict motions was heard, and the trial court denied the motion for new trial. The court sentenced the defendant to four years at hard labor, the first two years without benefit of parole, probation, or suspension of sentence with credit for time served.

At trial, Officer Glenn Gilyot, a criminalist with the NOPD crime lab, was accepted as an expert in the field of chemistry, as well as the testing and analysis of narcotics. He testified that he tested the contents of item number D0119 of 2009, which contained two small heat-sealed envelopes; one had two small pieces of plastic that contained a hard, rock-like substance in each and the other had one plastic piece containing a hard, rock-like substance. Officer Gilyot testified that the three rock-like substances tested positive for cocaine.

TERRORS PATENT

After a review of the record, no errors patent have been found.

Discussion

On appeal, the defendant contends that (1) the verdict is contrary to the law and the evidence; (2) the trial court erred by denying the motion for post verdict judgment of acquittal; and (3) the trial court erred in denying his motion for new trial.

Although the defendant lists these three assignments of error, he declares that the issue is whether the jury acted rationally in finding him guilty given the lack of evidence in the case. The defendant makes one argument and concludes that “[t]he conviction of the defendant Damon Williams is factually insufficient and thus, legally infirm.” The State notes that the defendant lists the second and third assignments of error, but argues that these two assignments of error are not briefed. The State argues that the defendant has therefore waived those issues on appeal under Uniform Rules of Courts of Appeal Rule 2-12.4, and reserves its right to supplement its brief to address those issues if the defendant files a supplemental brief.

Assignment of Error I.

The defendant contends that the evidence was insufficient to support his conviction. Specifically, he argues that there is insufficient evidence to establish that he knowingly possessed cocaine with the intent to distribute it. He argues that the jurors did not act rationally, and the trial court should have granted his motion for a post verdict judgment of acquittal, or in the alternative, a new trial.

| aSufficiency of the Evidence

The standard of review for the sufficiency of the evidence is whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the State proved the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2784, 61 L.Ed.2d 560 (1979). This review must include the whole record, as a rational fact finder does. State v. Mussall, 523 So.2d 1305, 1310 (La.1988). If rational finders of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. Id. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Johnson, 619 So.2d 1102, 1109 (La.App. 4 Cir.1993), citing State v. Rosiere, 488 So.2d 965, 968 (La.1986). Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the fact finder. State v. Brumfield, 93-2404, pp. 5-6 (La.App. 4 Cir. 6/15/94), 639 So.2d 312, 316. Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. State v. Jones, 537 So.2d 1244, 1249 (La.App. 4 Cir.1989). Like all factual matters, credibility determinations are entitled to great weight and will not be disturbed unless contrary to the evidence. Id., citing State v. Vessell, 450 So.2d 938 (La.1984). | (¡Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’ testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369.

To support the defendant’s conviction, the State must prove that he “knowingly” and “intentionally” possessed the cocaine with the “intent to distribute.” State v. Williams, 594 So.2d 476, 478 (La.App. 4 Cir.1992). Specific intent to distribute may be established by proving circumstances surrounding defendant’s possession which give rise to a reasonable inference of intent to distribute. State v. Dickerson, 538 So.2d 1063,1071 (La.App. 4 Cir.1989). One need not actually possess the controlled dangerous substance to violate the prohibition against possession; constructive possession is sufficient. State v. Dauzart, 11-0688, p. 8 (La.App. 4 Cir. 3/21/12), 89 So.3d 1214. A person may be in constructive possession of a drug even though it is not in his physical custody if it is subject to his dominion and control. See State v. Trahan, 425 So.2d 1222 (La.1983). Intent can be inferred from the circumstances surrounding the defendant’s arrest. State v. Guillard, 98-0504, p. 4 (La.App. 4 Cir. 4/7/99), 736 So.2d 273, 276.

In State v. Hearold, 603 So.2d 731, 735 (La.1992), the Supreme Court identified five factors, originally set out in State v. House, 325 So.2d 222 (La.1975), which are helpful in determining whether circumstantial evidence is sufficient to prove the intent to distributed a controlled dangerous substance:

(1) whether the defendant ever distributed or attempted to distribute the drug;
|7(2) whether the drug was in a form usually associated with possession for the distribution to others;
(3) whether the amount of drug created an inference of an intent to distribute;
(4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only; and
(5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute.

In State v. Cushenberry, 94-1206, p. 6 (La.App. 4 Cir. 1/31/95), 650 So.2d 783, 786, this court noted that the Hearold factors were “enunciated as ‘useful’ in determining whether circumstantial evidence is sufficient to prove intent to distribute,” but this court held that evidence need not “fall squarely within the factors enunciated to be sufficient for the jury to find that requisite intent to distribute.”

In the present case, the jury heard the testimony of Detective Bangham, who testified that he and his partner set up surveillance in an area that received citizen complaints of drug trafficking. The detective testified that they observed the defendant engage in two transactions wherein both instances, the visitor would hand the defendant currency and in turn would receive an object from the defendant. The detective also testified that two pieces of crack cocaine were recovered from a buyer’s right side pocket of his jacket into which the detective had watched him place the objects he received from the defendant. Officer Joseph testified that he recovered crack from the second buyer. Detective Bangham further testified that upon arresting the defendant, he found $330.00 in currency of various denominations in his pocket. The jury heard the detective’s testimony that no crack cocaine was found on the defendant after the two transactions. However, 18crack cocaine was found on the two buyers who were stopped and arrested within minutes after Detective Bangham lost sight of the vehicles.

Although the defendant was not found in possession of the crack cocaine at the time of his arrest, viewed in the light most favorable to the State, the evidence at trial was sufficient to establish his guilt beyond a reasonable doubt. It could be inferred from the factual testimony that the defendant knowingly and intentionally distributed crack cocaine to the two buyers who were apprehended with pieces of crack cocaine in their pockets. The currency of various denominations that were found in the defendant’s pocket supports a reasonable inference that the defendant distributed the crack cocaine to the two buyers and had used up his crack cocaine supply momentarily.

Conclusion

From the facts of the case, as discussed above, a reasonable juror could have concluded beyond a reasonable doubt that the defendant received currency from the unknown subject in exchange for one or more rocks of crack cocaine. Accordingly, the conclusion that the defendant possessed the cocaine with the intent to distribute was a reasonable one. As the verdict was fully supported by the evidence, we affirm the rulings of the trial court respecting the issues presently before us on appeal and, thusly, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . David Rogers and Fred Anderson were charged with possession of crack cocaine; Arthur Rogers was charged with possession of marijuana. Anderson and David Rogers pleaded guilty and were sentenced to two years; the sentences were suspended with two years active probation. Arthur Rogers was charged with possession of marijuana in another case.

      . At the June 28, 2010 hearing relating to the defendant's post verdict motion for a judgment of acquittal and motion for a new trial, the defense counsel’s focus was on sexual complaints against Officer Nathaniel Joseph, who arrested David Rogers in this case. Counsel argued that the defendant filed a complaint (and had received a letter relating to the matter). The defendant alleged that Officer Joseph touched him inappropriately when he was arrested in a case subsequent to this one. In this case Detective Bangham arrested the defendant, while in the subsequent case, Officer Joseph arrested the defendant. Counsel focused on the fact that the credibility of the NOPD officers is crucial in this case. Counsel complained that the trial court had stopped the defense questioning of Officer Joseph about sexual complaints filed against him, and then the State called Deputy Superintendent in charge of NOPD Public Integrity Bureau to testify that he found no complaints against Officer Joseph (but one should have been found). The State argued, and the court agreed that the defense should have rebutted the deputy superintendent’s testimony, but counsel had not done that. Counsel argued that the defendant was entitled to a new trial because "the ends of justice” would be served. See La.Code Crim. Proc. art. 851(5). The trial court properly denied the motion(s).


author: PARRO, J.

text:
    Pravin PAREKH, Shanta Gokaldas, Viduri Parekh, Nisha Gokaldas, Nimisha Gokaldas, Virali Gokaldas, and Aarish Gokaldas v. Nirmal Tatavalli MITTADAR, DTS Operations Inc. d/b/a Dollar Rent-a-Car, GMAC Insurance Company Online Inc., Home State Mutual Insurance Company, Phoenix Insurance Company, Ace Insurance Company, and Ace American Insurance Company.
    No. 2011 CA 1201.
    Court of Appeal of Louisiana, First Circuit.
    June 20, 2012.

      James M. Williams, Inemesit U. O’Boyle, Gauthier, Houghtaling & Williams, L.L.P., Metairie, LA, for Plaintiffs-Appellants Pravin Parekh, et al.
    William F, Bologna, Dwight L. Acomb, New Orleans, LA, for Defendants-Appel-lees DTG Operations, Inc. d/b/a Dollar Rent-A-Car, et al.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   PARRO, J.

| pThe plaintiffs appeal a judgment, which granted a motion for summary judgment in favor of the defendants and denied a cross-motion for summary judgment filed by the plaintiffs. For the reasons that follow, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Pravin Parekh and his wife, Shanta Gok-aldas, were passengers in a van driven by Nirmal Tatavalli Mittadar. Mr. Mittadar had rented the van in Houston, Texas, from DTG Operations, Inc. d/b/a Dollar Rent-a-Car (DTG). For reasons that are not clear from the record, Mr. Mittadar lost control of the van while he was driving westbound on 1-12 in Livingston Parish, causing the van to veer off the interstate and flip over at least twice.

Thereafter, Mr. Parekh, Ms. Gokaldas, and their five adult children filed the underlying suit, contending that Mr. Parekh and Ms. Gokaldas had suffered severe injuries, including physical and mental disability, as a result of the accident. The petition named Mr. Mittadar, DTG, and various insurance companies, including ACE Insurance Company (ACE Insurance) and ACE American Insurance Company (ACE American), as defendants. At the time of the accident, ACE American provided insurance coverage as part of the rental agreement between Mr. Mittadar and DTG, pursuant to the Texas Automobile Rental Liability Policy, which provided liability coverage, personal injury coverage, and uninsured/underinsured motorist coverage (UM coverage). At some point after the petition was filed, the plaintiffs entered into settlement negotiations with Mr. Mittadar, DTG, and the ACE insurers. As a result of |3these settlement negotiations, the plaintiffs received checks totaling the $1,000,000 limits of the liability coverage portion of the ACE American policy. However, the parties disagreed on whether this was a full or partial settlement of the matter, as the record demonstrates that the plaintiffs only intended to release Mr. Mittadar and DTG, while reserving their rights to proceed against any other insurance Mr. Mittadar might have had. Specifically, the record indicates that the plaintiffs intended to seek payment from the UM coverage provided by the ACE American policy. On the other hand, Mr. Mittadar, DTG, and the ACE insurers apparently viewed it as a complete settlement of all claims against them.

While the parties were unable to come to an agreement over the terms of the settlement, plaintiffs’ counsel apparently negotiated the checks provided by the defendants’ counsel and disbursed the funds to his clients; however, no settlement documents were ever signed. Thereafter, defendants filed a motion to enforce settlement or, alternatively, for summary judgment on the issue of whether UM insurance coverage was available. In response, the plaintiffs filed a memorandum in opposition to the defendants’ motion and a cross-motion for summary judgment on the issue of the availability of UM insurance coverage. After a hearing, the trial court issued a written judgment denying the motion to enforce settlement.

The defendants filed a writ application with this court challenging this judgment. A different panel of this court denied the writ, but also noted that the writ action did not address any other cause of action the defendants might have for the return of the funds from the settlement checks, which the plaintiffs had negotiated without executing the settlement release documents.

|4The matter then returned to the trial court for consideration of the pending cross-motions for summary judgment, as well as the defendants’ request for the return of the funds from the settlement checks that had been previously negotiated by the plaintiffs. After a hearing, the trial court determined that the UM coverage provided in the ACE American policy at issue must be reduced by the full extent of the liability coverage, and that, therefore, the plaintiffs were not entitled to any additional proceeds from that policy. Accordingly, the trial court granted the motion for summary judgment in favor of the defendants and denied the motion for summary judgment filed by the plaintiffs. In addition, the trial court denied the defendants’ request that the plaintiffs be ordered to return the settlement funds that had previously been disbursed. This appeal by the plaintiffs followed.

DISCUSSION

In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the district court’s determination of whether summary judgment is appropriate. Schwehm v. Jones, 03-0109 (La.App. 1st Cir.2/23/04), 872 So.2d 1140, 1144. On a motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the moving party’s burden on the motion is to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See LSA-C.C.P. art. 966(C)(2).

The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a | amotion for summary judgment. Johnson v. Allstate Ins. Co., 95-1953 (La.App. 1st Cir.5/10/96), 673 So.2d 345, 347, writ denied, 96-1292 (La.6/28/96), 675 So.2d 1126. In seeking a declaration of coverage under an insurance policy, Louisiana law places the burden on the plaintiff to establish every fact essential to recovery and to establish that the claim falls within the policy coverage. McDonald v. American Family Life Assur. Co. of Columbus, 10-1873 (La.App. 1st Cir.7/27/11), 70 So.3d 1086, 1089. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002, 1010.

An insurance policy is an agreement between the parties and should be construed according to the general rules of interpretation of contracts as set forth in the Louisiana Civil Code. Cadwallader v. Allstate Ins. Co., 02-1637 (La.6/27/03), 848 So.2d 577, 580. When interpreting insurance contracts, the court’s responsibility is to determine the parties’ common intent. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759, 763; see LSA-C.C. art. 2045. The parties’ intent, as reflected by the words of the policy, determines the extent of coverage. Ledbetter v. Concord Gen. Corp., 95-0809 (La.1/6/96), 665 So.2d 1166, 1169, decree amended, 95-0809 (La.4/18/96), 671 So.2d 915.

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art. 2046. Such intent is to be determined in accordance with the general, ordinary, plain, and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. Ledbetter, 665 So.2d at 1169; see LSA-C.C. art. 2047. If the policy wording at issue is clear and expresses the intent of the parties, the agreement must be enforced as written. Ledbetter, 665 So.2d at 1169. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to | (¡enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or to achieve an absurd conclusion. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose and enforce reasonable conditions on the policy obligations they contractually assume. Campbell v. Markel American Ins. Co., 00-1448 (La.App. 1st Cir.9/21/01), 822 So.2d 617, 623, writ denied, 01-2813 (La.1/4/02), 805 So.2d 204.

By its express terms, the policy at issue provides for the payment of damages that a “covered person” is legally entitled to recover from the owner or operator of an “uninsured motor vehicle” because of bodily injury that results from a motor vehicle accident occurring during the effective period of the rental agreement assuming the renter has not rejected UM coverage in writing. Where a policy of insurance contains a definition of any word or phrase, that definition is controlling. Cangelosi v. Allstate Ins. Co., 96-0159 (La.App. 1st Cir.9/27/96), 680 So.2d 1358, 1362, writ denied, 96-2586 (La.12/13/96), 692 So.2d 375.

In establishing the limits of its UM coverage, the policy provides, in pertinent part, the following definitions in Section III, which concerns uninsured/underin-sured motorist coverage:

A. COVERAGE

2. “Covered person” as used in this Section means:
The renter, authorized driver, or any other person occupying the rental vehicle.
4. “Uninsured motor vehicle” means a land motor vehicle or trailer of any type:
a. To which no liability bond or policy applies at the time of the accident.
b. Which is a hit and run vehicle whose operator or owner cannot be identified and which hits:
(1) the renter, authorized driver, or any family member of either;
(2) a vehicle which the renter, authorized driver, or any family member of either are occupying; or
(3) the rental vehicle;
|7c. To which a liability bond or policy applies at the time of the accident but the bonding or insuring company:
(1) denies coverage; or
(2) is or becomes insolvent.
d. Which is an underinsured motor vehicle. An underinsured motor vehicle is one to which a liability bond or policy applies at the time of the accident but its limit of liability either:
(1) Is not enough to pay the full amount the “covered person” is legally entitled to recover as damages; or
(2) has been reduced by payment of claims to an amount which is not enough to pay the full amount the “covered person” is legally entitled to recover as damages.
However, “uninsured motor vehicle” does not include any vehicle or equipment:
a. Owned by or furnished or available for the regular use of the renter, authorized driver, or any family member of either.

With respect to UM coverage, it is clear that Mr. Parekh and Ms. Gokaldas were considered “covered person[s]” pursuant to the terms of the policy, as they were both occupying the rental vehicle at the time of the accident that caused their injuries. Furthermore, the rental vehicle initially appears to meet the definition of an “uninsured motor vehicle” found in the policy, because it qualified as an underinsured motor vehicle, as the limits of its liability policy were not sufficient to pay the full amount Mr. Parekh and Ms. Gokaldas were legally entitled to recover as damages. However, the definition of “uninsured motor vehicle” also excludes any vehicle “furnished or available for the regular use of the renter.”

Pursuant to Louisiana jurisprudence, regarding the above exclusion, the phrase “available for regular use” encompasses a vehicle that is accessible, obtainable, and ready for immediate use. Gonzales v. Geisler. 46,501 (La.App. 2nd Cir.9/21/11), 72 So.3d 992, 996. In addition, the phrase “furnished for regular use” means that the vehicle is provided, supplied, or afforded to the individual according to some established rule or principle or used in steady or uniform course, practice, or occurrence, as contrasted with being furnished for use only on casual, random, unpredictable, or |schance occasions. Id. In this case, the vehicle was clearly made available for the “regular use of the renter,” Mr. Mittadar, for the term of the rental agreement, and it was accessible, obtainable, and ready for his immediate use during that time. It is further undisputed that the accident occurred during the term of the rental agreement. Therefore, we conclude that the rental vehicle does not qualify as an “uninsured motor vehicle” under the terms of the policy. Accordingly, no UM coverage is available under the policy at issue.

We note that this result would be the same under Texas law as well. In interpreting the exclusion above, Texas courts have determined that this exclusion operated to prevent the injured occupants of a vehicle from collecting the liability benefits and UM benefits under a single policy. Farmers Texas County Mut. Ins. Co. v. Griffin, 868 S.W.2d 861, 866 (Tex.App-Dallas, 1993), writ denied (1994); see also Scarborough v. Employers Casualty Co., 820 S.W.2d 32, 34 (Tex.App.-Fort Worth, 1991), writ denied (1993); Rosales v. State Farm Mutual Automobile Insurance Co., 835 S.W.2d 804, 805-06 (Tex.App.-Austin, 1992), writ denied (1993). In these cases, the Texas courts relied, in part, on language from the Texas Supreme Court in Stracener v. United Services Auto. Ass’n, 777 S.W.2d 378, 384 (1989), in which the court stated that “[b]y purchasing [UM] coverage along with basic liability coverage, the insured has expressed an intent not only to protect others from his or her own negligence but also to protect that person’s own family and guests from the negligence of others.” The Texas courts have interpreted the phrase “negligence of others” to refer to the negligence of those in other automobiles, which is clearly not applicable to this matter, as this was a single vehicle accident involving only the negligence of Mr. Mittadar. Specifically, the Texas courts noted that the insured had purchased UM coverage to |flprotect himself and his guests from negligent, financially irresponsible drivers in other automobiles. Farmers Texas County Mut. Ins. Co., 868 S.W.2d at 868. Allowing a guest passenger to recover both liability and UM benefits from the same insured’s policy converts the UM coverage into a second layer of liability insurance, which was not contemplated in the policy costs. See Id. Accordingly, under Texas law, no UM coverage would be available under the policy at issue.

CONCLUSION

For the foregoing reasons, the trial court judgment granting the motion for summary judgment in favor of the defendants, Nirmal Tatavalli Mittadar, DTG Operations, Inc. d/b/a Dollar Rent-a-Car, ACE Insurance Company, and ACE American Insurance Company, and denying the cross-motion for summary judgment filed by the plaintiffs is affirmed. All costs of this appeal are assessed to the plaintiffs.

RULE TO SHOW CAUSE DENIED; JUDGMENT AFFIRMED.

      . At the time of the accident, Mr. Parekh, Ms. Gokaldas, and Mr. Mittadar were all residents of Houston, Texas.

      . DTG appears in the original petition and the plaintiffs’ brief as DTS Operations, Inc. d/b/a Dollar Rent-a-Car; however, the record indicates that the appropriate name of the party is DTG Operations, Inc. d/b/a Dollar Rent-a-Car. Therefore, we will use that name in this opinion.

      .Plaintiffs also sued GMAC Insurance Company Online, Inc., Home State County Mutual Insurance Company, and Phoenix Insurance Company. None of these companies is involved in the instant appeal. It appears that all claims against Mr. Mittadar, Home State County Mutual Insurance Company, and Phoenix Insurance Company have been settled, and those parties have been dismissed from the proceedings. It does not appear that GMAC Insurance Company was ever served with the petition in this matter.

      . The checks were drawn on an account from DTG, which was labeled as the Liability Claims Account; however, the policy at issue was provided by ACE American.

      . The trial court did not consider or rule on the motions for summary judgment. Initially, the trial court issued written reasons for judgment and a judgment dated July 2, 2009, indicating that it had denied the defendants' motion for summary judgment; however, the trial court subsequently issued an amended judgment, along with amended reasons for judgment dated November 4, 2009, indicating that the only issue before the court had been the motion to enforce settlement.

      . Parekh v. Mittadar, 09-2213 (La.App. 1st Cir.3/16/10), writ denied, 10-0828 (La.6/18/10), 38 So.3d 325.

      . The defendants have not appealed any portion of the trial court's judgment, including the denial of their request for the return of the settlement funds that had previously been disbursed.

      . Mr. Mittadar, the renter in this case, had not rejected UM coverage.

      . The fact that the plaintiffs suffered damages far in excess of the liability limits of the ACE American policy does not appear to be disputed by the parties.

      . Because we have determined that the vehicle driven by Mr. Mittadar does not qualify as an uninsured motor vehicle pursuant to the terms of the policy, no UM coverage has been triggered under the policy. Accordingly, we need not address the applicability of the reduction clause to the facts of this case.

      .The defendants had argued in the trial court that Texas law was applicable to the interpretation of the policy at issue. The trial court applied Louisiana law, and the defendants did not appeal any part of the trial court’s judgment. However, in their brief to this court, the defendants have again suggested that Texas law is applicable to the interpretation of the policy. Because the issue was not appealed, it is not truly before us; however, because Texas jurisprudence directly addresses the clause at issue, we will briefly discuss the issue.

      . This court issued a "Rule to Show Cause” on August 25, 2011, advising the parties that the judgment on appeal appeared to be a partial final judgment without the proper designation of finality required by LSA-C.C.P. art. 1915(B). However, the trial court signed an amended judgment on September 26, 2011, with a designation of the judgment as final, and that judgment has been filed into the record. Therefore, the Rule to Show Cause is denied as moot.